1620536 (Refugee)

1620536 (Refugee) [2018] AATA 296 (31 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620536
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:31 January 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 31 January 2018 at 4:41pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Domestic violence victim – Child custody dispute – Religious or civil divorce not sought – Wants to raise child in Australia – Inconsistent evidence – No real risk of significant harm
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 40 ALD 445
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa [in] June 2016. The delegate refused to grant the visa on the basis that the applicant was not found to face a real chance of serious harm to meet the definition of refugee.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims as submitted in her protection visa application
The applicant wrote that she left her country because she was separated from her ex-husband. She could not stay with him anymore and she ran to Australia because he wanted her to sign a form to gain the rights to solely look after their child. She did not want to do that. When asked in the application what she thought would happen to her if she returned to Malaysia, she stated that the applicant would keep on asking her for the right to look after the child solely and the way he asked her was very forceful.
The applicant was also asked to provide the names and organisations or authorities from who she had sought help and she wrote, “I want to see lawyer, any people want to help me. Could not be so. Because my ex-husband have met them”. Asked to give details about where they she may have tried to move, she wrote “With my kid, I received a text from him, he gonna find me where ever I am, and will do something badly on myself”. Asked to detail the harm or mistreatment she might experience, she wrote that he would force her to sign and the way he threatened her by text.
Asked to provide the details of the harm, she wrote, “I went to see few people, all of them said that couldn’t help me. That’s why my close family asked me to go to another country”.
She wrote that she could not relocate because she purchased a ticket to Sabah but he blocked [her].
The hearing
The applicant is [an age] year old female born in Johor. She has family in Malaysia – her parents and siblings. She is one of [several] children. She married in 2014. It was not an arranged marriage. Her husband did not have a proper job. He did a bit of [work] then he depended on the applicant. The applicant works as [an occupation]. She is now separated from her husband. She has a [child] of the marriage who is [age] years old. Her child lives with her parents in Malaysia.
The applicant stated that she felt pressured by her husband. He gambled and she had to work. She stated she was the only one to the support family. Her parents were old and did not work and she could not depend on her siblings. She stated that in any event their relationship was not that close.
Asked to set out the nature of her concerns about returning to Malaysia the applicant stated that her husband would make life difficult for her if she stays in Malaysia. He took her money and he went and gambled. According to the applicant, a few weeks prior to coming to Australia they separated. The Tribunal queried why her estranged husband would want to have full custody of their child even though he has no money and is a gambler and unable to support the child. The applicant responded that he would be very satisfied because she could not live without her child.
The applicant stated that she had tried to kill herself but then she considered her child. It all started when she became pregnant and then it got worse. The Tribunal asked whether the applicant had sought assistance from anyone in the medical profession in Australia and she responded she had not seen a doctor as she felt shameful about talking to anyone about this matter as he was her husband. She added that attitudes in Malaysia meant that you did not tell people. It causes pressure and is shameful. She stated that [she was mistreated].
Asked about her future plans in respect of her child she stated that she wanted to raise her child in Australia and was collecting money to bring [the child] here. The Tribunal asked whether, given her claimed circumstances, her former husband would consent to the child travelling to Australia and she responded that he could not come to Australia because he was “blacklisted”. He borrowed money from the bank and could not afford to pay. The issue arose before they were married and he owes tax as well.
The Tribunal noted that the judicial system was of a working order, even though the Tribunal acknowledged that the country information did indicate that corruption was a problem in Malaysia. Relevantly, there were family laws in place to deal with family situations and the Child Act and the Guardian of Infants Act governed the way children would be looked after. The Tribunal noted that if she wanted her child to live with her it was unclear why she should not go to the Family Law Court and establish that it was not in the interests of the child to live with her husband due to his gambling problems, his debts and because he is blacklisted. She would not have any difficulty in discrediting him.
