1510684 (Refugee)

[2018] AATA 2446

1510684 (Refugee) [2018] AATA 2446 (11 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510684

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Nicola Findson

DATE:11 June 2018

PLACE OF DECISION:  Perth

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

Statement made on 11 June 2018 at 11:43am

CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Guarantor of loan – Daughter of mother who owes money – Business owner – Unmarried mother – Child born out of wedlock – Fear of loan sharks – Victim of threats and torture – Subject of familial rejection – Societal discrimination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 on 3 August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 18 May 2015. The delegate refused to grant the visa on 3 August 2015.

3. The applicant appeared before the Tribunal on 29 September 2016 as well as on 28 February 2018, to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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, 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.

5. 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.

6. 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 themself 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).

7. 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.

8. 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.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant 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.

   Independent country information

10. In addition to the country information cited in the delegate’s decision record, in reviewing this case the Tribunal had regard to the country information set out at Appendix A of this decision record.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The applicant claims to be a citizen of Malaysia, who was born in Johor, Malaysia [in date].  She presented her claims in her protection visa application on 19 May 2015 (Departmental File [number]) and at her Tribunal hearings on 29 September 2016 and 28 February 2018.

12. The applicant claimed in her protection visa application that she left Malaysia because she wanted to protect herself from a group of people that have harmed, threatened and attacked her many times before.  Her claims can be summarised as follows:

    ·The applicant and her mother were running a [business];

    ·The applicant’s mother borrowed RM[amount] from a money lender to expand the business;

    ·The business was doing fine until they were cheated by a [dealer] who sold them fake [goods];

    ·When a customer of the applicant and her mother tried to sell her [goods] to a pawn shop, it was discovered that the [goods] was fake;

    ·Complaints and police reports were lodged against the applicant’s mother after this;

    ·The applicant’s mother was arrested and detained by the police;

    ·The money lenders started looking for the applicant and asked her to repay the loan;

    ·Because the applicant could not repay the loan, the money lenders lost control and sent debt collectors to recover the debt;

    ·The debt collectors were very rough and aggressive – they tortured the applicant and created a big problem in her life.  They came to her house a few times and harassed her; she was attacked and injured physically a few times; on one occasion the debt collectors threw petrol bombs at her house in an attempt to burn it.

    ·The applicant was scared and went in to hiding, however the torture and threats continued.

    ·The applicant could not go to the police for help because her mother is in their custody, and she fears she may also be arrested in relation to the fake [goods] matter.

    ·In any event, the applicant does not believe the authorities in Malaysia can protect her if she goes back.  She sets out in her application that these kinds of cases are common and the police cannot provide security for her all the time.

    The delegate’s decision

13. The delegate of the Department of Immigration proceeded to make a decision on the applicant’s application, when she failed to respond to an invitation to contact the Department to arrange an interview to discuss her claims. 

14. Having considered the applicant’s visa application, in particular, the lack of detailed and/or supporting evidence, the delegate did not accept or find the applicant’s claims to be credible. Therefore the delegate was not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act, and was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a). The delegate also found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there was a real risk the applicant will suffer significant harm. Therefore the applicant was not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Evidence provided at first Tribunal hearing

15. Immediately prior to the hearing, the applicant provided the Tribunal with copies of pages from her mother’s passport; a translated copy of a police report; and a copy of father’s death certificate.

16. At her hearing, the applicant confirmed her name and personal details.  She confirmed she was born in [year] in Johor Baharu, Malaysia.  She indicated her parents separated in 2010, at which time her [siblings] (aged from [age] to [age]) remained with their father and they moved to the countryside – Muar - while she remained in Johor.  She told the Tribunal that her parents separated because her mother ran off with another man.  She said her mother had a very bad streak in her – she would lie and scam people.  She said that her mother often stayed with her in a property the applicant rented in Johor after her parents separated.  The applicant said that after her parents separated she became estranged from her father and siblings.  The applicant told the Tribunal that she completed a pre-Diploma in [an area] in Malaysia in 2006.  After her studies, she worked as [an occupation] in a [workplace].  Then after that, and up until the time she left Malaysia to come to Australia, she worked in [a] role for [Company 1], an international [business]. 

17. The applicant told the Tribunal that she arrived in Australia in February 2015, as the holder of a [temporary] visa.  She said she chose to come to Australia because she had learned from people who worked for the [office] of [Company 1], that Australia would protect a woman in trouble. She indicated that she had previously sought to transfer to Australia through her company, but because her conversational English is not that good, she was unable to.

18. The applicant told the Tribunal that although it was a condition of her visa that she not work, she was forced to find a job shortly after arriving in Australia.  She said that when her savings were about to run out, she started to look for work in [City 1], but could not find a job.  She said that it was suggested to her that she go [find another job], which she did.  She said that before her visa ceased she engaged a migration agent to assist her with lodging [another temporary] visa application, but was unable to pay the full fee of [amount], so that visa application did not progress.  She said after that she asked a lot of people what she could do to remain in Australia legally.  She said that because she had problems in Malaysia it was suggested to her that she should apply for a protection visa.  She said she paid a housemate – “[name deleted]” – a little bit of money to help her with the application.  She said she outlined her circumstances to her housemate, who then passed them on to a “[named person]”, who was Malaysian and who lived in [City 1].  She said she did not sign the application forms and was never given a copy of the application submitted to the Department.  She said at the time she was working in a remote area and could not afford to travel to [City 1] to have a look at the application. She said she did not know how her story had been written until she received the refusal decision of the delegate. The Tribunal indicated to the applicant that this was an important matter and it was up to her to take responsibility for what was claimed in her application. The applicant said that she was desperate and had no choice.  She said she was asked by “[the named person]” to come to [City 1], but she did not have the money to do so.  The applicant said that after her application had been lodged she received notification from the Department that she was required to undergo fingerprint testing, which she arranged.  She said her biggest mistake was thinking she had done everything she needed to do in relation to her application.  She said she was not aware of the subsequent invitation to be interviewed by the delegate, because she could not afford to put funds on to her phone and so was unable to access her emails. 

19. The applicant said she obtained work in a [factory] in [a city] and so moved from [City 1] to [another state] in August 2015. 

20. The Tribunal sought to confirm the basis for the applicant’s claims for seeking protection in Australia.  The applicant told the Tribunal that she was running away from loan sharks.  She said she had agreed to be a guarantor in relation to a MR[amount] loan taken out by her mother from a loan shark in June 2014.  The applicant said that when her mother had told her she wanted to turn over a new leaf and open a new business she believed her, and agreed to act as guarantor.  But, as soon as her mother got the funds, she ran away.

