1705375 (Refugee)

[2017] AATA 2843

1705375 (Refugee) [2017] AATA 2843 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705375

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:13 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision made by the delegate of the Minister for Immigration [in] March 2017.

Statement made 13 November 2017 at 4.08pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Particular social group – Victims of loan sharks – Physical violence – Forced and abusive marriage – Effective protection measures

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559 at 596
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIAC v MZYYL (2012) 207 FCR 211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa [in] December 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) and ss.36(2)(aa) of the Act.

3.The applicant appeared before the Tribunal on 12 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

Criteria for a protection visa

5.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

8.Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

9.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion'). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

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

CONSIDERATION OF CLAIMS AND EVIDENCE

11.The issue in the present case is whether the applicant is a person to whom Australia owes a protection obligation.

12.The applicant claims protection on the basis of domestic violence. Her claim appeared in her application as follows:

Why did you leave that country?

‘’My father borrowed money from money lender and money lender never pay by father and money lender create a problem and he try to misbehave with me. I was talk back to him and he was bully me and he tell he want to kill me’

What do you think will happen to you if you return to that country?

‘If I go back he will kill me or he try to married me.’

Did you experience harm in that country?

‘I was bully and that badly in front of public.’

‘Did you seek help within the country after harm?

‘Everyone scared to help me’

Did you move, or try to move, to another part of that country?

‘I try but everyone watch and follow me. So I cannot move anywhere without knowing them.’

Do you think you will be harmed or mistreated if you return to that country?

‘If I go back he will kill me.’

13.The applicant claims that she was born on [date] in Pahang Malaysia.

14.Her evidence was that her nationality is Malay, her ethnicity is Chinese and that she is a Buddhist. She has a mother and father who are living in Pahang. She has no siblings. The Tribunal accepts the applicant’s evidence as to her nationality and ethnicity.  

15.She attended school until form [number] upon which she went to live with her [Relative A] in Perak and commenced work as [an occupation] in a [venue].

16.The applicant’s evidence was that in or about early March 2016 her father borrowed approximately RM [principal] (‘the father’s loan’) from a loan shark (known as ‘Ah Long’ in Malaysia) to repay gambling debts. The applicant had no knowledge of the fact that he father had borrowed the money from the loan shark. She was not present at the time of the loan and was not informed of the loan by the father. The applicant’s evidence was that mother told her about the loan when speaking to her on the telephone. The applicant did not provide any documentary evidence of the father’s loan to the Tribunal.

17.The applicant says that her father was not able to repay the loan. As a result, she was threatened and harassed by representatives of the loan shark. In particular, they followed her as she was traveling to work in Perak. In addition she says that in early March 2016 she was attacked twice by representatives of the loan shark where glass was thrown into her house and they shouted demands for payment of the father’s loan. No other threat, type of harassment or ‘misbehavior’ were said to have occurred by the applicant. In particular the applicant did not describe any threat by the loan shark in which she was threatened to be killed or even married.  Therefore in the absence of any independent evidence of the threats to the applicant the Tribunal does not accept that the loan shark threatened to kill or marry the applicant.

18.The applicant’s evidence was that she telephoned her father to tell him about the threats she had received but he had already fled from his home. She was not able to tell the Tribunal where her father had fled too, but said that he has returned home.

19.The applicant arrived in Australia [in] March 2016.

20.In response to the Tribunal asking her why she had travelled to Australia the applicant said that her father had asked her to repay the debt because he had no money. She said that she had come to Australia to work and that she had been sending money back to her family in order to repay the father’s loan. Her evidence was that the current balance of the loan is approximately RM [balance]. The applicant did not provide any documentary evidence of the balance of the loan or proof of any repayment of the loan. Notwithstanding the lack of documentary evidence the Tribunal accepts that the applicant has been sending money to her family and that the balance of the loan has reduced to RM[balance].

