1619703 (Refugee)

1619703 (Refugee) [2017] AATA 1522 (24 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1619703
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Jane Marquard
DATE:24 August 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 24 August 2017 at 11:48am

CATCHWORDS
Refugee – Protection visa – Malaysia – Political opinion – Democratic Action Party member – Arrest and detention for attendance at Bersih rally – Social group – Women – Domestic violence victim – Lack of State protection – Credible witness

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Abebe v The Commonwealth (1999) 197 CLR 510
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR
Khawar v MIMA (2002) 210 CLR 1
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 201 CLR 1
Nagalingam v MILGEA (1992) 38 FCR 191
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

The applicant is a [age] woman who was born in Ipoh, Perak State, Malaysia. She arrived in Australia [in] June 2016 on [a temporary] visa.
She applied for a protection visa under s.65 of the Migration Act 1958 (the Act) [in] September 2016.
A delegate of the Minister for Immigration (the Department) refused to grant the visa [in] November 2016.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

CLAIMS AND EVIDENCE

The applicant provided the following evidence to the Department:

She finished school in [year] in Ipoh. From [year] to [year] she completed a [course]. She worked in various jobs between 2003 and 2007;
From 2008 to 2011 she lived in Johor. She worked as an [occupation] at [a] Company;
From June 2011 to April 2012 she lived in Kuala Lumpur and was unemployed. From May 2012 to December 2015 she lived in [Selangor]. For part of this this time she was unemployed, but from 2013 to 2015 she worked as an [occupation] at a [workplace];
She has three children, born [years]. They are all living in Malaysia;
She was married in 2002 and divorced in 2012;
Her parents are deceased. She has [siblings] in Malaysia, and a [sibling] in [Country 1];
From January 2016 to May 2016 she lived in Ipoh, Perak;
From October 2005 until December 2007 she travelled to [Country 2] for work. In August 2012 she travelled to [Country 4] on holiday, and in 2014 she travelled to [Country 3] on holiday;
She said that her ancestors hail from [Country 3], and she belongs to [minority] [community]. She studied [course], and became interested in politics “like any other youngster”. She slowly realised that the [Country 3] ethnicity are discriminated against in Malaysia, and exploited by the Malay bumiputra. She became critical of the government, and its corrupt policies;
Her ex-husband is politically influential and prevented her from expressing her views. He sympathises with the ruling party, and has strong connections there;
She had been convicted of an offence, but that it was a false case taken by her politically influential ex-husband;
The police repeatedly threatened and intimidated her;
She fears the Malaysian government. She fears being tortured or killed by the police or the hooligans hired by people in power. The police would not protect her; and
She could not relocate as the police are those persecuting her.

The applicant stated in a submission dated 3 June 2017 that she became interested in politics in 2011 because of discrimination against [Country 3 ethnicity]. She joined the Democratic Action Party (DAP) in 2011 and was appointed [official] of the [Suburb 1].Division. After divorce, her husband was granted custody of one child, with access for the applicant. She had custody of the other child. The husband was to pay maintenance of RM[amount] per month. Initially in 2012 as the husband did not want custody and she had both children living with her. In 2012 and 2013 she was living alone with her two children in Kuala Lumpur, when her ex-husband assaulted her and took the two children by force notwithstanding the court order of September 2012. The applicant lodged a complaint to the police but it was of no avail. In late 2013 she moved to Perak and resided at Ipoh. Because the husband had not returned the children, she said she would go to the police to enforce the court order. Consequently the husband and his gang came to her house in Ipoh in December 2013 and dragged and hit her. She lodged a complaint [in] January 2014 about this but the police again did nothing. She also lodged a complaint in July 2013 but the police failed to intervene. Fearing for her life, she moved to Johar Baru state and lived in Johar from August 2014. Her ex-husband came to Johar and assaulted her, and she lodged a complaint with the police. In February 2015 the husband handed over the children to the applicant as she wanted to attend the funeral of a close relative, and based on information from the children who complained of abuse by their [relative], she lodged a complaint to the police. The police advised the applicant to take the children to hospital but failed to take any action against the [relative]. The applicant’s husband is influential politically, part of [a gang].
The applicant appeared before the Tribunal on 6 and 27 June 2017 to give evidence and provide arguments. An interpreter assisted the proceedings. She provided the following evidence to the Tribunal:

