1612277 (Refugee)

[2017] AATA 2085

1612277 (Refugee) [2017] AATA 2085 (24 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612277

COUNTRY OF REFERENCE:                  Malaysia

MEMBERS:Brendan Darcy (Presiding)

Jason Pennell

DATE:24 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 24 October 2017 at 10:26am

Statement made on 24 October 2017 at 9.48am.

CATCHWORDS

Refugee – Protection visa – Malaysia – Religion – Christian (Roman Catholic) – Political opinion – Berish rally participant – Public sector employee – Social group – Domestic violence victim – Religious divorce is difficult – Applicant failed to submit additional documentation – Applicant has limited education – No right to enter and reside in another country – No well-founded fear of persecution

LEGISLATION

Migration Act 1958, ss 5(H)(1)(a)-(b), 5(1), 5(J), 5J(2)-(6), 5K-LA, 36, 36(2)(a)-(c), 36(2A), 36(2B), 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

MIAC v MZYYL (2012) 207 FCR 211

MIAC v SZQRB [2013] FCAFC 33

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

Nagalingam v MILGEA (1992) 38

Prasad v MIEA (1985) 6 FCR 155

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] July 2016 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 claims to be a citizen of Malaysia.

3. The applicant applied for the visa [in] May 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that applicant is a person in respect of whom Australia has protection obligations. In particular, the delegate was not satisfied the applicant faces a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act. The delegate therefore found the applicant is not a refugee as defined by s.5H of the Act and the criterion in s.36(2)(a) of the Act.

4. Further, the delegate was not satisfied the applicant is entitled to complementary protection under the Act. That is, the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to a receiving country, there is a real risk that applicant will suffer significant harm s.36(2)(aa) of the Act.

5. On 8 August 2017, the applicant applied to this Tribunal for a review of the delegate's decision. A copy of the delegate's decision record accompanied the application for review.

6. The applicant appeared before the Tribunal on 28 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

CRITERIA FOR A PROTECTION VISA

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.

10.  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).

11. 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.

12. 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

13. 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

14.  The issue in this case is whether the applicant satisfies the criteria in the Act for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed:

Background and protection claims

15.  The applicant claimed to be born on [date] in Kota Kinabula in the Malaysian state of Sabah and to be a citizen of Malaysia.

16.  On the departmental file is a copy of the applicant’s passport issued by the relevant Malaysian authority.

17.  The applicant arrived in Australia while holding a visitor visa [in] February 2016 and then applied for a class XA subclass 866 protection visa [in] May 2016.

18.  The applicant claims to be a Christian (Roman Catholic); to be of Kadazan-Dusun or (Kadazan) ethnicity. She also claimed to speak, read and write Malay and English.

19.  In the written application for protection lodged with the Department of Immigration and Border Protection dated [May] 2016, the applicant claimed that:

a)she started to participate in the ‘Berish’ (Yellow Shirt) protests as a result of the dwindling economic situation. She claims she openly protested against the government of the day with several friends.

b)the government ordered that she and her friends be arrested and imprisoned.

c)she fled to Australia ‘ for protection and a life more secure and peaceful.’

d)if she returns to Malaysia the government will find her anywhere and imprison her.

e)the authorities cannot protect her.  

20.  In respect to whether the applicant moved, or tried to move, to another part of her country, the applicant claims that if she moves to another part of the country they will find her anywhere.

21.  The Department refused to grant the applicant a protection visa [in] July 2016 and was notified on [date] July 2016. The applicant applied for the refusal decision to be reviewed by the Tribunal on 8 August 2016 with the decision record attached.

22.  The applicant appeared before the Tribunal al on 28 October 2017 to present evidence and provides arguments in favour of her protection visa application.

23.  During the hearing, the applicant elaborated on her personal circumstances, including her family composition, her educational and employment history and on her claims to have attended a BERSIH rally.

