1700813 (Refugee)

1700813 (Refugee) [2020] AATA 6187 (22 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700813
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Simone Burford
DATE:22 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 June 2020 at 12:45pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity, religion and political opinion – Indian Hindu – activities in support of Keadilan Party – threats and assaults by members or supporters of Barisan National (BN) Party – returned failed asylum seeker and unprotected woman – mental health – credibility – inconsistent, contradictory or implausible claims and evidence – low level supporter, not member or office holder – delay in applying for protection – applied after visitor visa ceased and period as unlawful non-citizen – late claim of rape as well as assaults – trauma, shame and language difficulties – country information – improved conditions under new government – effective protection measures – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 5AAA, 36(2)(a), (aa), (2A), (2B), 65, 91R(1), 91S, 104, 423A(2), 424AA
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
Iyer v MIMA [2000] FCA 52; [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Khawar (2002) 210 CLR 1
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZBEL v MIMIA (2006) 228 CLR 152
WAKK v MIMIA [2005] FCAFC 225
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
[The first applicant] (the applicant), is a [Age 1]-year-old Malaysian national. [The second applicant] is her son and is a minor. He is also a Malaysian national. The second applicant is a member of the same family unit and has no specific claims.
The applicants applied for the visas on 17 July 2014.[1] The first applicant attended an interview at the Department of Immigration (the Department) on 15 December 2016.
[1] The Tribunal notes the delegate decision refers to the application date as 17 July 2014. This appears to be taken from the date the application fee was paid. However, the Department file also contains a date of 11 July 2014 as the date of application. In the Tribunal’s view nothing in the review turns on this difference and the date from the delegate’s decision has been used as the date of application.
On 4 January 2017 the delegate of the Minister for Immigration refused to grant a protection visa under s.65 of the Act because the delegate was not satisfied that the applicants met the requirements for the visas. The applicants lodged a review of the delegate’s decision with the Tribunal on 16 January 2017. They provided a copy of the delegate’s decision record.
The applicant appeared before the Tribunal initially for a brief hearing on 2 October 2019 to give evidence and present arguments. The second applicant attended the commencement of the first hearing. However, given the nature of the claims made by the first applicant, the fact he had no claims of his own and his young age, the Tribunal indicated it would not be necessary for the second applicant to attend the hearings.
Further hearings were held on 7 November 2019 and 22 January 2020. The applicant attended both hearings in person.
The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
The applicants were represented in relation to the review by their registered migration agent who attended the hearings.
The Tribunal notes that prior to the second hearing the applicants requested and were sent a copy of the audio recording of the first hearing. Prior to the third hearing they requested and were sent an audio recording of the second hearing. Further, at the first hearing the Tribunal provided the first applicant a copy of the protection visa application as her representative indicated she did not hold a copy and the Department had not yet responded to her Freedom of Information request for material on the Departmental file.
Adverse findings from the delegate’s decision were put to the applicant for comment during the hearing. Adverse information which would be the reason for affirming the decision under review was put to the applicant consistent with the Tribunal’s obligation under s.424AA of the Act at the third hearing. The information and why it was relevant to the review were explained to the applicant and a short adjournment was taken to enable her to discuss her responses to the information. She made some responses at the hearing but also responded in writing following the hearing via her representative. The information and the applicant’s responses are considered further below.
Following the third hearing the applicant was provided with further time to make submissions and submit evidence, including in relation to information put under s.424AA. Further written submissions and evidence were received on 22 February 2020. This material has been considered by the Tribunal in reaching its decision.
The issues in this review are whether there is a real chance, if the applicants return to Malaysia, that they would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
LEGAL FRAMEWORK
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1).
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Paragraphs 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children.
Credibility assessments
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2]
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal notes that a decision maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held.
If the decision maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied. The Tribunal notes that in Iyer, [5] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Federal Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[6]
[5] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
[6] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible. In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, in particular paragraphs [8], [13], [17]–[19] and [27]–[28].
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[7]
[7] Prasad v MIEA (1985) 6 FCR 155 at [169–70]; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The applicant’s obligations to present their case in full before the primary decision maker and not wait until after the decision has been made are particularly relevant. Firstly, there is an ongoing requirement for an applicant to ensure that their relevant details are correct and to change any incorrect information at the first reasonable opportunity (s.104 of the Act). Secondly, applicants are required to present all claims and evidence to the primary decision maker unless they have a reasonable explanation for not doing so (s.423A of the Act).
The Tribunal notes that the applicant’s representative made detailed written submissions regarding credibility assessments. These referred the ‘Protection Visa Processing Guidelines’ which are cited in the submissions and which form part of the Department’s PAM3 Refugee and Humanitarian instructions. The Tribunal has also considered these Guidelines and the applicant’s submissions regarding their application to her case. These issues are considered further below.
CLAIMS AND EVIDENCE
Applicant identity and country of reference
The applicant claims to be a citizen of Malaysia. She provided a copy of her expired Malay passport issued in Australia [in] 2014 to the Tribunal. According to the delegate’s decision the applicant was issued a [visitor] visa on

14 December 2011. She arrived in Australia on this visa [in] December 2011. That visa ceased [in] March 2012 and the applicant remained in the county unlawfully. She applied for the protection visa on 17 July 2014.
The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.

