1513177 (Refugee)

[2017] AATA 2666

1513177 (Refugee) [2017] AATA 2666 (31 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513177

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:31 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made 31 October 2017 at 3.01pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Particular social group – Victims of domestic violence – Vulnerable women in abusive marriages – Physical violence – Police protection – Internal relocation – Availability of divorce

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v MZYYL (2012) 207 FCR 211
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

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 [in] August 2015 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is [an age] year old female who arrived in Australia from Malaysia [in] July 2014 on a 3 month [visa].  

3. The applicant applied for the visa [in] February 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee and therefore not a person in respect of whom Australia has protection obligations pursuant to s.36 (2)(a) of the Act. In addition the delegate found that there are no substantial grounds for believing that as a foreseeable consequence of being removed to Malaysia, there is a real risk that the applicant will suffer significant harm and therefore is not a person in respect of whom Australia has protection obligations pursuant to s.36(2)(aa) of the Act.

4. The applicant appeared before the Tribunal on 10 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

The Relevant Law

1. 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.

2. 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.

3. 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).

4. 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.

5. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The applicant claims protection on the basis of domestic violence. Her claim appeared in her application as follows:

   Why did you leave that country?

   ‘I wanted and need to escapee from being constantly violated abuse and assault whether from physically or mentally tortured by ex-husband’.

   What do you think will happen to you if you return to that country?

   ‘ He is an animal disrespectful person, he will interfere with my family member and friend, I become victim of violent. I will be locked up and given one meal per day sometime even none continuously beaten and feed me with drug.’

   Did you experience harm in that country?

   ‘Been violently beat up including hammered by cloth iron, pour boiled water toward me ,kicking and punching disallow contact outside world reason he treat me like this. He is an alcoholic and drug addict he insane.’

   Did you seek help within the country after harm?

   ‘Too frighten, not dare to do so. This ex-husband will brutally beat me let me starving not allow, me to sleep. He is manic.’

   Did you move, or try to move, to another part of that country?

   ‘I did, I run away to my best friend’s house at Klang, seek for shelter, he found out he came by and hit both of us and harass her, he bang my head on the door, drag me out of the house by pulling my hair till the car. When back home he started beating me up again and again. He threaten me if I ran away again. He going to break my leg. I been left to starve for two day.’

   Do you think you will be harmed or mistreated if you return to that country?

   ‘Broken arm, broken leg bruises, bleeding, have stiches. Let me starving a day or two. The injured that I mention about already common thing will happen to me if came to worst I might get in kill. If during the time he consume pill/drug he turn up a maniac.’

3. The applicant arrived in Australia [in] July 2014 on a Malaysian passport as a holder of a [temporary visa] with a maximum period of three months, expiring [in] October 2014. The applicant produced her passport to the Tribunal.  As a result the Tribunal finds that the applicant is a citizen of Malaysia.

4. The applicant arrived in Australia with her partner at that time, [Mr A].

5. The applicant was born on [date] in Selangor, Malaysia. She is a Malaysian citizen of Chinese ethnicity. She is of the Buddhist religion and can speak, read and write Mandarin, Bahasa Malaysian and English.

6. The applicant’s mother and father live in Selangor. Her father works as [an occupation] and she described her mother as a housewife. She has [specified family members] all of whom live in Selangor.

7. The applicant attended primary school in Kelang Selangor and then high school in Shah Alam Selangor. She finished school in year [number] upon which she commenced work in [a products] company known as [name], in Shah Alam Selangor, as [an occupation].

8. The applicant was married in Selangor in 1993 to, [husband’s name]. She separated from her husband in 2004. Her evidence was that they remain married due to the fact that her husband had refused to sign the ‘the divorce papers’ provided to him. The applicant does not have any children.

9. The applicant did not provide any documentation as to her marital status.

10. The applicant said that she has now lost contact with her husband and does not know where he was living. 

11. The applicant claims that up until 2004 her husband was physically violent and abusive toward her. She said that he was an alcoholic and drug addict. She outlined a history of domestic violence that she had been subjected to which included physical abuse, forced starvation, sleep deprivation and being drugged. The applicant did not provide any medical evidence of her injuries. Her evidence was that she didn’t go to the Doctor because, being Chinese, she preferred to deal with her medical treatment herself. Despite the lack of medical evidence the Tribunal finds that the applicant was the victim of domestic abuse prior to 2004.

12. In addition the applicant claimed that prior to 2004 she had attempted to escape from her husband on two occasions, by moving to a friend’s house. However, on each occasion her husband found her and forced back to home.  The Tribunal accepts and finds that prior to 2004 the applicant had tried to escape her husband as a result of him being abusive towards her.