24.  The applicant also provided a late and new claim regarding domestic violence:

25.  The applicant claimed to be married [in] May 2009. Her husband worked in [a certain] industry in Malaysia. Her evidence was that from 2011 to February 2016 she lived with her husband and [child] in sponsored accommodation for the amount of [Malaysian ringgits] (RM) per month. Although not included in her application, the applicant’s evidence at the hearing was that she separated from her husband in October 2015. She has [children] born on [dates] who live between her husband and her mother and father. The applicant is not currently in a relationship.

26.  The applicant stated that she separated from her husband due to the fact that the husband was physically, verbally and financially abusive towards her between 2012 until 2015. She claimed evidence that in or about December 2014 her husband had beat her causing [injuries].

27.  The applicant also claimed her now estranged husband financially abused the applicant and her children.

28.  The applicant says that in or about February 2016, after she had arrived in Australia, her husband hid their [children] from her parents and refused to allow them to have any contact with the. She said however, that the husband has since allowed the children to see her parents and that they now stay with her parents on a regular basis. She said that during the time that the husband had refused her parents to see her [children] and that the applicant had considered returning to Malaysia but she did not out of fear of being detained due to her involvement in the Berish.

29.  In response to the Tribunals request for documentary evidence of her injuries the applicant claimed that she has x-rays and medical certificates in relation to the to the injuries she had suffered as a result of the beatings she received from her husband.

30.  The applicant says that in or about February 2016, after she had arrived in Australia, her husband hid their [children] from her parents and refused to allow them to have any contact with the. The applicant further claimed that the husband has since allowed the children to see her parents and that they now stay with her parents on a regular basis. She stated that during the time that the husband had refused her parents to see her [children] she had considered returning to Malaysia but she did not out of fear of being detained due to her involvement in the Berish and that she liked it in Australia.

31.  The Tribunal enquired of the applicant to the reasons her father, being a member of the Royal Malaysian Police force and the grandfather of her [children], would not be able to protect her from her husband. She responded that perhaps it was because her father had [a strained relationship with] her mother and that her father did not want to interfere with her marriage.  

32.  At the end of the hearing, the applicant undertook to submit additional information by 20 October 2016 to support her claims that she had a medical evidence regarding domestic violence; that she resigned from her public sector role [as] claimed; and any other information, including country information, to support her claims that she is owed Australia’s protection obligations. It was explained by the applicant she can contact to the Tribunal to request for an extension with reasons to be considered.  

33.  No documentary or any other information evidence or any reason for the applicant was submitted by the applicant or on her behalf by 20 October 2017 or right up to the time of making this decision.

Country Information

Domestic Violence

34.  In the decision, the Tribunal has referred to information contained in the DFAT country report for Malaysia dated July 2016 (‘the DFAT Report’)[1] which were discussed during the scheduled hearing.

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

35.  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 a 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]

[2] Op Cit @ p.19

36.  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]

[3] Op Cit @ p.19

37.  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

38.  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

39.  The Tribunal referred the applicant to the 2013 US State Department Report on Human Rights Practices[6]  which noted that under 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 form physically abusing, or even communication 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

40.  A number of government and private agencies also provide and 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 personal including medical staff, counsellors 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.

41.  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

42.  Deaths related to domestic violence do occur in Malaysia. The government does not release statistical information beyond 'murder' so it is difficult to ascertain accurate numbers. However in 2014, at least six domestic violence related deaths were reported in the media. DFAT cannot confirm if 'honour killings', performed to punish individuals who are perceived to have brought shame upon their family members or communities, occur. Where families are against an interfaith marriage, the couple may be at risk of violence

43.  DFAT assesses that while the situation is improving, confusion between federal and state laws and a lack of capacity within the police and judiciary, make it difficult for women to gain adequate state protection and to safely leave violent relationships.

ASSESSMENT OF CLAIMS AND FINDINGS

Country of Reference

44.  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, her security identification card and her Malaysian driver’s license. The applicant’s passport is issued by the government of Malaysia on [date] 2015. It shows she was born in Sabah 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.

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

Credibility

46.  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.

47.  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[12]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[13]

[12] s.5AAA Migration Act 1958.

[13] (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.)

48.  A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[14] 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.

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

49.  If the applicant's account appears credible, she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[15] 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.