The applicant confirmed before the Tribunal that she is not a citizen of any other country. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purposes of the refugee and complementary protection assessments.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.
Background and migration history
The applicant is a [Age 2]-year-old woman born in [City 1], Malaysia. She is a Hindu of Tamil Indian ethnicity. The second applicant is her son who is [Age 3] years old. The second applicant is the youngest of three children from her prior (traditional) marriage.
Prior to coming to Australia, she was living in [City 1], Malaysia with her mother. Her father died in 2007. Her mother is now living in [City 2] and is cared for by her younger sister who is married.
She has two younger brothers. She said she had no contact with one and the other is in jail. When asked she told the Tribunal she didn’t know why he had gone to jail. She said he was in jail when she left Malaysia and had not been released but she did not have any information about him.
She moved to [City 1] in 2011 from Johor Bahru where she had previously lived with her now ex-husband. She said she couldn’t remember exactly when she moved but thought it was about half-way through 2011.
She told the Tribunal she did not attend school at all and cannot read. Her sister went to school.
She said she was currently in a relationship with a person from [Country 1], but they are not married. She did not make any claims with respect to this relationship.
She was married in a traditional Hindu marriage in 1991 and has three children from that marriage, two daughters and a son (the second applicant)). The Tribunal asked whether she considered herself to be divorced in a traditional sense and she said that they were separated, and he is married to another woman.
She said problems started when her son was [Age 4] years’ old. Her son was born in [year] and they separated in late 2009. She stayed in marital home and he moved out. Her oldest daughter got married and moved to her in-laws’ house. Her second daughter moved to [Country 2] in mid-2009. Her daughters remain in Malaysia and [Country 2]. Her older daughter lives in Sabah andher ex-husband is in jail for ‘gang fighting’.
Prior to moving to her mother’s house, she had been commuting to [Country 2] to work. She said she worked doing [specified] jobs for a company for nearly 15 years. She couldn’t recall the name of the company. She stopped working when she moved to her mother’s house.
As discussed with the applicant at the hearing, the delegate’s decision records that the applicant applied for and was granted a [Visitors] visa on 14 December 2011. She confirmed she arrived in Australia [in] December 2011. That visa ceased [in] March 2012. She applied for the protection visa on 17 July 2014.
She left Malaysia on her own passport. She had no issues obtaining a passport or renewing it while in Australia. When she was leaving Malaysia, she said she was asked lots of questions and interviewed for one hour on departure. They took a copy of her passport.
When the applicant came to Australia, she left her son in the care of her mother in Malaysia. He visited the applicant once in Australia with his sister in November 2015 and departed December 2015 and returned again with his sister in May 2016. The applicant said that on the second occasion she decided to keep him with her in Australia and added him to the application for the protection visa. She later said that he didn’t want to go back because his stepmother was mistreating him. She said she left her son with her mother but then her ex-husband came and made a problem for her and he took the son. Her son was then living with her sister-in-law. After her ex-husband got re-married, he took the son to live with him but the stepmother ‘tortured’ him too much. When the Tribunal asked what she meant by ‘tortured’ she said his stepmother ‘didn’t treat him well’. She said her ex-husband was aware the child was an applicant for the visa. The Tribunal notes the second applicant did not make any of his own claims including with respect to this information.
Summary of the applicant’s claims
The applicant’s claims were initially set out in an annexure to her application for protection. She said this was prepared with the assistance of a friend. In her application for protection and in evidence before the Department at her interview on 15 December 2016 (which is summarised in the delegate’s decision) the applicant claimed:
·     She faced persecution as an Indian (non-Muslim) Malaysian from Malays of Muslim faith who were a majority in Malaysia.
·     The current leading political party in Malaysia, Barisan National (BN), consists mainly of Malays and discriminate against non-Malays. The applicant is a member of the opposition party, Keadilan, which supports the rights of Indian and Chinese Malays.
·     During 2011 the applicant went to many Keadilan Party meetings in her town with members of her family. When in Malaysia she attended meetings and campaigned on behalf of the party. In late 2011 the BN members threatened her.
·     She was assaulted on several occasions by BN members. She was kidnapped and was lucky to survive. She was also knocked off her motorbike riding to [Country 2], she believed by BN supporters.
·     She received no help from the police who were supporters of BN and wanted to arrest her on false charges.
The details of the claims and evidence raised in the application and in her evidence at interview with the Department, as summarised in the delegate’s decision is detailed and considered further below.
At the first hearing, the Tribunal explained to the applicant the documents before it. The Tribunal read to the applicant the summary of claims contained in her statement dated 21 September 2019 which was submitted to the Tribunal by her representative:
My main reason for seeking the protection of Australia is fear harm at the hands of Barisan National (BN) Party on account of my political views against Barisan National (BN) Party and my political views favouring the Keadilan Party and the harm I fear due to my gender of being a female supporter of the Keadilan party.
…….
In summary I fear harm including Abduction, physical assault, rape, torture and murder at the hands of the BN party supporters on the basis of my association with the Keadilan party and my being a woman who has already been raped BN party members I have personally been raped and threatened by my feared persecutors. I cannot rely on the protection of the Malaysia state and cannot safely relocate anywhere in Malaysia.
The applicant confirmed that it was a fair and accurate summary of her claims for protection. When the Tribunal queried whether the rape claim was one she had mentioned before to the Department she confirmed she had not raised it earlier. She said she was ‘under depression’. She confirmed she had not raised this claim when she was interviewed by the delegate. The Tribunal explained that the Act required a reasonable explanation for why claims weren’t made, or evidence not provided to the Department before the Delegate’s decision was made. The Tribunal indicated that the issue of late claims as well as any delay by the applicant in seeking protection would be discussed in more detail at the next hearing.
At the second hearing the applicant gave evidence and made submissions regarding her claims for protection.
With respect to the additional claim raised at the first hearing, at the second hearing she said that in December 2011, a few days prior to coming to Australia, she had a motorcycle accident. She was hit from behind and she fell down. The two men raped her and told her that unless she stopped supporting the Keadilan party they would rape her again. She did not report it to police due to cultural inhibitions and the fact police will not act against BN party workers. She then decided to leave Malaysia. These claims are considered further below.
In a written submission to the Tribunal dated 30 September 2019, the applicant’s representative also made the following submissions (in summary):
·     The applicant was not able to explain her claims and circumstances properly at the interview with the Department due to language difficulties. Although an interpreter was present, the applicant ‘used the interpreter sparingly’ and the importance of using the interpreter was not explained to her. She was not professionally represented at the interview.
·     The applicant did not receive professional guidance through the process and the application was prepared with the help of a friend.
·     The applicant’s claims for protection have been outlined in a statement to the Tribunal. The earlier claims submitted to the Department were prepared by a friend and ‘the entire communication between the two was in English and there were facts which were misrepresented. There were certain facts which were omitted, and some facts put which were perhaps used by the friend and the applicant to elaborate and explain certain situations which never happened.’
The Tribunal notes that in light of the applicant’s submissions and apparent inconsistencies in the applicant’s claims and evidence the Tribunal has reviewed the recording of the interview with the Department. Where relevant, inconsistencies arising from that interview have been put to the applicant for comment or response. These issues are detailed further in the decision.
The applicant claimed that she could not relocate to any other area of Malaysia because she had tried moving and the BN supporters had found her because she was continuing in her work supporting Keadilan.
The Tribunal questioned the applicant at length about the nature of her claims. The Tribunal has considered each of the integers of the applicant’s claims for protection relating to BN supporters, police or other officials, her former husband, Muslim Malays and other unidentified persons persecuting her in relation to her support of the Keadilan party, as a female supporter of Keadilan party and as an Indian non-Muslim Malay, separately and together.
Persecution as a supporter of Keadilan
At the hearings before the Tribunal, the applicant was asked why she had left Malaysia. She stated that she said she came because what happened to her gave her ‘a big shock’. She said she didn’t have a plan for what she would do when she arrived because she didn’t know anything about Australia and because she ‘wanted to have protection.’
When asked about the experiences in Malaysia that made her fear returning there, she said she was a member of the Keadilan party, and she had problems with the BN party. She said they did something to her and she had pressure from them.
In her statement of claims submitted to the Tribunal the applicant summarised the harm she feared on return to Malaysia as follows:
I fear the BN party workers who enjoy lot of power and are very active.
The local PM party workers know me and they will know whenever I return back to Malaysia and will subject me to same physical assault and rape.
I can be arrested on any pretext at the behest of the BN party supporters and tortured and assaulted in custody.
I do not have any male member residing with me and do not have that protection which is very important in my culture. In the absence of this I will become easier target for the BN party supporters.
I fear for my life if I return to Malaysia.
The applicant said that when Keadilan party leader Anwar Ibrahim was in jail she was involved with a group campaigning to get him released. She said she wasn’t the main person, but she was part of a group. She said this was in 2007. She was handing out leaflets and notices and talking to people about why they needed to elect him. When asked who she talked to she said ‘neighbours and friends around that area.’ She said after her son was born, she was still involved but ‘not very much.’ She said he was released when the government changed. She told the Tribunal her family wasn’t involved in Keadilan, only she was. She said she wasn’t a member of the party; she was just a supporter. She said she hasn’t had any involvement with Keadilan since she came to Australia, but she said she would be a supporter again in Malaysia if they were back in power. She was asked what activities she would do to support Keadilan and she said, ‘Whatever I can do I will.’
The Tribunal asked what Anwar Ibrahim was doing now and the applicant said he won the 2018 election and got released. She said he was now in the Malaysian ministry. The Tribunal asked who the Prime Minister of Malaysia was and the applicant said, ‘Anwar Ibrahim is the Prime Minister.’ She said that even if he is PM and Keadilan is in power, there will be problems because BN are still there and still preparing for the next election.
When asked what harm she suffered as a result of her involvement with Keadilan the applicant said that when she was in Johor Bahru, she received threats from the BN party. She said they called her phone and ‘they used bad words, swearing words’. She testified that they said she had to ‘stop participating and join BN party’. She said they then started calling and saying she was ‘Anwar’s girlfriend’. She said she got rid of her sim card.
She said her ex-husband was a supporter of the BN party and he used to say that she had to get out of Keadilan party as it was a problem between them. She said that after a while they separated as he was supporting BN party and ‘he didn’t let me go’. She said she remained at the house and ‘had threats and problems from other men’ as she did not have any male support.
The Tribunal asked if she ever reported the incidents to police and she said when she had an accident, she reported it to the police in Johor Bahru, but they wouldn’t take her statement because it was political.
In relation to that incident that the applicant told the Tribunal that she used to go to [Country 2] to work and in 2009, she couldn’t remember exactly when, she was approaching the border and two people ‘banged against’ her on her motorbike and she fell off and hurt her back and left side. They rode away waving and giving her a thumbs up. At the second hearing she said she went to the police station in Johor Bahru. At the third hearing she said she went to the hospital for her injuries. She was asked if she had any records of the hospital visit and she said they were in Malaysia and she wasn’t sure where because she sold her house after she separated from her husband. She said she sold the house just before coming to Australia. According to the delegate’s decision she told the Department the documents were left in the marital home and she could not access them.
She said the people on the bike just drove off and waived and made a thumbs up sign. She said they had a sticker with a BN logo on the bike. When asked if that is why she thought they were connected to BN she said, ‘people always have that’. The Tribunal queried whether there were a lot of BN supporters in Malaysia and she said there were lots and her ex-husband was one too. She said she went to the police station at the hospital, but they said they wouldn’t take her statement because it involved politics. The Tribunal queried what made the police think it was political and she said, ‘Because I told them about the stickers, and I didn’t know the plate number.’
She said the second incident was about a month and a half before she came to Australia when she had moved to her mother’s place in [City 1]. She said she has been in [City 1] since she left Johor Bahru in 2011. She said she kept distributing notices and flyers at her mother’s house and two people came and threatened her and told her they would stop her. She said they approached her as she was coming out of the Keadilan office which she said was the house of a main supporter of the party. She said the people were standing at the gate and they put their hands on her chest and pushed her.
She said the incident occurred at night when she went to the shops to get food for her mother. She said that it was raining heavily and there were no streetlights. She went on her bike to buy food for her mother and some people pushed her. Her written statement said: ‘They kicked my bike and fell down. The two men raped me and told her that unless I start supporting the BN party, they will find me and rape me again.’ She said in her statement that she was ‘bruised both physically and mentally and was very scared’. She did not report the attack to the police.
At the hearing she said she was on her bike, and two men were following her, and they knocked her down off the bike. She testified that they assaulted her, and they said, ‘we have been warning you but you still doing the same thing.’ She said she understood them to be talking about her supporting Keadilan, giving out flyers in [City 1]. She said that when she went to a place to pick up the flyers several days before, these two men were there and they pushed her. The Tribunal queried whether they were the same men and she said she couldn’t see their faces properly in the dark but from their voices she could recognise them.
The Tribunal asked where she had picked up the flyers. She said it was a house of people who were very much connected to party that she had been supporting. The Tribunal asked whether she had told the people from the house about the earlier incident with the men, and she said the people told her to be careful and not to go out in the night, but she never thought this would happen.
She said after she was assaulted the men said she would have to stop, otherwise, they said it is going to be worse if she continued doing this. She said ‘I went home, didn’t tell anyone in my house, didn’t mention it’. She said she ‘got depressed and upset’ and didn’t want to say it has happened to her. She said she didn’t go to the hospital because she was ashamed, and she didn’t want to tell anyone in the hospital because it would come up in the papers. After that she decided to come to Australia. She said, ‘My husband was not cooperating/helpful, and he found another life for himself, so I was alone.’
Following the assault, she went to an agent and told them she was in a bad situation but unable to disclose anything so ‘just send me somewhere’. She said this was about two weeks after the assault. She told her mother she had to go somewhere, or she might end up killing herself.
She said she didn’t mention this incident before because she couldn’t tell anyone. She said she hadn’t told her mother, and this was ‘the reason I didn’t want to marry again in my life.’
The Tribunal queried why it was that the applicant thought the men had belonged to BN. She said because supporters of the BN party used to wear stickers of BN party and these men had stickers on their helmets. The Tribunal queried what it was that made the applicant think they were targeting her because of her support for Keadilan. She said that:
This just happened to many people not just to me, left the country and came here. That is the reason I came her. Lastly, they said we are going to continue doing this. This is what will happen to you again and again.
When asked what she feared may happen to her on return to Malaysia she said:
I definitely know this will happen to me again, I don’t have any males support or male help there.
She went on to say:
Same people would harm me, if I go to Malaysia, my husband would know and through him these people would come to know.
She said the people were the BN supporters – ‘gangsters’.
The Tribunal pointed out that the events happened a long time ago and queried why the applicant thought they would still be interested in harming her. She said it will happen and it will never change. She said, ‘Only the government has changed, the gangsters have not changed.’