13. The applicant’s evidence was that her parents had not been supportive of her during her marriage.  She said that her father’s response to being told that she was being physically abused by her husband was that he preferred she resolve the matter directly with her husband. Her mother has broken off all contact with her as a result of her separating from her husband. The Tribunal accepts this evidence.   

14. In 2004 the applicant separated from her husband and moved to Penang for approximately 10 years. She worked [in a position] in a [specified] business. Initially, she lived alone but in or about 2006 she developed a relationship with [Mr A] and was with him for approximately 8 years. They traveled together to Australia but split up shortly after their arrival.  She does not know where he is now but believes he may be in [another city].   

15. Her evidence was that in or about 2009 or 2010 her husband discovered where she was  living and working in Penang. She said that he discovered her location through a friend who was working in the same company as her.

16. The applicant’s evidence was that once her husband found out where she was working in Penang he started calling and harassed her. She said that he then stalked her and following her home from work to discover where she lived. Her evidence was that she did not believe he would assault her again, as a result, she let him into her home. However, once inside he became aggressive and once again beat her including pouring hot water on her hands and legs.

17. Her evidence was that he repeatedly came back to her house to beat her and abuse her up until the time that she left for Australia. In response to the Tribunals request to provide specific details in relation to the timing and location of each attack attack, the applicant said that she was not able to provide such specific details due to the fact that she had tried to forget the abuse she had suffered. She said that it was ‘no longer important to her.’

18. In addition, the Tribunal noted that from 2006 the applicant was in a relationship with [Mr A].  The applicant said that on occasions when [Mr A] was present during her husband’s visits he would beat [Mr A] as well as her. She did not provide any independent evidence of her husband beating [Mr A]. 

19. In response to whether she had been to police the applicant said they had not because they were corrupt and would not investigate the matter. She did not know if [Mr A] had been to the police. 

20. The applicant’s evidence was that she had lost contact with her husband and that she was not aware where he was living.

Country information.

1. The Tribunal referred to information contained in the DFAT country report for Malaysia dated July 2016 (‘the DFAT Report’)[1] The Tribunal in relation to the applicant’s claims noted that the country report refers to domestic violence in Malaysia and notes domestic violence against women is a serious problem in Malaysia. The report also notes that credible sources suggested to the Department that there was significant under reporting of domestic violence because of traditional beliefs in the sanctity and privacy of marriage. The DFAT Report’ notes that Malaysian law prohibits domestic violence but there are contradictions between federal and state Sharia based law in relation to the levels of state protection afforded to victims of domestic violence.[2] Police training on domestic violence is limited and the judiciary receives little to no training in the application of relevant Law. However, the report states that Malaysia has taken significant steps to reduce domestic violence and domestic violence conviction rates have increased over the last decade and that police are becoming more responsive to reports of rape against women and that police headquarters in each state now maintain sexual investigation units to assist victims of sexual crimes and abuse.[3]

   [1] DFAT Country Information Report Malaysia 19 July 2016.

   [2] Op Cit @ p.19

   [3] Op Cit @ p.19

2. The report also notes that non-government organisations report that only one in 10 reported rape cases go to court. The report notes that a number of government and non-government bodies provide shelters and assistance to victims the contacts have informed the Department that these services are inadequate for demand. The report notes that the Malaysian government introduced one-stop crisis centres in Malaysia in hospitals in 1996 which aim to provide a centralised one-stop facility to victims.[4]

   [4] Ibid

3. The report notes that in 2011 United Nations women reported that the Malaysia's one-stop crisis centres model was extremely successful in combining therapeutic responses with secondary preventative measures. The Department assessment is that while the situation is improving confusion between federal and state laws and a lack of capacity within the police and judiciary makes it difficult for women to gain adequate state protection and to safely leave violent relationships.[5]

   [5] Ibid

4. The Tribunal referred the applicant to the 2013 US State Department Report on Human Rights Practices[6] in which noted that the Domestic Violence Act , anyone who uses violence against a protected person willfully contravene a protection order may be punished by imprisonment of up to one year and maximum fine of RM2000. In 2010 an amendment to the Domestic Violence Act expanded the definition of domestic violence to include mental, emotional and psychological abuse as well as physical violence. It also allows the courts to issue protective orders to prevent third parties from physically abusing, or even communicating with victims of domestic violence and allows police to arrest a perpetrator when a protective order has been violated.[7] The applicant said that she was not aware of the Domestic Violence Act.    

   [6] ‘Malaysia- Country reports on Human Practices 2013’, US Department of State, 27 February 2014, GIF18C90107.