Country Information

21.Illegal money lending or loan sharking (Ah Long) is an offence under section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than RM 20,000.00 and not exceeding RM 100,000.00 or imprisonment of up to five years can apply.[1]

[1] KL Consumer safety Association – No need to fear the loan sharks 2015 Bernama (Malaysian National news Agency)) 17 February

22.In October 2013, The Sun Daily reported that figures supplied by the Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that 'The loan sharks menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year's RM39.5 million'. Loan sharks reportedly lent RM34,400,000 to financially-strapped Malaysians up to September 2013, and at the time of the article, '426 people were in debt to loan sharks, with each person owing an average of RM80,751'. According to Chong, 'people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so'. He also said that 'of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means'. Seven per cent or 32 people were reported to be repeat borrowers, and Chong said that 'most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks.

23.Chong also said that the 'police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis'. Police, however, 'can take action if loan sharks resort to violence or extortion to recover their money'.

24.Various media reports indicate that the practice of illegal money lending is widespread in Malaysia and that police operations targeting Ah Long are not uncommon. According to a Daily Express 22 April 2014 report, 'police are tracking down members of unlicensed moneylending syndicates … through contact numbers printed in their advertisements, including flyers, posters, banners and business cards...' The article notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the 'lack of cooperation from the public, especially those who had fallen victims to the syndicate.' This problem stems from threats by syndicate members.

25.Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.

26.Police action against the Ah Long includes a police operation in Kuching, conducted from 23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in the 135 police raids conducted. In April 2014, the police and local authorities in Penang 'pulled down 238 banners and streamers promoting illegal moneylending'. The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials. Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 'posters, banners and name cards of illegal money lenders'. Reportedly, 'City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture'.

27.Numerous media reports were located regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that '16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012' during Operation Vulture.

28.In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being 'investigated under Section 5(2) of the Money Lenders Act 1951 for operating without a license'. Additionally, 'four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.'

29.The Malaysian Digest reported on 16 October 2014 that 'police rescued a 21-year-old after he was abducted by three men, believed to be loan sharks … One day after the incident, police apprehended a 24-year-old man and a 29 year-old woman … believed to be involved in the incident'.

30.The Malaysian Star[2] reported that two loan sharks were arrested during a police surveillance operation when collecting money from a victim. The arrested persons were wanted by police 'for suspected involvement in several other cases of illegal moneylending in the district. ‘The Tribunal referred to both Malaysia and other media outlined above which indicates that the police are very concerned about the issue of illegal money lenders in Malaysia because it is a big problem and there have been a lot of reports in the Malaysian media to try to make people aware about the problem of illegal money lenders and their illegal activities and they have encouraged people to report these. The media on this issue indicates there has been a concerted effort to address illegal money lending and they appear to have targeted money lenders and associated criminal gangs.

[2] The Malaysian Digest  29 May 2015

31.The Malaysian Times[3]  reported that there was no need to fear loan sharks. This article reports that the lack of exposure on law to 'ah long' or loan sharks and the fear of making a police report after being threatened are among the factors causing the victims of these illegal moneylenders to endure endless debts. The article goes on to say that the Kuala Lumpur Consumer Safety Association has appealed to people not to be afraid to report threats made by loan sharks because they are not immune from the law but when victims are too afraid to make a police report, that makes them immune.

[3] The Malaysian Times ‘No need to fear loan sharks.’ 17 February 2015

32.Another article referred to by the Tribunal was from the Borneo Post which referred to the police having seized up to 6,700 posters and other materials of illegal money lenders or Ah Long since March 2015. This has been in an effort to combat illegal activity around the state capital. The Tribunal noted other media reports that the police are more interested in catching these illegal money lenders involved in threats and illegal activities, not their victims.

33.The Star[4] reported that over 2000 cases of loan sharks had been reported nationwide between January 2016 and July 2017. Comm Thaiveegan said that ‘a total of 2.273 cases were reported in this period, involving about RM68.8 mil in loans.’ He added that ‘the police have managed to solve 50 percent of these cases.’