21. The Tribunal queried why the applicant’s mother borrowed such a significant amount of money from a loan shark.  The applicant told the Tribunal that she was not earning a big salary and so would have been unsuccessful in applying for a bank loan. She said that it is much easier to get a loan from a loan shark than a bank.  She said she knew it was not a good idea to borrow from a loan shark, but she believed her mother was serious about opening a new business and would do the right thing by her.  She said she accompanied her mother to procure the loan from the loan shark and handed over her ID card.  But, she refused to look at the loan shark and she did not pay too much attention to what was going on.  She said that her mother agreed to pay the interest on the loan each week, but she was not aware of any of the other terms of the loan.  The applicant did not know the name of the loan shark or what the interest repayments were.  She said she did not want to know.  She said that her mother got the money in June 2014 and then disappeared.

22. The loan shark knows the applicant’s business and house address and has threatened her for payment.  She told the Tribunal that soon after the loan had been provided, she noticed that she was being followed.  She said that she was soon after approached every two or three days by associates of the loan shark and asked about her mother’s whereabouts.  She said she told these men that she did not know where her mother was.  The Tribunal was told that after two or three weeks, when the interest on the loan had started to accumulate, the loan shark’s associates started to harass her on a daily basis.  She said different men would turn up in different cars to her house as well as her workplace to wait for her. 

23. The applicant told the Tribunal that she tried searching for her mother, to confront her.  The applicant told the Tribunal that she finally learned from her friends sometime in August 2014 that her mother had been arrested by the police for selling counterfeit [goods].  She said that she did not know what to do when she heard this.  She said that she felt like she could not go to the police and complain about the loan shark because she was worried she would be implicated with her mother in the counterfeit [goods] scam because she had acted as a guarantor.  She said that she had never been in trouble with the police before and had never set foot in a police station. 

24. When asked of details of her mother’s arrest and imprisonment and whether she was required to go to court, the applicant replied that she did not know, and did not want to know, anything about that. 

25. The applicant told the Tribunal that at the beginning, the loan shark thugs were not aggressive towards her.  However, as the months went on and interest started to accumulate, they became more and more aggressive.  She said she was pushed and shoved and told she would be killed if the loan shark could not find her mother.   The applicant told the Tribunal that on one occasion when she suggested the thugs go to the police station to speak to her mother, she had her face slapped and was told that because she was the guarantor, they would come after her if they could not find her mother.  She said her car got sprayed with paint and she was followed everywhere she went.  She said as a single female, she lived in constant fear.  The applicant said that she was unable to repay the loan shark and no one else would help her.  She said she felt ashamed and scared of her situation and found it difficult to deal with the stress. The applicant said that in January 2015, she had a knife put to her neck by loan shark thugs and was told “if you don’t pay, this knife will end up in your stomach”.  The applicant said that this act of violence finally prompted her to leave Malaysia.

26. The applicant said that her father and siblings did not know anything about the problems she was having with the loan sharks. 

27. When asked whether her father and siblings had encountered any problems from the loan sharks, the applicant told the Tribunal that she returned to Malaysia in February 2016, when she heard from her siblings that her father had died.  She said that as the eldest child in her family, it was her responsibility to arrange the burial of her father.  She said she returned to Malaysia [in] February and remained there until [March] 2016.  She said she spent three days in Muar arranging the burial of her father and the remainder of her time in Johor Baharu.  The applicant told the Tribunal that when she returned to Malaysia, she learned from her siblings that the loan shark thugs had recently – about 2 weeks earlier - approached her father at his home, in a non-aggressive way, to ask about her mother’s whereabouts.    

28. The applicant told the Tribunal that she also learned when she returned to Malaysia that her mother had shown up in Muar on the day her father had died and that she was now living in [Country 1].  She said she obtained a phone number for her mother from her siblings and telephoned her mother when she was in Malaysia.  During that phone conversation the applicant arranged to take her siblings to [Country 1] so that their mother could look out for them.  The applicant explained to the Tribunal that [Country 1] is not very difficult to enter.  She said that her mother and now siblings remain in [Country 1] on a [temporary] visa.  She said that her mother and siblings leave [Country 1] before their visas expire and cross the border back into Malaysia briefly before again re-entering [Country 1] on a fresh visa. 

29. The applicant told the Tribunal that after her father’s burial, she returned to her house in Johor Bahru.  She explained that she had continued to pay rent after she left Malaysia to come to Australia because all her personal effects remained at the house.  However, the landlord had arranged another tenant to offset her share of the rent.  She said that when she got to Johor Bahru, her landlord told her that people had been hounding the new tenant as to where she was since she had left.  When the Tribunal queried why the loan shark thugs would have continued returning to that address for such a long time, the applicant replied that loan sharks do not give up.

30. The applicant told the Tribunal that one day when she was at her house packing her belongings, she noticed a car out the front.  She said when she realised there were people waiting for her, she went to the police to lodge a complaint against the loan shark.  She said she was disheartened at the response she got from the police, who told her that going to loan sharks was wrong and who made her feel as if they did not take her complaint seriously.  She said after she had lodged her complaint with the police, she took all her important documents and made arrangements to travel to [Country 1] with her siblings.

1. The applicant told the Tribunal that when she got to [Country 1] she finally confronted her mother about what she had done.  She said her mother admitted to her that she had cheated people with fake [goods].  She said she was told by her mother that she had wanted to open a business, but she herself had been scammed.  The applicant said her mother admitted that she was guilty; had repaid money to people she owed; and was subsequently released by the police.  The applicant was unable to provide the Tribunal with any further details of her mother’s dealings with the authorities.  She said her mother could not repay the loan sharks so she decided to run away.  She said her mother had told her she had used half of the money she had borrowed from the loan shark to repay to those she had cheated and had spent the rest on herself.     

2. After settling her siblings in [Country 1] with their mother, the applicant again returned to Malaysia to “settle a few things” and to raise money to return to Australia.  She said she was scared and stayed with friends while waiting to again leave Malaysia. 

3. The applicant told the Tribunal that she maintains contact with one of her [sisters] in [Country 1], but does not get along with any of her other siblings. Nevertheless, she said that she sends money to her siblings to support them in [Country 1].

4. The Tribunal suggested to the applicant that, if they had really wanted to, the loan shark thugs had opportunity to harm her when she returned to Malaysia at that time.  The applicant responded that she was only in Johor Bahru for a short time and when she realised she was being watched she went into hiding and did not expose herself to the danger.  The applicant also said that maybe the loan shark thugs did not even know it was her because her appearance had changed or maybe they did not do anything to her because there were others living at her property.      