The Tribunal discussed with the applicant country information suggesting that at the time of the hearings BN party was no longer in power and queried whether this affected her claims to be at risk from them. She said that ‘They have lost, and they are more angry now.’
She was not the main person and was not influential: ‘I was with a group of people, no one knows me, no one will protect me.’ She said police won’t act on political complaints. The Tribunal queried why the police would not act on reports of assaults of the kind she had described to the Tribunal, and she said that the police would ask who beat her and if she said it was people of a political party they would ‘definitely not take the complaint’.
The Tribunal raised with the applicant that there was no country information before it to suggest that police would not act on criminal activity just because it was engaged in by supporters of a political party. The applicant responded that:
If I go back, I can’t say what would happen to me. I have one son; I don’t know how I am going to be safe with him and there is no one to look after him if not me.
The Tribunal expressed a concern to the applicant that there did not appear to be anything linking the accident or assault to the applicant’s activity with the Keadilan party. She said that the people who had caused her accident had the sticker (BN party) on their motor bike. The Tribunal expressed a concern that even if the people had a BN party sticker on their motorbike or helmets that would not necessarily mean they targeted her as a supporter of the Keadilan party. She said they threatened and told her many times to stop supporting Keadilan and she was still supporting them.
The Tribunal queried whether any threats had been made against her family while she has been in Australia and she said, ‘No because they are not involved in these things’.
In relation to persecution in Malaysia due to real or imputed political opinion, the 2019 DFAT Report notes the following [at 3.85, 3.86 and 3.92]:
Under the former government, political opposition and dissent, particularly direct criticism of the government, often resulted in legal harassment, detention and prosecution. Upon coming to power in May 2018, the new government dropped a number of sedition cases (which were widely perceived to be politically motivated) against a number of activists and prominent politicians, and ended government appeals of adverse rulings in a number of other expression-related cases. In addition, Anwar Ibrahim, the former deputy Prime Minister and one-time leader of a now-defunct opposition alliance, received a full pardon from the then King for sodomy convictions and was released from prison in May 2018. The then King did not provide a reason for the pardon, but human rights groups claimed the convictions were politically motivated and the trial lacked procedural fairness (see also Sexual Orientation and Gender Identity). Authorities also dropped charges brought against a number of Anwar’s supporters who had organised protest rallies following his sentencing.
According to Human Rights Watch, freedom of speech has generally improved following the change of government in 2018. Government statements have generally indicated the development of a more open environment for public discussion of issues previously considered off limits, and civil society also reports increased openness, although tangible reform of civil and political rights remains slow. Media sources also note that sensitivity, and thus the need for self-censorship, persists on issues that conflict with conservative Islam.
…….
DFAT assesses that since Malaysia’s first change of Government in 2018, there is increased space for political opposition and dissent. This space has not been formalised through changes in policy or legislation, however, and enforcement authorities retain the option of using what the Government previously called (when in opposition) ‘oppressive laws.’ Political party members can undertake political activities on a day-to- day basis and face a low risk of official discrimination. Individuals do not face societal violence on the grounds of their political affiliations...
The delegate’s decision surveys earlier country information in particular with respect to the 2013 elections and Bersih rallies. The delegate’s summary accords with country information available to the Tribunal. The decision notes that instances of violence by BN supporters against political candidates and campaigners had been documented but that country information:
indicates that though there are cases of political persecution reported in Malaysia, it is generally targeted towards the high-profile opposition leaders. General opposition party members are able to undertake political activities and are not at risk of official discrimination on a day-to-day basis.
The Tribunal discussed with the applicant that country information suggested that recent elections had been conducted peacefully in 2018 and that individuals did not face societal violence as a result of their political affiliations. In response to the assessment that individuals did not face a risk of societal violence on the grounds of their political affiliations, she said that there were a lot of murders in Malaysia and women are raped a lot. The Tribunal put to the applicant that country information suggested such events were not connected to political affiliations.
The Tribunal discussed with the applicant that country information doesn’t support the suggestion that individuals are targeted and assaulted for political activity. The applicant asked why then they were targeting her. She said her ex-husband is also in the BN party and they know she is also doing work for the Keadilan party.
In written submissions following the third hearing the applicant’s representative submitted that the 2019 DFAT Report notes that ‘A number of national security-oriented legal instruments introduced under the previous government allow for preventative detention and/or lengthy periods of detention without trial. In-country sources report that authorities continue to use these instruments under the new government.’ The Tribunal notes that the legislation cited in the report appears to relate to counter-terrorist and security related activities and offences. The applicant further submits that Malaysia is not a signatory to the Convention Against Torture and that safeguards against torture in custodial settings are inadequate.
Persecution from ex-husband
Linked to her claims of persecution from BN supporters, the applicant claimed to fear harm from her former husband who was a supporter of BN.
Asked why she feared harm from her ex-husband she said that she will be harmed because BN will know she has returned to Malaysia through her husband. The Tribunal asked if she was suggesting her ex-husband was targeting her and she said, ‘definitely I would say now that he has got married to another lady.’ The Tribunal queried whether she had ever reported her ex-husband to police, and she said not because only the BN party assaulted her.
The Tribunal notes that the applicant also testified that it was her ex-husband who had arranged for her son to come to Australia because he was being harmed by his stepmother. She said her ex-husband knew about and was supporting her son’s application for the visa. Other than that her ex-husband would tell BN supporters of her whereabouts, the applicant did not claim to fear harm from her ex-husband directly.
The Tribunal gives further consideration to the applicant’s claims to fear harm as a supporter of Keadilan below.
Female ‘gender-based’ claims