She said that she had gone to the Sharia court but her husband would never let go of her. The applicant was asked why she could not go to the civil courts and she answered that whether or not she was to divorce depended on what he says. The Tribunal stated that given they were already estranged that it would be their plan to divorce some time down the track. The applicant stated that in Islamic law it did not matter she was still his wife. The Tribunal noted that the Tribunal had no information that would suggest that in a civil court only men could initiate divorce proceedings. She stated that all she knew was that even if she went to the civil court he had to sign an agreement that he would divorce her. The Tribunal noted that regardless of whether she was divorced it did not prevent her from initiating proceedings in the civil courts to gain custody of her child.
The Tribunal stated that the law seemed to indicate that the non-custodial parent was still required to provide for a child. She stated that she could not totally trust him to take care of her child. She stated that she did not go to the court because she knew her husband cannot take care of her child. She stated that when they were together he did not touch her child once. The Tribunal deliberated that the court would decide who could take care of her child; she only need provide evidence in respect of the child’s best interests for the child to remain with her. The applicant responded that even if she did go to court he would still not divorce her and would be asking her for money because he does not work. Sometimes he even stole money from her to gamble. The Tribunal noted that she would also have recourse to the police in Malaysia. The Tribunal then asked the applicant would her estranged husband harm her. She did not answer directly but stated, “I am scared of him”. The Tribunal queried whether the applicant could not go and live in a bigger city where there would be plentiful jobs for [people in her occupation]. The applicant stated that she had already worked in Kuala Lumpur. The applicant stated that because of her estranged husband she had to take a lot of leave and her reputation was now diminished.
She stated that he also has a lot of friends that can look her up. The Tribunal asked whether the applicant could go somewhere in Malaysia where her husband does not live and does not have any friends. She stated she did not know what kind of job she could do in Selangor, for example, to take care of her child. The applicant stated that money in Malaysia was getting more and more worthless and she was the only one to take care of her child.
The Tribunal noted that the country information shows a parent can apply for custody of a child in Malaysia. The applicant stated that this was only if she were divorced. The Tribunal noted that even not being divorced she could still go to the courts to get custody because she claims to have concerns for the child’s safety and her husband had no relationship with the child as she had claimed he had not touched the child when they were together, and he was a gambler, blacklisted and a womaniser. The applicant then seemed to reject that her concerns were with the child. She stated, “The child is not the problem. I want to run away from him”. She stated that sooner or later he would catch her, “I don’t know how but I have this belief he will look me up”.
Asked if she had ever approached the police to protect herself against her husband, she stated that she did not, but she knew that if she did they would say go to the Sharia court. The Tribunal again asked why the Sharia court would not look on her case with sympathy given her estranged husband gambled and could not look after her child properly and had never had a relationship with the child. She stated that the Sharia court did not like people to get divorced and that a husband is always a husband. She stated they gave her space to have counselling, but it did not work. He was still the same. She could demand divorce but her husband had to come also. She went to go to the court but he failed to attend. Because he did not attend the court delayed her case, and there was delay; delay, so he has time and opportunity to bully her. The Tribunal again asked the applicant to specify exactly what her estranged husband had done to her and she responded, “Asking money, womanised,gambles”. The Tribunal asked whether the applicant was saying that Muslim women in Malaysia could not obtain a divorce. She answered that you don’t get it now. It’s a long time to wait.
The Tribunal referred to the Domestic Violence Act in Malaysia which provides for an interim protection order or an actual protection order restraining a person from getting close to the person needing protection, among other things. The Tribunal stated it was unclear why the applicant could not access that right. She said that in terms of the country information, they could write anything on google, “But will they act on it”? She stated that many women in Malaysia were under male control and were bullied.
The Tribunal discussed the women’s aid organisations that could assist the applicant. She stated that she did not know a lot about that but it did not give her security. They would only ask her to ask for a divorce from her husband. The Tribunal noted that she could obtain advice about how to proceed given her circumstances.
