1513133 (Refugee)

[2015] AATA 3671

1513133 (Refugee) [2015] AATA 3671 (6 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513133

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Susan Pinto

DATE:6 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 06 November 2015 at 10:02am

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. The applicant is a citizen of Malaysia. She is of Tamil ethnicity and Hindu religion. She is aged [age]. The applicant was granted a [temporary] visa [in] April 2015. She arrived in Australia [in] May 2015 on that visa. She was detected [in] July 2015 working illegally in breach of a condition on her [temporary] visa. Her [temporary] visa was cancelled and she was detained at [Immigration Detention Centre]. An application made by the applicant for a Bridging visa was refused, and the applicant has continued to reside at the [Immigration Detention Centre].

2. The applicant applied to the Department of Immigration for a Protection visa [in] July 2015.The applicant essentially claimed that she fears harm from her husband from whom she had previously been the victim of domestic violence. The applicant claims that she cannot reside anywhere in Malaysia and she is unable to obtain the protection of the Malaysian authorities.

3. The delegate of the Minister for Immigration refused to grant the Protection visa. The delegate was “prepared to give the applicant the benefit of the doubt” as to her claims of domestic violence but found that her evidence indicated that she would no longer reside with her husband upon her return to Malaysia, and the chance she would be harmed by her husband is remote. The delegate also found that the applicant could obtain the protection of the authorities from any harm she feared at the hands of her husband, his relatives or friends. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2015 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

4. The issue in this case is whether the applicant has a well founded fear of persecution in Malaysia for one or more of five reasons, which include race, religion, nationality, membership of a particular social group or political opinion. If the Tribunal finds that the applicant does not have a well founded fear of persecution for one more of these reasons, the Tribunal must consider whether the applicant meets the Complementary Protection provisions. Those provisions require the Tribunal to be satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk she will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. When lodging the application to the Department, the applicant indicated that she was born in Kuala Lumpur, Malaysia and she speaks, reads and writes Tamil and Bahasa Malaysian. The applicant also stated that she speaks English. The applicant stated that she was married on [date], but later advised the delegate that the correct date is [date]. She indicated that she was educated between [year] and [year] and was previously employed as a seller.

6. In response to questions on the application form as to why she has left Malaysia and sought protection, the applicant states that she would like to change her life because her husband ruined her life and she is scared of him and he always controls her life. She states that in Australia there is respect for women and it is the “best country”. The applicant states that she was hit by her husband when he asked for money and he did not give her any money. The applicant states that he told her he is going to kill her. The applicant states that she ran away from him and he said he is “gonna kill me”. She states that a friend told her he is still looking for her. The applicant also states that she does not believe that the authorities can protect her because her husband is a gangster and “may bad people support him to do anything he wants”. She states some police are gangsters and many police are corrupt and take money and walk away from cases, particularly when rich people and gangsters are involved. 

7. At a Detention Client Interview, held [in] July 2015 at a [business] at [a Sydney address] where the applicant was located working, the applicant is recorded as stating that she wishes to apply for a Student visa and her husband and his family make her work and take all her money.  

8. When interviewed [in] July 2015 following her detention, the applicant is recorded as stating that she left Malaysia because her husband used her name to acquire many debts and her family disowned her as she married without their permission after a “love affair”. The applicant stated that she will kill herself if she returns and if she leaves her husband he will try to find her and kill her. The applicant also stated that her husband and his family expect her to do all the work and want her to financially support them.  

9. The applicant was interviewed by the delegate [in] August 2015. The Tribunal has listened to the CD Rom Recording of the interview.

   Application for review

10. No further evidence was provided when the application was lodged with the Tribunal.

11. The applicant appeared before the Tribunal to give evidence and present arguments at a hearing held on 2 November 2015. An interpreter who spoke the Tamil language assisted the Tribunal. During the Tribunal hearing the applicant was invited to comment or respond on information which she was advised would be the reason or part of the reason, subject to her responses, for the Tribunal affirming the delegate’s decision. The applicant was also advised that she is entitled to request a further opportunity to comment or respond either at the hearing or after the hearing. The applicant declined a further opportunity and indicated that she wished to provide comments and a response during the hearing. She also declined the opportunity to have a break in the hearing to consider any comments or response she wished to make.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of persecution in Malaysia?