100. The applicant submitted that ‘a woman may be persecuted in a gender specific manner for reasons unrelated to gender’. The Tribunal accepts this to be the case. The applicant also submitted:
Women and girls globally continue to face challenges and obstacles to claiming and enjoying their rights. Traditional expectations and their role as child-bearers mean that women are often particularly vulnerable to persecution and other forms of harm. They may not have the same access to protection by state authorities as men or the same opportunities for flight.
Women are more likely than men to be harmed by members of their own family or community. They may be imputed with male relatives’ political opinion, religion and race regardless of whether they share those beliefs or characteristics in reality. They may also be targeted as a means of attracting, contacting or pressuring their male relatives or community. Those who fail or refuse to conform to standards of behaviour imposed on them by the state or society may attract adverse attention. Those who possess a feminist ideology may be viewed as espousing a political opinion hostile to the current administration and may be persecuted for that reason. Women are also more likely than men to be harmed because of their choice of sexual partners.
Systematic and/or mass rape has also been used as a means of persecution. Sexual assault can lead to shame and ostracism and other forms of violence as victims can be held morally responsible for the assault, lose respect and protection of their family or community, suffer further violence or reprisals, and be denied a livelihood. Sexual violence perpetrated in the private sphere or by non-state agents can also amount to persecution if there is an absence of effective state protection.
Other gender-related harm can take the form of restrictions on the way a woman behaves or involve forcing her to act a certain way.

101. The Tribunal accepts the general import of these submissions. However, the applicant does not claim to have been harmed or persecuted for reasons specific to her gender. Accordingly, and having regard to her circumstances, general statements regarding gender-based persecution are of limited assistance in assessing whether her circumstances meet the criteria for protection.
102. The applicant claims to have been sexual assaulted in retaliation for her political activities. In written submissions the applicant’s representative referred to the following country information contained in the 2019 DFAT report in relation to violence against women:
Despite the enhanced legal protections available to victims, NGOs report that violence against women in the form of rape, domestic violence, and family sexual abuse remains a significant problem. According to RMP statistics, there were almost 5,000 cases of domestic violence against women reported in 2018, and 5,513 cases of domestic violence and 1,582 cases of rape reported in 2017. Local sources believe that domestic violence, rape and family sexual abuse remain under-reported because of traditional beliefs in the sanctity and privacy of marriage, the level of shame involved, and reluctance to expose a perpetrator within the family.

103. Further, DFAT assesses that:
the situation is improving, ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, and lack of awareness of rights continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely.

104. The applicant’s representative also made the following submissions:
Wikipedia in its report states that from 2000 to 2007, there have been an increase of rape cases in all 15 states of Malaysia from 1217 to 3098. Among all 15 states in Malaysia, Johor has the highest rape cases as of May 2017. Based on the statistics released by the Penang Women Centre for Change, one woman is being raped every 35 minutes in Malaysia.
(citations omitted)

105. The applicant goes on to outline the steps to making a complaint against rape in Malaysia which include making a police report, police investigating the case, the Deputy Public Prosecutor charging the case and the case going to trial. The applicant submitted that the process makes it difficult for a woman to make a complaint and get support from the state: ‘It has been difficult for the applicant to report the traumatic sexual assault at the police station’. The applicant also cites a private members bill proposed by an MP with the ruling People’s Justice Party to protect men from being ‘seduced’ into raping women[8] as ‘a reflection on the States response to sexual assault and safety of women’. The Tribunal notes the bill was reportedly quickly withdrawn following a public outcry and condemnation by the leader of the People’s Justice Party, Anwar Ibrahim.[9]
[8] In her statement on September 2019 she claimed to fear harm ‘due to my gender of being a female supporter of the Keadilan party’. However, other than the nature of the attack she claims was made on her due to her political support of Keadilan, she has not articulated claims that she has been persecuted for the essential and significant reason of her gender.
107. The Tribunal gives further consideration to the applicant’s claims to fear harm as a female or as a female-supporter of Keadilan below.
Mental health claims
108. While the applicant did not make any specific claims regarding her mental health in her application or before the Department or Tribunal, in submissions her representative made several submissions regarding her mental health.
109. In summary these were that:
·     The applicant has been through a traumatic experience and as a result is suffering from mental health issues.
·     The trauma and shame of the rape attack were factors in her not making a complaint to police.
·     Although the applicant has not sought medical intervention for her symptoms until recently she is suffering from symptoms of PTSD.
·     The trauma of the event and the PTSD symptoms suffered by the applicant caused her not to raise the rape incident until recently including in the context of her application for protection.
·     The trauma of the event and the PTSD symptoms suffered by the applicant provide an explanation for the inconsistencies and lack of detail in her evidence regarding the claimed assault.

110. The Tribunal notes no medical evidence was offered in support of the submission that the applicant was suffering from PTSD or any other diagnosed mental health condition. The Tribunal raised this with the applicant’s representative at the third hearing and invited the applicant to provide any evidence to support any claimed mental health issues. Following the hearing, the applicant submitted a copy of a referral letter from [Dr A] dated 22 February 2020. The letter refers the applicant to [an acronym]’ which the Tribunal understands to be a reference to [a named organisation]. The letter states that the applicant:
Was involved in sexual assault 8 years prior in her home country. She has not been able to resove her issues, I would appreciate if she can have counselling.
(errors in original)

111. The letter indicated that the applicant has no recorded past history. The letter includes a list of current medications. There is no information before the Tribunal suggesting any of those medications relate to the treatment of any mental health condition.
112. The applicant’s written submissions referred to resources detailing the symptoms of PTSD after rape[10] and a ‘Guide for family and friends of sexual violence survivors’.[11] The applicant’s representative submitted that Malaysia is a ‘trigger factor’ for the applicant:
The very thought of returning to Malaysia provokes feelings of fear of being sexually assaulted, kidnapped, tortured and even murdered by her perpetrators who are still at large and have never been arrested by be police and are under political patronage.
[10] The Tribunal notes that many of the ‘symptoms’ were reported by the applicant’s representative and not the subject of evidence from the applicant. The applicant told the Tribunal with respect to why she had not raised the claim earlier that she was ‘under depression’. However, she did not provide any further detail or suggest that she had been formally diagnosed with depression. While the Tribunal accepts the applicant was ‘depressed’ following the assault in [City 1] and that she as ashamed and distressed as she described in her general evidence before the Tribunal, the Tribunal finds on the evidence before it that the applicant is not suffering from any diagnosed mental health condition or illness including PTSD. In any event the Tribunal does not accept that the resource materials provided would form a basis for the Tribunal to make an assessment and findings on the applicant’s mental health, in particular that she is suffering from PTSD or exhibiting symptoms of PTSD.
114. The Tribunal finds that there is no evidence to support the applicant’s claim that she was suffering from any mental health condition or illness when she arrived in Australia or in the two years she remained in Australia prior to lodging her application for the protection visa. The Tribunal finds the applicant was referred by a medical practitioner in February 2020 for counselling.
Persecution as an Indian Malay and Hindu
115. In her original application for protection the applicant claimed to fear harm from Muslim Malays as an Indian (Hindu) Malay. In the statement of her claims which accompanied her application she stated:
In Malaysia there are mainly Malays of Muslim faith. These Malays discriminate against Indian Malaysians because Indian Malaysians are not native Malaysians. They verbally insult Indians and many Indians have suffered persecution at the hands of Malaysia.
116. She did not make any reference to these claims in evidence or submissions before the Tribunal.
117. The Tribunal notes that the DFAT country information report notes [at 3.22]:
DFAT assesses that Indian Malaysians face low levels of official discrimination when attempting to gain entry into the state tertiary system or the civil service. Indian Malaysians involved in ‘gangsterism’ face a moderate risk of violence.
118. The Tribunal notes that while the applicant made a reference to her daughter’s husband having been jailed for ‘gangsterism’ she did not raise any claims to fear harm on that basis. She also testified that her brother was in jail. According to the delegate’s decision she told the delegate this was due to his involvement with Keadilan, however, she told the Tribunal it was because he got in a fight but he was not involved with Keadilan. Again, she did not make any claims to fear harm on this basis.
119. With respect to Hindus, the 2019 DFAT report notes [at 3.66]:
DFAT assesses that Buddhists and Hindus are usually able to live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. On rare occasions, they may face societal difficulties in cases where compulsory acquisition leads to their places of worship being relocated into inhospitable locations.
120. The Tribunal discussed the country information with her, and she had no comment to make on that information.
121. The Tribunal asked the applicant about that claim at the hearing. The Tribunal said it understood she said she was involved with Keadilan because she was an Indian Malay and she felt BN discriminated against Indian Malays, rather than that that she had specific claims arising from being Indian, and she confirmed this was correct.
State protection
122. The applicant submitted that country information suggest that Malaysians see police as one of the most corrupt institutions in the country. This did not give confidence to the applicant to report the assault to police. It also meant the applicant was unable to avail herself of adequate state protection from the claimed persecution.

