1609041 (Refugee)

1609041 (Refugee) [2018] AATA 576 (14 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609041
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Denis Dragovic
DATE:14 February 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 February 2018 at 10:51am
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Victims of family violence – Threats of physical violence – Threats of kidnapping – Emotional and psychological harm – Effective protection – Internal relocation – Obtaining child passport without parental consent

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] June 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas [in] September 2015. The delegate refused to grant the visas on the basis that the applicants could find effective protection for the state and that this protection would reduce the risk that they face to something less than a real risk.
The applicants provided to the Tribunal copies of their Malaysian passports. The Tribunal is satisfied on the basis of these passports that they are citizens of Malaysia and that their identities are as claimed. The Tribunal accepts that Malaysia is the country of reference for the purposes of assessing the applicants’ claims under ss. 36(2)(a) and (aa). I also find that the applicants cannot avail themselves of a right to enter and reside in a third country.
CRITERIA FOR A PROTECTION VISA
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.
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).
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.
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
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
Summary of the applicants’ claims: The primary applicant is afraid to return to Malaysia because she fears that she will be attacked or killed by her ex-husband. She claims to have suffered serious domestic violence during the marriage and had her life threatened many times. After she separated he took custody of their son while she had their daughter. She claimed that he threatened to kidnap their daughter. She fled Malaysia because the authorities cannot protect them from domestic violence and relocation is not an option because her ex-husband has many friends in the police. The second and third named applicants’ fears arise from the circumstances of the first named applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The first named applicant’s evidence
The applicant claims to have been married at [age] years of age in [another country] because as a Muslim she would require permission from her father to be married in Malaysia, but as her father had left her life when she was [a young age] she had no one to provide permission. She began to experience violence from her husband even before they married but as she was dependent upon him at that time for her education she went ahead with the wedding. After their marriage he did not allow her to continue her education. He would hit her ever few days and smoke marijuana regularly. As the years progressed the violence became worse. He forbade her from seeing her mother and auntie, hit her if she talked back to him, raped her and hit her while she was pregnant. He had a gun at home and threatened her with it if she told anyone of how he treated her.
The applicant had two children with her ex-husband. In [year] her ex-husband was arrested and detained selling marijuana. Their daughter was with her at the time while their son with his father. When she learned of the arrest she saw an opportunity to leave so she fled to her [Relative A’s] house. She thought that he would be detained for a long time but instead it was for only [number] days. She claims that he was released from detention without charge because according to the applicant he had friends in the police.
As a result of the nature of the separation her son remained with his father while she had their daughter, the third named applicant.
She moved between her [Relative A’s] and mother’s house. While staying at her mother’s her ex-husband visited repeatedly, she estimated around ten times, threatening her demanding that she return but never hitting her or her mother. As far as she is aware he never went to her [Relative A’s] house.
In the middle of 2012 she met her current husband, the second named applicant who is from Negeri Sembilan whereas the applicant, her mother, [Relative A] and ex-husband lived in Terengganu. They met while she was working in [a business]. During this period her daughter was in child care close to [there].
The applicant was formerly divorced from her ex-husband in [2014] after she had arrived to Australia [in] August 2014. She was divorced through a process called Fasakh (dissolution of marriage by order from the court) which according to Malaysia’s sharia law requires proof of any of a list of events to have occurred which can be broadly summarised as covering such grounds as domestic violence, failure to provide maintenance or being in prison. At the hearing the applicant claimed that her then mother-in-law provided evidence in person to the court that her son was a violent man and had beaten the applicant.
Prior to meeting the second named applicant, she stated that she never went to the police as she was afraid that he would kill her and her family if she said anything to them. After meeting her new husband she didn’t go because she deemed there not to be a real threat until June 2014. At that time her ex-husband came to her workplace and threatened her but a neighbour was there who calmed the situation, nevertheless, the ex-husband told her that he would kill her and her new partner and take their daughter. The first and second named applicants went to the police to report this incident but were told that it was a family matter and they did not file a report. Believing her ex-husband to be dangerous the first and second named applicants decided to depart Malaysia for Australia while leaving the third named applicant with [Ms B, another relative] in Malaysia.
The applicants claim that in October or November 2015 the ex-husband called [Ms B] and threatened her and subsequently found the location of where she and the third named applicant lived and visited them threatening to harm [Ms B] and report her as having kidnapped his daughter. He gave [Ms B] until [a date in] November to hand over the daughter. Before this date arrived [Ms B] informed her family and the applicants and they decided that [Ms B] should come to Australia along with the third named applicant. As a result [Ms B] came to Australia along with the third named applicant.
The first named applicant claimed that [Ms B] organised for her daughter to get a passport quickly. I put to her that it was hard for me to believe that in Malaysia it is that easy to get a passport for a child without their parents’ approval considering the extent of child trafficking. She responded that [Ms B] had contacted the mother of her ex-husband who knew that he was violent and provided [Ms B] with a photocopy of his ID and signature which was then submitted to the passport office where [Ms B] knew someone who helped process the application.
The first and second named applicants were married in [Australia] in February 2015.
The claims of all three applicants arise from the circumstances of the first applicant and her ex-husband’s threats that can affect all three. The second named applicant does not have separate claims. The third named applicant, a child of [age] years of age, has claims of her own as outlined in the representatives’ submission dated [in] December 2015 in which in addition to claims related to her father including kidnapping and being parented by a drug addict she also fears any harm to her mother which can then impact her psychologically.
