1617811 (Refugee)

1617811 (Refugee) [2019] AATA 5805 (13 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617811
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sheridan Lee
DATE:13 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 13 May 2019 at 10:37am
CATCHWORDS
REFUGEE – Protection visa – Malaysia –Ministerial intervention request refused – High Court remittal – domestic violence victim –fears harm from husband– Tamil Hindu women and single mother –mental health issues – husband’s membership in a gang – contradictory and unconvincing evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Singh (1997) 72 FCR 288
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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [an age] year old Tamil woman of Hindu religion from Malaysia. She applied for a Protection visa on 26 September 2012. A delegate initially refused to grant the visa on 1 March 2013. The applicant sought Ministerial intervention and commenced proceedings in the High Court. The matter was remitted by consent to the Department of Home Affairs for reconsideration. On 7 October 2016, the visa was again refused by a delegate of the Minister.
The applicant appeared before the Tribunal on 19 October 2018 and 7 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearings.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, the applicant 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, I have taken into account PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Background
The applicant arrived in Australia [in] July 2012 on [a temporary] visa. She applied for a protection visa on 26 September 2012.
The application for protection form outlines that the applicant was a victim of domestic violence perpetrated by her husband. It outlines that he would beat the applicant and treat her poorly. The applicant’s husband threatened to kill both the applicant and her daughter and attempted to kill the applicant. It is alleged that the applicant’s husband tried to arrange for their daughter to marry an old Tamil man. Further, it was alleged that the applicant’s husband had a gambling problem.
The applicant outlined that the Malaysian Police are corrupt and don’t provide protection for Tamil women or single mothers. Further, the applicant states that she contacted some women’s organisations but they weren’t really helpful.
The form identifies the applicant as Tamil and Hindu, and further outlines that she can speak, read and write English, Tamil and Malay.
The Department invited the applicant to an interview on 13 November 2012, which she attended with her daughter, [Ms A].
On 1 March 2013, the protection application was refused by a delegate and on 27 May 2015, the applicant submitted a request for Ministerial intervention. The request outlines that the applicant naively believed her daughter was managing her visa application. The applicant is illiterate and speaks limited English. In December 2012, she moved to Melbourne [and] her daughter did not know or tell her that she had to update her contact details with the Department. As a result, the applicant alleges that she did not receive the delegate’s decision. She became worried about her visa outcome in April 2015 and contacted the Department. She was notified that her visa had been refused at that time.
The applicant supplied two letters that were allegedly sent to her via email from her friends in Malaysia to evidence her husband’s ongoing threats. Both emails were sent to the applicant on 26 May 2015 and both are in English. The request for Ministerial intervention further outlines the applicant’s fear that her husband will kill her or harm her if returned to Malaysia and that the police will not provide protection. The request was not granted.
The applicant also applied to the High Court for an order to show cause, seeking review of the decision of the delegate to find invalid her application for a protection visa. She sought an order quashing the decision, directing a new decision be made in accordance to law and preventing action being taken to give effect to the challenged decision. On 10 March 2016, consent orders were made remitting the matter for reconsideration.
In support of her application, a statutory declaration was submitted, dated 27 June 2016. The statement outlines that the applicant’s daughter departed Australia, and she is now the sole applicant for the protection visa. The statutory declaration further outlines that the applicant reviewed her immigration documents with the assistance of her lawyer, including her Form 866, first interview transcript, request for Ministerial intervention and affidavit submitted to the High Court of Australia. Following that review, she wished to make a number of corrections:
·In the first departmental interview, the applicant gave evidence that she worked in [Country 1] for a number of years. The declaration confirmed that she worked in [Country 1] from about 1986 until 1998 [at] [Workplace 1]. She omitted this work history from her visa application form as she could not read English herself at that time. She completed the form with assistance from a friend in Australia named [Ms B]. [Ms B] passed away in Malaysia in 2015.
·The applicant worked in [another workplace] [for] 2 to 3 months in 1986. This position was also omitted from the visa application form. She didn’t know she had missed any information on the form; she trusted [Ms B].
·During the first departmental interview the applicant said that only her daughter assisted with the form. At the time she was afraid to say that [Ms B] had assisted, as she was living in Australia without a visa. Now that she has passed away, the applicant explained that she was no longer afraid.
·The application form listed one brother, however the applicant has two brothers and two sisters.
·The travel history on the application form was incorrect. The applicant travelled to [Country 1] many times for work and to visit her daughter when she worked in [Country 1]. The applicant also visited [Country 2] and [Country 3] with friends.
·The statement that the applicant is in contact with relatives at home is incorrect. She did not tell her family she was in Australia as they might tell her husband. She did, however tell her two best friends, [Ms C] and [Ms D]. She continues to speak to them by telephone about once a month. They don’t have her phone number in case it gets to her husband.
·The form incorrectly states that the applicant can speak, read and write English.
·The Ministerial intervention request letter of 27 May 2015 states that the applicant is illiterate. She is not illiterate and can read and write in Tamil and Malay. She believes this was a misunderstanding of her instructions with the volunteer lawyer who assisted with the preparation of the statement.