5. When the Tribunal asked what the applicant would do if she had to return to Malaysia, the applicant replied that she cannot return to Malaysia.  She said she does not have RM[amount] to repay the loan shark and she is worried she will be killed.  The applicant indicated that although a lot of time has passed and she has in fact returned to Malaysia,   she would not have relocated her siblings to [Country 1] if there was no danger. 

6. After a short adjournment, the Tribunal asked the applicant whether her siblings were working in Malaysia.  The applicant said they had found it difficult to secure permanent work, but because she was estranged from them, she was unaware of their situations.

7. The Tribunal queried why it was the applicant’s responsibility to arrange the burial of her father, particularly given her Islamic beliefs and that it also appears that her [brother] is listed as the informant on the death certificate she had provided in relation to her father.  The applicant maintained that as the eldest child, it was her responsibility.  She indicated to the Tribunal that she was aware that it would be a risk for her to return to Malaysia, but her conscience made her.  She said she felt she had to return to make amends with her father.  She said that she made a prayer of surrender before she returned.

8. The Tribunal indicated to the applicant that her preparedness to return to Malaysia in February 2016, to bury her father and support her siblings she was estranged from, casts doubt over the truth of her claims and might lead the Tribunal to think she was not genuinely fearful of returning there.  By way of response, the applicant said she still felt a sense of responsibility towards her siblings despite them turning on her.  She said there was some emotional blackmail involved from their side at the time their father died.  The applicant said that she was very afraid to go return to Malaysia at that time, but thought that even if she was killed she would at least see her father.

9. The Tribunal discussed with the applicant that on the country information before the Tribunal[1], she could access and rely on police protection if she was concerned for her safety.  There is credible country information that the Malaysian police are a professional and effective force, and will protect its citizens against violence.  The Tribunal also indicated to the applicant that illegal money lending, or loan sharking, is an offence in Malaysia and that police operations targeting loan sharks are common and successful[2].   The Tribunal indicated to the applicant that a 2013 report in the SunDaily quoted the Malaysian Chinese Association Head of Public Services and Complaints Department as saying that people continue to borrow from loan sharks despite continual reminders from the authorities not to do so, and that police were powerless against loan sharks as the transactions were on a “willing seller willing buyer basis”. If, however, loan sharks resort to violence or extortion to recover money, police can then act[3].  The Tribunal said the country information indicates the police are taking these gangs very seriously and if the loan sharks have been violent, this is something the police would help her with.  The applicant responded to this country information by indicating to the Tribunal that unless you have money in Malaysia, the police will not regard you favourably.  She also said that the Malaysian police are very corrupt.  She went on to say that they are very good at giving speeches, but they do not protect the citizens. 

   [1] The country information discussed with the applicant is contained in the DFAT Country Information Report Malaysia, 19 July 2016, and mirrored in the most recent DFAT Country Information Report Malaysia dated 19 April 2018

   [2] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December CX320164

   [3] ‘Loan shark menace worsens in M’sia’ 2013, The Sundaily, 2 October <CX320169>

10. The Tribunal indicated to the applicant that the fact that she reported her problems to the police when she returned to Malaysia in early 2016, indicates to it that she did think the police could help her.  The applicant said that when she eventually went to report her problems with the loan sharks, the police officer who took her complaint hardly looked at her and told her it was her fault for taking a loan with a shark.  She also said that the police could not protect her 24 hours a day. 

11. The Tribunal asked the applicant if she had considered moving to another part of Malaysia to avoid the harm she says she faces.  The applicant indicated to the Tribunal that she would not be safe anywhere in Malaysia.  She said that loan sharks have their ways and a lot of contacts and if you take money from them, they will track you down.  She told the Tribunal that she had run to the state of Kelantan for 3 days in September 2014, but while she was there she received telephone calls from the loan shark during which she was threatened: “run where you want, we will still find you”.

12. The applicant confirmed that she continued to work up until the time she left Malaysia for Australia, but took a lot of days off because of her problems with the loan sharks.

13. The applicant told the Tribunal that she cannot go back to Malaysia.  She said she does not have the money to repay the loan shark and she is worried she will be killed.  She said the loan shark will still be looking for her because he wants his money.

14. When asked if there was any other reason whatsoever she feared returning to Malaysia, the applicant indicated that the only thing she fears is trouble from the loan shark. She said she could have avoided her hearing, but decided to come and fight for her rights before the Tribunal.  

15. Following her hearing, the applicant attended at the Tribunal offices and disclosed to a Tribunal officer that she was pregnant; that the father of the baby did not want anything to do with either her or the baby; that she was unable to keep the baby; and she could not return to her home country. 

16. On the basis of this new information, the Tribunal decided to give the applicant an opportunity to give evidence and present arguments in relation to this additional issue arising after the hearing.  Another hearing occurred, after the applicant’s baby was born, on 28 February 2018.

17. Prior to her hearing, on 20 February 2018, the Tribunal received a written submission from the applicant which contained additional claims, summarised as follows:

    ·The applicant claims she became pregnant [in] 2017.  She claims the man to whom she became pregnant, on learning the news of the pregnancy, told her he did not want anything to do with either her or the unborn child.  She claims she gave birth to a baby girl [in date]. She claims she has not had any contact with the father of the baby since her baby was born.  She claims the name of the baby’s father does not appear on the birth certificate.

    ·The applicant claims it is very dangerous for her and her baby to return to Malaysia because:

    oShe fled Malaysia because she was living there in fear.  If she was to return to Malaysia, she would be unable to protect her baby; or work to provide for her baby.

    oShe will face penalties, including a fine of MYR[amount] (AUD$[amount]) or imprisonment, for having premarital sex and giving birth to a child out of wedlock.

    oHer family members will ostracise and persecute her and her baby if they return to Malaysia, because they are angry and ashamed of her because she is an unmarried mother.

18. A birth certificate in respect of her baby; a “Child Health Service Summary” document dated [in] December 2017; and a letter in support of her application to remain in Australia from the Manager of [an agency]– an agency that cares for pregnant homeless women – also accompanied the applicant’s submission.

    Evidence provided at second Tribunal hearing

19. At the outset of the second hearing, the Tribunal acknowledged that the Child Health Service Summary document prepared by the [Hospital] and provided to the Tribunal, noted that symptoms of depression had been identified in the applicant during the pre-natal as well as post-natal period, and that a Social Worker had been informed.  On that basis, the Tribunal asked the applicant if she felt able to participate in the hearing, and to tell it what she wanted to say, and to answer questions by the Tribunal.  The Tribunal indicated that breaks would be arranged during the hearing.  The applicant told the Tribunal that she felt able to participate in the hearing.