[4] The Malaysian Star ‘Police over 2000 loan shark cases reported form Jan 2016 to July 2017’ 7 August 2017

34.Finally, the New Strait Times[5] reported that Datuk Nadzim Johan from the Malaysian Muslim Consumers Association had been able to negotiate with loan sharks and that they had been battling them for years.

[5] New Straits Times ‘Loan Sharks ruin lives.’ 23 April 2017

Law enforcement and the legal system in Malaysia

35.The DFAT report notes that law enforcement entities in Malaysia operate at both federal and state level and that local and international sources consider the Royal Malaysian Police (RMP)[6] to be a professional and effective police force. It states:

‘Royal Malaysian Police (RMP)

5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP's responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see 'Police Integrity and Accountability', below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.’

[6] DFAT Country Information Report – Malaysia 19 July 2016 p25.

36.The Tribunal notes the following information relating to corruption within the RMP:

‘Police Integrity and Accountability

5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 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 the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.’

37.The Tribunal also noted a report by Human Rights Watch in 2014[7] which has credited the Malaysian government for implementing many of the Royal Commission's recommendations but have also noted that some of the key recommendations including improving investigative capabilities of the police and creating effective external accountability mechanisms have not been implemented.

[7] No answers, no apology: Police abuses and accountability in Malaysia, Human Rights Watch, 2 April 2014 pp 22-23.

38.The Tribunal noted that the country information indicates that the Malaysian authorities including the police and judiciary are reasonably effective in combating criminal gangs and there has been a great deal of coverage in Malaysian media regarding the various operations by law enforcement authorities to combat this. In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia's judicial system:

Judiciary

‘5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia's criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia's highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see 'Political Opposition Members', above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.

5.12 Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court.’However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison populations were pre-trial detainees.

5.13 The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders.

However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.

Relocation

39.Malaysia's Constitution provides for freedom of internal movement. DFAT assesses that Malaysians can and do freely relocate internally.

Individuals likely to attract official attention under state sharia-based law, including transgender individuals, women escaping violent husbands or Muslims wishing to marry a non-Muslim, often move to large urban centres to avoid attention. People also move to different parts of Malaysia for economic reasons.

ASSESSMENT OF CLAIMS AND FINDINGS

Country of Reference

40.The applicant claims and the Tribunal finds, based on the personal details provided by the applicant that she is a Malaysian national. The Tribunal therefore finds that Malaysia is the receiving country for the purpose of assessing the applicant's claim for protection.

41.The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia's protection obligations under s36(3).

Credibility

42.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

43.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[8]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[9]

[8] s.5AAA Migration Act 1958.

[9] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

44.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[10] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

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

45.If the applicant's account appears credible, she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[11] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

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

·that she was born on [date] in Pahang Malaysia.

·that her nationality is Malay, her ethnicity is Chinese and that she is a Buddhist.

·that her mother and father live in Pahang. The applicant has no siblings.

·that she had limited education having attended school until year [number] upon which she went to live with her [Relative A] in Perak and commenced work as [an occupation] in a [venue].

·that in or about early March 2016 her father borrowed approximately RM [principal] from a loan shark to repay gambling debts.

·that the applicant had no knowledge of the fathers loan.

·that representatives of the loan shark followed for her home while she was traveling to work.

·that representatives of the loan shark demanded payment and threw glass into her house.

·that her father has returned home to live.

·that the fathers loan has been substantially repaid to a balance of approximately RM [balance].

·that the applicant travelled to Australia to work and help repay the fathers loan.

46.The Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. In this regard, the applicant provided plausible, emotionally compelling and persuasive answers to the Tribunal’s questions about the father’s loan. For these reasons, the Tribunal has provided the applicant the benefit of the doubt and accordingly accepts that the applicant claims about the father’s loan.  In particular it accepts that the applicant was threatened by representatives of the loans shark by following her to work, shouting demands and throwing glass into her house.