·The Ministerial intervention request outlined injuries that the applicant received as a result of her husband pouring boiling water over her. This should have said boiling oil.
In addition to the corrections, the applicant included the following information that was not covered in her original application or interview:
·The applicant is her husband’s second wife. She does not know the name or address of his first wife. She does not know if his first wife knew about her existence or if he abused her.
·She discovered her husband’s first wife when she saw messages on his phone in about 2000. He lived with the applicant in [Town 1] [but] would go away for weeks for work. She had never been suspicious about the trips.
·The applicant was upset by the discovery and from that time her husband became aggressive and spent less time with her and their daughter.
·The applicant realised that her husband had not been working. He would ask her for money, and she realised he was using the money she had earnt and living elsewhere.
·The applicant had a religious marriage with her husband, undertaken in private with a Hindu priest at a Hindu temple.
·The applicant has an additional fear, on the basis that her husband will become angry if she returns to Malaysia without their daughter.
·In about 2010, the applicant refused to provide money to her husband. He poured boiling oil on her. She attended a medical clinic for treatment at the time and again had to seek medical treatment as the burn became infected. The applicant suffered terribly from the incident and her husband became quiet for about 4 months or so.
·The applicant has a scar on her [certain body part] caused by an attack sometime between 2002 and 2010. Her husband hit her with [an object] and it sliced her skin. She attended the medical clinic for this. The applicant has many other scars from defending herself against attacks.
·The applicant was raped by her husband many times throughout the marriage. This didn’t explicitly come up in the first interview and the applicant felt uncomfortable using those words with her friend [Ms B].
·The applicant’s husband wanted another child, however the applicant was using contraception. When he would ask why she wasn’t falling pregnant, she suggested it may be related to his drinking.
In response to the delegate’s findings in the original decision that the applicant could access protection in Malaysia, the applicant outlined that:
·She had never heard of specific Government or private agencies which provide resources to support abused women. These are not accessible or known to her.
·There are very few services prepared to assist women in her situation for free, or at all. She would not have come to Australia if she had access to adequate support.
·She went to the Malaysian Indian Congress (MIC) women’s section office in [Town 1] to request assistance in about 2010. She was told that it was a family matter and the organisation refused to assist.
·Since Malaysia is predominantly a Muslim country, it is difficult for Tamil Hindu women to access services.
·As an Indian in Malaysia, she is only able to access Indian services which are linked to ‘politic’ people. However, she is unable to avail herself of these services as her husband, who is an influential business man, bribed people to close their eyes to the abuse.
·If she were a Malay woman, she may be in a position to access the protection outlined by the delegate.
Medical evidence
The Tribunal has before it a letter from Dr [E], [General Practitioner], dated [July] 2016. The letter provides an overview of the applicant’s account of the events leading to her injuries and provides a clinical account of the scars carried by the applicant. The letter concludes that the scars are consistent with the injuries and causes described to Dr [E] by the applicant.
The letter goes on to state that ‘[the applicant] as well as physical injury suffered severe anxiety, depression and PTSD. She still suffers mental illhealth as a result’. This is the only reference to the applicant’s mental health made within the letter.
In post-hearing submissions, received on 9 November 2018, the applicant’s representative brings attention to the letter from Dr [E] and suggests that the ‘diagnosis of severe anxiety, depression and PTSD in her medical report dated [July] 2016 should be at the forefront of the Tribunal’s evidence weighing process’. Reference is made to the UNHCR Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, which sets out that some psychologically vulnerable applicants may take longer to recollect personal knowledge and recommends that a cautious approach be adopted to determining the plausibility of an applicant’s account of their behaviour.
I accept the pretence of the UNHCR Guidance Note and agree that both depression and anxiety can impact negatively on memory. However, I note that the letter from Dr [E] was provided more than two years ago and refers to the conditions of severe anxiety, depression and PTSD in the past tense. Other than the continuance of un-specified ‘mental illhealth’ it is unclear what medical conditions the applicant suffered at that time in 2016. The letter does not address the applicant’s ability to give evidence or establish that her ability is compromised in any way.
The letter from Dr [E] is of limited probative value and I have given its contents limited weight. I note that the applicant was put on notice as to the limited probative value of the medical certificate in the delegate’s decision of 7 October 2016. I again raised concerns with the applicant as to the nature of the medical evidence she sought to rely on to substantiate her claim to suffer mental health conditions at the second hearing on 7 February 2019.
At the second hearing, the applicant requested additional time to provide medical evidence relating to her mental health. In addition, the applicant gave new evidence that she suffered a head injury as a result of [an] accident in around 2017 or 2018, which may affect her memory. When questioned, the applicant advised that she had been treated for the head injury at [Hospital 1]. I asked the applicant to submit medical evidence relating to the injury.
On 25 February 2019, the applicant supplied a letter from General Practitioner, Dr [F]. The letter outlined that Dr [F] has been seeing the applicant since 11 January 2019. She has been diagnosed with [Medical condition 1] and an iron deficiency. The symptoms outlined include ‘tiredness, weight gain, poor concentration and sometimes memory loss’. In respect of the applicant’s mental health, the letter stated that ‘in order for me to do a comprehensive mental health assessment and a detailed medical report, I would need to see [the applicant] fairly regularly for the next 2 months (until 20/04/2019) and a psychologist assessment if needed.’