   [7] ibid

5. A number of government and private agencies also provide support for abused women at centralised hospital based care centres referred to as One- Stop Crisis Centres (OSCC). Victims are provided protection, safe accommodation, support counselling and legal assistance from personnel including medical staff, councellors social workers, and police. The first of these centres commenced operation in 1986. By 1997 there were approximately 100 centres promoted by a directive for the Ministry of health which stipulated that all state hospitals establish an OSCC.[8] 

   [8] ‘One-Stop Crisis Centres for Domestic Violence Victims’ Bernama (Malaysia National News Agency) 16 January 2008 CX223170.

6. The Tribunal referred to the comments in the DFAT Report regarding state protection and notes that the report refers to law enforcement entities operating at both federal and state level and that the Royal Malaysian police is responsible for law-enforcement nationwide.[9] The report referred to the arrangements regarding the enforcement of Sharia law in Malaysia. The report noted that in relation to the Royal Malaysian Police credible sources consider the Royal Malaysian police to be a professional and effective police force however the quality of the police responses varies depending on levels of training, capacity or engagement in corruption. The report also refers to police integrity and accountability issues and that the Inspector General of police announced the establishment in July 2014 of an integrity standard compliance Department to enhance police integrity and image but it is not an independent body.[10] The report also referred to the Malaysian judiciary and noted that the ability for individuals to seek legal redress through Malaysian courts is mixed.[11]

   [9] Op Cit @ p.25

   [10] ibid

   [11] ibid

7. The DFAT report also referred to internal relocation in Malaysia and that the Constitution provided for freedom of internal movement.[12] The Department assessment is that Malaysians can and do freely relocate internally. Individuals likely to attract official attention under state Sharia based law and including women escaping violent husbands often moved to large urban centres to avoid attention and that people also relocate for economic reasons.

ASSESSMENT OF CLAIMS AND FINDINGS

[12] Op Cit @ p.27

Country of Reference

1. The Tribunal finds that the applicant is a citizen of Malaysia. In this respect, the Department's file contains a photocopy of the applicant's passport and at the hearing the applicant presented to the Tribunal her Malaysian passport.The applicant’s passport is issued by the government of Malaysia [in] 2014. It shows she was born in Selangor and that her nationality is Malaysian. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.

2. Accordingly, the protection claims will be assessed against Malaysia as the country of reference and 'receiving country' respectively.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[13]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[14]

   [13] s.5AAA Migration Act 1958.

   [14] (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[15] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [15] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

2. If the applicant's account appears credible, she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[16] However, such a benefit should 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.

   [16] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

   ·The applicant was born on [date] in Selangor, Malaysia.

   ·The applicant is a Malaysian citizen of Chinese ethnicity. She is of the Buddhist religion and can speak, read and write Mandarin and Bahasa Malaysian and can read and write English;

   ·The applicant has a mother, father, [and specified family members] all of whom live in Selangor.

   ·The applicant has had limited education having finished school in year [number]. After leaving school she worked as [an occupation] in [a products] company.

   ·The applicant was married in Selangor in 1993 and is currently estranged and separated from her husband.

   ·The applicant’s husband was an alcoholic and drug addict. The applicant had a history of domestic violence that she had been subjected to by her husband which included physical abuse, forced starvation, sleep deprivation and being drugged.

   ·The applicant, while living with her husband went to live with a friend, on two occasions, as a result of her husband’s domestic violence. On both occasions he forced her return home. 

   ·The applicant separated from her husband in 2004 to live and work in Penang. She has no children.

   ·From in or about 2006 the applicant had a relationship with her boyfriend, [Mr A], which ended soon after her arriving in Australia.  

   ·In or about 2009 or 2010 the husband discovered where the applicant worked and lived in Penang. From about that time he continued to be abusive toward the applicant and her boyfriend by beating them both.

   ·The applicant had not been to the police in Malaysia about her husband’s violent attacks towards her.

   ·The applicant had lost contact with her husband and that she was not aware where he was currently living.

3. The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. In this regard, the applicant provided plausible, emotionally compelling and persuasive answers to the Tribunal’s questions about historical acts of domestic violence and her responses to them. The Tribunal has also consulted the AAT’s 2015 Gender Guidelines and accepts that disclosing information about domestic violence and other gender-related issues to family or friends back in Malaysia will be challenging, not least due to complex social, familial and religious issues and the reluctance or fear of compounding the effect of the applicant’s trauma.

4. For these reasons, the Tribunal has provided the applicant the benefit of the doubt and accordingly accepts that the applicant claims about historic domestic violence.  In particular it accepts that the applicant was verbally and physically abusive relationship with her now estranged husband during and after her separation. It accepts the applicant was injured in the past, including being forcibly administered drugs and other medication. It also accepts that the applicant’s father did not take action to protect his daughter preferring that she resolve the matter directly with her husband. It is also accepted that her mother broke off all contact with the applicant after the applicant separated from her husband.