12. As indicated above, the applicant has claimed that she has a well founded fear of persecution as a result of domestic violence. The Tribunal has considered, therefore, whether the applicant has a well founded fear of harm in Malaysia, which the Tribunal accepts is her country of nationality, for this reason. The delegate considered the applicant’s claims against the ground of particular social group, specifically “a female who claims to be a victim of domestic violence”. The Tribunal has doubts that such a particular social group exists in Malaysian society. However, even accepting that such a particular social group of women exists, the Tribunal does not accept that the applicant genuinely fears harm from her husband and considers that she has manufactured her claims for protection after being detected working illegally in [an occupation]. The applicant was advised during the Tribunal hearing that although her claims to have been the victim of domestic violence were accepted by the delegate, the Tribunal may reach a different conclusion and is not bound by the findings of the delegate. The Tribunal has had regard to the difficulties and particular vulnerabilities for women who have been the victim of domestic violence, but does not accept that the applicant has been truthful in relation to her reasons for leaving Malaysia. The Tribunal’s consideration of the evidence and its reasons for reaching these conclusions follows.

13. At the Department interview, the applicant confirmed that that she fears for her life from her husband and his associates. Her husband is currently residing in Malaysia, but she does not know where he currently resides. She is no longer in contact with him and she left him because of the problems she faced and he is very violent. The applicant considers that she and her husband are no longer married and are separated. The applicant confirmed that she wants the marriage to end, to separate from him permanently and she is not planning to return to her husband. When asked by the delegate when her problems began, the applicant stated that she cannot give an exact date, but she “loved” her husband for seven years. During that time, she always had problems with him. He began to ask her for money and about three or four years ago before they were married he began to give her a “hard time”. She does not want to return because after registering their marriage she left her husband and ran away. He was very violent and beat her the whole night when he found her. The applicant did not report it to the police because he would have killed her. The applicant did not go to the police and did not seek any help from domestic violence organisations. The applicant told the delegate that as a Tamil woman she would not receive assistance from the police. She has not made any inquiries regarding any agencies. He threatened the applicant by telling her that he will ensure she has an “accident”. The applicant has not made any inquiries about protection from agencies in Malaysia because her husband’s friends are thugs and whatever she does will be known by them and her husband. The applicant has witnessed her husband and his friends and relatives bribing the police and closing the case without any action being taken. They will take revenge and she saw someone dying. If they say they will kill her they will do so. When asked whether she is claiming that her husband murdered someone, the applicant stated that those kinds of people live in that way. In Malaysia, “things like that happen”.

14. At the Tribunal hearing, the applicant was also asked about her claims of violence at the hands of her husband. The applicant told the Tribunal that her husband would beat her and she has a scar on her [body] from where he burned her with a hot [object]. He was “nice at first” but later stopped working and borrowed money and told people that she would repay it. When asked whether she had ever sought assistance from a doctor, attended a hospital or sought assistance from the police, or considered going to another part of Malaysia to live, the applicant stated that she had never been to the police because she was fearful of what her husband might do and her husband would not take her to a doctor or the hospital. The applicant was advised that she was working and asked why she would have been unable to see a doctor or attend a hospital. The applicant stated that her husband would stop her from doing so. The Tribunal indicated that it had difficulty accepting that she would not have some point sought medical attention or assistance if she was being harmed on an ongoing basis by her husband. When advised that there are laws in place and a system of protection orders whereby her husband could have been prevented from having contact with her, and jailed for up to a year for breaching the order, the applicant indicated that she knew about those laws but did not think anyone would help her and she did not know where she could live or how she could survive if she reported the matter to the police. The applicant also stated that once she ran away but her husband’s friends found her and brought her back and her husband beat her. When asked where she went to, the applicant stated that she went to her husband’s home area. When asked why she went to an area where her husband’s friends lived, the applicant stated that her husband would find her and would bring her back because he has friends everywhere. The Tribunal indicated that in a country of several million people it is difficult to accept that she would be unable to go anywhere else. The applicant stated that if her husband told her he would make it look like she had been in an accident and she feared he could arrange to have her harmed.