47.As a result, the Tribunal finds that the applicant belongs to a membership of particular social group, namely victims of loan sharks. . Therefore, the Tribunal accepts that the applicant has a genuine and credible fear of harm for a reason mentioned in s.5J(1)(a), if she is to be returned to Malaysia.

48.The Tribunal acknowledges that the applicant has a subjective fear regarding the father loan. Although she says that the loan had been substantially been repaid she fears that in the event she is returned to Malaysia she will again be threatened and abused by representatives of the loan shark.

49.While the Tribunal accepts there are chance of serious harm, including physical ill-treatment, for the specific claimed reasons, the Tribunal has considered whether the applicant has access to effective protection measures as a victim of a loan shark by operation of s.5J(2) of the Act.

50.The Tribunal enquired if the applicant had sought the help of any group or association, such as the Malaysian Muslim Consumers Association, in her dealings with the loan shark. The applicant said that she had not sought such help due to the fact that she was not aware that such help was available.  

51.In the hearing the applicant was asked if she had made a report to the police. She said that she had not made a report as she believed that the police would not help as ’the police in Malaysia are corrupt.’ Despite her opinion of the Malaysian police force she did not say that she would be denied the protection by the police for any reason mentioned in s.5J(1)(a).

52.The DFAT report[12] notes that ‘credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force.’ In this case the applicant not a party to the father’s loan which has been substantially repaid, In this respect, the Tribunal does not accept that the applicant will be denied effective protection measures for any reason outlined in s.5J(1)(a) of the Act. While the Tribunal accepts that loan sharks are widespread in Malaysia based on the available country information, the Tribunal does not accept that the activities of the loan sharks are so extensive that the applicant will be denied effective protection measures.

[12] DFAT Country Information Report Malaysia 19 July 2016

53.When considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant in her receiving country. The Tribunal finds that that the effective protection measures are available for the relevant State to the applicant anywhere in Malaysia and therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as a vulnerable woman in an abusive marriage or as a female victim of domestic violence or any related claim or any other reasons mentioned in s.5J(1)(a).

54.Having considered both ss.5J(1)(a) and 5J(2), alongside the available country information as well as the applicant’s accepted circumstances, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and that the Tribunal is satisfied that effective protection measures are available to the applicant throughout Malaysia, pursuant to s.36(2)(a).

55.Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the applicant’s specific claims relating to domestic violence and being in an abusive marriage.

56.The Tribunal has also considered whether there is any substantial reasons for it to believe that the applicant, as a necessary and foreseeable consequence of being removed from Australia to her country of reference, faces a real risk of significant harm. In this regard, the Tribunal accepts that the applicant does have a risk of harm. It also that will include severe physical violence and ill-treatment and that this harm will amount to significant harm as outlined in s.36(2A)(c) and (d).

57.Under s.36(2B), there is taken not to be a real risk of significant harm if the non-citizen ‘could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm’[13] To satisfy s.36(2B)(b)[14], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[15] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[16] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection.

[13] s.36(2B)(b). Migration Act 1958

[14] MIAC v MZYYL (2012) 207 FCR 211

[15] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.

[16] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

58.In considering the country information in the applicant’s accepted circumstances discussed under effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state authorities to the applicant if removed from Australia to anywhere within the applicant’s country of reference, will reduce the risk of significant harm to below that of a real one. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that she will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia and does not satisfy s.36(2)(aa) in this regard.

59.In all the circumstances the applicant does not have well-founded fear of persecution based on her claim of domestic violence and does not satisfy s.36(2)(a), if she were to return to Malaysia.

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

61.Based on the findings above, the applicant does not face a real chance of serious harm for any reason mentioned in s5J(1)(a), if returned to Malaysia, now or into the foreseeable future.

62.Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

63.Having considered all the applicant’s claims and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, as required by s36(2)(aa).

Conclusions

64.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act for the reasons mentioned in s.5J(2) Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

65.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

66.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Jason Pennell

Member