5. As a result, the Tribunal finds that the applicant belongs to a membership of particular social group, namely vulnerable women in abusive marriages and women who are victims of domestic violence. Therefore, the Tribunal accepts that the applicant has a genuine and credible fear of harm for a reason mentioned in s.5J(1)(a), if she is to be returned to Malaysia.

6. During the hearing, the applicant claimed that she had tried to divorce her husband in or about 2004 but that he had refused to sign the necessary documentation to affect their divorce.   According to Malaysian law, divorce without mutual consent is permitted between non-Muslims, including where one party has committed adultery, where one party has behaved in such a way that it cannot reasonably be expected to live together, have deserted for a continuous period of at least two years or where the parties have lived apart from a continuous period of at least two years.  Based on this information, the Tribunal finds that divorce is legally open to the applicant.

7. The Tribunal acknowledges that the applicant has a subjective fear regarding her husband. Although she says that she has lost contact with her husband and she does not know where he is living, she fears that if she were to return to Malaysia her husband will once again find her and continue to abuse her.

8. While the Tribunal accepts there are chance of serious harm, including through significant physical ill-treatment, for the specific claimed reasons, the Tribunal has considered whether the applicant has access to effective protection measures as a vulnerable woman in an abusive marriage and who has suffered domestic violence by operation of s.5J(2) of the Act.

9. In the hearing the applicant was asked if she had made a report to the police or sought an intervention order under Malaysia’s Domestic Violence Act. The applicant said that she had not made a report to police and that she was unaware of intervention orders being available under Malaysia’s Domestic Violence Act and accessible services from the One Stop Crisis Centres for victims of domestic abuse. Given the applicant’s parents reluctance to be involved in the management of her relationship with her husband, there is no barrier to the applicant accessing these measures. Neither did the applicant advance that she would be denied these protection measures for any reason mentioned in s.5J(1)(a).

10. The DFAT report[17] notes that ‘credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force.’ In this case the applicant is estranged from her husband, no longer has contact with him and is capable of accessing appropriate services for her protection.In this respect, the Tribunal does not accept that the applicant will be denied effective protection measures for any reason outlined in s.5J(1)(a) of the Act. While the Tribunal accepts the system to support domestic violence victims in Malaysia is not faultless, based on the available country information, the Tribunal does not accept that these inadequacies are so extensive that the applicant will be denied effective protection measures.

    [17] DFAT Country Information Report Malaysia 19 July 2016

11. When considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant in her receiving country. The Tribunal finds that that the effective protection measures are available for the relevant State to the applicant anywhere in Malaysia and therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as a vulnerable woman in an abusive marriage or as a female victim of domestic violence or any related claim or any other reasons mentioned in s.5J(1)(a).

12. Having considered both ss.5J(1)(a) and 5J(2), alongside the available country information as well as the applicant’s accepted circumstances, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and that the Tribunal is satisfied that effective protection measures are available to the applicant throughout Malaysia, pursuant to s.36(2)(a).

13. Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the applicant’s specific claims relating to domestic violence and being in an abusive marriage.

14. The Tribunal has also considered whether there is any substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to her country of reference, faces a real risk of significant harm. In this regard, the Tribunal accepts that the applicant does have a risk of harm. It also that will include severe physical violence and ill-treatment and that this harm will amount to significant harm as outlined in s.36(2A)(c) and (d).

15. 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). Section 36(2B)(b) refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm.

16. In MIAC v MZYYL, the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[18] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[19] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection.

    [18] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.

    [19] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

17. In considering the country information in the applicant’s accepted circumstances discussed under effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state authorities to the applicant if removed from Australia to anywhere within the applicant’s country of reference, will reduce the risk of significant harm to below that of a real one. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia and does not satisfy s.36(2)(aa) in this regard.

18. In all the circumstances the applicant does not have well-founded fear of persecution based on her claim of domestic violence and does not satisfy s.36(2)(a), if she were to return to Malaysia.

19. At no stage did the applicant advance any other reason, such as her race, nationality or religion, in her written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

20. Based on the findings above, the applicant does not face a real chance of serious harm for any reason mentioned in s5J(1)(a), if returned to Malaysia, now or into the foreseeable future.

21. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

22. Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, 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 there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, as required by s36(2)(aa).

Conclusions

1. 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 the Act for the reasons mentioned in s.5J(2) Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. 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).

3. 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

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

Jason Pennell
Member