15. The Tribunal has considered the applicant’s claims in relation to her reasons for leaving Malaysia. The Tribunal is not satisfied that the applicant has been truthful in in relation to this issue. As stated above, whilst accepting the vulnerabilities of women who have been victims of violence, and that there are reasons as to why a woman in such a situation might not seek assistance, the Tribunal does not accept the applicant’s explanation for why she failed to seek any assistance before making the significant decision to leave Malaysia. The applicant has claimed that without her husband’s knowledge, due to ongoing violence and a fear of her husband, she obtained a passport, a [temporary] visa and fled to a country where she claims to know no-one, with only about the equivalent of $[amount] and no plans as to what she would do or how she would survive in Australia with that small amount of money, and she was then able to find a Tamil woman who she asked for assistance. Thus, the applicant’s evidence indicates that despite taking this very significant step and having the resourcefulness to be able to obtain a passport, a visa, make the decision to travel from Melbourne to Sydney, find accommodation in Sydney and seek assistance from a Tamil stranger in Sydney she had made no attempts to seek redress in her own country against the violence she claimed to have been subject on a regular basis, even though own evidence indicates that she was aware she could obtain some protection. The Tribunal considers it not credible that the applicant would fail to make at least some efforts to obtain assistance, in a country such as Malaysia which as discussed below has a functioning legal and judicial system and efforts have been made to address domestic violence. The Tribunal considers it not credible that the applicant would decide her only option was to spend what appears to be her limited resources in purchasing a passport, visa and ticket for Australia and then travelling to Australia with only $[amount], purportedly knowing no-one and without any means of financial support beyond a few days, and purportedly without any knowledge of protection or how she could remain in Australia. In the Tribunal’s view, the evidence in relation to this issue raises serious concerns about the applicant’s claims to have suffered domestic violence and to have fled to Australia for this reason.

16. The Tribunal further considers that the applicant’s evidence that she tried to run away and went to another place, which was her husband’s family were from and where he had friends, to be further lacking in credibility. The Tribunal considers the applicant’s claims that she ran away to such a place to be not credible and also considers her claim that she did not attempt to go anywhere else in Malaysia, a country of almost 30 million people, because her husband or his friends would locate her to be further not credible. The Tribunal considers that the evidence in relation to these issues raises concerns that the applicant came to Australia for reasons unrelated to those she has put forward and has fabricated claims to fear harm in Malaysia following her detection and detention.

17. The Tribunal’s concerns as discussed above are strengthened by other aspects of her evidence, including her delay in departing Malaysia following the grant of the visa; her failure to make any inquiries about protection until after she was detained; and her failure to mention that she feared harm in Malaysia due to domestic violence, when she was first interviewed [in] July 2015 at her workplace. The applicant was asked about by both the delegate and the Tribunal about the delay in her departure from Malaysia in circumstances where she was in possession of a valid passport and visa to enable her to depart. When asked by the delegate why she had not left Malaysia in April 2015 when her visa was granted, and asked why she had stayed in her own country for over five weeks which indicates that her departure was planned and organised, the applicant stated that she lived with her husband and he did not think she would leave him. When asked again why she waited for five weeks to leave after her [temporary] visa was granted, the applicant stated that she had to plan so that he would not suspect. She could not leave him and come and she had to plan in a way so as not to raise suspicion. During the Tribunal hearing, the applicant was also asked about the delay in her departure from Malaysia following the grant of the [temporary] visa. The applicant told the Tribunal that she could not leave Malaysia because there was a “high chance” that her husband would catch her and she had to wait until he and his family members had left the house.

18. In relation to the delay in the lodgement of the application following her arrival in Australia, the applicant claimed that she did not know about avenues to stay in Australia and she only knew that women’s rights are protected in Australia. She only found out about protection visas after being detained at the detention centre. The applicant was advised by the delegate that it is very difficult to believe that she did not know about protection visas. The applicant stated that it was only after the detention she found out that there was a way she could apply and if she knew there was a way she would have applied. The applicant stated that when she came to Australia she only knew a Tamil girl. She asked the girl for money. The girl told her that women have equal rights in Australia. The girl told her that she should do [a specific occupation] and she could get money.

19. When asked at the hearing why she did not make inquiries with anyone as to how she could remain in Australia, the applicant stated that she did not know she could seek protection in Australia or who she could speak to. She came to Australia with the equivalent of approximately $[amount]. She first went to Melbourne where she stayed in a hotel and a day or two later she [travelled] to Sydney. When asked why she came to Sydney, the applicant stated that she cannot explain why she decided to come to Sydney but she was lonely in Melbourne. When she arrived in Sydney she first stayed at a hotel called the “[name]”. The applicant cannot recall the location of the hotel, but she stayed there for a few nights and when she ran out of money she left the hotel. The applicant stated that she then approached a Tamil girl near the hotel who advised the applicant that she could make money by [a specific occupation]. The applicant initially did not agree, but felt that she had no choice but to become involved in [that occupation].