On 18 April 2019, further submissions were received, attaching a one page letter from Dr [F], dated 17 April 2019. Details of Dr [F]’s qualifications and experience were not attached to the letter. However, the stamp affixed to the letter indicates that she holds a Bachelor of Medicine, Bachelor of Surgery along with accreditation as a Fellow of the Royal Australasian College of Surgeons. I note that no detailed medical report or record of a comprehensive mental health assessment was provided. The letter outlines that Dr [F] has been treating the applicant since the start of 2019 and reports as follows:
[The applicant] suffers from post traumatic stress disorder [and] depression after being a victim of domestic abuse in malaysia. She fled to australia in 2012 due to this reason. She described living in fear for her life as a result of threats her husband made to kill her. Old scar [noted] (patient alleges that husband had poured boiling oil on her at that time), old scars noted [another body part] (defensive wounds when her husband was beating her). She was examined by a doctor at the refugee clinic in 2016 and her injuries were documented [the applicant] still has a lot of flashbacks and anxiety at the thought of going back to malaysia, she reports insomnia and frequent ruminations. She becomes teary and depressed when talking about her life in malaysia and I believe she has repressed all these emotions for quite a while. I have referred her to the psychologist for this reason. Due to her mental health, she is understandably forgetful and sometimes gets confused about past events.
In addition to this, she has been recently diagnosed with iron deficiency and [Medical condition 1] which can also contribute to this. She is currently seeing [a Specialist 1] and is on [medication]
To summarise, [the applicant] suffers from post traumatic stress disorder with associated anxiety/depression, iron deficiency and [Medical condition 1]
The letter did not make mention of the alleged [accident] or the effects of any head injury sustained by the applicant.
The submissions draw attention to the Tribunal’s Guidelines on Vulnerable Persons, which set out that:
a person with Post Traumatic Stress Disorder may supress aspects of the traumatic event, have vivid memories for other aspects of the event, or more rarely recall little of what happened. It is important to distinguish between a traumatised individual’s inability to recollect and a reluctance to recollect due to associated distress.

The submissions again draw attention to the UNHCR Guidance Note and further draw attention to the Department’s Refugee Law Guidelines, which sets out that consideration should be given to the effect of trauma on a person’s ability to focus and to recall distressing events. The Department’s Policy includes information about the effects of PTSD on the consistency of recollections of persons seeking protection.
I accept the diagnoses of post traumatic stress disorder, anxiety, depression, an iron deficiency and [Medical condition 1], as outlined by Dr [F]. However, I consider that the medical evidence submitted by the applicant is of limited value in assessing her claims for the following reasons. There is no information before the Tribunal to evidence Dr [F]’s experience in diagnosing and treating mental health conditions. The letter of 17 April 2019 is brief and does not address the majority of issues highlighted in the guidance material put forward by the applicant’s representative, for example, the severity of the applicant’s conditions or the extent of the impact on the applicant’s ability to recall traumatic events or general information from the past. No expert opinion was provided from the applicant’s treating [Specialist 1] or a psychologist. No request for an extension of time to provide such a report was made. I have nonetheless taken the limited evidence regarding forgetfulness and confusion into account.
In respect of the [accident], the submissions noted that the applicant was not provided with any medical evidence or a medical report following treatment and requested that the Tribunal provide the applicant with an opportunity to obtain medical evidence associated with this head injury. On 3 May 2019, the Tribunal responded to the request and noted that approximately 10 weeks was granted during the hearing of 7 February 2019. I consider this to be an appropriate period of time to allow for the applicant to compile and submit relevant medical evidence. An additional extension was declined.
While I have given the medical evidence limited weight, it is prudent to note that I have provided the applicant with the benefit of the doubt in relation to a number of her claims, which are outlined below. I have considered the guidance material put forward by the applicant. I accept that it is not always possible or necessary for an applicant to remember specific details or dates.
Interpreters
Post-hearing, the applicant raised concern with the interpretation service provided. She requested that the Tribunal engage female interpreters in the Tamil (Nadu) language. At the Tribunal hearing, a female interpreter (Tamil and English), certified by the National Accreditation Authority for Translators and Interpreters (NATTI) was supplied. The interpreter holds a NATTI level 2, an accreditation which does not distinguish between Tamil dialects.
At the beginning of the hearing, I enquired with the applicant as to whether she had any troubles understanding the interpreter. She advised that the interpreter was not from Malaysia, however she could understand her.
In post-hearing submissions, the applicant’s representative outlined that there were some issues with the interpreter and the applicant did not want to raise them at the time so as not to offend the interpreter. The submissions provide one example where the interpreter stated that the applicant said ‘the boys who worked in my shop’ when she had referred to girls. No further specifics were provided. Finally, the submissions requested that if I were to have any concerns due to aspects of the applicant’s interpreted responses, she be provided a further opportunity to explain any issues with her testimony. I have not identified any issues that require clarification post-hearing. I note that the applicant requested a copy of the hearing audio and was provided with additional time to make post-hearing submissions.