20. The applicant confirmed the protection claims, concerning the loan sharks, she had made at the first hearing.  She told the Tribunal that her mother and siblings were still living in [Country 1]. She said she was unable to tell the Tribunal about their situation in [Country 1]. She told the Tribunal that her very strained relationship with her mother and siblings was made much worse when they learned about her pregnancy.  She told the Tribunal that when her family learned she was pregnant, they were angry and told her not to contact them.  She said she last spoke with her youngest sister – the only family member that agreed to speak to her - [in] December 2017, when she went into labour.  During that conversation, the applicant’s sister indicated that their extended family would be told that she had married and had a baby.   

21. The applicant told the Tribunal she was currently staying at, and being supported by, the “[Organisation name]” in [City 2].  She said she had not worked since her baby was [born]. 

22. By way of update in relation to her claims to fear harm from loan sharks in her home country, the applicant said that she is no longer in contact with many people in Malaysia and she does not know what the situation is with the loan sharks.  She said that there has been no follow up by her in relation to the report she made against the loan sharks to the Malaysian Police in March 2016. 

23. The applicant told the Tribunal that she befriended a man – named [Mr A] - online who she commenced a sexual relationship with in about October 2016.  When she announced her pregnancy to him in July 2017, he told her that he did not want anything more to do with her or the baby.  Once the baby was born, the applicant tried to contact and locate [Mr A], but because he had moved and changed his mobile phone number, she was unable to. 

24. The applicant confirmed her claims that: she is scared the loan sharks will harm her and her child;  she will not be able to find work to support herself and her baby if she returned to Malaysia; because she is a Muslim, she will be required to pay a fine or be imprisoned for having a child born out of wedlock; people will be critical of her and not accept her for being an unmarried Muslim woman with a child, including her family; neither will her child be accepted for being born out of wedlock.   The applicant further claimed that the treatment she will endure from the authorities, her family and friends, and the wider Malaysian community for being an unmarried Muslim woman will cause her a great deal of stress.

25. The Tribunal discussed with the applicant country information before it indicating that having a child out of wedlock is considered ‘deeply shameful’ in Muslim-majority Malaysia and that there is social stigma attached to being an unwed mother or illegitimate child.[4] However, a 2012 report by Malaysian women’s rights NGO, Women’s Aid Organisation, indicates that notwithstanding the attached social stigma, many tens of thousands of children are born out of wedlock:

    A 2012 report by Malaysian women’s rights NGO, Women’s Aid Organisation, states that: ‘Statistics from the National Registration Department statistics show that in 2010 there were 52,982 children born out of wedlock.’[5] 

    [4] ‘Minister: Government, NGOs have places for unwed mothers and their children’ 2013, The Star, 26 October < Accessed 16 April 2015 <CX> and Ch’ng, B 2012, ‘Refuge for unwed mothers’, Selangor Times, 21 December < Accessed 21 February 2018 <CX>; Pak, J 2010, ‘Malaysia opens “hatch” for abandoned babies’, BBC News, 8 September < Accessed 21 February 2018

    [5] Women’s Aid Organisation 2012, CEDAW and Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s process in implementing the UN CEDAW, April, p.136 < Accessed 10 October 2012 <CIS24169>

26. The Tribunal put to the applicant that the Malaysian government has made strong and definite statements that single mothers have rights in the same way as all others.[6] The Tribunal also put to the applicant information that because the government is concerned about the impact of stigma and the increasing incidence of abandonment of babies, “baby dumping”, it has put in place a range of support services to provide assistance, including shelter to unmarried mothers and their children. As put to the applicant, a 2010 New York Times article reports the Deputy Women’s Minister’s claim that, the government provides support for unwed pregnant women and girls and identifies a number of government shelters for pregnant women older than 18 providing food and accommodation, as well as 60 welfare centres countrywide which offer assistance to unwed mothers and their babies.[7]

    [6] ‘Minister: Government, NGOs have places for unwed mothers and their children’ 2013, The Star, 26 October < Accessed 16 April 2015

    [7] Gooch, L 2010, ‘Malaysia Struggles With Baby Abandonment’, New York Times, 8 December < Accessed 16 April 2015 <CX744258516867>

27. The Tribunal also put to the applicant that a 2013 article in The Star also reports on options for assistance for unwed mothers, and the Women, Welfare and Family Development Minister Datuk Fatimah Abdullah stated that, although it might be a stigma in Malaysian society, unwed mothers still have rights like other people and should be given a chance to improve themselves.[8]  The Minister was reported as telling a press conference after chairing a meeting with various NGOs and related departments in Malaysia, that accommodation and support options are available to unwed mothers. In respect of underage unwed mothers, the Minister stated that her Ministry was intensifying it efforts in publicising its support systems and that after giving birth, unwed mothers can opt for looking after their children themselves or having the children put up for adoption.[9] The Tribunal also discussed with the applicant country information from the same source that while the government did not want to encourage unwed mothers, government aid to unwed mothers was available.[10] [11] In addition, as put to the applicant, the Tribunal notes that current internet information about the All Women’s Action Society in Malaysia lists a number of women’s shelters in Malaysia.[12] As discussed with the applicant, the Tribunal draws from these reports the conclusion that while the government does not wish to encourage unwed mothers, a level of government acceptance and support exists for unwed mothers.

    [8] ‘Minister: Government, NGOs have places for unwed mothers and their children’ 2013, The Star, 26 October < Accessed 16 April 2015

    [9] ‘Minister: Government, NGOs have places for unwed mothers and their children’ 2013, The Star, 26 October < Accessed 16 April 2015

    [10] ‘Minister: Government, NGOs have places for unwed mothers and their children’ 2013, The Star, 26 October < Accessed 16 April 2015

    [11] ‘Financial Assistance Scheme for Single Mothers’ n.d., Jabatan Kebajikan Masyarakat website < Accessed 17 April 2015

    [12] All Women’s Action Society Malaysia 2010, Women’s Shelters < <CX320945>

28. As discussed with the applicant and as the applicant has submitted, sex outside of wedlock is illegal for Muslims under Sharia law in Malaysia.[13] A 2010 Asia News article, put to the applicant, states:

    ‘Muslims are about 60% of the 28 million Malaysians and are subject to Islamic laws, which may be modified by each of the 13 states in the country. Non-Muslims are subject to federal laws, as decided by the central government.’[14]