The Tribunal noted that the under Sharia law the applicant could make a complaint with the religious department if she wanted a divorce when reconciliation could not be reached after three counselling sessions. The reconciliation officer would determine that counselling could not continue because her husband was not present, say, and then they would tell her to apply to the court for a divorce. She would then need to proceed to the Sharia court and register application for divorce. The applicant stated that she was sure the court would ask her for money if she lodged an application. The Tribunal noted that the applicant had stated that she was working in Australia so she would have some money. The applicant stated that now she had a lot of things to pay first. All the money earned she gave to her parents.
The Tribunal noted that once divorce proceedings were registered, a summons would be issued against her husband and he would have to attend court and the court will investigate and then proceed to divorce if parties cannot be reconciled. The applicant stated that he did not go to the court even though he had been fined. The applicant stated that she did not have the money to return to the court. It’s a huge amount and she did not have it. The Tribunal noted that there appeared to be another type of divorce where she would be required to show her husband had broken the conditions of marriage by engaging in domestic violence and was not paying maintenance. The Tribunal continued that the country information indicated that if the judge were satisfied that the husband had been cruel to his wife, then that court would grant the applicant a divorce. She stated that was true but it all takes time and money and she did not have money. The applicant responded that her husband would always be looking for her. In the meantime she was taking care of the child 100 per cent.
The Tribunal noted that things could not remain in abeyance as they now were; she and her husband would need to sort out custody arrangements in the family court in Malaysia, as well as financial support for the child.
The applicant stated that she felt shame talking about these matters. He behaved well in front of her friends. She stated that the cost of living in Malaysia is very high. The Tribunal noted that the applicant had stated she had worked in overseas [as] an [occupation]. She confirmed she had worked in an office in Selangor. She stated that on one occasion her parents hid her child because her ex-husband met with lawyers.
Asked what she feared on return, the applicant stated that she was afraid her husband would look her up. Her friends told her he was looking for her. When asked she stated that her husband had gone to her parents place.
The Tribunal then read out what was in the applicant’s application to ensure she was aware of what was written and to ensure that she was still pursuing the written claims. The Tribunal noted, for example, that where she was asked to provide the details of the harm she had experienced she had not written anything. The applicant stated that he had not perpetrated any physical harm on her, only mental harm. Then it was pointed out that she had written that she had stated that she wanted to see a lawyer but could not do so because her ex-husband had met them. Asked if this was correct the applicant stated, “Maybe I wrote it wrongly he did not meet a lawyer, but he did say he would fight to raise the child”.
The applicant stated that she could not relocate with her child because she had received a text from her husband saying that he will do something bad to her. The Tribunal asked the applicant whether she had a copy of the SMS he sent her and she responded that it was on an old mobile phone that was broken. Asked to explain why her husband would have known she was going to Sabah and was waiting for her at the airport, she stated that she was going to see a friend and friends told him. Her friends were also his friends. The applicant stated that she just went home with him. What could she do? She stated that she was a weak person and was not the type to go against people. The Tribunal noted that the applicant had been brave in eventually leaving her home country to come to Australia.
The applicant stated that she only asked that she be granted a visa to raise child here as she could not live without her child. She stated that she knew there was a process she could go through in Malaysia but it was very long.
She stated that she had tried to put everything in place before she came to Australia but had failed to follow up. She stated that now she was in Australia she did not care. The Tribunal noted that eventually she would still want a divorce from her husband even if she stays in Australia. She stated that she would try again according to law but they would want money from her.
The Tribunal noted that the applicant had previously stated that her husband had paid a lot of money to marry her and to explain what job he might have had previously to be able afford what was a Mhar. The applicant stated that she did not know about his work; she thought he had a business. The Tribunal asked whether she had not saved some of the money he had given her and she stated that her salary covered her [certain expenses]. She stated that she used the Mhar [on other expenses].
The applicant’s credibility