As previously outlined, I have provided the applicant with the benefit of the doubt in relation to a number of her claims and accept that it is not always possible or necessary for an applicant to remember specific details or dates.
Application for merits review
At the first Tribunal hearing, the applicant gave evidence that she was subjected to abuse by her husband, which started with her discovery that she was his second and concurrent wife in 2000. This abuse included an incident during which her husband poured boiling oil over the applicant, which caused severe burns and permanent scars. She fears return to Malaysia on the basis that her husband would locate her and harm her or kill her in future. The applicant alleged that she went to the police on approximately ten occasions and they failed to assist. She believes they were bribed by her husband. She also claims that her husband has political connections that would assist him in locating her. Finally, the applicant alleged that she is at risk of further upsetting her husband if she returns to Malaysia without their daughter.
At the second hearing, the applicant raised a new claim that her husband was in a gang named [Name 1] and that the gang assist each other to sort out issues. The gang may assist the applicant’s husband to locate her if she were to return to Malaysia.
The applicant gave evidence that she is a practicing Hindu and of Tamil ethnicity. The applicant grew up with two older brothers and two older sisters, each with the same parents. She gave evidence that one of her older brothers lives in Ipoh, Perak, with his family and the other passed away about one and a half years ago. Her sisters also reside in [Malaysia].
The applicant outlined that in Malaysia she owned and operated a [business] [in] [Town 1] from 2002 until she departed in 2012. She employed three people and the business was profitable. Before opening her [business] she worked [in] [Workplace 1] in [Country 1].
Prior to coming to Australia, the applicant had travelled once to [Country 3] for a wedding and once to [Country 2] with her best friends for a holiday in around 2005 or 2006, in addition to travelling to and from [Country 1] for work.
Relationship with former partner
The applicant outlined that she met her husband, [Mr G], in around 1984 or 85 and they were married in 1985 or 86. I asked if she had a marriage certificate or other official documentation. In response, the applicant said that it was not a registered marriage, they went to a Hindu temple to marry. She stated that no documents of religious marriage were required in Malaysia at that time, now there is a law, but then there wasn’t.
On 1 March 1982, the federal Law Reform (Marriage and Divorce) Act 1976 came into effect in Malaysia. A marriage under that Act may only be solemnized by a Registrar. Further, it outlines that every marriage purported to be solemnized in Malaysia will be void unless a certificate of marriage has been issued. I therefore find that the applicant does not have a legally recognised marriage.
The applicant gave evidence that problems started in her relationship when she discovered that she was her husband’s second wife in 2000. She explained that her husband worked [in a certain] industry. He was living in Johor Bahru and the applicant lived in [Town 1] and he would travel between the two. He said he lived there for work, but his first wife lived there. Initially the applicant thought she was her husband’s first wife. The applicant explained that while her husband was in the bathroom a message arrived from his other wife and she saw it. She confronted him about the message and he confirmed that the message had come from his first wife.
Sources indicate a variety of social attitudes towards polygamy in Malaysia. However, while there is some evidence to suggest an acceptance of polygamy within the Islamic population,[1] the practice is not permitted amongst other religious groups. The Law Reform (Marriage and Divorce) Act 1976 specifically makes it an offence for a non-Muslim to marry more than one person concurrently. For this reason, and on the basis of my earlier finding regarding the legality of the applicant’s marriage, I do not accept that the applicant is a legally recognised second wife.
[1] ‘Islam and Polygamy: A case study in Malaysia’, Procedia – Social and Behavioural Sciences, Vol 114, February 2014, 890; ‘Polygamy and the Muslim woman’, Free Malaysia Today, 8 December 2012; ‘Over 8,000 polygamy applications given green light since 2010, Putrajaya reveals’, The Malay Mail Online, 20 March 2017.
While I do not accept that the applicant was or is legally married to [Mr G], I accept that she had a relationship with him and that they had a child together, [Ms A]. The applicant’s adult daughter departed Malaysia with her in 2012, however she has since married and moved to [Country 4]. The applicant said she has not spoken with her daughter since 2014.
The applicant outlined that while she was working in [Country 1], she would return to [Town 1] whenever she got leave and Mr [G] would come and stay; usually around two days per week. The applicant lived in a property that was left to her by her parents, along with some money and jewellery. Mr [G] told the applicant that he had a property in Johor Bahru, but she isn’t sure if that is true. She outlined that Mr [G] would not pay for anything, he expected money from the applicant. Initially he would come two days a week, then he started coming once a month. Before coming he would call and ask her to have money. The applicant gave evidence that she frequently gave Mr [G] money when he asked. Sometimes when he would ask for a large amount – for example, one thousand ringgit – she would give him half.
The applicant gave evidence that she faced a lot of problems in her relationship about five or six months before coming to Australia. They had a serious argument because Mr [G] wanted their daughter to marry an old Indian man for money and the applicant refused. Mr [G] was drunk and he would ask again and again. One day, Mr [G] poured hot oil on the applicant. She had been boiling oil in her home in [Town 1] to make [snacks]. The applicant called her two friends, [Ms C] and [Ms D] and they took her to the hospital. The injuries left scars on the applicant’s body.