    [13] US Department of State 2014, Country Reports on Human Rights Practices for 2013, 27 February, Section 6 < Accessed 19 March 2014 <CIS27502>; Child Rights Coalition Malaysia 2012, Status Report on Children's Rights in Malaysia, 1 December, p.9 < Accessed 11 February 2013 <CIS24938>

    [14] ‘Malacca, marriage for girls under 16 to cover underage pregnancies’ 2010, Asia News IT, 6 August < Accessed 1 September 2010 <CX248371>

29. The Tribunal noted at the hearing that, in line with the applicant’s evidence to the Tribunal, consenting sex before marriage can carry legal penalties for Muslims in Malaysia which include fines and corporal punishment, or both.[15] However, as put to the applicant, the Tribunal has found no reports in the sources located of these laws being implemented by the Malaysian Islamic authorities against unwed mothers, or reports of children of unwed mothers being forcibly removed from their mothers. The Tribunal further notes that the information above indicates that the Malaysian government is seeking solutions to reduce the high number of abandoned babies, and is taking a supportive rather than a punitive approach to this social issue.

    [15] Child Rights Coalition Malaysia 2012, Status Report on Children's Rights in Malaysia, 1 December, p.12 < Accessed 11 February 2013 <CIS24938>

1. The applicant, by way of response in relation to the country information set out by the Tribunal, indicated that she would only be imprisoned if she could not pay the fine.  She said she recollects that her uncle’s partner, who got pregnant before she married, was sent to prison because she could not pay her fine.  She said she had seen internet information indicating that the laws are still the same.  The applicant, by way of further response, also agreed that there were a lot of Muslim centres “for morality” in Malaysia, to assist unwed mothers.  However, she said that while these places exist to give unmarried mothers a place to stay, they also arrange to remove the illegitimate children from their mother by adopting them out.  She went on to say that help for unwed mothers is not continuous and that there would not be help available to her when her daughter is grown. 

2. The Tribunal sought more information from the applicant and reiterated to her that the country information it had before it did not support what she was saying.  The applicant gave a vague response only telling the Tribunal that these things do happen, but it would not find this information on the internet, because the Malaysian government would not want to present itself in that light.  The applicant told the Tribunal that she knows what her situation would be like because she lived in Johor Bahru and has seen a lot of women in her home area having children out of wedlock.  She also said she has seen stories on Malaysian television.  She reverted back to her claims made in her protection visa application and said that although there are laws in place protecting citizens from the loan sharks in Malaysia, when she approached the police for help she was challenged about why she had involved herself with these dangerous people. The applicant went on to say that she finds it hard enough to deal with the talk about her that is going on in Australia and that her situation would be a lot worse if she returned to Malaysia.  She said she would be investigated by the authorities and stigmatised.  She agreed that there are a lot of unmarried women in Malaysia that have children out of wedlock.  She said, however, that a lot of those women go on to marry their partners or have their children adopted out. 

3. The Tribunal discussed with the applicant that the fact that she had lived by herself and worked in Malaysia, as well as in Australia, and without the support of her family might indicate to it that she would manage on her own if she were to return to Malaysia. The applicant responded that it would not be possible for her to work because she would be concerned the loan sharks would continue to look for her to threaten her. She said when she returned to Malaysia in February 2016, she was scared to go outside and wore a face covering hijab to hide herself when she travelled to the airport.  She indicated she would find it difficult to protect both herself and her child if she were to return to her home country.

4. The Tribunal discussed with the applicant that the country information before it indicates that there can be discrimination against illegitimate children in Malaysia; however, there is nothing to indicate that children of unwed mothers cannot access government services such as schooling and health services.  The applicant said that her child would be identified as illegitimate, and would not be accepted.  She said that she would be required to pay for government services, because they would not be free for her illegitimate child. 

5. The applicant conceded to the Tribunal that her biggest problem, if she were to return to Malaysia, are the loan sharks.  She said she does not have any money and she cannot hide herself, or her child, from the loan sharks forever.

6. The applicant told the Tribunal that her mental health had not been good since she became pregnant and she had been referred by the maternity hospital during her regular check ups to receive counselling from both from a social worker within the hospital as well as external [services].  She said that she had a lot of Malaysian friends in Australia, but when they learned she was pregnant they said terrible things about her and disowned her.  She said she had tried to take her own life and that of her baby while she was pregnant.  She said she was prescribed medication to “calm her thoughts” while she was pregnant, but did not take the medication.  She said she is fortunate her baby was born healthy, but she worries for their future and is often sad. She said she still receives telephone support on a weekly basis [and] is also provided with practical support – such as food, nappies and pharmacy cards – to help with her babies’ needs.  She said she was referred to a service in [City 2] – “[Organisation name]” - when she was at risk of becoming homeless, and she currently is being housed by this service.  

7. The Tribunal observes that on the evidence before it, the applicant has obtained support from social services during and after her pregnancy, and may suffer from depression. When the Tribunal indicated to the applicant that she would be able to access services for her health and well-being in Malaysia if necessary, she said that while she had not carried out any searches on the internet in this regard, she was not aware of these sorts of services in Malaysia. She said the Welfare Department in Malaysia would likely consider her young enough to work and so would not assist her.

8. Before finalising this decision record, given the time that has lapsed since her first Tribunal hearing, the Tribunal listened to the audio recordings of the applicant’s first and second hearings held on 29 September 2016 and 28 February 2018 respectively.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   Country of reference

10. The applicant claims to be a citizen of Malaysia and has provided the Department certified copies of passport and identity documents. The Tribunal was also provided with the applicant’s passports and identity documents at the hearing. On the basis of the available evidence, the Tribunal finds that the applicant is a citizen of Malaysia and that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.

11. There is no available evidence before the Tribunal to suggest that the applicant has a current right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility considerations

12. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. 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 comments on determining credibility. 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.

13. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

14. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

15. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

16. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

17. The Tribunal carefully considered all of the evidence available to it in this case.  It considered the applicant’s oral evidence before the Tribunal.  It considered the documentary evidence the applicant submitted to the Department, as well as the material received by the Tribunal. On the evidence of the applicant and documentary evidence before it, the Tribunal accepts that the applicant was born in Johor Bahru in [year].  On the same basis, the Tribunal accepts the applicant is of Malay ethnicity and identifies as Muslim.  On the evidence of the applicant, the Tribunal accepts the applicant finished her secondary schooling and then completed a pre-Diploma in [an area].  On the evidence of the applicant, the Tribunal also accepts that she worked as [an occupation] and then in [a] role for an international [business], up until the time she left Malaysia to come to Australia.