123. The Tribunal noted earlier country information with respect to violence against women. General country information contained in the 2019 DFAT Report with respect to the Royal Malaysia Police provides:
The RMP is based on the British constabulary model and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion….

124. The Tribunal acknowledges however the relevant ‘Convention nexus’ can also be satisfied where there is a discriminatory failure of state protection attributable to one of the five reasons (s.5J(1)(a) of the Act). For example, Gleeson CJ in Multicultural Affairs v Khawar (2002) 210 CLR 1 observed, (at paragraph 32), that:
Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state.

125. The Tribunal has also considered country information regarding protection measures and support services available to the applicant in Malaysia should she face harassment, abuse or the threat of violence. The Tribunal notes that local and international sources indicate the Royal Malaysian Police (RMP) is a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption.[12] The RMP reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide.[13]
[12] Country Information Report – Malaysia (Version 2), Department of Foreign Affairs and Trade (Australia), 19 April 2018, section 5.5, pp.35-36, CIS7B839419347
[13] Country Information Report – Malaysia (Version 2), Department of Foreign Affairs and Trade (Australia), 19 April 2018, section 5.5, pp.35-36, CIS7B839419347
126. Further consideration of these issues is given below.
Conditions of Returnees
127. In the written submissions following the third hearing, the applicant’s representative submitted that:
the applicant has renewed her passport from Malaysian consulate in Australia. She is already a person who is ‘under attention’. This increases the risk of her life from her alleged perpetrators.

128. The Tribunal notes these were not claims raised by the applicant in her application for protection or in hearings before the Tribunal.
129. The applicant cites the 2019 DFAT Report in submitting that under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries (whether or not they have applied for asylum) may be blacklisted and prevented from further travel, normally for a period of two years. Cases are unlikely to come to attention, unless the individual is removed from another country or applies to renew a passport through a diplomatic mission overseas.
130. However, the DFAT country information is significantly more qualified in terms of the risk to returnees coming to the adverse attention of authorities.
131. The 2019 DFAT Report[14] provides as follows with respect to ‘Conditions for Returnees’:
5.19 Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return because of their absence. Authorities pay little attention to Malaysians who over-stay their work or tourist visas or breach visa conditions in other countries upon their return to Malaysia. Likewise, failed asylum seekers would be unlikely to face adverse attention, as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport had expired while abroad. There is widespread media reporting on the issue of Malaysian nationals travelling to other countries and applying for asylum for the purpose of obtaining work rights. The International Organization for Migration (IOM) assists voluntary returnees, and Malaysian authorities cooperate with the IOM in these arrangements.
5.20 Nevertheless, under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries (whether or not they apply for asylum) may be blacklisted and prevented from further travel, normally for a period of up to two years. Cases are unlikely to come to attention, unless the Malaysian is removed (i.e. deported) from another country or applies to renew a passport through a diplomatic mission overseas. If removed on an emergency travel document, a Malaysian national will be directed to report to Immigration in Putrajaya and may face a fine for not returning on a full passport.
……….
[14] DFAT Country Information Report: Malaysia, Department of Foreign Affairs and Trade, 13 December 2019, page 60 [5.35].

132. The 2019 DFAT Report[15] indicates that returnees who unsuccessfully seek protection overseas are unlikely to come to the attention of authorities on return.
[15] DFAT Country Information Report: Malaysia, Department of Foreign Affairs and Trade, 13 December 2019, page 60 [5.35].
133. The applicant has been on a bridging visa since lodging her application for protection. There is no information that she has been in immigration detention as a result of breaching the conditions of her initial visitor visa. The applicant was on a bridging visa when she renewed her Malaysian passport in Australia. There was no information before the Tribunal that she had any issues renewing her passport.
134. The Tribunal does not accept on the available information that the Malaysian authorities would be aware the applicant overstayed her initial visa as she now holds a valid bridging visa. In any event, country information suggests that even if the authorities were aware she had not complied with the conditions of her visitor visa and had been unlawfully in Australia for a number of years prior to lodging her protection visa it is unlikely this would bring her to the adverse attention of authorities who pay little attention to such breaches.
135. Further, there is no information before the Tribunal to suggest that the applicant has come to the adverse attention of the Malaysian authorities prior to her departure from Malaysia or that she is a person of interest to the authorities because of her political support for Keadilan, because she overstayed her initial visa in Australia for a period of two years or for any other reason. There is no evidence that she has been arrested or detained in the past. There is no evidence to suggest that she would be on a government watchlist or subjected to monitoring by the authorities when she returns to her home area.
136. In any case, in the unlikely event that the applicant was to come to the attention of authorities for the breach of Australian visa conditions country information suggests that the penalty for breach is a travel ban for up to two years. There is no information before the Tribunal to support the applicant’s contention that she would be jailed for such a breach or that while detained she would be subjected to torture or other treatment which would amount to significant harm. There is no information to support the applicant’s contention that coming to the attention of the authorities for a breach of her visa conditions in Malaysia would increase ‘the risk to her life from her alleged perpetrators’.
137. Having considered the applicant’s profile and the country information, the Tribunal is not satisfied that there is a real chance that the applicant will experience serious harm if she returns to Malaysia as a failed asylum seeker or for having breached her visa conditions in Australia now or in the reasonably foreseeable future on return to Malaysia.
Delay in seeking protection
138. The applicant came to Australia in December 2011. She told the Tribunal she left because of threats and assaults by supporters of the BN party due to her support work for the Keadilan party. However, she did not apply for a protection visa until 2014.
139. When asked about the reasons for the delay in seeking protection the applicant stated that she didn’t know the law in Australia, and she didn’t know what to do. She didn’t know what was written on her visa when she came. She said because of the incident involving the rape she was very stressed. She didn’t know what to do until she met the friend from [Country 3] who looked at her visa and told her it was expired.
140. The Tribunal queried whether she sought information from the Department, and she said she didn’t know where to go. She said she didn’t seek help from an immigration agent or lawyer. She said she would have done it at the time she had arrived if she had known.
141. When the Tribunal put to her that a reasonable person might assume she would know she couldn’t come to Australia as a visitor and stay for three years, she said this was the first overseas country she had lived in, so she didn’t know anything about it.
142. In written submissions, the applicant’s representative submitted that the applicant was not in any mental state to think about anything other than that she felt safe in Australia. The applicant’s representative submitted:
When the applicant arrived in Australia he [sic] reflected on her dangerous and unsafe life back in Malaysia. She kept thinking about the incident that took place in December 2014 in Malaysia. Australia was a new country for her with different cultural values and no friend or relatives. She was extremely stressed due to the incidents that took place in her home country before her arrival which had violated her dignity and her body. The fear of having to face her perpetrators on her return and after the expiry of her visa.