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
FINDINGS AND REASONING
In this case the Tribunal has concerns with the internal inconsistency of the applicant’s claims. On the one hand she stated that her estranged husband had abused her verbally and emotionally through threatening texts. On the other, she stated that he had [mistreated] her during their married life. Such inconsistencies about the actual nature of abuse may be able to be explained in that the person subject of family violence may not be able to give a clear account of the violence she has suffered and accepts that the applicant was the subject of family violence in all its forms, both physical and emotional. The Tribunal also accepts that the applicant contemplated suicide as a result of the level of abuse she had suffered in the marriage.
The applicant claimed that her husband wanted to gain sole custody of his child yet the applicant claimed that he was a gambler, womaniser and relied on her entirely to financially care for their child so it is unclear to the Tribunal why someone she depicted as being dissolute and without a job, would want the additional responsibility of looking after a child on his own. This is particularly so when the applicant claimed that her husband had never even touched the child when they were together.
The Tribunal notes that despite her claims that her estranged husband wanted full custody of their child, her parents were currently looking after [the child] and the applicant still appeared to be the one providing financial support. The applicant’s statements about her husband having been to lawyers about custody for the child were also contradictory. While the applicant stated that her former husband had been to her parents’ home, the child was still living under their care and her estranged husband had not managed to take the child either lawfully or unlawfully. The Tribunal therefore does not accept that the applicant’s estranged husband is seeking full custody of her child. Further, the Guardianship of Infants Act 1961, does not allow a parent (for example, the father) to deprive a woman of custody arbitrarily:
Equality of parental rights
5. (1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.
(2) The mother of an infant shall have the like powers of applying to the Court in respect of any matter affecting the infant as are possessed by the father.[1]
[1] Accessed on 29 January 2018.
Similarly, on the one hand the applicant claims that her former husband refuses to give her a divorce and will not divorce her, yet she appears not to be prepared to wait out the process for divorce under Sharia law which provides for women in her situation to initiate divorce proceedings due to his claimed cruelty, abandonment and lack of payment of maintenance for the child, which under Sharia law is his responsibility.[2]
[2] accessed on 25 January 2018.
Given the applicant’s conflicting evidence the Tribunal does not accept that the applicant is of any current interest to her estranged husband given the applicant has provided little evidence to show that he has attempted to harm her parents or take the child from them. Rather, the Tribunal finds that the marriage while having been abusive and the applicant having suffered family violence, is now over and the applicant’s former husband has no interest in either her or her child.
The country information detailing the processes for divorce under Sharia law (below) state that in Islam a mother is given the primary right to the physical custody of her child.[3]
[3] accessed on 25 January 2018.
Country information shows that in Malaysia non-Muslim parties can divorce by consent or without mutual consent (unilateral petition) and that:
Either party to a marriage may file a petition to divorce without consent of the other party, on the ground that the marriage has broken down. The break down of the marriage can be grounded (sic) one of the reasons as follows:
1)    that the other party has committed adultery;
2)    that the other party has behaved in such a way that it cannot reasonably be expected to live together;
3)    that the other party has deserted for a continuous period of at least 2 years; OR
4)    that the parties to the marriage have lived apart for a continuous period of at least 2 years.[4]
[4] accessed on 25 January 2018.
As the applicant is a Muslim the Tribunal takes into account, however, that Sharia law would be applicable to her circumstances.
The Tribunal refers to the article that sets out the steps for a divorce to take place under Sharia law.[5] In this article it is explained that the divorce application must be filed in the state where the husband or wife resides. The procedure for divorce is as follows:
[5] accessed on 25 January 2018.
Procedure for Divorce
1. You will first need to make a complaint with the Religious Department and state in your complaint that your marriage has problems and that you wish to have a divorce.
2. The Religious Officer will advise you to go for counselling and both you and your husband would need to attend a maximum of 3 sessions over a period of 2-3 months. When reconciliation cannot be reached the officer will then state that the counselling process cannot be continued (because the husband was not present during the sessions) and advise you to apply to Court for a divorce.
3. Proceed to the Syariah Court and bring along this letter and register your application for divorce under any one of the four options for divorce, it is also advisable that you simultaneously make an application for maintenance and custody of any child of the marriage.
4. Once the application for divorce is registered in Court, the Court will issue a
summons against your husband. He will then need to attend Court on the date
stated in the summons. Depending on the type of divorce you have applied, the
Court will then investigate the consent to divorce and agreement by both parties
to the divorce and proceed to grant divorce to the parties if he is satisfied that the
parties cannot be reconciled, but under the divorce option by talaq, and where both parties consent, the court will ask the husband to pronounce talaq in the court and will make the relevant orders. If the husband does not consent, the court will refer parties to reconciliatory committee for further reconciliatory attempts. If the reconciliatory committee does not work, court will refer party to a Hakam, so it is not necessarily the judge’s decision alone.
Types of Divorce
There are FOUR main types of Divorce and dissolution of marriage under the Penang Islamic Family Law Enactment.