The applicant alleged that Mr [G] hid large knives under the mattress and in the cabinet of her home in [Town 1]. She outlined that he would hit her when she would ask about why he wasted her life. This happened frequently and he told her that he married her because of money. The applicant explained that her husband appeared calm and presented as a good person to the outside, she believes no one would understand what he is really like. The applicant was scared because she was living alone, so she moved to her [neighbour’s] house about six months before she came to Australia. At that time she decided to move with her daughter to Australia. Her daughter travelled to her from [Country 1], where she was working, and the next day they departed Malaysia. In the application for protection form, the applicant stated that she moved out of her home and away from her husband in August 2011, which is eleven months before coming to Australia. I accept that the applicant separated from her husband and moved into a friend’s home sometime between six and twelve months before coming to Australia.
The Department of Foreign Affairs and Trade 2018 Country Information Report Malaysia outlines that domestic violence against women occurs in Malaysia. In 2016, there were 5,796 reported cases of domestic violence, compared with 5,014 in 2015. Local sources believe domestic violence is under-reported because of traditional beliefs in the sanctity and privacy of marriage. They attribute the increase in reported cases to an increase in reporting, rather than an increase in actual cases. Deaths related to domestic violence occur in Malaysia, but the government does not separate domestic violence deaths from other forms of unlawful killing, so it is difficult to ascertain accurate numbers. In 2014, the media reported at least six domestic violence-related deaths. No statistics or government reports identify whether ‘honour killings’, to punish individuals perceived to have brought shame upon their family or community, occur. DFAT assesses that, while the situation is improving, ambiguity between federal and state laws, lack of application and capacity within the police and judiciary, and lack of awareness of their rights create difficulties for women to gain adequate state protection and to safely leave violent relationships.
Country information supports the applicant’s allegations that she was subjected to domestic violence. While the applicant did not discuss any instances of rape with me during the hearing, despite being asked if there were any further claims, I accept that she has previously expressed difficulty discussing the issue in written submissions. Despite a number of inconsistencies relating to dates and events between the applicant’s evidence to the Department and the Tribunal, I have provided her with the benefit of the doubt and accept that the applicant was a victim of physical and sexual abuse.
Influence of former partner
I asked the applicant if she went to the police about the incident with the oil. She explained that even if she went, they wouldn’t take a record and Mr [G] would come to know. Mr [G] has political connections and in addition, in Malaysia you can bribe the police and he would do that. The applicant gave evidence that initially when Mr [G] hit her she complained to the police and was told that it was a small family matter. She then went on to say that she went to the police after her injuries from the oil had healed a little to complain that they had not taken any records and now she had been burned. However, when the applicant spoke to the police, Mr [G] had already been there and told the police she had burned herself making snacks.
In total, the applicant alleges that she went to the police approximately nine to ten times, after which she became fed up and didn’t go anymore. I asked if Mr [G] had bribed the police and she said yes, definitely. I asked what he had bribed the police to do, and she said he would tell them ‘if my wife comes in here, disregard’. She outlined that Mr [G] told her he had done that and that no matter how many times she went, they would not take a record of her complaint.
The applicant alleges that Mr [G] has political ties within MIC that would assist him to locate her and influence the police. The MIC is a political party and founding member of the Barisan Nasional (BN), which until 2018 formed the long term ruling coalition government. The applicant outlined that Mr [G] was a member of the party and he was close to the big shots; she was not sure if Mr [G] had an official role in the party. I asked who he was close with and the applicant said he knew [an official] of MIC, ‘[Mr H]’, as they met when attending the same meetings.
I asked the applicant how Mr [G] would use his membership of MIC to influence people. She gave evidence that he would ask powerful friends for help and those people would ensure no one took action about the matter.
In post hearing submissions, the applicant’s representative outlined that:
she believes that the Malaysian police did not take her complaints seriously because her husband is a close friend of the head of the Malaysian Indian Congress in their area who is in a position of power and influence within the MIC, and that police ignored her reporting of the violence and beatings by her husband because her husband and the head of the MIC in their area influenced the Malaysian police to do so. The applicant explained at the hearing that she believes that the reason why [Mr H], [an official] of the MIC who was friends with her ex-husband could influence the police not to action any complaints that she made to them regarding her ex-husband’s abuse of her was because [Mr H] knew that she was the second wife, so if any problems arose between her and her ex-husband, her husband would ask [Mr H] for help. The applicant further stated that if she created problems for her ex-husband, he would go to [Mr H] who would organise it so that no-one including the police or the women’s division of the MIC (from whom the applicant sought protection and support) could action her matter.
The applicant was unable to provide any further information about Mr [G]’s role within MIC or the identity of ‘[Mr H]’ or any other connections within the party. Nevertheless, on 9 May 2018 the BN lost the Malaysian general election. The MIC won only two seats in the Dewan Rakyat. Of note, the MIC did not win the seat of [Town 1], or any other seat in Johor. I explained to the applicant that I questioned the ability of Mr [G] to call on political connections now that MIC is not in a position of power. She did not address this point directly in the hearing or within the post hearing submissions.