143. The Tribunal is not persuaded by the applicant’s explanations for her delay in seeking protection. The applicant had ample opportunity to seek advice and assistance and the Tribunal regards that she would have done so in a more timely fashion if she had left Malaysia to escape persecution for the reasons claimed, or if she feared returning Malaysia for those reasons. The Tribunal finds the applicant’s failure to apply for protection earlier or to raise her fear of claimed harm on return to Malaysia is an indication that she was not fearful of serious harm for the reasons claimed when she arrived in Australia.
144. Although there was limited evidence of the applicant’s literacy and language skills before the Tribunal, the Tribunal accepts on the basis that it is plausible that the applicant had limited English language skills when she arrived in Australia and that she is unable to read or write. However, these challenges are faced by many applicants for this and other visa types and, in the Tribunal’s view do not remove from the applicant the responsibility to fully and faithfully articulate her claims for protection. They also do not explain why she delayed seeking protection for a number of years.
145. The applicant claims to have been actively engaged in political campaigning in Malaysia over an extended period. Her claims include political advocacy, and campaigning for Keadilan and for Anwar Ibrahim’s release from prison. She claims she would continue to engage in activities supporting Keadilan on return to Malaysia. The Tribunal considers it implausible that someone who is engaged in active political advocacy, even at a local or community level, and who travels to a foreign country and establishes themselves there for a number of years would be unable to make basic inquiries to resolve their legal status in the country and to seek protection for a number of years. Again, the Tribunal regards this delay as undermining the credibility of the applicant’s claims to fear harm.
Claims involving the second applicant
146. As noted above, the second applicant did not make any claims of his own but is relying on the applicant’s claim. However, the applicant told the Tribunal he had been mistreated by his stepmother and the Tribunal has considered whether he faces a risk of serious or significant harm on that basis.
147. The applicant said she left her son with her mother when she left for Australia but about one or two months after she left Malaysia her ex-husband came to collect him. She said he had another partner and she refused to take care of the child, so he brought him back to her mother’s house. After getting married to the other women he took their son again, but when her ex-husband went to work this woman started ‘torturing’ her son. She said her daughter went to collect him and argued with the father that he couldn’t stay and brought him to Australia. He came on the first trip and told her his story, but she didn’t know what to do about the visa and he went back.
148. She said he told her the stepmother makes him to do all the housework. When he returned again, she spoke to a migration agent and they organised everything for him for the second time. The Tribunal notes the second applicant was added to the application on 21 June 2016. She said her ex-husband knows about the visa and supports it because he came to know how his new wife is torturing the boy, so he knew he could not take care of him.
149. She did not express any concerns regarding the stepmother harming her son if they return to Malaysia together. The Tribunal notes that the applicant claims the second applicant is currently in her care and custody with the consent of his father. In any event she testified that when she was living in Malaysia he was living with her with the agreement of his father. The Tribunal finds that if the second applicant were to return to Malaysia these arrangements would continue, and he would be living with his mother.
150. The Tribunal does not consider on the evidence and having regard to the second applicant’s circumstances, that he faces a real chance of serious or significant harm on return to Malaysia from his stepmother or father.
CONSIDERATION AND FINDINGS
151. The Tribunal has carefully considered the claims of the applicant in her original application for protection and her application to this Tribunal, individually and then cumulatively.
Issues of credibility
152. As noted above, there were obvious inconsistencies in the applicant’s evidence over time which gave rise to concerns regarding the credibility of her claims. Many of these were outlined in the delegate’s decision. Others arose at the hearing before the Tribunal. This included the late addition of the applicant’s claim to have been raped by supporters of BN just prior to coming to Australia.
153. The Tribunal went to significant lengths to put concerns regarding credibility to the applicant at the third hearing and allowed time for submissions regarding these issues following the hearing The Tribunal discussed with the applicant its concerns and the reasons why those concerns were significant for the review.
154. As noted earlier, the applicant’s representative made detailed written submissions responding to issues of credibility. These submissions may be summarised as follows:
·The applicant cannot read or write. Her application form and supporting statement of claims were prepared for her by an English-speaking friend who either misunderstood or mis recorded some of the applicant’s claims. That process was undertaken without the benefit of an interpreter and without the assistance of a registered migration agent. The statement of claims was not read out to her.
·The applicant admitted to these inconsistencies when put to her by the Department.
·During the Departmental interview the applicant attempted to communicate in English resulting in miscommunication.
·The applicant’s claims of sexually assault by members of BN were not raised earlier due to the traumatic experience suffered by the applicant and the shame and embarrassment associated with the assault.
·Mitigating circumstances must be taken into account in assessing the applicant’s evidence regarding the attacks she claims were made on her as ‘retribution and revenge for not following the directions of the BN party and continuing to support the Keadilan party’. The Protection Visa Processing Guidelines provide that inability to give a precisely accurate or consistent account of past events should not lead to an automatic non-acceptance of a particular claim. An applicant may forget specific dates, locations, distances, events and personal experiences due to a range of factors including trauma or a substantial lapse in time.

155. The applicant’s representative submitted the following mitigating circumstances applied to her case:
The mitigating circumstances mentioned and which are applicable to the applicant are Mental or emotional trauma and Feelings of shame, fear or mistrust of authorities. Besides this other reasons are that the applicant had no professional advice regarding ALL claims to be submitted to DHA. There was a barrier of language-the applicant could not speak the English language adequately for proficient communication with the helper. .The applicant herself cannot read or write and the Statement for protection claims was not read out to her. There was also a feeling of shame /embarrassment in talking about the sexual assault and rape. The applicant did not disclose it even to her mother. In fact she could not discuss it for a long time with anyone –not even admit to herself. It is difficult for her to think about the episode herself and has tried to blank out the traumatic experience.

156. The Tribunal notes that there were significant inconsistences in the applicant’s claims. Other aspects of her claims were vague and lacking in detail. These included:
·She initially claimed in her application that she had been kidnapped by BN party supporters, including claiming that her feet and hands had been tied and she had been thrown into bushes and rescued by Keadilan supporters. However, she did not raise this claim at the interview with the delegate and when asked about it she said it hadn’t happened and had been a mistake made by the person who helped her write the application.
·She did not raise the issue of having been sexually assaulted by supporters of BN until the hearing before the Tribunal.
·In her interview with the delegate she said that she had an accident one week before coming to Australia where two men hit her motorbike. She was injured and did not report it because she was coming to Australia. However, she told the Tribunal that this incident occurred five weeks before she came to Australia and that she had made the decision to come to Australia after the incident, including talking to a migration agent in Malaysia.

·The applicant originally claimed that her family had a long association with Keadilan and that her brother was a supporter of Keadilan who was jailed for fighting with BN supporters. She later told the Tribunal she was the only member of her family who was a supporter of Keadilan. This was a reason why her family had not been harmed since she left Malaysia. She told the Tribunal she had no information about her brother and did not know why he was in jail. When this was put to her under s.424AA she said that he went to jail for fighting but he was not involved with the party.
·The delegate’s decision indicates the applicant indicated she didn’t attend any rallies of Keadilan or in support of Anwar Ibrahim. However, she told the Tribunal she attended protests with a group of people.
·The applicant told the Tribunal that after the 2009 incident she went to a police station in Johor Bahru and later said that she went to the police at the hospital. The applicant initially told the Tribunal the police couldn’t take a report because she didn’t have a plate number for the vehicle that had struck her. She later told the Tribunal that they wouldn’t take a report because it was political. When the Tribunal queried what she meant she said she had told the police about the BN sticker on the bike that hit her.
·The applicant told the Tribunal she couldn’t obtain medical records of her visit to the hospital in 2009 because she didn’t know where they were after she sold the marital home in 2010 when she moved to live with her mother. However, she told the delegate that she couldn’t obtain the hospital records because she left them at her house, and her ex-husband and his new wife were living there and she didn’t know what they had done with them.
·The applicant initially told the Tribunal that she knew the people who assaulted her in 2011 were supporters of BN because they had stickers on their helmets. At the next hearing she told the Tribunal that she recognised their voices as the people who had assaulted her at a Keadilan supporters house a few days earlier.
·The applicant claimed she had been subjected to threats and intimidation from men in Johor Bahru because of her political support of Keadilan. She did not provide any detail able these threats. She claimed she had been the subject of threatening phone calls but was unable to say when they occurred. She was only able to provide very general descriptions of her activities supporting the party including handing out fliers and talking to friends and people in her area about why they should elect Anwar Ibrahim.