A request for time to submit post-hearing submissions was made and granted. A submission of a birth certificate was provided. No additional material during the post-hearing period was received by the Tribunal.
Consideration
The issue in this case is whether the first named applicant’s claims of an ex-husband who was violent towards her and had made threats against her are credible and that they would continue such that his actions would reach the threshold of there being a real chance of serious harm or a real risk of significant harm. If so the second line of consideration is whether the ex-husband has the ability to overcome any protection made available by the state or find the applicants if they were to relocate.
The applicant has detailed the violence she encountered while married in great depth and with consistency. Without a reason to dispute this I accept that she did go through these experiences. I will now consider the evidence provided of the events subsequent to their break–up.
I also note that since the separation the primary applicant was not physically harmed. Instead she received threats which exacted an emotional toll and caused her to fear for her life. In considering whether there is a real chance of serious harm or a real risk of significant harm emanating from the ex-husband’s possible actions I first consider the circumstances surrounding the June 2014 threat which is the most recent and most escalated incident. It is the claim upon which they attempted to report him to the police and subsequently triggered their departure from Malaysia to Australia.
The second named applicant lives in Negeri Sembilan, a state on the west coast of Malaysia while the primary applicant lives on the east coast. Upon receiving the June 2014 threats the applicant remained in her home town for a further two months. The second named applicant travelled to her after two days and remained for three days before returning back to the west coast. I put to the applicants that this did not convey the impression of a couple who genuinely feared for their lives. I asked why the first named applicant had not travelled immediately to Negeri Sembilan. The second named applicant responded that their religion didn’t allow them to stay together and that he didn’t have anyone else in Negeri Sembilan for her to stay with. I put to him that I found it difficult to believe that if they genuinely feared for their lives that he would not be able to find for her an alternative place to stay. He responded that he would be in trouble if he were to take her as she and her ex-husband were still a family. The first named applicant’s response to the same questions was that she didn’t want to bring her problems to his family. I find the response of both applicants to be incongruous to the claimed circumstances and degree of fear and as such I do not accept that the ex-husband’s threats were conveyed and subsequently taken to be real as opposed to idle threats.
I have also considered the claims that [Ms B] was able to obtain a passport for a child using a photocopy of an ID along with a signature on it without any parent or relative present. I note country information states that both parents must be present to submit the application.[1] The claim that [Ms B] knew someone in the passport office who then facilitated the production of a passport for a child without any relative let alone a legally responsible parent being present or signing any documents I find to be far-fetched.
[1] Department of Immigration, Malaysia, website: accessed 13 February 2018
I also note that despite the claimed reach of the ex-husband and his connections within the security apparatus he was unable or unwilling to legally obtain guardianship over his daughter. This would suggest and I accept that either he didn’t have the influence with authorities that the applicants claim such that he would be able to find them wherever they went in Malaysia and that state protection was not feasible or alternatively he didn’t have an interest to pursue her which brings into question the claims that he found [Ms B] and threatened her in Kuala Lumpur.
Considering that the first and second named applicants’ actions following the June 2014 threats are not consistent with what they described to be a real and present danger to them, which they claimed led them to flee Malaysia and take the serious step of leaving their daughter in the care of another person alongside my doubts over the ability of [Ms B] to obtain a passport for the child without any parent present leads me to question the entire narrative. That the first named applicant remained in her home town for two months after the threat despite having recourse to support from her new partner on the other side of the country and the actions of the partner who only remained with her for three days leads me to conclude that the threat was made and received as an idle threat. This conclusion is supported by the fact that the first named applicant was not harmed by the ex-husband for a period of three years after their separation despite on numerous occasions appearing at the doorstep of his then mother-in-law’s house demanding that they continue their relationship. For these reasons I accept that there was and will be a real chance in the reasonably foreseeable future of emotional and psychological harm to the first and second named applicants, but I do not accept that it amounts to serious or significant harm to either. I find that the ex-husband will not take any physical action against the applicants. As I have found the emotional and psychological harm they will face will not amount to serious or significant harm and the likelihood of physical harm not being a real chance or a real risk I do not accept that the first and second named applicants will face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future.
I have also considered the circumstances of the third named applicant. As I have found that the ex-husband will not undertake actions to physically harm the first and second named applicants I also find that the third named applicant does not face a real chance or a real risk of being kidnapped or cared for by the ex-husband such that she would face serious or significant harm. I note the UNHCR guidelines on child asylum claims referenced by the representative in their submission dated [in] December 2015 and I acknowledge in line with the Migration and Refugee Guidelines on Vulnerable Persons that children experience harm differently. I have considered the evidence through the light of these resources and find that the emotional and psychological harm the first and second named applicants may bear will not impact upon the child in such a way that it would lead to serious or significant harm nor would the actions of the ex-husband reach the child in such a way as to amount to serious or significant harm. As such I find that the third named applicant does not face a real chance of serious harm or a real risk of significant harm.
No other harm arises from the evidence for any of the three applicants.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Denis Dragovic
Senior 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.
…

[2018] AATA 576

14 February 2018

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