In post-hearing submissions, the applicant argues that while the MIC is no longer part of the ruling political party, this would not change the power and influence that he applicant’s ex-partner holds over her. I disagree and note that no evidence was submitted to substantiate how he might exert political influence under the new regime. Given the outcome of the 2018 general elections, I do not accept that the applicant’s former partner has any contemporaneous political contacts or influence.
In relation to the applicant’s claim that her husband bribed members of the Royal Malaysian Police (RMP), I accept that there is some country information to support the allegation that police corruption exists within the RMP. The 2018 DFAT Country Report outlines that:
The RMP employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country.
Nevertheless, despite claims that her former partner was a successful business man, on the application for protection form, the applicant set out that her former partner was a gambling addict. In her statutory declaration of 27 June 2016, she stated that she realised her husband had not been working when he travelled away from home. He would ask her for money, and she realised he was using the money she had earnt and living elsewhere. She further set out that he had issues with drinking, which she had suggested to him was the reason she would not fall pregnant. In the hearing, I asked the applicant how Mr [G] would bribe police if he never had any money. In response, the applicant said that he acted as though he never had any money, but he did. I asked how she knew he had money and she explained that he was in a good position with a good salary. I questioned why he would ask her for money if he had a good salary, and the applicant said that Mr [G] wanted to drink and have fun with his friends
At the second hearing, the applicant gave evidence that her husband was the member of a gang that go by the name of [Name 1]. I asked how the applicant came to know that he was in a gang and she explained that she overheard them talking on the phone. I asked the applicant what she would hear, and she said all she had heard was that they are in a ‘sattai’ (jersey), and that they will help each other. The applicant explained that when someone in the gang has an issue, the gang help to sort it out. I asked if her husband ever had anything sorted out and she said no.

She went on to say that when someone dies in the gang they have a ceremony and put the [Name 1] on the body and burst crackers. I asked if she ever attended one of these ceremonies. She said no, but alleged to have seen the procession. The gang identify themselves with tattoos of either the [Name 1] or other religious symbols. The applicant’s husband had a [Name 1] tattoo. I asked the applicant if she had any photos of her husband with the tattoo. The applicant said she has no photos of him at all.
I raised concern with the applicant about the reliability of new evidence that was not mentioned in her original application, either of her interviews with the Department or in the first hearing. The applicant explained that her memory is not good and that she wanted to raise this issue but forgot. I advised the applicant that I may draw a negative inference from the significant delay in raising this issue.
The applicant then gave evidence that she fell [in] 2017 and sustained a head injury, which may impact her memory. She was treated at [Hospital 1]. I requested medical evidence to substantiate this claim, and no medical evidence was provided. In any event, even if accepted, this event would not assist to explain why the issue of her husband’s membership in a gang were not raised prior to 2017.
I have considered the possible impact of the applicant’s mental health on her ability to recall that her husband was the member of a gang. And while I accept that it may be possible for vulnerable applicant’s to have difficulty recalling information from the past, I do not accept the claim for the following reason. It is implausible that Mr [G] would be an active member of a gang, with gang symbols tattooed when considered in the context of previous evidence that her husband was a successful businessman, an influential member of the MIC, a gambling addict and an alcoholic. Further, while I accept that the applicant may have difficulty recalling information in the hearing, she has had seven years since the lodgement of her claim for protection to raise any issues in writing that were missed during an interview or hearing. The issue of gang membership was not raised at any point through the application with the Department, the request for Ministerial Intervention or while the claim has been with the Tribunal. I do not accept that Mr [G] was or is a member of gang [Name 1].
While I accept that the applicant may experience forgetfulness; I found the applicant’s evidence in relation to the influence of her husband to be directly contradictory and unconvincing. I don’t accept that Mr [G] had the means or influence to bribe the police to ignore nine or ten attempted police reports by the applicant. Further, I don’t accept that the applicant would attempt to report Mr [G]’s action to the police numerous times if she was of the opinion that he had significant political and financial influence of the kind described by her.
Separation from partner
The applicant gave evidence at the hearing that while she was staying with her friend [Ms C], Mr [G] contacted her via telephone and threatened to kill her and asked her to return home. After that she blocked his number and has not been in contact with him since she came to Australia. The applicant explained that Mr [G] knew where she was staying, however he didn’t come to see her straight away. The girls that worked in her [business] told her his car had been passing by.
I asked the applicant if she had received any news about Mr [G] since she left Malaysia. She outlined that after her [brother’s] death, she got a message through [social media] from his daughter. She asked the applicant where she is and told her that Mr [G] is still actively searching for her. The applicant did not supply the Tribunal with a copy of this message.
With her request for ministerial intervention, the applicant supplied two emails from her friends to support her assertion that her former partner would seek to locate and harm her if she returned to Malaysia. The letters were received via email on the same date and are written in English. The applicant has previously stated that she was illiterate and then amended this statement to clarify that she does not read or speak English. It seems incongruous that the applicant’s friends would correspond with her in written English. I put this information to the applicant in accordance with s.424AA and invited her to comment or respond. The applicant requested additional time to respond in writing post-hearing. Additional time was provided, and in a statutory declaration dated 9 November 2018, the applicant provided the following response:
…In my hearing, the Member stated that I had provided two notes by email from my friends [Ms C] and [Ms D]. One letter was typed in English and was from my friend [Ms C] and the other note was handwritten in English from my friend [Ms D]. These two letters attached to my request for Ministerial Intervention dated 27 May 2015.