157. As put to the applicant at the hearing, the Tribunal also found it implausible that someone who the applicant had asked to assist her with making the protection visa application would make up the detail contained in the applicant’s statement and that the applicant would be unaware of the contents. In any event, the fact that the applicant cannot read does not remove from her the responsibility to ensure that her claims were true and correct or to correct that information at the earliest opportunity. In this regard the Tribunal notes that while the applicant’s current migration agent did not become the agent of record until after the delegate’s decision was made in 2017, the applicant told the Tribunal she had sought the advice of a migration agent when her son made his second visit in order to add him to the application. It is not clear who that agent was or what the advice was but the fact the applicant says she sought advice on adding her son to the application highlights that seeking advice or assistance was an option available to the applicant during the application process, and indeed since she arrived in Australia.
158. The Tribunal gave careful consideration to the applicant’s responses to issues of inconsistent or implausible evidence. As discussed with the applicant’s representative at the hearing, the Tribunal is mindful of the effect traumatic experiences and the passage of time may have on the ability of the applicant to precisely recall dates and events both in terms of its questioning of the applicant at the hearings and its assessment of her evidence and claims. The Tribunal is also mindful that reliance on interpreters may result in inconsistencies in evidence. The Tribunal was careful to give the applicant the opportunity to comment on or clarify apparently inconsistent statements and to clarify dates and evidence where it appeared to contradict earlier sworn statements.
159. The Tribunal also reviewed the recording of the delegate’s interview with the applicant. While the applicant chose to respond on many occasions in English during that interview the Tribunal did not consider that the conduct of the interview or the manner of the applicant’s responses gave raise to any obvious issues in accepting or relying on the applicant’s responses to those question.
160. As noted below, giving the applicant the benefit of the doubt where appropriate the Tribunal accepts some aspects of the applicant’s claims on the basis they are plausible. However, the Tribunal found that the large number of inconsistencies and contradictory or implausible evidence including in relation to key events relating to the claims could not be explained merely by the passage of time, poor recollection or issues in translation or by the events which the Tribunal accepts may have occurred. This is the case notwithstanding the traumatic nature of these events. On the basis of these concerns about the applicant’s claims, the Tribunal did not find aspects of the applicant’s evidence to be credible, in particular the Tribunal did not accept the applicant’s claims to have been persecuted or harmed due to her political support for the Keadilan party. This is discussed further below.
Findings
161. Having regard to all the evidence and giving the applicant the benefit of the doubt, the Tribunal accepts that the applicant was sexually assaulted in December 2011 and that this assault was the catalyst for her leaving Malaysia. The Tribunal accepts the applicant’s submission that if she were sexually assaulted, she may have been hesitant to raise those claims earlier in her application. Accordingly, the Tribunal does not regard her explanation for not raining the claims earlier to be unreasonable and finds her claim does not lack credibility by operation of s.423A(2) of the Act.
162. However, as detailed above, the Tribunal has serious concerns about credibility of the applicant’s broader claims including that she was repeatedly targeted for being a supporter of Keadlin.
163. Because of these concerns, the Tribunal does not accept on the evidence that the assault occurred because of her involvement with Keadilan. The Tribunal does not regard this element of her claim to be credible having regard to the delay in raising the claim and the inconsistent, vague and implausible nature of her evidence concerning the political threats against her and in particular why she thought the attackers were targeting her because of her support for Keadilan. In this regard the Tribunal notes it was not concerned about general inconsistencies in details which the Tribunal accepts may have been impacted by the trauma of the event. Rather the Tribunal was concerned these problems with respect to the key elements of her evidence seeking to link this attack and her motorcycle accident in 2009 to BN and her characterisation of those events as an organised and systematic effort to force her to stop supporting Keadilan and in retaliation for her support for Keadilan. The applicant told the Tribunal she based her claim that she was attacked by BN supporters because she was a Keadilan supporter on the fact they had BN party stickers on their helmets. Later she claimed that she recognised the assailants’ voices from a prior incident several days earlier outside a Keadilan supporters’ home when she was collecting flyers.
164. The Tribunal does not accept on the evidence that the applicant was threatened verbally before or during the assault by unidentified males who told her they would harm her due to her support for Keadilan. The Tribunal regards that his claim is not credible based on inconsistencies in the applicant’s evidence regarding the events and her claimed activities in support of Keadilan. Even if the Tribunal is wrong and the assailants did identify her as a Keadilan supporter and make the threats to her alleged during the assault, there is no evidence to suggest the attack was other then opportunistic. In particular, the Tribunal does not accept there was anything other than a BN party sticker to link the 2009 and 2011 incident. As the applicant conceded such stickers are common among the many supporters of BN living in Malaysia. Further, there is nothing to suggest the applicant had a personal profile which might bring her to the attention of those opposed to Keadilan.
165. The Tribunal accepts, on the basis that it is plausible, that the applicant was a supporter of Keadilan. On her own evidence she was not a member of the party and did not hold office or position within the party. While her representative submits that the applicant was an ‘ordinary member’ of Keadilan or that she undertook duties communicating with the Chinese and Indian communities who make up almost half Johor Bahru’s population of almost 500,000 people, in the Tribunal’s view this was not consistent with the applicant’s own evidence before the Tribunal and the Department where she clearly stated she was not a member of Keadilan and where she described her activities as speaking to neighbours and friends in her area, handing out flyers and talking to them about why they should elect Anwar Ibrahim. Although the applicant has not been involved in supporting Keadilan since leaving Malaysia more than eight years ago the Tribunal accepts that she would continue to support the party in a general way if she returned to Malaysia. Having regard to the fact she did not provide any detail on the activities she would engage in in supporting Keadilan on return, the Tribunal finds she would engage in general political support for Keadilan, handing out flyers and talking to friends and neighbours in support of the party during elections.
166. While the Tribunal accepts the applicant was a supporter of Keadilan, based on the evidence before it and the available country information the Tribunal does not accept that the applicant was threatened or harmed because of that support including because she spoke to people in support for Anwar Ibrahim and Keadilan and handed out flyers. As noted above there were inconsistencies in the applicant’s claimed level of activity supporting Keadilan and her claims about threats made by phone and by unidentified persons were vague and lacking in detail. Further, the fact that the applicant has not been active supporting Keadilan since leaving Malaysia and was not clear on the current status of the party leadership, including thinking that Anwar Ibrahim was now the Prime Minister when this was not the case suggest the applicant’s support for Keadilan was that of a general supporter and voter. The fact that she initially claimed her family members were long supporters of Keadilan and her brother had been jailed for fighting BN supporters further suggested the applicant embellished her involvement with BN to strengthen her claims for protection. In any event, her own evidence did not suggest she was involved in political activity consistent on country information with a real chance of serious harm.
167. The Tribunal accepts, on the basis that it is plausible, that the applicant had a motorcycle accident while driving to work in [Country 2] in 2009. The applicant said it was early in the morning and she was riding her motorbike and was hit by another motorbike. The Tribunal also accepts that the other driver may have driven off without stopping.
168. However, the Tribunal does not accept that the applicant was struck on the bike deliberately in retaliation for her involvement with Keadilan. The basis of the applicant’s belief that the accident was an attack against her was that she saw a BM party sticker on the bike and she told the Tribunal that one of the people on the bike gave her a thumbs up as they drove off. The applicant conceded before the Tribunal that there were many supporters of BN in Malaysia and that they all have stickers or badges displaying BN insignia. As put to the applicant, it does not follow that because the people who hit her on her bike had a sticker bearing the BN party logo that they were attacking her because of her own political beliefs and activities. She has offered no evidence to corroborate her claims that her accident was as a result of her activities supporting Keadilan, that she was hospitalised after the event or that she attempted to report the event to police. In any event, the Tribunal regards on the applicant’s evidence that if police did not formally act in relation to any complaint made about this incident this was because the applicant was unable to provide details by which those driving might be identified and located.
169. The Tribunal considers, based on the applicant’s evidence overall, that she came to Australia following the assault as a result of the trauma of the assault which came on top of the breakdown of her marriage and re-partnering of her ex-husband. In this regard the Tribunal prefers her current evidence that she decided to come to Australia following from and because of that assault. The Tribunal accepts and understands the applicant’s experience may have made her desirous of leaving Malaysia. However, the Tribunal does not accept on the evidence that there is a real chance of serious harm if she returns to Malaysia from supporters of BN or from any other person because of her support for Keadilan or for any other reason.
170. As noted above, the Tribunal does not accept that the applicant has established that there is any basis on which it could be satisfied that she faces a real chance of suffering serious harm in Malaysia from BN supporters now or in the reasonably foreseeable future.
171. In any event, while the Tribunal accepts that a Convention-nexus may be established nothwithstanding violence was engaged in by a third in circumstances where such activity was condoned or tolerated by the authorities, given the available country information and the applicant’s circumstances, the Tribunal is not satisfied the evidence established that the State is unwilling to offer effective protection measures to the applicant because she is a supporter of Keadilan, a female supporter of Keadilan or a single woman without male support or protection. On the evidence the applicant claims to have reported the earlier bike accident to police. While she claimed they did not take her complaint because she mentioned the bike had a BN sticker and the matter was ‘political’ she also stated she was told the police could not investigate because she did not have the licence plate number of the bike. The Tribunal finds, on the basis that it is credible, that the applicant reported the accident to police but that they did not take the matter further because the applicant was unable to provide details through which the other driver could be identified, namely by the licence plate of the vehicle. In the Tribunal’s view this does not establish the police were unwilling to afford protection to the applicant for any reason including for those claims.
172. Further, while the Tribunal can understand the applicant’s reluctance to report the sexual assault to police such an unwillingness was on the applicant’s evidence driven her feelings with respect to the rape. Again, those feelings are understandable. However, the unwillingness of the applicant to make a report to police because of her discomfort with repeating the details of the attack or the difficulties associated with prosecution of such a complaint (noted in the representatives submissions) does not, of itself, establish that adequate state protection was not available or would have been withheld from the applicant. While the Tribunal accepts that country information suggests a high level of non-reporting of sexual assault in Malaysia and a low level of successful prosecution of such matters, it also points to efforts being made to improve those statistics and to services provided to women who are prepared to reach out to them.
173. On this basis, and in any event, the Tribunal is satisfied that the applicant would be able to access effective protection measures from the harm claimed if she returned to Malaysia now or in the reasonably foreseeable future.
174. Further, and for the avoidance of doubt, the Tribunal does not accept that on the evidence that the assault on the applicant gives rise to a well-founded fear of persecution for a convention reason on the basis of her gender, including on the basis that she is a member of a particular social group including female supporters of Keadilan and women without male support or protection in Malaysia.
175. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
176. In the Tribunal’s view the evidence and country information does not support a finding that the assault on the applicant amounted to ‘systematic and discriminatory conduct’ for the purposes of the Convention. The Tribunal does not accept on the evidence there was any orchestrated attack on the applicant motivated by her political activity. Nor does the Tribunal accept on the evidence that sexual violence against women in Malaysia has the quality of systematic and discriminatory conduct. In this regard the Tribunal notes that the test is a forward looking one and, on the evidence before it, the Tribunal regards the risk to the applicant of any further sexual violence is a risk faced by the population of Malaysia generally and not by the applicant personally.
177. The Tribunal has found that the applicant would not come to the adverse attention of authorities due to overstaying her original visa in Australia. In any event, the Tribunal notes that there is no evidence before it to suggest that the immigration laws of Malaysia have been, or will be applied to, the applicant in a discriminatory manner. Accordingly, the Tribunal finds that to the extent any claim is raised with respect to immigration laws and her re-entry to Malaysia, this relates to a law of general application in Malaysia and has not and will not be enforced against the applicant in a way that would engage Australia’s protection obligations under the refugee criteria.[16]
[16] Eg: Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at [16]; Lama v MIMA [1999] FCA 918 at [30], upheld on appeal in Lama v MIMA [1999] FCA 1620; Alamdar v MIMA [2001] FCA 1244; and SZVYD v MIBP [2019] FCA 648 at [14].
178. In any event, having considered the applicant’s claims and the evidence, the Tribunal finds that there is no real chance the applicant faces a real chance of serious harm on return to Malaysia due to pollical support for Keadilan either from BN supporters, her ex-husband or the authorities.