1. Pronounce Talaq in Court
The Court will ask the husband to pronounce talaq in court. Normally the Court
will advice one but the husband may pronounce up to 3 talaq. If it is one or two
talaq, the divorce remains reconcilable within the period of iddah. (not
necessarily 3 months, i.e the completion of 3 menstruation period of the wife). For 3 talaq, the divorce becomes final upon pronouncement and reconciliation within or after iddah period is not allowed unless the wife legally remarries and then divorce someone else.
Divorce by Redemption (tebus talaq)
This type of divorce is initiated by the wife. The wife offers to return her mahr or
pay her husband an agreed sum in return for her husband agreeing to pronouncing a divorce.

3. Ta’liq Divorce
This is where if the wife can prove to Court through witnesses and oath that her
husband has broken the conditions of marriages (i.e. has not provided
maintenance, desertion or domestic violence). If the judge is satisfied that the
conditions of the marriage has been broken that Court will then grant you the
divorce.

4. Fasakh (Dissolution of marriage by order from the Court)
In order to apply for fasakh you’ll need to prove either one of these conditions:-

(a) your husband has treated you cruely (e.g. abused you physically and
mentally; forced you into immoral behaviour, obstructed your religious
obligations; associated with prostitutes, mistreated your property or
according to Syariah law treated you unequally compared to his other
wife/wives);

(b) he has failed to provide maintenance;

(c) he has been sent to prison for more than 3 years;

(d) he has left home and not contactable for at least one year;

(e) he is impotent or has refused sexual intercourse after at least 4 months of
marriage, or at least 1 year;

(f) he has been insane for at least 2 years;

(g) he is suffering from leprosy, or a sexually transmitted disease
(h) your consent to the marriage was been given by force, mistake or unsound
mind.
(i) any other ground allowed by Hukum Syara

Important matters related to Divorce application
There are THREE main issues to consider in a Divorce. 1. Maintenance for wife and children, 2. Hadanah or Custody of children, 3. Matrimonial Assets and
Accomodation Rights
1. Maintenance (For Wife)
According to the Hukum Syara’, the Court has power to order the husband to pay
maintenance to his wife. The Court has the power to also order a collateral to be
made with the maintenance.
In deciding the amount of maintenance to be ordered, the Court will consider:
(a) the earning capacity of the husband; and
(b) financial needs of the wife.
A wife’s right to maintenance may cease when:
(a) when the wife dies;
(b) when the wife is disobedient (nusyuz); and
(c) when the wife remarries.
Maintenance for children
In Islam, it is the husband’s responsibility to maintain the children whether the children
lives with him or with his wife or any other person. He must provide accommodation,
food, clothing, medical treatment and education in accordance to his ability and capacity
or pay costs instead. The order for maintenance expires when the child attains eighteen
(18) years of age.

2. Custody (Hadanah) and Guardianship of Children
In Islam, a mother is given the primary right to the physical custody or hadanah
of her child. Under the IFLE, a father has the primary guardianship rights to the
child. The guardianship rights mainly refer to decisions about the legal and
property rights of the child. In any case, the father will always have the primary
responsibility to maintain the child. Rights to guardianship and physical custody
may be modified by the Court if the relevant party breach conditions provided by
the IFLE.
In deciding the guardianship rights, the person must be:-
(a) a Muslim
(b) a person of sound mind and age;
(c) living in a environment suitable for a child; and
(d) a person of good behaviour in Islam.

3. Matrimonial Assets
Matrimonial assets are assets both parties acquire during marriage. In this
situation the Court will normally order a sale of the property and divide the
proceeds of the sale between the parties. The Court will also take into
consideration the following when making the order:-
(a) How much you and your husband contributed in money terms to obtain assets your
role as a housewife will also be taken into consideration as a financial
contribution.
(b) Any loan borrowed by either of you for the benefit of the family is also
considered.
(c) The needs of the minor children, if any of the marriage
Harta Sepencarian
Where the asset is acquired by the sole effort of one party only, the Court shall
consider the following facts in dividing assets:-
(a) The extent of contribution made by the other party who did not acquire the
property, to the welfare of the family e.g. keeping the house clean, cooking and
generally, looking after and caring for the family; and
(b) The needs of the minor children, if any of the marriage.

Other Property
Any property that belongs to the wife before or after marriage is solely the wife’s
property and the husband can have no claim over the property except to the extent that he
has contributed to the improvement of assets.