18. On the evidence of the applicant, the Tribunal accepts the applicant entered Australia as the holder of Electronic Travel Authority (ETA) visa on 26 February 2015. As discussed with the applicant at the Tribunal, and as set out in the delegate’s decision provided to the Tribunal by the applicant, the Tribunal accepts this visa expired on 26 May 2015. On the evidence before it, the Tribunal accepts the applicant lodged an application for a protection visa on 18 May 2015.  

19. Based on the documentary evidence before it, the Tribunal accepts the applicant had a baby [in date] in Australia.  On the oral evidence of the applicant, the Tribunal accepts the applicant is single; that the child’s father has not been identified on the baby’s birth certificate; and that the birth certificate does not indicate that the applicant was in a marital relationship. On the basis of the birth certificate and the evidence of the applicant, the Tribunal accepts the applicant is an unmarried Muslim mother and the child was born out of wedlock.

20. The Tribunal accepts, on the oral evidence before it, that up until the time her baby was born the applicant worked in Australia.

21. However, after carefully considering all of the applicant’s evidence the Tribunal has a number of significant concerns with the applicant’s claims.  Discrepancies in the applicant’s evidence and her vague evidence, lead the Tribunal to determine that the applicant is not a generally credible witness.  The Tribunal has made this finding for the following reasons.

22. The Tribunal finds the applicant’s claims regarding her fear of the loan shark and his associates, as expressed during the hearing, to be somewhat different to what is expressed in her application for protection.  In particular, the applicant’s written claims set out that she was running a [business] with her mother and that money was borrowed from a money lender to expand the business.  The applicant’s written claims also set out that when a customer tried to sell [the goods] to a pawn shop, it was discovered that the [goods] was fake.  Further, complaints and police reports were lodged against the applicant’s mother after this and she was arrested and detained by the police.  However, in her oral evidence to the Tribunal the applicant stated that she had agreed to be a guarantor in relation to a loan taken out by her mother from a loan shark in June 2014, when her mother had told her she wanted to turn over a new leaf and open a new business.  The Tribunal finds it difficult to accept that as an educated woman who claims she is fearful of returning to Malaysia, the applicant would not have ensured that she was satisfied with the contents of her application before it was lodged with the Department.  The Tribunal finds the discrepancies between what she originally claimed in her protection visa application and what she asserted in the hearing raises doubts about the credibility of the applicant’s claims.

23. At the hearing, the applicant was vague in her responses, and at times unable to provide answers, to questions seeking more detail about the loan.  The applicant’s evidence was that she did not want anything to do with the loan shark despite agreeing to act as guarantor and, other than the amount borrowed did not know anything about the terms of the loan.  The applicant’s inability to provide this information heightened the Tribunal’s concerns about the applicant’s credibility.

24. In considering the applicant’s general credibility, the applicant gave evidence that she continued to work for her employer, [Company 1], and remained in Johor Bahru for over six months from the time her problems with the loan shark and his associates started and despite the alleged threats against her.  On the basis of this evidence, the Tribunal does not find it credible that the applicant holds a genuine fear for her life, at the hands of the loan shark or his associates or anyone else, if she returns to Malaysia.

25. The Tribunal also finds that the applicant’s preparedness to return to Malaysia at the beginning of 2016, to stay in her home area for several weeks, casts doubt over the truth of her claims.  The Tribunal has considered the applicant’s evidence that when she returned to her home country she was scared to go outside and wore a face covering hijab when she travelled to the airport to avoid being detected by the loan sharks, but does not find it convincing.  The Tribunal is of the view that she would not have returned to Malaysia to arrange the burial of her father and help her siblings, with whom on her evidence she is estranged, or indeed at all, if she was genuinely fearful for her life.

26. The Tribunal found the evidence that there had been no threats made, or actual harm suffered, by the applicant’s father and siblings, also undermines the applicant’s claim that she fears serious harm from the loan shark, or from anyone else, if she returns to Malaysia.  Although it emerged in the applicant’s evidence that the loan shark thugs had approached her father, in a non-threatening way, to ask about the whereabouts of both her and her mother, in the two weeks before he died in February 2016, the Tribunal has difficulty accepting that her father and siblings would not have been targeted by the loan shark and his thugs much earlier than this, if there were genuine fears for her safety.

27. The Tribunal noted country information, such as that in the delegate’s decision, that detailed that illegal money lending or loan sharking is an offence in Malaysia and the police were cracking down on loan sharks, especially where there was violence and intimidation, and that the evidence indicates that the police are willing to take action. She responded that the Malaysian police are corrupt and that while that are very good at giving speeches, they do not protect the citizens.  The applicant also stated that she did not go to the police until she returned to Malaysia in early 2016, because she was worried she might be implicated with her mother in her counterfeit [goods] scam. The Tribunal has taken the applicant’s responses into account but, as expressed to the applicant, still has concern that the applicant did not taken any action to pursue assistance from the police for the alleged threats and intimidation claimed much earlier than she did, given the country information about the authorities, as cited in the delegate’s decision and put to the applicant at the hearing, cracking down on loan shark behaviour where violence and intimidation was involved.

28. The Tribunal also noted that aspects of the applicant’s claims arising out of being an unwed Muslim mother, and as discussed with the applicant at her hearing, are not supported by independent country information.  For example, although consenting sex before marriage can carry legal penalties for Muslims in Malaysia, there is a lack of country information that supports the applicant’s claims that these laws are implemented by the Malaysian Islamic authorities against unwed mothers, or that children of unwed mothers are forcibly removed from their mothers.  This led the Tribunal to question the veracity of the applicant’s claims to fear persecution by the Malaysian authorities on account of being an unwed Muslim mother.

29. In addition, the Tribunal found the applicant’s failure to arrange to attend an interview with the Department, and the reasons given for not doing so, undermines her claims and credibility.  The Tribunal considered the applicant’s explanation that she could not afford to put funds on to her mobile phone account and so was unable to access her emails.  However, the Tribunal does not accept that this explanation explains the applicant’s failure to arrange an interview with the Department.  The Tribunal would have expected the applicant to ensure she had access to her emails – by way of either her phone or a computer at any location - if she was awaiting a response from the Department after lodging her application, and to take up an opportunity to present her claims in greater detail at a Departmental interview, if she was genuine about her fear of returning to Malaysia.