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

50.  The Tribunal accepts the following aspects of the applicant’s circumstances to be credible:

• The applicant was born in [date] at Kota Kinabula in Sabah as claimed;

• The applicant is ethnically Kadazan; that she belongs to the Roman Catholic tradition of Christianity; and that she speaks, reads and writes in Bahasa Malaysian and English and speaks Dusun;

• The applicant has had limited education; worked as [Occupation 1] after leaving school; and then she had been employed as an [Occupation 2] in the public [sector], prior to her departure, as claimed;

• The applicant was married and is currently estranged and separated from her husband with whom the applicant has [children]; [and]

• The applicant’s parents and siblings reside in Sabah and that the applicant’s father works in Kota Kinabula as a policeman;  and

• At the time of the hearing, the applicant’s children were living with her parents back in Sabah.

Applicant’s Political Opinion Claims

51.  However, for the reason outlined below, the Tribunal does not accept there is a real the applicant will suffer serious harm upon her return to Malaysia:

52.  It is claimed in the applicant’s written claims that she has a well-founded fear of persecution based on her anti-government political opinion. It was claimed that the applicant joined the BERSIH (or Bersih) rallies to express her disapproval towards the government due the deteriorating economic situation and the pressures on living expenses. In those written claims, the applicant claimed that ‘We were ordered to be arrested and imprisoned” and that she feared being imprisoned if she returned to her country of origin. There were no mentions in those written claims about the purpose of the Bersih rallies pertaining to electoral abuses or widespread corruption. 

53.  The Berish is a coalition of 62 non-government organisations (NGO’s) who organised a series of rallies calling for the improved government transparency free and fair elections. Berish rallies were conducted in 2007, 2011, 2012 and 2015.  Available country information also indicates that rallies were held in various cities, including the capital of Sabah, Kota Kinabula.

54.  During the scheduled hearing, the applicant confirmed to the Tribunal that she was not an organiser of the Berish rally but merely a participant at a rally organised in Kota Kinabula in Sabah in 2015. She provided credible details about the protest such as where it began and where it moved and some knowledge about the leading parties in Malaysia. The applicant also mentioned that the rally was not provided permit by the local authorities although it went ahead.  The applicant’s oral evidence to the Tribunal included that she merely attended the rallies and was not involved in the rallies’ organisation or administration. 

55.  The Tribunal accepts the applicant’s evidence in relation to the rally and finds that the applicant did attend the Berish rally but was not involved in the organisation or administration of the rally, as claimed during the scheduled hearing.

56.  Relatedly, the Tribunal finds the applicant holds an anti-government political opinion and that she is principally motivated in her anti-government political opinion by her understanding of the governance of economic matters by Malaysia’s ruling party, with concerns expressed about the cost of living expenses.  

57.  The DFAT assessment is that protestor’s face only a low risk of arrest when engaging in political rallies in Malaysia.[16] It reports that such individuals have been released on bail shortly after their arrest. It is only the high-profile organisers of the political rallies that face moderate risk of official discrimination and could be charged under the Criminal Code.[17]  As discussed during the hearing, the applicant did not claim she had been apprehended as a person of interest, further indicating to it that the applicant does not have a real chance of serious harm or a real risk of significant harm based on her political opinion, imputed or otherwise.  Based on the applicant’s oral evidence and the country information, the Tribunal finds that the applicant is not a person of interest to the authorities in her home country and that she has a very remote or a far-fetched chance of serious harm through arrest, interrogation or imprisonment, based on her political opinion, imputed or otherwise, if she were to return to Malaysia in this regard.