Accommodation Rights
A wife has a right to remain in the matrimonial home or be provided with an alternative
accommodation by the husband upon divorce. These rights will cease when:
(a) period of iddah ceases;
(b) you re-marry;
[6] Ibid.
(c) if the wife has custody of a child to the marriage, the custody ceases.[6]
The Tribunal does not accept that her former husband refuses to give her a divorce given the applicant has not even pursued to the end the process required of a woman to divorce her husband under Sharia law or the civil law.
The applicant stated that she did not have the money to give her husband the Mahr back, yet it is clear from the country information above that the applicant has multiple grounds to divorce her husband, given he does not pay maintenance for the child, has been abusive amounting to cruelty in the marriage and has committed adultery as she claimed her husband was a womaniser. Given the level of support offered to the applicant by her parents in caring for her child, the Tribunal would expect that they would be similarly supportive in providing evidence of the neglect and abuse perpetrated by the applicant’s former husband.
Further, the applicant stated that she wanted to bring her child to Australia but in order to do so did not address how she would overcome her husband’s refusal to consent to the child travelling overseas given he wants sole custody. The Tribunal is unable to see how the applicant could aspire to bringing her child to Australia when her husband would remain a significant stumbling block to this occurring – unless he was not in fact a stumbling block. In any event, the Tribunal has rejected that the applicant’s husband is seeking full custody of the child given he has not taken any action to gain custody to date, and particularly while the applicant is in Australia.
The Tribunal does not accept that the applicant is not able to work in Malaysia, as she has worked in Australia, in some form of employment to pay back the Mahr if this is the avenue she chooses to divorce her husband. She herself has stated that she has had reasonably senior jobs in Malaysia in [a certain industry] and has skills that are transferrable on a global scale.
The applicant did not give convincing answers at hearing as to why she had not yet pursued the avenues open to her to make a final break from her husband to divorce him and settle custody arrangements and the Tribunal does not accept that her reason for giving up with the process in the Sharia courts is because it takes too long or costs too much. Rather the Tribunal finds that the applicant has not progressed her matter lawfully because:
·The applicant’s husband is not seeking sole custody of their child;
·Her husband is not refusing a divorce;
·her husband no longer has any interest in her; and
·Their child is not in danger of being either kidnapped or taken lawfully from the applicant by her husband.
The Tribunal also has serious doubts about the applicant’s general and vague claims that her husband had friends who would find her wherever she might be in Malaysia and rejects this claim. The Tribunal also refers to the country information which shows that women in Malaysia are able to avail themselves of laws to protect themselves against perpetrators of family violence.
The Malaysian Domestic Violence Act 1994 also provides for dealing with victims of “domestic violence” which involves the commission of one or more of the following acts:
(a) Wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury;
(b) Causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;
(c) Compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain;
(d) Confining or detaining the victim against their will;
(e) Causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim;
(f) Causing psychological abuse which includes emotional injury to the victim;
(g) Causing the victim to suffer delusions by using any intoxicating substance or any other substance without the victim’s consent or if the consent is given, the consent was unlawfully obtained; or
(h) In the case where the victim is a child, causing the victim to suffer delusions by using any intoxicating substance or any other substance,
by a person, whether by himself or through a third party, against –
(i) His or her spouse;
(ii) his or her former spouse;
(iii) a child;
(iv) an incapacitated adult; or
(v) any other member of the family….[7]
[7] accessed on
Part II of the Domestic Violence Act also refers to Interim Protection Orders and Protection Orders as well as the Orders that may be included involving, prohibiting or restraining the person against whom the order is made from –
(i) entering any protected person’s safe place, shelter, place of residence or shared
residence or alternative residence, as the case may be;
(ii) entering any protected person’s place of employment or school;
(iii) entering any other institution where any protected person is placed;
(iv) going near any protected person at a distance of at least fifty metres or at a distance the court thinks reasonable; or
(v) making personal contact with any protected person other than in the presence of an enforcement officer or such other person as may be specified or described in the order…[8]
[8] ibid.
The Act also creates offences for those who breach orders.[9]
[9] ibid.
Malaysian laws also prohibit domestic violence, including physical injury and mental, emotional and psychological abuse.[10] [However], under Sharia-based law, wives are prohibited from disobeying the ‘lawful orders’ of their husbands which can lead to ambiguity in interpretation of the laws.[11]
[10] Department of Foreign Affairs and Trade Country Information Report: Malaysia (19 July 2016).
[11] ibid.
The Tribunal also notes that the country information shows that family violence against women is a major concern in [Malaysia].[12] While the country information does not suggest that the criminal law in Malaysia is flawless, it does show that the country’s protection system consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system and that measures have been put in place to address corruption.[13]
[12][Source deleted]
[13] ibid.