Her parents are deceased. Her father had a [business] in Ipoh, and her mother was a housewife. Her father passed away when she was [age], and her mother passed away four years ago. She has [siblings]. [One sibling] is living in [Country 1]. Her [other siblings] are both studying in Malaysia. She does not keep in contact with them;
Her [relatives] live in Malaysia, some in Ipoh and some in other states;
She grew up and went to school in Ipoh. She then attended a [school] in Penang, where she studied for a [qualification];
After completing her [course], she started working in education in Ipoh, as a [occupation] in a [workplace]. She worked there for one and a half years. Then she went to Kuala Lumpur and worked as a [occupation] in a [workplace]. After this she worked in [companies] in Kuala Lumpur;
She met her husband through an internet site. His family comes from Kuala Lumpur. They married in 2002, and her daughter was born in [year] (and is currently [age]), and her son was born in [year] (and is currently [age]);
She has a third child from a different father, who is living with a relative. Asked why she did not bring the child with her, she said that this would somehow help her ex-husband find out where she was;
She was working as a [occupation] for [a workplace] when she married. After her marriage she got a transfer to Kuala Lumpur, with the same company, working for [a workplace] in Kuala Lumpur. She worked there for 18 months. Then she joined a [workplace] as an [occupation] for three to four months. After that she joined a [certain] company for eighteen months. Then she worked in [Country 2] as a [occupation] in 2005. Her ex-husband looked after the children, and she commuted from [Country 2];
After that she worked for a [Country 2] company in Johor for two years (from 2008 to 2011). Then she went to Kuala Lumpur in June 2011, where she worked as a [occupation] for one and a half years, until April 2012. She remained in this job until she came to Australia;
Her husband worked first as a [occupation]. He lost his job due to disciplinary action, and after that he worked as a [occupation];
She became interested in politics around 2011 where she joined the opposition party, DAP. Her husband had a strong influence with the ruling party. There was much mismanagement and discrimination by the government, so she was not interested in the ruling party;
Her family was of [Country 3] descent, as was her husband’s family. He had strong contacts with the ruling party and the gangsters who support the ruling party. He knew most of the high ranking people through a gangster group called “[name]”. She did not see these members during the marriage. However he went to many meetings that supported the gangsters, and he talked about the ruling party all the time. If she disagreed then he would get aggressive. For example, in relation to the [name] fund, which was mismanaged, he disagreed with her that it had been mismanaged. For him the ruling party was always right. He supported the party through the gangsters [even] though of [Country 3] descent. Very regularly he went to late night meetings in 2008/2009. Once, he came home with [details deleted]. She read his messages and found out that he had secret links with members of the gangs. He also brought gangster-type personalities home, and they used bad language. He would not answer her questions about these people and threatened her. He also had the distinctive tattoos of gang [name], and the group had certain [features] indicating they were from [the gang];
She decided to become involved politically because elections are not free and fair in Malaysia. Also there is no right to dissent. Furthermore, there is an economic downturn in the country and there has been mismanagement of funds by the [government]. There is also widespread corruption;
She joined the DAP and then attended the peaceful Bersih rally in Kuala Lumpur. Asked how she joined, she said that she turned up at the office of DAP and signed up. She was not involved in many activities because her husband disallowed her. She was elected [official] of [Suburb 1], because she was born there. She had already been involved in some campaigns for them during her school days. Asked how she became a [official] she said there was a meeting, and people put their hands up to support her election. She was surprised to be elected but it was because of her objectives. The role of the [official] was to support the state assembly in all the activities. Her first job was helping organise attendance at the Bersh rally. Before that she went to meetings, and helped organise and support them. It was only a small office. She was going to [Suburb 1] on weekends (about one and a half hours away) and during the week she was in Kuala Lumpur;
The main rally she attended was the Bersih rally in [suburb]. They marched past a few locations. She went on her own. She said that the main concerns of the Bersih movement were dissatisfaction with the government, free and fair elections, resignation of the prime minister, clean government, rights of dissent and economic growth.
The symbol of the DAP is a rocket, and the colours signify rights, white purity, and incorruptibility, the blue circle, unity of all racial nations, and red is for aspiration for a dynamic progressive society;
She was arrested [in] September, two days after the Berish rally. She was called by the police station telling her to report to the station. She was then told that she would be arrested for 2 to 3 days for attendance at the rally, which was illegal. She was kept for two nights in the women’s lock-up and questioned and threatened. She was warned not to support the DAP. They questioned her about why she was supporting DAP. When she said she was not happy with the ruling party, they hit her with a plastic hose on her feet and she was badly assaulted. She did go for a medical check-up, but there were no serious injuries. She was not charged, but after one week she received a warning letter from the police. The Tribunal indicated to her that country sources indicate there were few arrests following Bersih 4. She said that she may have been arrested because of her ex-husband, as he did not want her to express her views;
After she was arrested she had no contact with the police because she kept a low profile and did not get involved with politics, and was having to deal with her domestic violence issues;
She married her husband in 2002, but he was not violent towards her until about 2008. He changed after his involvement in a gang. He became devoted to the group rather than family. She was physically abused during the marriage and because of the gang, she asked for a divorce. He would not agree for a few years. She moved out a few times because of the assaults. But her husband would find her and bring her back by force. She asked the police for help, they were never willing to help and said it was a family problem. Finally he agreed to a divorce. They went to court. Asked how it was that he was awarded custody, she said that her daughter was close to him. He said that he wanted one child. He had a good relationship with the children. However he then said that the children could stay with her. They were with her for a few months. Then he came and took them. This was in 2012 and early 2013. She called the police and told them about the court order, but they said they could not do anything. For two years, she did not have the children with her. Then one of her relatives passed away, and the children were with her for two to three weeks. They did not want to go back to the father, because their [relative] had been hitting them. They went to the doctor and were checked. She told the police about the [relative], but they did nothing. After two to three weeks, their father came to her house with a gang. She fainted, and the children were taken away;
She said she has been to a number of different police stations and each time, police officers refused to take her report;
She was asked if she approached any NGOs to help obtain access to her children, and she said she did, but no one could help. She approached [agency] in [Suburb 1]. Women’s rights are not that strong in Malaysia. Under Sharia law, women are given no rights. She was not even allowed to speak to the children on the telephone. She went to his house, but his family would not allow her to see the children. She also went to the school but could not see them;
She said that her husband came to Ipoh in December 2013 and beat her up. She was taken by the police to hospital. Even with these injuries the police did not help. She took photographs and provided them to the police;
She moved to Johor out of fear of her husband. Because of his gangster contacts he located her there and abused her. She also went to the police there and got no help. Asked why he would come and find her and assault her, as he had the children by now, she said he felt very insecure that she would reveal his gangsterism and go to the police, and also he wanted to ensure the children remained with him;
She would call him to see the children, and he would call her and threaten her;
She was asked if she applied to the courts for a protection order in relation to the domestic violence. She said that the police told her to get a police report. She tried a few police stations but they refused to help her with such a report. The courts said they needed an official police document to file the complaints, but the police information she had was not official. The courts told her that the police need to refer the case to the court;
Around May 2014 when she went to the police station, her husband lodged a false case stating that she was creating a disturbance when she went to the house looking for the children;
She fears that her ex-husband would kill her, if he found out that she had been in Australia. Alternatively, he would be violent and get her arrested. She also fears the other members of the gang. She is also afraid of human trafficking because she has received so many threats;
She has already tried to relocate by going to Johor very quietly. However he traced her there, she does not know how. She thinks that his gangster connections may have helped trace her. The Tribunal referred her to the DFAT Report which suggests that women escaping violent husbands can move to other urban areas. She said that she tried this, but was still a victim. When he came to police station, he would say “she is my children’s mother”, then the police would say “this is a family matter”, and they would not get involved;
She is in touch with her children now. Asked if she had concerns with their safety, she said that the children are his blood, so they will not be harmed by him;
She does not want to go back to Malaysia as she will be tortured and harmed by her ex-husband. She wants to be safe. Asked if she did not have concern about not being able to see her children if she remains in Australia, she said she does not want to be a victim, and wants to be safe. She managed to wake up from all the incidents and does not want to go back into that environment; and
She has not sought counselling assistance in Australia in relation to the domestic violence, as she feels she is strong enough to manage as she has no fear here.