The [name deleted] helped me to prepare the request for intervention to the Minister in my case, and they advised me that it would be useful to obtain letters supporting me as evidence from my two good friends [Ms C] and [Ms D] who were living in Malaysia as they were the only people that I had told about my ex-husband’s abuse and violence towards me.
As I clarified at my hearing, my two good friends [Ms C] and [Ms D] were the only people I told about the abuse from my ex-husband and they helped me when I suffered from the burn injury [when] my ex-husband poured hot oil on me. They took me to the hospital and they knew that my ex-husband was insisting that I agree to a forced marriage of our daughter to a wealthy Tamil man. [Ms C] and [Ms D] helped me to escape my ex-husband’s abuse and extreme violence and advised me that I should take my daughter and escape Malaysia to Australia.
I spoke to [Ms C] and [Ms D] over the telephone about providing letters of support for my Ministerial Intervention request. I did not ask them to provide the letters of support in English.
I believe that my two friends, [Ms C] and [Ms D] must have assumed that they needed to provide these letters in English as they knew that I was seeking protection in Australia and that they needed to provide any support letters in English as these letters would be forwarded to the Minister in support of my request for Intervention…
The statement goes on to hypothesise as to who assisted the applicant’s friends to prepare the letters in English. The letters themselves are directed to the applicant, rather than the Minister. They are drafted as a letter from one friend to another, including questions about how the applicant is doing in Australia. The letter from [Ms D] states that the reason for writing the letter is to inform the applicant that her husband is searching for her. The letter goes on to say that her husband visited and called her house drunk and will torture the applicant if she returns to Malaysia. The letter from [Ms C] states that she is writing to the applicant to let her know what is happening ‘here’. The letter also outlines that the applicant’s husband is looking for her and that he has called the author and her husband. It further sets out that the applicant’s husband has been begging for money from everyone for alcohol because he is addicted and he will torture the applicant if she returns.
I asked the applicant how Mr [G] would know if she returned to Malaysia, to which she explained that he would know when she used her passport or ID. I asked how Mr [G] would access this information now that MIC are not in a position of power, she then said that he would see her when she returned to [Town 1]. I note that the applicant previously gave evidence that Mr [G] worked in Johor Bahru and would originally come to visit her in [Town 1] two days a week and this dropped to once a month towards the end of their relationship. He did not own any property in [Town 1] or perform any work in that location to her knowledge. The applicant gave evidence that Mr [G] is unaware that she is in Australia. I find it incongruous that the applicant’s former partner could use his connections to discover when she uses her identification on return to Malayia, however he could not use those same contacts to access her records and discover that she has come to Australia. I don’t accept that there is a real chance the applicant’s former partner would locate her in the foreseeable future.
In addition to the issue relating to the emails from the applicant’s friends, I raised the number of inconsistencies within the applicant’s evidence provided to the Department in each of her interviews and her original claim for protection in accordance with s.424AA. By way of example, I provided a copy of a statutory declaration the applicant made on 5 August 2016 and provided to the Department. The statutory declaration was made in response to adverse information put to the applicant by the departmental delegate in writing. In the statutory declaration, the applicant clarifies how often she saw her former partner following their separation. It outlines that she saw Mr [G] face to face three or four times a month while living with her friend [Ms C]. In post hearing submissions, the applicant confirmed that she wants to rely on the information in the statutory declaration made on 5 August 2016.
I found the applicant’s evidence regarding the conduct of her former partner following their separation to lack credibility. The nature of the emails provided by the applicant from her friends is inconsistent with her explanation as to why they would be provided to her in English. The letters are addressed to the applicant and drafted in a style that is not indicative that they were provided as support for her application for ministerial intervention. Further, the applicant gave evidence that Mr [G] has significant political influence that would allow for him to locate her through official records, however also gave evidence that he is unaware that she is in Australia. These issues are not explained by the health issues experienced by the applicant. Each of these things may not be sufficient alone, however when considered cumulatively, the number and nature of the problems identified in the applicant’s evidence lead me to make a negative inference about the credibility of the applicant’s evidence regarding the behaviour of her former partner following their separation.
It is noteworthy that the applicant remained in [Town 1] for six to twelve months after the separation while Mr [G] knew her whereabouts. Further, the applicant has not provided any reliable evidence to substantiate her claim that her former partner has attempted to locate or harm her over the last six and a half years. The passage of time is significant. I do not accept the applicant’s claims about the phone calls, threats to kill her or his car passing by her shop. I do not accept that Mr [G] has been actively searching for the applicant or been in contact with her friends and family to pass on threats.
Single mothers
The applicant’s original claim included an allegation that it would be difficult for her to return to Malaysia as a single mother. This was not raised again at the hearing, however, the applicant gave evidence that her adult daughter is now married and lives in [Country 4] with her family. The applicant has no current carer’s responsibilities. As such, I do not accept that there is a real chance the applicant would face difficulties as a result of being a single mother.