    Assessment of Refugee Protection Claims

30. The issues in this case are whether the applicant faces a real chance of serious harm now or in the foreseeable future, or a real risk of significant harm on return to Malaysia for reasons of her dealings with loan sharks and for reasons of being an unmarried Muslim mother. The Tribunal considers each of these claims below.

31. The Tribunal notes that it is required to take into account 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.  The Tribunal has had regard to the most recent DFAT Malaysia Country Report dated 19 April 2018.  The Tribunal finds that this report does not raise new issues in this case.

    Harm arising from dealings with Loan Sharks

32. The Tribunal has considered all the evidence of the applicant.  Having regard to all of the evidence, and to its assessment of the discrepancies in it and its findings that the applicant is generally not a credible witness, the Tribunal does not accept that that the applicant was involved in a [business] with her mother; that the applicant was a guarantor for her mother who borrowed RM[amount] from a loan shark; that the applicant owes money to a loan shark and that she was threatened, tortured, harmed or had petrol bombs thrown at her house in Malaysia by a loan shark or any of the loan shark’s associates, because she failed to repay a loan as guarantor to the loan; nor that the applicant came to Australia because she feared harm from the loan shark.

33. The Tribunal finds that the applicant does not owe money as guarantor to a money lender in Malaysia, that she is not being pursued by a money lender, and that she (or her child) will not be harmed in Malaysia for this reason.

34. Based on the Tribunal’s assessment of the applicant’s unreliability as a witness, and having regard to all the evidence, the Tribunal finds that the applicant does not have a real chance of serious harm arising from dealings with a money lender in Malaysia, now or in the foreseeable future.  The Tribunal finds that there is not a real chance that, if returned to Malaysia, the applicant would be persecuted for one or more of the reasons mentioned in paragraph 5J(1)(a).  The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason. 

    Treatment of the applicant by the Islamic Religious Department and authorities

1. In considering whether the applicant faces a real chance of serious harm now or in the foreseeable future, or a real risk of significant harm arising from her status as an unmarried Muslim mother in Malaysia, the Tribunal accepts that it may, at some time, become evident to the authorities through her child’s birth certificate that the applicant’s daughter was born out of wedlock and that the applicant is an unmarried mother.    

2. On the basis of the country information above, the Tribunal accepts that having sex before marriage and a child out of wedlock is shameful in Malaysia, and on this basis the Tribunal accepts that the applicant has a genuine fear of returning to Malaysia. The Tribunal has considered the applicant’s evidence that she has seen internet information indicating that she will be imprisoned if she cannot pay the fine imposed for having a child out of wedlock and risks having her daughter taken from her if she seeks assistance from centres set up to accommodate and support unwed Muslim mothers.  The Tribunal has also considered her evidence that she recollects an extended family member being imprisoned for non-payment of the fine for having a child out of wedlock and that she has seen children taken from their unwed mothers in her home area. However, based on the Tribunal’s assessment of the applicant’s unreliability as a witness, and taking all the evidence before it into account, including the lack of country information that supports the applicant’s claims,  the Tribunal prefers the weight of evidence indicating that although legal sanctions, such as fines, caning and imprisonment exist in the law to which Muslim women in Malaysia are subject for consenting sex before marriage, these laws are not implemented in Malaysia in the case of unmarried mothers. On the basis of the credible country information before it, the Tribunal finds that although legal sanctions exist in the law to which Muslim women in Malaysia are subject for consenting sex before marriage, these laws are not implemented in Malaysia in the case of unmarried mothers. The Tribunal finds that the chance or risk the applicant will be charged and face a sanction from the Islamic Religious Department or the Sharia Court for having sex before marriage and being an unmarried mother, is remote. The Tribunal finds that the chance or risk the applicant will be charged, fined, subject to corporal punishment such as caning, or imprisoned, is remote. The Tribunal further finds that the chance or risk or that the applicant child will be removed from the applicant is remote.

3. The Tribunal finds there is no real chance that the applicant faces serious harm now or in the foreseeable future from Islamic authorities in Malaysia because the applicant had consenting sex before marriage, is an unmarried Muslim mother, and the applicant child was born out of wedlock. The applicants’ fear of persecution is not well-founded. 

4. For the same reason, the Tribunal finds there are not 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 the applicant will suffer significant harm on this basis.

   Treatment by the applicant’s family

5. The Tribunal has considered whether the applicant faces a real chance of serious harm now or in the foreseeable future, or a real risk of significant harm at the hands of the applicant’s family on return to Malaysia.

6. On the applicant’s oral evidence, the Tribunal accepts that her father passed away in 2016, and that she is estranged from her mother and [siblings], whom she claims are currently living in [Country 1]. The Tribunal has serious concerns about aspects of the applicant’s evidence about her family. For example, although the applicant told the Tribunal that she is estranged from her close family members, she also stated that she arranged to take her siblings from Malaysia to [Country 1] in February 2016 (to reunite with their mother whom she located at that time) and that she sends money to them to support them.  She was unable to provide any detailed information about her familys’ circumstances, other than to say they were living in [Country 1] on [temporary] visas - which were frequently obtained by them travelling between Malaysia and [Country 1] to enable them to remain in [Country 1] lawfully. She also gave evidence that she maintains communication with her youngest sister by telephone. The Tribunal considered the applicant’s evidence in this regard confusing and hard to believe and this led the Tribunal to the view that the applicant was not being truthful in her evidence. However, on her evidence, and given the country information above concerning the stigma attached to unwed mothers, the Tribunal accepts the applicant’s claim that her family are ashamed that she is an unwed mother and that they will not support her.

7. While the applicant stated that her family are ashamed of her and would not support her, she did not indicate to the Tribunal that she held a fear of harm from her family for herself or her daughter. On the applicant’s evidence the Tribunal considers the chance the applicant and her child face serious harm from the applicant’s close family members to be remote. For this reason, the Tribunal does not accept that either the applicant or the applicant child face a real chance of serious harm from the applicant’s mother or siblings or any extended family members because she is an unwed Muslim mother and her child is illegitimate. The Tribunal does not accept that either the applicant or her child face a real risk of significant harm from her close family members or any family members.

8. The Tribunal has considered whether the familial rejection of the applicant constitutes serious or significant harm in relation to the applicant. While the Tribunal accepts that the applicant’s familial rejection may be emotionally and practically hurtful to the applicant, having regard to the non-exhaustive examples of serious harm set out in s.91R of the Act, and the definition of ‘significant harm’ as exhaustively defined in s.36(2A) of the Act, the Tribunal does not accept that this treatment would amount to serious harm or significant harm.