The applicant provided the following documents to the Tribunal:

A copy of a police report dated [in] May 2016, in which the applicant complained that her ex-husband was coming to her [relatives]’ house and disturbing her and he had been calling and harassing her. As he had hurt her previously she was afraid of being killed or harmed. She said that police had told her it was a family issue and nothing had been done;
A copy of a police report dated [in] March 2015, in which the applicant states that she wants to lodge a complaint against her husband who came to her residence and was screaming outside her gate. He and his friends broke the padlock, and came into the house and punched her ears, hands, eyes, shoulders, and back a few times until she fainted. When she gained consciousness she realised her children were not there and he had taken them away;
Copies of Royal Malaysian Police forms for “Request for Doctor’s examination for persons involved in police case” relating to her daughter, aged [age], injured and the circumstances stated were “has been abused”, and for her son, aged [age], injured, also “has been abused”;
A copy of a police report dated [in] July 2014 in which the applicant has filled in a section headed “self-typed by complainant”. She states that her ex-husband was not allowing her to see her children despite a court order directing that she have regular access. It was also claimed that he and his family had lodged false police reports against her;
A copy of a police report dated [in] August 2014, in which the applicant states that her husband was always calling her and threatening her. She said that she moved to Johor to avoid him assaulting her. However he found her and went to her house [in] August 2014 and told her that he wished to talk about the children. He then took a bamboo stick out of the car, and hit at her knees. She tried to run, and he hit her in the face. She screamed and members of the public helped her. She stated that she was afraid for her life;
A police report dated [in] January 2014, in which she stated that her ex-husband went to her house [in] December 2013 and threatened to hit and kill her if she insisted he obeyed the court orders. He got aggressive, and hit her and pulled her hair and dragged her onto the road, until people came to help her;
A police report dated [in] February 2013 in which the applicant stated that she had tried to see her children but his family had contacted the police saying that she was causing a disturbance. She also feared he was not caring for the children properly;
A police report dated [in] April 2012 in which she stated that she was worried her husband would take her children away from her;
A letter from [the] Member of the State Assembly, area of [Suburb 1] [stating] that the applicant was appointed [official] for the State Assembly of [Suburb 1] for Democratic Action Party and had been an active member of the Democratic Action Party. He said that he had known her for 12 years;