20. The Tribunal does not accept that the evidence as set out above indicates that the applicant fled Malaysia at the hands of her purportedly violent husband. The Tribunal is not satisfied that the applicant’s actions in delaying her departure for some five weeks following the grant of the [temporary] visa are indicative of someone who was fearful. The Tribunal does not accept that the applicant, who was employed in Malaysia, and despite her claims to have been under such scrutiny that she could not see a doctor about her injuries, was nevertheless able to find a way to obtain a passport and a [temporary] visa and purchase a ticket to leave Malaysia, would have been unable to find a way to leave Malaysia at an earlier time. The Tribunal is not satisfied that the delay in her departure of some five weeks following the grant of a passport and visa is consistent with her claims to have fled Malaysia due to a fear from her violent and abusive husband. The Tribunal considers that the evidence in relation to this issue raises further serious concerns regarding the truthfulness of the applicant’s claims to have left Malaysia due to domestic violence.

1. The Tribunal further considers that the applicant’s actions following her arrival in Australia do not establish she fled Malaysia due to domestic violence. As indicated above, whilst accepting that persons who have been the victim of domestic violence are frequently vulnerable and open to exploitation, the Tribunal considers the applicant’s evidence that she was able to find a way to leave Malaysia and her violent husband, yet had not considered any options as to how she might survive and remain in Australia, or seek to explain her claims to fear harm to the Department or another agency to be not credible. The applicant’s evidence to the Tribunal indicates that she had made no inquiries and had not made any attempts to determine how she could remain in Australia and it was only after her detection and detention that she did so. As indicated above, despite showing the resourcefulness to be able to obtain a passport and visa and a ticket to leave [her country], purportedly without her husband’s knowledge, she claims to have been unable to ask anyone except a Tamil woman who she approached on the street for any assistance, even though the Tamil woman’s only suggestion was that she [work in an industry], which the applicant claims was abhorrent to her. The Tribunal considers that the applicant’s claims that she did not seek any alternative advice or ask anyone except a Tamil woman who suggested she engage in [an occupation] for any advice to be not credible and indicative of the fact that her claims are manufactured. The Tribunal considers that had the applicant genuinely feared harm in Malaysia that she would have sought in some way to determine how she could seek assistance in Australia by explaining the violence she had experienced.

2. The evidence also indicates that despite since claiming violence from her husband which resulted in her leaving Malaysia and seeking protection, this claim was not raised at the initial interview held when she was detained and only raised some days later. When asked at the Tribunal hearing why she had not made claims to fear domestic violence when she was first detained, the applicant stated that she had a Tamil interpreter from Sri Lanka rather than a Tamil Malaysian interpreter and she was unable to properly explain her claims. The applicant was advised pursuant to s.424AA, that she was recorded as saying that she wanted to apply for a Student visa. The applicant denied that she had made such a claim and stated that she had been asked about her plans if she was allowed to stay and she had said she wanted to study in Australia.

3. The Tribunal does not accept the applicant’s explanation for her failure to make this claim during her initial detection. The applicant was assisted by a Sri Lankan Tamil interpreter during the Tribunal hearing and the applicant confirmed a number of times that she understood the interpreter and the fact that she was Sri Lankan Tamil did not affect her understanding. The Tribunal does not accept that she would be recorded as stating that she wished to apply for a Student visa if she had not in fact made this statement during the initial interview. The Tribunal also considers that had the applicant claimed that she had been the victim of violence that this would have been recorded during the initial interview. The Tribunal considers that the fact that her claim to have experienced domestic violence was not raised upon her initial detection [in] July 2015 and she had made no previous attempts to determine how she might seek Australia’s protection indicative of the fact that such claims were fabricated in an attempt to obtain a way of remaining in Australia following her detention.

4. The Tribunal also considers that the applicant’s evidence as to how she met a Tamil woman, who within a few days of her arrival in Australia had forced her to become involved in [an occupation], to be not credible. As previously stated, the Tribunal accepts that women arriving in Australia having experienced harm in their own countries can be vulnerable and open to exploitation. However, the Tribunal does not accept the applicant’s claims that she fled Malaysia and coincidentally a few days later met a Tamil woman was able to arrange for her to work in [an occupation]. The Tribunal considers that the applicant’s evidence as to why she travelled from Melbourne to Sydney and why she felt her only option was to agree with a Tamil woman whom she had met on the street to be vague and unpersuasive. The Tribunal considers it evident that the applicant left Malaysia with the intention of undertaking such work upon her arrival in Australia and her claim that she did so only after she approached a Tamil woman for assistance who then, without the applicant’s consent, arranged for her to work in [an occupation], to have been manufactured. The Tribunal considers that the applicant has manufactured this claim in an attempt to overcome the evidence indicating that she did not apply for protection until some weeks after her arrival and only after she was detected and detained by the Department.