Fear of returning without daughter
The applicant gave evidence that the issues in her marriage escalated when she refused to allow her daughter to be married to an old wealthy Tamil man. She further alleged that she fears returning to Malaysia without her daughter, as this will further infuriate her ex-partner. She alleges that he will find her and kill her when he comes to know that she has returned without their daughter.
[Ms A] departed Malaysia six and a half years ago, during which time she has been married and moved to [Country 4]. It is no longer possible for Mr [G] to force his daughter into an arranged marriage, and in this way, the situation has not fundamentally changed. There is no evidence before me as to the nature of the relationship between the applicant’s daughter and her father. The applicant gave evidence that she has not spoken with her daughter since 2014, and it is possible that Mr [G] is already in contact with his daughter and aware of her location.
As noted above, the applicant remained in Malaysia for a significant period of time following the refusal to allow her daughter to be placed into a forced marriage. During this time she was not harmed. Further, there is no reliable evidence to substantiate the applicant’s claim that her former partner has attempted to locate her or that he would be motivated to harm her in the foreseeable future. I don’t accept the applicant’s claim that returning to Malaysia without her daughter would increase the risk of harm.
Assistance for Hindu Tamil women
The applicant outlined in her original application that police give priority to Malays and don’t assist Tamil women. In the hearing she stated that Malaysia is a Muslim country – and the police will help Muslims only. She further outlined that she approached the women’s branch of the MIC for assistance with her situation, however due to Mr [G]’s political influence they would not assist. Given the above findings regarding the chance of harm from Mr [G], it is not necessary to consider if assistance for victims of domestic violence would be discriminatorily withheld from the applicant as a Hindu Tamil women.
Financial insecurity and support for single women
In post-hearing submissions, it is contended that the applicant would suffer financial insecurity if returned to Malaysia. It is submitted that her gender and Tamil ethnicity would make it difficult for her to find employment and that there are inadequate social services for single women in Malaysia. The applicant provided limited detail about what services would be inadequate and how this would specifically impact her. I note that the applicant has been living in Australia for more than six years without employment and without speaking or reading English. The applicant speaks both Malay and Tamil and previously ran her own successful business in Malaysia. In many ways, she would be better placed to ensure financial security in Malaysia.
At the second hearing, I asked the applicant to explain her concerns in relation to financial insecurity and she said she wasn’t that worried about it. While I appreciate that the level of services available in Malaysia may not be of the level available within Australia, I do not accept that the applicant faces a real chance of harm arising from unemployment or financial insecurity.
Chance of persecution
The test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[2] The Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason.
[2] (1989) 169 CLR 379, 396.
A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.[3]
[3] Ibid, 389.
While I accept that the applicant has been harmed in the past, the relevant date at which to assess an applicant’s claims to refugee status is the time that the decision is made, and not the time the applicant left his or her country or the time that the application is lodged.[4]
[4] MIEA v Singh (1997) 72 FCR 288.
In post-hearing submissions, the applicant’s representative outlined that ‘the applicant submits that her ex-husband will always believe that he has control over her and their daughter because she is still legally married to him and he will always have power over them’. As previously outlined, I do not accept that the applicant is legally married to Mr [G].
The applicant claims to fear being killed by her ex-partner if she returns to Malaysia and that the risk to her is greater on the basis that she would be returning to Malaysia without her daughter. She has further alleged that police assistance would be discriminatively withheld on the basis that she is a Hindu Tamil woman. I accept that the harm feared amounts to persecution. However, I do not consider that there is a real chance of serious harm to the applicant. The applicant remained in Malaysia for a period of between six to twelve months after she refused to allow her daughter to be married to an older man and she separated from her partner and moved out of her house. During that time, she was not harmed, despite Mr [G] being aware of her whereabouts. Further, I do not accept the applicant’s claim that Mr [G] has been actively searching for her since she departed Malaysia. In these circumstances, I am not satisfied that there is a real chance that the applicant’s former partner will seek to harm the applicant if she returns to Malaysia, now or in the foreseeable future. I am also not satisfied that there is a real chance that the applicant will face harm as a result of being a single mother, a single woman, a Hindu Tamil woman, facing unemployment or financial insecurity.
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 Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
For the reasons outlined above in relation to my finding that there is no ‘real chance’ of harm, I conclude that there is no ‘real risk’ of harm from the applicant’s former partner or as a result of being a single mother, a single woman, a Hindu Tamil woman, unemployment or financial insecurity.[5]
[5] See, MIAC v SZQRB [2013] FCAFC 33.
In post hearing submissions, the applicant’s representative draws attention to the decision of the Tribunal in AAT Case Number 1803786, in which the Tribunal notes that in order to satisfy s.36(2B)(b), the level of protection offered by Malaysia must reduce the risk of significant harm to something less than a real one and contends that similar reasoning should be applied in this case. However, I do not believe that the applicant’s ex-partner will have the motivation or means to harm her if she were to return to Malaysia. As such, it is not necessary to consider whether the RMP would provide the requisite level of protection to the applicant.
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Sheridan Lee
Member

[2019] AATA 5805

13 May 2019

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