A translated “Form for Rights and Repudiation of Rights of Persons Arrested”, under section 28A(4) and (8) of the Criminal Procedure Code. The form states that the applicant was arrested at 1320 hours [in] September 2015 and taken to [Suburb 2] Police Station for the following reasons “attended and supported Bersih rally 4.0(Anti-government peaceful demonstration) from [dates] August 2015 at [suburb], Kuala Lumpur and have been detained under the Malaysian Security Offence”;
A letter from District Police Headquarters, [Suburb 2], Kuala Lumpur, dated [in] September 2015 headed “re final and last warning”, to the applicant advising her that she had a final and last warning not to participate, support and protest in any sort of rally organised by opposition leaders, and to co-operate with the current government/ruling party. The letter stated that the Inspector, who wrote the letter, hoped that the letter and her “last arrest”, would serve as a lesson to her under the Malaysian Security Offence for the participating in Bersih rally 4-0 peaceful demonstration;
A discharge chit from [an] Ipoh hospital dated [in] January 2015 and medical records indicating that she had been admitted with injuries caused by her husband, including multiple deep abrasions and an injury to the [region];
A number of photographs of the applicant’s injuries from incidents [in] December 2013, [in] August 2014 and [in] March 2015;
A translated “Form for Rights and Repudiation of Rights of Persons Arrested”, under section 28A(4) and (8) of the Criminal Procedure Code. The form states that the applicant was arrested at 1840 [in] May 2014 at [a] Police Station and the reason for arrest was “disrupting and compelling police. ..asked the police to carry out the court order for the custody of her child and enforce it upon [husband]”;
An official receipt dated [in] May 2014 for payment of a fine of [amount] RM;
Copy of divorce certificate dated [in] November 2012; and
Copy of birth certificates for the children.

CONSIDERATION OF CLAIMS AND EVIDENCE

The delegate in a decision dated [in] November 2016 found that the applicant did not meet the refugee or complementary protection criteria.
The Tribunal has taken into account all information before the Department and this Tribunal in coming to a decision, as well as independent country information about Malaysia.
A summary of the relevant law is set out in Attachment A.

Nationality

The applicant provided a copy of her passport and gave evidence that she was a citizen of and born in Malaysia. It was clear that she was familiar with the culture, history and geography of Malaysia, and the Tribunal accepts on the evidence before it that she is a citizen of Malaysia, and that Malaysia is the receiving country for the purposes of the complementary protection provisions.