5. The Tribunal has considered all of the evidence, including the applicant’s comments and responses to issues raised during the hearing pursuant to s.424AA, which was explained to the applicant and she was given an opportunity to comment or respond at a different time, but elected to do so during the hearing. The Tribunal is not satisfied that the applicant’s evidence as to her reasons for leaving Malaysia is truthful. The Tribunal is prepared to accept the applicant’s claims that her husband accrued debts and ceased working and she was required to work to support him and pay his debts. The Tribunal does not accept that this amounts to serious harm. The Tribunal also does not accept the applicant’s vague claims about her husband being a “gangster” and having the ability to organise for her and other people to be killed. The Tribunal does not accept that she was the victim of domestic violence and considers that the small scar on her [body] which she claimed was caused by a burn from a hot [object] could have been inflicted in many ways. The Tribunal has found above that the applicant’s claims as to the domestic violence itself are unpersuasive and not supported by any evidence that she ever sought any assistance from a doctor, an agency dealing with such issues or the police, even though she was aware that there are avenues for such protection. The Tribunal accepts that the applicant’s failure to seek assistance in Malaysia does not in itself establish that the applicant has manufactured her claims, and the Tribunal has accepted that many women in such situations do not seek harm for a variety of reasons. However, the Tribunal has also found that several other aspects of the applicant’s evidence are problematic, including her remaining in Malaysia for another five weeks in circumstances where she claims to have feared harm from her violent husband; her circumstances following her arrival in Australia, including her failure to make any attempts to determine how she could stay in Australia on or obtain Australia’s protection; her failure to raise her claims at the initial interview, and her fabricated claims as to how she met a Tamil woman and thereafter began working in [an occupation]. The Tribunal is drawn to the conclusion that these factors are indicative of the fact that the applicant did not come to Australia due to domestic violence and she instead came to work and subsequently lodged a Protection visa as a means of attempting to remain in Australia.

6. The Tribunal is not satisfied, having not accepted that the applicant has been the victim of domestic violence in the past, that there is a real chance that she will suffer domestic violence from her husband, or his family or friends, if she returns to Malaysia. The Tribunal accepts that the applicant has separated from her husband and at this time does not wish to resume her marriage, but considers that even if she chooses to reunite with her husband, that any “requirement” to work to support her husband as she has done in the past, or to assist him to repay his accrued debts, does not amounts to serious harm. The Tribunal does not accept the applicant’s claims that this amounts to physical or emotional harm and, therefore, to serious harm, or that there is a real chance that she would suffer serious harm for this reason upon her return to Malaysia. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm from her husband, his family or his friends in the reasonably foreseeable future.

7. Although the Tribunal has not accepted the applicant’s claims to fear harm in Malaysia at the hands of her husband, as discussed during the Department interview and the hearing, even if the applicant’s claims are truthful and she has been the victim of domestic violence, there are mechanisms in place to enable the applicant to be afforded effective protection, in accordance with the definition set out in s.5LA of the Act. When this issue was discussed during the Department interview, the applicant stated that she will not receive protection from the police because she is a Tamil. When advised that she has never gone to the police so she cannot know whether she will receive protection, the applicant stated that she believes she will not receive police protection. The applicant was advised by the delegate of the country information regarding various options for women suffering domestic violence and the Malaysian authorities would provide her with a reasonable level of protection if she was threatened by anyone upon her return. The applicant stated that she does not believe that is the case. As indicated above, the applicant confirmed during the Tribunal hearing that she has never sought the protection of the police or any agencies because she feared what her husband would do.