[16] DFAT Country Information Report Malaysia 19 July 2016 paragraph 3.65

[17] Ibid

58.  The applicant further claimed that she faced harm for attending a 2015 rally by losing her public sector employment through disciplinary action. The applicant claimed that she was informed by [her employer] that all those who attended the rally would face disciplinary action, including not receiving a promotion or pay rise for one to two years. The applicant related claimed that she resigned from the position [as] she feared being blacklisted in the future for further public sector employment. During the hearing, the applicant undertook to provide documents but qualified the undertaking by stating it may be difficult. The applicant was provided an opportunity to provide the documents in a post hearing submission but did not submit any documents of any kind or any reasons for not submitting them. This lack of responsiveness in combination with her strongly indicates that the applicant’s specific claim about fearing disciplinary action as public sector employee for her political opinion, imputed or otherwise, to be a significant embellishment. The Tribunal acknowledges that the senior Malaysian Minister have in the past threatened public or civil servants with disciplinary action

59.  The Tribunal has been able to locate publicly-available country information as reported on 27 March 2017 by the online news service, Free Malaysia Today, that the Federal government’s chief secretary threatened disciplinary action could be taken against civil servants who joined the Bersih 5 [rallies].[18]  According to The New Strait Times on 17 November 2016, the chief secretary said the disciplinary action will depend on the level of involvement in the illegal assemblies and that termination of positions would be employed.[19]

[18] [Source deleted].

[19] Termination, salary decision for civil servant who participate in Bersih, Red Shirts rallies by Hashini Kavishtri Kannan, New Strait Times, 17 November 2017, The Tribunal has some credibility concerns about this specific claim about resigning for fear of not being able to access a public sector employment into the future because the applicant was unable to provide documentary evidence of her resignation.  However the Tribunal has been provided with the doubt and accepts that the applicant did resign from her public sector employment as claimed for the reasons claimed.  As discussed during the hearing, the applicant claimed that she now fears resulting from this resignation are her difficulties in finding work, including public sector employment.

61.  The Tribunal accepts that the applicant will face a real chance of harm, in the sense that the applicant will face challenges and difficulties in finding employment if she returns to her home state of Sabah or Malaysia more generally. In this regard, the Tribunal has considered that the applicant’s parents and her estranged husband’s parents continue to play a central role in nurturing her children, that the applicant has relevant skills and experience to the Malaysian labour market and that she is highly motivated.  These aspects of the applicant’s circumstances will assist the applicant in re-engaging either the public or private sectors.  Based on these considerations, the Tribunal does not accept the applicant has a real chance of serious harm as the harm arising from economic hardship will lead to any denial of economic rights, basic services or her capacity to earn a livelihood that threatens the applicant’s capacity to subsist into the foreseeable future. Accordingly, the applicant does not satisfy s5J(4)(b) and does not have a well-founded fear of persecution arising from her resignation from public sector employment as claimed,  if the applicant returns to her home state of Sabah or Malaysia more generally.

62.  Having considered all the applicant’s claims, both individually and cumulatively, arising from her political opinion, the Tribunal finds that the applicant has does not have a real chance of serious harm due to her political opinion, imputed or otherwise, if she returns to either her home state of Sabah or Malaysia more generally into the reasonably foreseeable future.

63.  With regards to complementary protection provisions and these specific political claims, the Tribunal makes the following findings:

64.  In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. Based on the Tribunal’s earlier ‘real chance’ finding, the Tribunal finds that the applicant only has a very remote or far-fetched chance of significant harm through arrest, interrogation and imprisonment arising from her participation in a protest in 2015 and not a real risk of significant harm if the applicant, as a necessary and foreseeable consequence of being removed from Australia.

65. With regards to the applicant facing a real risk of significant harm arising from her public sector resignation and her accepted fears of disciplinary action against her. In particular, the applicant expressed her fears of not being able to deal find work or cope with the costs of living on a daily basis. The Tribunal accepts that the applicant will face a real risk of harm arising from these specific claims however it does not accept the harm will amount to significant harm. Significant harm is different from the concept of serious harm as required by s.5J(4) in the context of s.36(2)(a). The Tribunal has already made a finding that the applicant has the capacity and inclination to find work anywhere in Malaysia and does not face a real chance of serious harm based on these specific claims. While the Tribunal acknowledges the applicant will face difficulties and challenges arising from finding work to support herself, if removed from Australia, it does not accept the applicant will not be able to access paid employment anywhere in Malaysia, including in Sabah, as a necessary and foreseeable consequence of being removed from Australia or that those challenges amount to significant harm as required by s36(2A). Furthermore the Tribunal finds there is no intention on the part of the governing of the Malaysian economy in combination of market forces to inflict significant harm, including subjecting the applicant to cruel or inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of being removed from Australia to the applicant’s country of reference.