Findings of Fact

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.
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: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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.)
The Tribunal is satisfied on the basis of evidence provided that the applicant was the victim of domestic violence inflicted by her ex-husband, during the marriage, from the period 2008 until 2012, and after the marriage, from the period 2012 until 2015, with further threats in 2016. The Tribunal is satisfied about this matter because of the detailed and disturbing oral evidence provided by the applicant, and the supporting written documentation, in the form of seven police reports initiated by the applicant over this period, as well as a discharge chit and medical records from a hospital in 2015 indicating that she had been admitted as a result of injuries caused by her husband. The police reports indicate that at various times she was hit with a bamboo stick, dragged and slapped, her hair was pulled and her head was hit on a gate. Further, numerous photographs over a long period have been provided to the Tribunal, displaying serious and varied injuries to the applicant. These photographs were not taken for the purpose of the refugee application but rather to show to police, and as such are given significant weight. The photographs portray serious injuries inflicted on the applicant including large bruises and cuts on her elbows, hands, feet and face. The medical report from the hospital indicates that she had multiple deep abrasions from injuries caused by her husband. She was admitted to hospital on one occasion for four days.
The Tribunal is also persuaded by her evidence, as the applicant did not suggest that her ex-husband was always violent, rather that he became increasingly aggressive as he became more involved with a gang called “[name]”. The Tribunal is satisfied that the violence towards her began after her ex-husband became involved with this gang which, she said, supported the ruling party, and required expressions of [allegiance]. There are numerous media articles and You Tube videos discussing the criminal activities of this [gang].[1] The Tribunal is satisfied on the basis of the applicant’s oral evidence, and the fact that the violence continued over a number of years, that the police failed to assist her in preventing ongoing violence from her ex-husband. Her experience about the lack of state protection accords with country information about difficulties accessing state protection in domestic violence matters.[2] The Tribunal did question her about why she had not sought a Protection Order or Interim Protection Order. She said that she required an official police report to do so, but the police would not provide such a report as they suggested she “sort out” her problems with her husband. She provided a copy of an article from an organisation called “Women’s Aid Organisation” which sets out the procedure for obtaining a Protection Order or Interim Protection Order. This article states that in order to apply for a protection order, an applicant must obtain a referral letter from the police stating that the matter is being investigated or charges being laid.[3] This is confirmed in other sources.[4] The police report dated [in] July 2014 indicates that she sought police assistance in taking relevant action against her ex-husband for disobeying the custody orders. The Tribunal is satisfied on the basis of this evidence that the applicant did seek police assistance, but the police failed to assist her, and this prevented her from obtaining a protection order.
[1] See for example, [information deleted].
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 19 July 2016
[3] Women’s Aid Organisation, “Legal Protection from Domestic Violence”, 7 May 2017, accessed 22 August 2017
[4] The Star Online, “Lawyers want Domestic Violence Act amended”, 24 June 2017,
The Tribunal is satisfied that much of the violence arose after the ex-husband forcibly took the children away from their mother in 2013, in breach of a court order. There had been a custody order in September 2012 in which the applicant was given custody of one child, and access to the other. However her ex-husband had left both children with her, and she had lived with them in Kuala Lumpur. Then the ex-husband had arrived in Kuala Lumpur with gang members, assaulted the applicant, and taken the children. Although the applicant lodged a complaint with police, she was unable to get her children back. The applicant then moved to Perak state and told her ex-husband that she would seek police help to enforce the custody orders which enraged her ex-husband, and led to assaults in Ipoh. The Tribunal is also satisfied that the applicant was arrested [in] May 2014 at the instigation of her ex-husband for charges of disruption, when she was trying to obtain access to her children. Her oral evidence is supported by a copy of a document entitled “Form for Rights and Repudiation of Rights of Persons Arrested”, which indicated that she was arrested on this basis.
The Tribunal is also satisfied that the applicant was an active member of the Democratic Action Party and attended a Bersih rally in August 2015. She provided consistent evidence about her involvement in the party in the various accounts provided to the Department and Tribunal. She could provide reasons for her participation, which initially derived from her concern about discrimination against ethnic [Country 3 people]. She also alluded to the fact that she had also supported campaigns while at school, indicating longevity of interest in politics. She was able to articulate a number of the objectives of the party, as well as the Bersih movement. She was familiar with, and could explain the meaning of, the logo for the Democratic Action Party. Her oral evidence was supported by a letter dated [in] June 2012 from [the] Member of the State Assembly for the Area of [Suburb 1]. The Tribunal is satisfied on the basis of all this evidence, that the applicant was [official] of the [Suburb 1] division, and attended the Bersih rally. She was aware of the objectives, and knew the location. Country sources indicate that members of the Democratic Action Party were active participants.[5] The Tribunal is also satisfied that she was arrested a few days after the rally. She has provided a copy of a “Form for Rights and Repudiation of Rights of Persons Arrested”, dated [in] September 2015 stating that she had been arrested for attending and supporting the Bersih rally. She has also provided a copy of a warning letter from the [Suburb 2] Police stating that she was advised not to participate and support anti-government rallies. While sources indicate that documents can be easily forged in Malaysia, the Tribunal has no reason to doubt that these documents are authentic, particularly as the Tribunal has found that the applicant is a credible witness in other respects of her evidence. Further, news reports indicate that there were some arrests after Bersih in 2015.[6]
[5] Straits Times, “Bersih rally brings together unlikely allies”, 29 August 2015, - accessed 8 August 2017
[6] Free Malaysia Today, “ Paulsen disputes Zahid’s claim”, 27 July 2017, accessed 22 August 2017, Astro Awani, “Malacca police arrest 10 Bersih participants who refused to disperse”, 30 August 2015, - accessed 22 August 2017, Department of Foreign Affairs and Trade, ‘Country Information Report – Malaysia’, DFAT, 19 July 2016

Well-founded fear of persecution for one of the reasons set out in the legislation

Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. An applicant’s fear of persecution for one of the reasons set out in the legislation must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.
The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he or she has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason. In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:[7]
… 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.
[7] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.
The High Court’s decision in Chan is authority for the proposition that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%. The High Court has prescribed a low threshold for determining whether an applicant’s fear is ‘well-founded’ and it can be reached even if the event feared is ‘unlikely to occur’ and has only a ‘10 per cent chance’ of occurring, however, the chance of it occurring must be more than ‘far-fetched’ or ‘remote’,[8] and the evidence must indicate ‘a real ground for believing that the applicant … is at risk of persecution’; a fear ‘is not well-founded if it is merely assumed or if it is mere speculation’.[9]
[8] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.
[9] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.
In the case of Abebe the High Court stated that ‘evidence that the applicant had been persecuted in the past would have given powerful support to the conclusion that the [claimed fear] was well founded’ and that ‘[i]f a person has been persecuted in the past for a Convention reason, this history may ground an inference that the person subjectively fears repetition of persecution and an inference that this fear is well founded.’[10] While that case related to the Refugees Convention, the principles are relevant to the migration legislation. In the present case, the Tribunal has found that the applicant was subjected to a sustained period of physical and psychological mistreatment by her husband for more than 7 years. The Tribunal is satisfied that the violence and mistreatment to which she was subject amounted to serious harm for the purposes of s.5J(5), in that it involved significant physical harassment, assault, and psychological harm.
[10] See Abebe v The Commonwealth (1999) 197 CLR 510 at [92] per Gleeson CJ and McHugh J and at [192] per Gummow and Hayne JJ.
The past can be a guide to what could happen in the future, however the Tribunal must determine whether there is a real chance the applicant would suffer persecution in the reasonably foreseeable future if she were to return to Malaysia, for one of the reasons set out in the legislation. In light of the findings set out above, that there was a sustained period of violence over a significant period of time, the Tribunal accepts that, in the event the applicant returns to her home region of Ipoh, there is a real chance that her presence would come to her ex-husband’s attention in the reasonably foreseeable future, due to the existence of their children, and the fact that she would find it difficult not to try and see her children. The Tribunal is satisfied that the applicant would be subjected to significant physical harassment or ill-treatment by her husband or his gang members, based on his treatment of her in the past and the fact that he would want to prevent her from seeing the children, as he has done in the past. Although she has some family in Ipoh, the fact that her parents are deceased would make her more vulnerable to harm than if she had substantial family protection. The fact that she has a dissenting political point of view may highlight her vulnerability to harm from her ex-husband and gang members.
The Tribunal is not satisfied that the essential and significant reason for the violence inflicted by the applicant’s ex-husband or his gang associates, is race, religion, membership of a particular social group or political opinion. The Tribunal considers that the motivation and reasons for her husband inflicting harm on her in the past was conflict associated with their marriage and custody of the children, and also perhaps a combination of gender-related social and cultural factors, such as patriarchal and aggressive attitudes encouraged by his gang. The violence was not inflicted on her because she was the member of a particular social group, such as women, or women who are or have been married, but was rather a series of personal attacks.
The Tribunal has also considered whether there is a discriminatory withholding of state protection in this case, for one of the reasons set out in the legislation. In the case of MIMA v Khawar (2002)201CLR1, the High Court held that the failure to provide state protection for one of the Convention reasons, did amount to persecution even though the harm by the private individual was unrelated to the Convention. The principle arose from the definition in Article 1A(2) of the Refugees Convention, but given the similar wording in ss5H(1) and 5J of the Act, is equally applicable in this decision. The fact situation is similar in this case to that in Khawar. The Tribunal is satisfied, based on independent sources and the applicant’s past experiences with the police, that there is a real chance that the state would discriminatorily withhold protection because of the applicant’s membership of the particular social group, women who are or have been married, and that this would lead to serious harm from the ex-husband. The Tribunal is also satisfied, based on the sources, that the failure of state protection would be the result of toleration or condonation of the ex-husband’s conduct, rather than simply an inability to prevent it (see the Khawar case). The reasons for this are set out below.
The evidence before the Tribunal indicates that the applicant sought assistance or protection from the police in various regions seven times in relation to the breach of custody order and domestic violence she had been subjected to. She was told on all these occasions that she would need to resolve the issues with her husband as it was a family and private matter, even though on occasions she was badly injured. On each occasion, the police refused to make an official report such that she could seek an official protection order through the courts. The Tribunal has considered information from a range of independent sources which supports the applicant’s view that the police would withhold protection from her were her ex-husband to inflict violence on her in the future. Indeed, despite existing provisions in Malaysian law which provide protection to women and allow for the prosecution of crimes against them, reports indicate that these protections are not effective and are limited by a lack of law enforcement.