8. Whilst not accepting the harm claimed by the applicant, the evidence cited by the delegate from the Department of Foreign Affairs and Trade indicates that although domestic violence continues to be a serious problem in Malaysia, the Malaysian law prohibits domestic violence and victims can obtain protection orders which attract a prison sentence of a fine if breached. The report also indicates that a number of government and non government shelters have been established and “Malaysia has taken significant steps to reduce domestic violence” and conviction rates have significantly increased. The report indicates that police headquarters in each state now maintain sexual investigation units to assist victims of sexual crimes and abuse. The evidence also indicates that although there is some low level discrimination against Tamils and Hindus when attempting to engage the state tertiary system, they do not experience discrimination or violence on a day to day basis. The evidence further indicates that Malaysia has a functioning judicial and police system.[1] The Tribunal is satisfied that the evidence indicates that there are avenues for protection in Malaysia for women who have been or are at risk of being the victims of domestic violence. The Tribunal does not accept the applicant’s claims that she will be unable to access or that this protection will be denied to her because she is a Tamil. The Tribunal is not satisfied that this claim is supported by the independent evidence. The Tribunal is satisfied that the applicant can access the protection; the protection is durable; and the protection consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system, as required by s.5LA(2)(a), (b) and (c). Although the Tribunal notes that there has not yet been any judicial interpretation of these provisions, previous jurisprudence in relation to State protection found that the authorities may not be able to provide an assurance of safety does not justify an unwillingness for an applicant to fail to seek protection and the fact that protection cannot be guarantee its citizens will receive protection, as the protection that is required is a “reasonable level of protection not a perfect one”.[2] Thus, it is clear that the required system of protection is one of reasonable, but not perfect, efficiency,[3] and may not necessarily provide a guarantee of safety or remove any reasonable basis for fear.[4] The Tribunal is satisfied that protection measures are available to the applicant in Malaysia and could be provided and the State is willing and able to offer such harm. The Tribunal also finds that the effective protection measures are available to the applicant in the receiving country, Malaysia.

   [1] Department of Foreign Affairs and Trade, Country Report: Malaysia, 3 December 2014. See also the US Department of State, Human Rights Report 2014, ‘Malaysia’, 25 June 2015, which states that Malaysia has a reasonably effective and impartial police and justice system.

   [2] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [27]-[29].

   [3] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117] per Kirby J; SZDWR v MIMIA (2006) 149 FCR 550 at [22].

   [4] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [23], [26] per Gleeson CJ, Hayne and Heydon JJ.

9. The Tribunal is not satisfied, therefore, that there is a real chance that the applicant will suffer serious harm if she returns to Malaysia for reasons of her membership of a particular social group, or for any one of the other reasons mentioned in s.5J(1)(a). The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution. 

   Are there 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?

10. The Tribunal has also considered the applicant’s claims, having regard to the Complementary Protection provisions. The Tribunal has not accepted that the applicant has or will suffer serious harm upon her return to Malaysia because she has been the victim of domestic violence. The Tribunal has found that there is also not a real chance that the applicant will suffer serious harm upon her return to Malaysia. In terms of the Complementary Protection provisions, the Tribunal is also not satisfied, having not accepted that the applicant has been the victim of domestic violence in the past, that there is a real risk that she will suffer domestic violence from her husband, or his family or friends, if she returns to Malaysia. The Tribunal accepts that the applicant has separated from her husband and at this time does not wish to resume her marriage, but considers that even if she chooses to reunite with her husband, that any “requirement” to work to support her husband as she has done in the past, or to assist him to repay his accrued debts, does not amount to significant harm. The Tribunal does not accept the applicant’s claims that this amounts to physical or emotional harm and, therefore, to significant harm, or that there is a real risk that she would suffer significant harm for this reason upon her return to Malaysia. Accordingly, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm from her husband, his family or his friends upon her return to Malaysia.

11. The Tribunal has also found that there is State protection available for persons who are at risk of domestic violence and this is effective in terms of the provisions of the Act. Under s.36(2B), there is taken not to be a real risk of significant harm if 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’: s.36(2B)(b). The Tribunal has not accepted that the applicant will suffer serious or significant, harm but is satisfied that independent evidence discussed by the delegate and set out above indicates that Malaysia has a functioning judicial and police system, and there are avenues available for the applicant to access protection from the Malaysian authorities such that it would remove the real risk of significant harm. 

12. The Tribunal is not satisfied, therefore, that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Accordingly, having regard to all of the evidence, the Tribunal is 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.

    CONCLUSIONS

13. 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).

14. 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).

15. 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

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

    Susan Pinto
    Member

    
    

    ATTACHMENT - CRITERIA FOR A PROTECTION VISA

17. 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.

18. 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. 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).

19. 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 below.  

20. 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

1. 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.

   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.

   …