66. Having cumulatively considered all the applicant’s claims regarding her political opinion pursuant to s.36(2)(aa), the Tribunal, accordingly, does not have any substantial reasons for believing that the applicant, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia, faces 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 subject to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treating or punishment.

Applicant’s Claims relating to Domestic Violence

67.  During the scheduled hearing, the applicant made new, albeit late claims, that she departed Malaysia for Australia, in part, due to her fears of ongoing domestic violence arising from her estranged husband. 

68.  Although the applicant did not take advantage of the opportunity to provide additional material support her claims about domestic violence, 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.

69.  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 belonged to verbally, physically and financially abuses relationship with her now estranged husband, prior to, during and after her marriage. It accepts the applicant was injured in the past, including [other] injuries requiring x-rays and hospitalisation, as claimed.  It also accepted that the applicant’s father who is a member of the Royal Malaysian Police, did not take action to protect his daughter because the daughter believed he was reluctant to as [he had a strained relationship with] the applicant’s mother as claimed. It is also accepted that the applicant’s husband did kidnap, in the sense that he denied the applicant’s parents access to her children for a period of time when she first arrived in Australia, as claimed. 

70.  The Tribunal also accepts that the current care of the applicant’s children is shared between the applicant’s parents, her parent-in-laws and her estranged husband, as claimed.

71.  Based on these credibility findings, the Tribunal further 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 a reason mentioned in s.5J(1)(a), if she is to be returned to Malaysia.

72.  During the hearing, the applicant claimed she fears that if she returns she will not be able to divorce her husband as Roman Catholics and that he will be permitted by law to rape her with in marriage. 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 civil divorce is legally open to the applicant. With regards to her religious convictions or customs, it was discussed that annulments for marriages where domestic violence has taken place are typically approached with sympathy by church officials. The applicant acknowledged that a priest informed her it was possible with some evidence. Although the Tribunal acknowledges that the applicant has a subjective fear regarding divorce, there is insufficient evidence before the Tribunal that there will be a real chance of serious harm in being forced to remain in an abusive marriage, if she returns to Malaysia.

73.  While the Tribunal accepts there are chance of serious harm, including through significant physical ill-treatment, for these 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. 

74.  As discussed in the hearing, the applicant was unaware of intervention orders being available under Malaysia’s Domestic Violence Act and accessible services from one stop crisis centres for victims of domestic abuse. It is noted that the applicant’s parents would not provide any barrier to the applicant in accessing these measures given her estranged husband has previously denied them access to their grandchildren. Neither did the applicant advance that she would be denied these protection measures for any reason mentioned in s.5J(1)(a). As detailed above, DFAT assesses that while the situation is improving, confusion between federal and state laws and a lack of capacity within the police and judiciary, make it difficult for women to gain adequate state protection and to safely leave violent relationships, the availability and effectives of the existing laws and services invites that the applicant will be able to access these protections and that the measures are effective based on her own circumstances.

75. In this respect, the Tribunal does not accept that the applicant will be denied effective protection measures for any reason outlined in s.5(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.

76.  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).

77. Having considered both ss.5J(1) 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).

78. 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 a abusive marriage.

79. 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).

80. 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.  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.[20] In that sense, there is considerable 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.[21] 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.

[20]        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.

[21]        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).

81. 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.

82. Having considered all the aspects about the applicant’s the applicant does not have well-founded fear of persecution based on her political opinion, imputed or otherwise and does not satisfy s.36(2)(a), if she were to return to

Cumulative Findings

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

84.  Based on the findings above, both individually and cumulatively considered, 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.

85. 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).

86. 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).

Conclusion

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(1)(a), (b) and (c). 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

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

Brendan Darcy (Presiding)  Jason Pennell
Member  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.

..

• 36  Protection 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.

…

Key Legal Topics

Areas of Law

• Administrative Law

• Immigration

Legal Concepts

• Judicial Review

• Natural Justice

• Procedural Fairness

• Statutory Construction