The applicant’s credibility is further marred as at hearing she claimed that she went to stay with a friend in Sabah to get away from her problems but was unable to provide the Tribunal with a reasonable explanation as to why her friend or friends of the friend would expose her to her husband and tell him that she was leaving to go to Sabah. When pressed about this matter she stated that her husband’s friends are also her friends, but the Tribunal fails to see why she would put herself in danger by being with anyone with whom her husband was friendly. The applicant’s account of this event was vague and general and she was unable to say how her husband actually stopped her at the airport and prevented her from flying to Sabah. The Tribunal does not accept therefore that this event took place.
The applicant at hearing stated that she no longer cared to pursue her husband and assert her rights under Sharia law as she was away from Malaysia now and wanted her child to join her here. Nonetheless, this does not detract from the fact that mechanisms exist in Malaysia to regulate the break-up of families in Malaysia and under Sharia law as well as in the civil courts. From the Tribunal’s reading of these rules the Tribunal finds that while it may be easier for a man to divorce a woman than it is for a woman to divorce a man, Sharia law does make provisions for divorce by a woman of a man in cases where, as is her case, she has endured financial neglect, cruelty and adultery.
Even excluding a good many of the applicant’s claims as set out above, as the Tribunal has found her evidence tainted, the Tribunal is prepared to give her the benefit of the doubt in relation to other claims and accepts that:
·The applicant had a difficult marriage in which physical and emotional abuse took [place]; ;
·She is estranged from her former husband;
·Her parents are looking after her child for her;
·She has solely been taking financial responsibility for her child; and
·The applicant began proceedings via the Sharia courts to dissolve the marriage prior to coming to Australia but has not continued through to finality to resolve issues of custody, maintenance, and property.
The test is whether there is a real chance that on return to Malaysia the applicant has a well-founded fear of persecution for reasons of being a member of a particular social group, being:
·Women who have suffered family violence in [marriage];
·women who wish to divorce their husband; and
·women who want custody of their child/ren.
The Tribunal is not satisfied that given the applicant is now separated from her former husband that she could not obtain a divorce from him under Sharia law. The Tribunal has also cited country information which shows that it is open to the applicant to seek an intervention order against her estranged husband to prevent him from coming physically close to her should she have a fear of him. Given the Tribunal’s assessment of the applicant’s claims, however, the Tribunal has found that the applicant is of no interest to her estranged husband and would not be so on return to Malaysia given she is providing care to her child financially when he should also be contributing, and given he appeared not to have any interest in the child previously.
The Tribunal has turned its mind to whether the applicant would suffer persecution amounting to serious harm were she to return to Malaysia by way of:
(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.
From the evidence submitted and from the country information the Tribunal does not accept that the applicant faces a threat to her life or liberty on return to Malaysia or that she will suffer significant physical ill-treatment as the Tribunal has rejected that her estranged husband has any interest in her. The country information shows that the applicant has effective measures she can avail herself of to prevent her husband approaching her and her child even if the Tribunal accepted that she holds fears from her estranged husband (and it does not).
The Tribunal also does not accept that the applicant will suffer significant economic hardship that threatens her capacity to subsist as she has worked in senior roles in [a certain industry]in Malaysia, including in Kuala Lumpur where such work is available. For the same reasons the Tribunal does not accept that the applicant will be denied access to basic services where the denial threatens her capacity to subsist or that she would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist.
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 s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa), that is, whether there is a real risk that the applicant will suffer significant harm on return to Malaysia, by way of:

(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.
Given the Tribunal does not accept that the applicant will be harmed by her former husband, the Tribunal does not accept that there is a real risk that the applicant will suffer significant harm as a result of being a woman who: (a) who has suffered family violence; (b) wishes to divorce her husband; or/and (c) wants custody of her child, or for any reason.
Based on this ‘real risk’ finding arising from the applicant’s accepted circumstances, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk the applicant will suffer significant harm of any kind.
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.

Rosa Gagliardi

Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

30 January 2018.

[2018] AATA 296

31 January 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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Natural Justice