Cumulative factors
179. The Tribunal considered whether the combination of factors affecting the applicant would mean she has a real chance of serious harm if she returns to Malaysia.
180. In particular, the Tribunal considered whether her support for Keadilan and Anwar Ibrahim, as a female supporter of Keadilan, as returnee who breached visa conditions in Australia or failed asylum seeker from Australia would mean she would come to the attention of authorities or suffer serious harm from any person in Malaysia. The Tribunal is not satisfied there is a real chance she would come to the attention of Malaysian authorities or face harm from BN supporters or her ex-husband such that there would be a real chance of serious harm due to any or all of the combination of these factors.
181. Having considered all the factors in combination with each other and cumulatively, the Tribunal finds there is no real chance the applicant would be persecuted for any of the reasons claimed or for any other reason.
Other considerations
Internal Relocation
182. With respect to whether the applicant could relocate to another area of Malaysia to avoid the harm claimed the Tribunal notes that the applicant claims the prior attacks occurred in Johor Bahru and in [City 1] where her mother was then living. She testified her mother moved after she left Malaysia to live with her sister.
183. In relation to internal relocation, the 2019 DFAT reports states [at 5.22]:
Malaysians can and do freely relocate internally, generally to larger urban areas in peninsular Malaysia for economic reasons. Individuals likely to attract official attention under state syariah-based law, including people who identify as LGBTI, women escaping domestic violence, or Muslims wishing to marry non- Muslims, may also move to large urban centres to avoid attention..

184. In her written application she claimed she had moved to another state and had tried leaving for [Country 2], but she had been found by the BN supporters.
185. In written submissions the applicant stated that:
She cannot rely on the protection of the Malaysian state and cannot safely relocate anywhere else in Malaysia.

186. The Tribunal notes that the applicant’s family is no longer living in the town in which she claims to have been assaulted. He mother now lives with her sister in another town and her daughters live in [Country 2] and Sabah. She claims to have sold her former home in Johor Bahru. The applicant provided no evidence on why it would not be possible to relocate to another area of Malaysia where she did not face an ongoing risk from her clamed assailants. In any event, it is not necessary for the Tribunal to give further consideration to whether the applicant could safely relocate within Malaysia given the Tribunal’s findings on the risk of harm to her.
PROTECTION ASSESSMENT
Do the applicants meet the refugee criterion?
The first applicant
187. Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that there is a real chance that the first applicant faces serious harm for reasons of a real or imputed political opinion as a supporter of Keadilan and Anwar Ibrahim, as a female supporter of Keadilan or as a female without male support or protection, now or in the reasonably foreseeable future.
188. Further, the Tribunal does not accept that there is a real chance that the first applicant and/or her family, if they are returned to Malaysia, face a real chance of serious harm as returnee who breached visa conditions in Australia or as a failed asylum seeker from Australia.
189. The Tribunal is not satisfied that the first applicant has a well-founded fear of persecution for any Convention-related reason.
The second applicant
190. Based on all the evidence before it, and having considered the claims singularly and on a cumulative basis, the Tribunal does not accept that there is a real chance that the second applicant will face a real chance of serious harm from his stepmother or father or for any Convention-related reason if he returns to Malaysia now or in the reasonably foreseeable future.
191. The Tribunal is not satisfied that the second applicant has a well-founded fear of persecution for any Convention-related reason.
Do the applicants meet the complementary protection criterion?
192. The Tribunal has considered whether on the evidence before it, there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
193. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of the visa if there are 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’).
194. The meaning of significant harm is set out in s.36(2A) of the Act. A non-citizen will suffer significant harm if the person will be arbitrarily deprived or his or her life, the death penalty will be carried out, the person will be subjected to torture, the person will be subject to cruel or inhuman treatment or punishment, or the person will be subjected to degrading treatment or punishment.
195. Under s.36(2B), there is taken not to be a real risk of significant harm if it would be reasonable for the person to relocate to an area of the country where there would not be a real risk of significant harm, or the person can obtain from an authority of the country protection such that there would not be a real risk the person would suffer significant harm, or the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
196. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal further notes that the necessary and foreseeable consequence element at 36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of the significant harm.
197. The Tribunal has found that the applicant does not face a real chance of serious harm now, or in the reasonably foreseeable future, as a result of reasons of a real or imputed political opinion as a supporter of Keadilan and Anwar Ibrahim, as a female supporter of Keadilan or as a female without male support or protection or for any other reason. For the same reasons, the Tribunal finds she does not face a real risk of significant harm as a necessary and foreseeable consequence of herreturn to Malaysia for those reasons.
198. The Tribunal finds that the applicant has some family support in Malaysia. Country information suggests she would have access to medical services including mental health support similar to that available to other Malaysian citizens.
199. For completeness, the Tribunal does not accept that the second applicant would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment from his stepmother or father.
200. The Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of their return to Malaysia, the applicants will suffer significant harm in terms of being arbitrarily deprived of their lives, subjected to torture, subjected to cruel or inhuman treatment or punishment, or subjected to degrading treatment or punishment.
201. Having considered the applicants’ circumstances singularly and on a cumulative basis and for all the reasons set out above the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of either of the applicants being removed from Australia to Malaysia there is a real risk that they will face significant harm.
202. As a result, the Tribunal finds the applicant does not meet the criteria in s.36(2)(aa) of the Act.
Conclusion
203. For the reasons given above the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
204. The Tribunal affirms the decision not to grant the applicants Protection visas.
Simone Burford
Member

[2020] AATA 6187

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