9. For these reasons, the tribunal does not accept there to be a real chance that the applicant faces serious harm now or in the reasonably foreseeable future from the familial rejection for reasons of the applicant being an unmarried mother.

10. For the same reasons, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is real risk she will suffer significant harm on this basis. 

    Societal discrimination against the applicant

11. The applicant claims that she will suffer discrimination in Malaysia because people will talk about her, and this would be hard for her mentally. In consideration of this claim, the Tribunal notes the country information cited above indicating that attitudes to unwed mothers in the Muslim community remain negative in Malaysia.

12. Given this country information, the Tribunal accepts that the applicant may be the subject of hurtful and uncomfortable social interactions because she is an unmarried mother. The Tribunal accepts she may suffer discrimination in the context of social interactions. The Tribunal considers this level of discrimination is of a minor level. While the Tribunal accepts that the applicant may be subject to some minor level of discrimination from the community such as hurtful and uncomfortable social interactions, having regard to the non-exhaustive examples of serious harm set out in s.5J(1) of the Act, and the definition of ‘significant harm’ as exhaustively defined in s.36(2A) of the Act, the Tribunal does not accept that this treatment would amount to serious harm or significant harm.

13. For these reasons, the Tribunal does not accept there to be a real chance that the applicant faces serious harm now or in the reasonably foreseeable future from societal discrimination for reasons of being an unmarried mother.

14. The Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is real risk she will suffer significant harm on this basis. 

    Other

15. The Tribunal has considered the applicant’s claim that she will become stressed and her mental health will deteriorate if she must re-settle in Malaysia. The Tribunal accepts the applicant has lived in Australia for over three years and may experience some initial difficulties in re-settling herself and her child in Malaysia and adjusting to Malaysian ways and law after a period of absence. The Tribunal also accepts that the applicant has received assistance from community support services in relation to symptoms of depression, which emerged when she discovered she was pregnant. Even accepting that the applicant may be vulnerable to mental health issues, the evidence indicates that with counselling and practical support, the applicant has been able to manage her depressive symptoms. The Tribunal finds, on the country information before it, that the applicant will not be deprived of any mental health services now or in the reasonable foreseeable future were she to return to Malaysia. On this basis, the Tribunal finds the applicant and child will re-settle in Malaysia. The Tribunal further finds that this claim has no Convention nexus and does not involve systematic and discriminatory conduct. In this respect, the Tribunal finds the applicant’s fear of persecution is not well-founded. In addition, having regard to the definition of significant harm in s.36(2A) of the Act, the Tribunal finds that the initial difficulties the applicant may experience on return to Malaysia do not constitute significant harm as exhaustively defined. The Tribunal finds there to be no real chance that the applicant faces a real chance of serious harm now or in the foreseeable future or a real risk of significant harm on return to Malaysia for this reason.

16. The Tribunal has considered the applicant’s claim that she will experience difficulties re-establishing herself and her daughter in Malaysia because she cannot work and no one will support them. The Tribunal has made findings that the applicant does not have a well-founded fear of persecution from loan sharks.  The Tribunal notes the applicant attained a pre-Diploma following the completion of her secondary schooling and has employment experience both in Malaysia and in Australia. The Tribunal also notes that on her evidence, the applicant has lived independently of her family for a number of years, and in this time has shown initiative in managing her life in both Malaysia and Australia. In these circumstances, while acknowledging the applicant’s opportunities may be limited by caring for her daughter, the Tribunal finds that the applicant has the skills and experience to find employment; she could engage child care services to enable her to work to support both herself and her child; and she will re-establish herself on return to Malaysia. The Tribunal further observes that, if necessary, the applicant would be eligible for assistance from government and/or non-government agencies, given her profile as a single mother.  The country information discussed with the applicant indicates that the Malaysian government is making an effort to assist single mothers at risk.  The Tribunal finds there to be no real chance that the applicant faces a real chance of serious harm now or in the foreseeable future or a real risk of significant harm on return to Malaysia for this reason.

17. The Tribunal has had regard to all the circumstances and findings above in respect to the applicant, both individually and cumulatively, and finds that the applicant does not have a real chance of serious harm now or in the foreseeable future for any reason. The applicant’s fear of persecution is not well founded.

18. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds there are not 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.

    Hardship as a witness to treatment of the applicant’s child

19. The Tribunal has considered whether the applicant will experience hardship witnessing her daughter not being accepted when it is identified that she was born out of wedlock.  On the basis of country information discussed with the applicant at hearing, the Tribunal accepts that there is social stigma attached to being an illegitimate child and that the applicant’s chid may be subject to societal discrimination on this basis.  The Tribunal accepts the applicant’s claim that her child may experience community talk and that she may experience social discrimination from people in the community who are critical of both her and the applicant.  The Tribunal accepts that this would be an uncomfortable and hurtful experience, particularly as the child grows older and can understand the basis of the discrimination.  The Tribunal considers such treatment amounts to minor level discrimination and accepts the applicant’s daughter will be subject to minor level discrimination from the community as an illegitimate child.   

20. Having regard to the non-exhaustive examples of serious harm set out in s.5J(5) of the Act, and the definition of ‘significant harm’ as exhaustively defined in s.36(2A) of the Act, the Tribunal does not accept that any of the above treatment would rise to the level of serious harm or significant harm. While the Tribunal accepts that the applicant’s child may be subject to some minor level of discrimination from the community, the Tribunal does not accept that this will amount to serious or significant harm as defined.

21. The applicant also claimed she would be required to pay for government services in respect of her illegitimate child.  The Tribunal has considered this claim in light of the country information above put to the applicant that the government provides services to unmarried mothers and their children and that they are regarded as having the same rights as others.  On the evidence before it, the Tribunal finds the applicant’ child will have access to the same support from the Malaysian Government as others.

22. The Tribunal has had regard to all the circumstances and findings above, both individually and cumulatively, and finds that the applicant does not have a well-founded fear of persecution now or in the foreseeable future for any reason.

23. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds there are not 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.

    State protection / Relocation

24. The Tribunal has found above that the applicant does not have a well-founded fear of persecution or a real risk of significant harm from loan shark thugs, authorities, family members, friends, the community or anyone else on return to Malaysia.  The Tribunal has therefore not addressed the applicant’s claims that the authorities are corrupt and cannot protect her or that she can easily be located in Malaysia. 

    CONCLUSION

25. 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).

26. 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).

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

    DECISION

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

    Nicola Findson
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …

    
    

‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July CX1B9ECAB11425
Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April CX1B9ECAB11426