In its 2016 Country Information Report – Malaysia DFAT notes that despite Malaysian law prohibiting domestic violence, violence against women is ‘a serious problem’ and it is difficult for women to get state protection.[11] The Report goes on to state that in 2015 there were 5,014 reported cases of domestic violence, and in 2014 there were 4,807. However, according to the Report, credible local sources suggested there was significant under-reporting because of traditional beliefs in the sanctity and privacy of marriage. Malaysian law prohibits domestic violence, including physical injury and mental, emotional and psychological abuse. Victims can obtain protection orders which attract a prison sentence of up to one year or a fine of RM2, 000 (approximately AUD660) if breached. The Report concludes that overall DFAT assesses that “women in Malaysia face a high risk of societal and official violence, particularly domestic violence”.[12] However sources suggest that in order to apply for a protection order, an applicant must obtain a referral letter from the police stating that the matter is being investigated or charges being laid, and these are not always obtainable.[13] This is confirmed in other sources.[14] Despite the existence of legal protections, Women’s Aid Organisation reported in 2012 that the Domestic Violence Act 1994 has been poorly implemented by the state, and that ‘obtaining an Interim Protection Order against a perpetrator of domestic violence may take anywhere between 24 hours and 3 months’ and that ‘the implementation of the legislation is inconsistent across states’.[15]
[11] Department of Foreign Affairs and Trade, ‘Country Information Report – Malaysia’, DFAT, 19 July 2016, section 3.81, p.19.
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 19 July 2016, United States Department of State, Country Reports on Human Rights Practices, Malaysia, 2015
[13] Women’s Aid Organisation, “Legal Protection from Domestic Violence”, 7 May 2017, – accessed 10 August 2017
[14] The Star Online, “Lawyers want Domestic Violence Act amended”, 24 June 2017
[15] Women’s Aid Organisation,‘CEDAW and Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s process in implementing the UN CEDAW’, April 2012, pp.21-22, available at – accessed 10 August 2017
Various sources comment on steps taken by Malaysia to reduce domestic violence.[16] Reports state that conviction rates have improved and police are becoming more responsive, with women’s desks in police stations, and there are also shelters and NGO’s working in this area. DFAT assesses that while the situation is improving, it is difficult for women to gain adequate state protection. Credible local and international sources, however, do consider the Royal Malaysian Police to be a professional and effective police force. [17]
[16] Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 19 July 2016,
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 19 July 2016
The United Nations Special Rapporteur noted in 2015 that domestic violence is ‘an issue of concern’ and that although ‘there is little data available about its incidence, anecdotal evidence points to widespread prevalence of intimate partner violence, and non-partner sexual violence’.[18] The USDOS Country Reports on Human Rights Practices for 2015 – Malaysia acknowledges the prevalence of domestic violence, stating that activists assert that support mechanisms for victims remain inadequate and that police need training:
Rape, including marital rape, is a criminal offense, as are most forms of domestic violence..According to women’s groups, on average 10 women in the country were raped each day; more than half of these women were younger than 16 years. ... According to police statistics, in 2014 there were 4,807 reported cases of domestic violence, 2,045 cases of rape, and 1,590 cases of sexual harassment.
Cultural attitudes and a reported lack of sympathy from the largely male police force resulted in many victims not reporting rapes. Many government hospitals had crisis centers where victims of rape and domestic abuse could make reports without going to a police station. NGOs and political parties also cooperated to provide counseling for rape victims. Women’s groups asserted that courts were inconsistent in punishing rapists.
Although the government, NGOs, and political parties maintained shelters and offered other assistance to battered spouses, activists asserted that support mechanisms for victims of domestic violence remained inadequate. There is a sexual investigations unit at each police headquarters to help victims of sexual crimes and abuse. Additionally, police sometimes assign psychologists or counselors to provide emotional support. Women’s rights activists reported that police needed additional training in handling domestic abuse and rape cases. Reports of rape and spousal abuse drew considerable government, NGO, and press attention.[19]
[18] United Nations Human Rights Council, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Addendum: Visit to Malaysia (19 November–2 December 2014)’, May 2015, p.8, available at - accessed 10 August 2017
[19] United States Department of State, Country Reports on Human Rights Practices, Malaysia, 2015
The sources suggest that domestic violence is a serious problem in Malaysia. In fact DFAT’s overall assessment is that women in Malaysia face a high risk of societal and official discrimination and violence, particularly domestic violence.[20] Furthermore, the information referred to above suggests that it is difficult for women to get state protection. This gives credence to the applicant’s experiences that she was denied protection from police.
[20] Department of Foreign Affairs and Trade, ‘Country Information Report – Malaysia’, DFAT, 19 July 2016
Independent sources indicate that Malaysia has traditional and conservative attitudes towards marriage and also separated and divorced women. Sharia law applies to a number of family law matters, and only four states have extended the provision of a new federal law which gives mothers equal parental rights. Under sharia law, wives are prohibited from disobeying the “lawful orders” of their husbands, which according to DFAT, can lead to ambiguous interpretations of the law, and in many cases, would mean it would be difficult to convict a Muslim man of domestic violence offences.[21] Consent by the husband is still required under sharia law for divorce.[22] A recent article in the Diplomat suggests that Islam has become more conservative in relation to matters of morality in recent years. [23] There is no doubt that these traditional and patriarchal attitudes are reflected in the discriminatory treatment by police of married, separated and divorced women who report domestic violence. The United States Department of State in its 2016 report states that “cultural attitudes and a reported lack of sympathy from the largely male police force resulted in many victims not reporting rape”. [24] DFAT has said that police training is limited and that it is difficult for women to gain state protection.[25] The Women’s Aid Organisation has referred to the influence on enforcement of domestic violence laws of traditional beliefs in sanctity and privacy of the family. It states on its website in relation to general community attitudes:
“Behind these responses are the common attitudes that domestic violence is not a serious offence, that the woman is to blame for instigating violence in some way and that the role of a wife is to accommodate her husband's demands and behaviour. Many people in Malaysian society still believe that violent domestic disputes should be worked out privately between husband and wife..society in general is not sympathetic to women who finally decide that their marriage cannot be improved and is too damaging a relationship to continue…unfortunately battered women are seldom given the protection to which they have a legal right. A patriarchal system continues to assign women to a lower position in the family, society and before the law..women continue to be recognised only in terms of their relationships to others, as mothers or wives. Cultural influences affect not only the content of the law, but also how the law is enforced.[26]
[21] Department of Foreign Affairs and Trade, ‘Country Information Report – Malaysia’, DFAT, 19 July 2016
[22] United States Department of State, Country Reports on Human Rights Practices, Malaysia, 2015
[23] Slava, A, “Here comes the Malaysian morality police”, The Diplomat, 22 February 2017
[24] United States Department of State, Country Reports on Human Rights Practices, Malaysia, 2015
[25] Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 19 July 2016
[26] Women’s Aid Organisation, website, – accessed 22 August 2017
According to a Report by Women’s Aid Organisation in 2015, protections afforded by law and policy to survivors of domestic violence are not in actuality made available due to reluctance on the part of relevant officials to intervene. The Report states that this is because of attitudes to domestic violence as a family matter, and traditional notions of gender, which manifest in victim-blaming behaviour, whereby the actions of the perpetrator are minimised and the responsibility for the wrongful act is placed on the victim.[27]
[27] Women’s Aid Organisation, “Working together: case studies in domestic violence response”, 2015, found on website – accessed 22 August 2017
Considering this information cumulatively it appears that, given the entrenched conservative and traditional community attitudes towards marriage and the manner in which women who are or have been married are treated, “women who are or have been married” or a similar group, is a group distinguished from society at large by its shared characteristics. Such a group is identifiable by a characteristic or attribute common to all members of that group, being that they have been or are married, and that this unifying characteristic is a defining feature of how they are treated by Malaysian society given the strong cultural attitudes towards marriage, and clearly distinguishes them from society at large in Malaysia. Membership of the group is not defined by a shared fear of persecution. The Tribunal notes that gender based groups have been found to be particular social groups in a number of cases.[28]
[28] MIMA v Ndege (1999) 59 ALD 758, SZAIX v MIMIA [2004] FMCA
While the country information set out above indicates that the Malaysian state has taken some measures to improve domestic violence laws, the information indicates that there are substantial deficiencies in the administration of these laws and in providing adequate protection to women who are or have been married. Indeed, this is the experience of the applicant who said that she never saw a women’s desk in a police station, there was always only a male constable at the front desk, and that she was always told to sort out her issues with her husband. The credible reports referred to above suggest that the law enforcement authorities are often reluctant to take action, and tolerate and condone domestic violence, viewing such cases as familial problems, with abused women often being forced to return to the situation of harm. This is the experience of the applicant. Furthermore, the applicant’s vulnerability to harm from her ex-husband is heightened by the fact that her ex-husband is a member of a gang which has taken part in violent activities. This gang supports the ruling party and is antagonistic to people such as the applicant who have dissenting views. There are numerous media articles about Gang [name] and the violent activities in which it is involved.[29]
[29] See for example, [information deleted].
Having carefully considered the evidence before it, the Tribunal considers that in the event the applicant sought protection from the state in relation to violence by her ex-husband, there is a real chance that the police would withhold protection from her for reasons of her membership of the particular social group of ‘women who are or have been married”.[30] For these reasons, on the evidence before it, the Tribunal considers that the withholding of that protection by the police in those circumstances would be discriminatory and, as the information indicates, systematic and accordingly would fall within s.5J(4)(c).
[30] See Khawar v MIMA (2002) 210 CLR 1.
For all of the above reasons, the Tribunal finds that the applicant has a well-founded fear of persecution in her home area of Ipoh, Malaysia.
With regard to the issue of whether that fear is well-founded throughout Malaysia or is localised to her home area, in the Tribunal’s view, the existence of her two children and their connection to her husband would provide a causal link and connection that would make it likely for her husband to locate her wherever she was in Malaysia. Furthermore, there is evidence that when she “quietly” relocated to Johar Baru state, fearing for her life, her ex-husband followed her and assaulted her in that state, as well as in Ipoh and Kuala Lumpur. A contemporaneous police report dated [in] August 2014 states that she had “shifted to Johor to avoid the assaulting, threatening and harassing”. However her ex-husband “managed to locate me”. This is a strong indication that he would continue to seek her out in the future. For these reasons, having carefully considered the evidence and information before it, the Tribunal is satisfied that the real chance of persecution relates to all areas of the country.
Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in a country apart from Australia. On the evidence before it, the Tribunal is satisfied that the applicant does not have a right to enter and reside in a third country.
The Tribunal is satisfied therefore that the applicant has a well-founded fear of persecution for reasons of membership of the particular social group, women who are or have been married, were she to return to Malaysia in the reasonably foreseeable future.

CONCLUDING PARAGRAPHS

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Jane Marquard
Member

Attachment A

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

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

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.
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.
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.
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.
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.
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

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.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1522

24 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice