1707500 (Refugee) - [2020] AATA 6119

1707500 (Refugee) [2020] AATA 6119 (28 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707500
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Dr Colin Huntly
DATE AND TIME OF
ORAL DECISION AND REASONS:         28 October 2020 at 3:15 pm (WA time)
DATE OF WRITTEN RECORD:                16 November 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision under review.

Statement made on 16 November 2020 at 7:31am
CATCHWORDS
REFUGEE – protection visa – Malaysia – country’s political and economic situation – victim of domestic violence – credibility assessment – new claims and evidence not provided earlier – effective state protection measures – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J, 5LA, 36, 65, 104, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP [2016] FCA 680
Firuzibakhsh v MIMA [2002] FCA 982
Iyer v MIMA [2000] FCA 1788
Iyer v MIMA [2000] FCA 52
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SDAQ v MIMIA (2003) 129 FCR 137
SZDGB v MIAC [2006] FMCA 341
SZQNO v MIAC [2012] FCA 326
SZSSQ v MIBP [2013] FCCA 1762
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.
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 28 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons.
STATEMENT OF DECISION AND REASONS
Attached to this decision record is a corrected transcript of the oral reasons for decision delivered to the applicant in person at the hearing.
DECISION
The Tribunal affirms the decision under review.
Dr Colin Huntly
Member

Corrected Transcript
ORAL DECISION OF MEMBER HUNTLY [2.29 PM]
BACKGROUND
The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994. An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria, or on complementary protection grounds.
Where relevant, the Tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complementary protection, together with any country information assessment prepared by DFAT, in accordance with Ministerial Direction No. 84.
Credibility
Before looking at my findings I note that on questions of credit I need to give the benefit of the doubt, but it is for an applicant to make their own case in as much detail as possible. Greater weight may be given to one piece of evidence against another and there is no rule that I must hold a positive state of disbelief before making adverse assessments. I also note that a decision-maker is entitled to consider whether or not an applicant subjectively holds a genuine fear of persecution before examining whether such a fear is objectively held or to proceed on the assumption that such a fear is held objectively by an applicant in the context of refugee protection.
Consistent with the various decisions commencing with those in the matter of Iyer,[1] if a decision-maker finds on the evidence that an applicant does not subjectively hold a genuine fear of persecution there is no need to consider whether or not there is an objective basis for a claim or indeed whether aspects of the claim are satisfied. I also note 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.
[1]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34]; affirmed in Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) at [56]; SDAQ v MIMIA (2003) 129 FCR 137 at [19]; SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]; SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48]; SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].
In this respect I have had regard to Migration and Refugee Division ‘Guidelines on the assessment of credibility’ (July 2015), which provides at [8]:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.
I also note that the same source, at [13] provides that:
In relation to protection visa applications made on or after 14 April 2015, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the Tribunal are satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence. This refers to the requirements of section 423A of the Act.
Further, at [17]–[19] of the Guidelines it cautions that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The Tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the Tribunal. A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters, which bear adversely on his or her credit or which brings his or her account into question.
With respect to contradictions, inconsistencies and omissions, [27]–[28] states:
Contradictions, inconsistencies and omissions, may arise in the evidence before the Tribunal. The Tribunal will consider all the evidence before it, assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.
New claims and evidence
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. On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to in fact establish or assist in establishing the claim.
This is consistent with the well-settled proposition that it is for an applicant to make their own case. Further, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.
Two obligations here are particularly relevant: the ongoing requirement under s.104 of the Act for an applicant to ensure their relevant details are correct and to change any incorrect information at the first reasonable opportunity.
Second, s.423A of the Act referred to above requires the Tribunal to draw an adverse inference about the credibility of certain of an applicant’s claims or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation about why the claim was not raised or evidence not presented before the primary decision-maker, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence.
Applicants therefore who do not present all claims and evidence to the primary decision-maker must have a reasonable explanation for not doing so.
PROCEDURAL HISTORY
Before the Tribunal
The applicant appeared before the Tribunal on two occasions to give evidence and present arguments. The first of these hearings was on 24 September 2020 and the second occasion was 28 October 2020.
The applicant was not represented in this application by a registered migration agent. The Tribunal was assisted at the hearings by the services of interpreters fluent in both the English and Mandarin languages.
IDENTITY, RECEIVING COUNTRY AND MIGRATION HISTORY
The applicant claims to be a citizen of Malaysia. She provided a copy of her passport to the Department with her application. I have reviewed this document on the Departmental file.
I find the applicant is a citizen of Malaysia, which is the receiving country for the purposes of the refugee and complementary protection assessments. There is nothing before the Tribunal to suggest the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.
According to the applicant’s movement record, she arrived in Australia [in] August 2016, travelling on a UD-601 ETA Visitor visa.
On 22 November 2016 the applicant applied for a protection visa. On 22 March 2017 a delegate of the Minister refused to grant the applicant a protection visa.
The applicant applied to the Tribunal for a review of the delegate’s decision and provided a copy of the delegate’s decision record to the Tribunal with her application.
Country information
In addition to the country information surveyed in the delegate’s decision record, I have had regard to DFAT country information for Malaysia dated 13 December 2019 generally, relating to complementary protection claims,[2] and also in relation to state protection.[3] I have also had regard to the Department of Home Affairs publication “Malaysia Common Claims”, COISS, 3 July 2018. This country information was discussed with the applicant at the hearings.
APPLICANT CLAIMS
[2]At (49)-(53).
[3]At (54)-(58).
First hearing
At the first hearing on 24 September 2020 I explained to the applicant the documents I had in my possession. I read to the applicant the summary of claims contained in the delegate’s record of decision as follows:
· The applicant claims to have left Malaysia due to the country’s worsened political and economic situation.
· She fears that if she were to return to Malaysia now or in the reasonably foreseeable future she would not be able to subsist or provide for her family.
The applicant acknowledged that her original written claims were as summarised by the delegate. The applicant then told me that she wanted to add to those claims, indicating that she was a victim of unfortunate circumstances in Malaysia.
The applicant arrived in Australia with her ex-husband ([Mr A], DOB [date]). The applicant stated that she married this person in 2014. The applicant believes that her ex-husband is also separately an applicant for protection in Australia. The applicant said that she had been the target of domestic violence by her former partner after six months of marriage; the applicant reported this domestic violence to Royal Malaysia Police (RMP), but they did not accept the applicant’s report. The applicant left her former partner in June 2020.
According to the applicant, her family in Malaysia were aware of the domestic violence she experienced in her former domestic relationship and that the applicant intends to proceed to a divorce. I asked the applicant if there had been any judicial domestic violence orders issued, and she confirmed that there had.
I pointed out to the applicant that her evidence at the first hearing indicated that her personal circumstances had changed significantly. I noted that the applicant had not updated her application for protection or application for review to reflect these changes in circumstances. I asked the applicant if she had been referred to support services, and she confirmed that this was the case.
I pointed out that the applicant’s late claims for protection may raise problems that would be explored at a future hearing. I advised the applicant that it was important for her to provide corroborating evidence to support these claims, where such evidence existed. Pursuant to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020, I advised the applicant that any documents she might wish to submit should be provided to the Tribunal no later than seven days before the next hearing.
Immediately prior to the second hearing on 28 October 2020 the applicant handed up two sworn statements (one dated 3 June 2020, the other dated 21 June 2020); a family violence restraining order dated 8 June 2020; a conduct agreement order dated 17 August 2020; and, 26 photographs; all of which related to the applicant’s claim of domestic violence in Australia.
Second hearing
At the second hearing before the Tribunal on 28 October 2020, I once again reminded the applicant about what had been discussed at the first hearing. I turned to the documents that were handed up immediately before the second hearing. I asked the applicant why these documents were not provided at an earlier date. As indicated at that time, I found the applicant’s responses to be lacking in candour and unhelpfully indirect.
Eventually, the applicant conceded that these documents were in her possession no later than August 2020. The applicant indicated that she was hesitant to provide these documents to the Tribunal for reasons known only to herself. It is difficult to know what makes a person reluctant to fully explain circumstances of domestic violence despite raising them in the context of a first hearing of a review of a protection visa refusal. However, after putting this issue to one side, I proceeded to take a detailed personal history from the applicant.
The applicant indicated that her mother lives near Sibu, in the family’s home town on the island of Sarawak, Malaysia. Initially the applicant indicated that her mother lives alone, as her father had died 22 years ago. On further questioning the applicant stated that her [age]-year old daughter lives with the applicant’s mother. This daughter was born on [date], to the applicant and her former husband.
I asked the applicant why she left Malaysia, and she repeated her previous claims that it was because of the political and economic situation in Malaysia. The applicant did not claim to have any political profile or involvement prior to leaving Malaysia, and she did not further elaborate her claims for leaving Malaysia for ‘political’ reasons.
As far as economic reasons for leaving Malaysia are concerned, the applicant stated that, after she left school, she took on casual work of various sorts which was poorly paid. The applicant’s mother has on-going medical needs.
We then discussed the applicant’s original application form which was lodged when she requested protection in Australia. I noted that question 35 relating to the applicant’s relationship status had been answered incorrectly. The answer ‘never married’, was chosen as the correct answer.
On closer examination with the applicant at the hearing, she confirmed that this form was not completed by the applicant, it was completed by another person. The only information contained in the applicant’s application form that was completed by her was information relating to the applicant’s deceased father and her technical passport details. Despite this, the applicant continued to reassert her view that she had to leave Malaysia because of political and economic reasons.
Significantly, the applicant’s application form seeking protection in Australia makes no mention of the application being based in whole or in part on domestic violence fears. The applicant indicated that she had approached police while living in Malaysia and asked them for their intervention regarding her domestic violence experience in that country. According to the applicant, these police officers had done nothing to assist the applicant. It is, therefore, curious that in the applicant’s two sworn statements made out for the purposes of a recent family violence restraining order (dated 3 June 2020 and 21 June 2020,) completed with the assistance of the applicant’s Australian family lawyer, no mention is made at all of any domestic violence experience by the applicant in Malaysia prior to arrival in Australia.
I asked the applicant what specifically she fears on return to Malaysia. The applicant stated that she fears that her former husband might take revenge against the applicant for taking out the family violence restraining order against him in Australia. I asked the applicant why this would necessarily occur, given that her former husband has abided by the orders in Australia since they were made. The applicant stated that she believe he intends to return to Malaysia in the future and that he may find the applicant and exact revenge upon her in that country.
I note the applicant’s evidence that she has been in regular contact with her mother and daughter in Malaysia. The applicant is not aware of her former husband making any approach to those persons since the Australian family violence restraining orders were made in August 2020.
Country information re: State Protection
We discussed the state protection available to the applicant in Malaysia and that there appeared to be an appropriate criminal law, reasonably effective Malaysian police, and a reasonably impartial judicial system; and that while it is acknowledged that some corruption exists within the RMP, it is, by international standards, a reasonably effective police force.[4] We also discussed the fact that there is no requirement at international law for citizens of a country to be given 100 per cent protection 100 per cent of the time by the state.[5] We also discussed the fact that in recent times the Malaysian State has taken significant steps to criminalise domestic violence.[6]
[4]DFAT Country Information Malaysia, 13 December 2019 at (54)–(58).
[5]MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26] per Gleeson CJ, Hayne and Heydon JJ and at [117] per Kirby J.
[6]DFAT Country Information Malaysia, 13 December 2019 at (42)–(43).
I note the applicant’s concern that despite all of the foregoing, corruption still remains a problem in Malaysia.
FINDINGS
I accept the applicant’s evidence with respect to her marriage in both Malaysia and Australia regarding domestic violence. I note that, as discussed at the hearing, Malaysia has laws criminalising domestic violence. I acknowledge that the applicant has had the courage to report her former husband to police – both before coming to Australia (apparently at that time without success) – and more recently in Australia (with good effect). I note that the applicant intends to divorce her former husband. As far as the applicant is aware, her former husband has not made any attempt to communicate with either their daughter in Malaysia or the applicant’s mother. I note that the applicant has been in continuous contact with both her mother and her daughter.
The applicant’s evidence is that her [age]-year-old daughter is in the sole care of the applicant’s mother, who is herself in need of increasing levels of care. Under these circumstances, and given that neither the applicant’s mother nor the applicant’s daughter have visited her or her former husband since they arrived in Australia, it is unclear to me how the applicant can sustain her separation from these individuals into the foreseeable future in any event, in the absence of a genuine well-founded fear of harm in Malaysia.
I note that the applicant’s claims for protection do not raise any matter with a connection to the refugee criteria in s.5J(1)(a) of the Act. I further note that for relevant purposes, economic circumstances are of general application in a country and lack the degree of particularity required to give rise to protection obligations under either the refugee[7] or complementary protection[8] provisions of the Act. As discussed, I have considered the fact that Malaysia has laws criminalising domestic violence and that the applicant has taken steps, courageous steps, to report her husband to police in the past when he has engaged in criminal conduct.
[7]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [99] per McHugh J.
[8]BBK15 v MIBP [2016] FCA 680 (Buchanan J, 8 June 2016) at [32].

Since her arrival in Australia, Malaysia’s domestic violence laws have been amended, and now allow victims to seek orders restraining the perpetrator from coming into contact with the victim or entering their property.[9] These protections are somewhat similar to the laws that are in force in Australia. These new provisions were not in place when the applicant was living in Malaysia, and the situation for victims of domestic violence appears now to be quite improved. This is relevant to my assessment of whether the applicant would have access to effective state protection on return to Malaysia.
[9]New Straits Times, Better protection for domestic violence victims, May 2, 2017 (>
In the circumstances, I am not satisfied that there is a real chance that the applicant would face serious harm from her former husband if she returned to Malaysia in the reasonably foreseeable future for the purposes of s.36(2)(a) of the Act. As discussed with the applicant at the hearing, I have considered the DFAT Country Information Malaysia, 13 December 2019, regarding protection measures and support services available to the applicant in Malaysia should she face harassment, abuse, or the threat of violence from her former husband now and for the reasonably foreseeable future.
News reports confirm that Malaysia was the first ASEAN country to have laws to protect victims of domestic violence and has recognised domestic violence as an issue of public concern.[10] This conduct is prohibited under Malaysian law and extends to mental, emotional and psychological abuse. While police training in domestic violence is limited, and it is accepted that the judiciary receives very little training in how these laws are applied, as discussed at the hearing, DFAT reports that credible local and international sources consider the RMP to be a professional and effective police force.
[10]Daleleer Kaur Randawar, The Definition of Domestic Violence in Malaysia: A Cross-National Comparison, ( see also, UNIFEM Domestic Violence Legislation and its Implementation, An analysis for ASEAN countries based on International Standards of Good Practice (>
While acknowledging low wage and corruption issues, Malaysia has taken significant steps to reduce domestic violence, conviction rates have increased over the last decade. The RMP now has a sexual investigation division. I note also important amendments to the Domestic Violence Act of 1994 passed in August 2017, which include emergency protection orders and new amendments to the Domestic Violence Act definition of domestic violence in s.2, including three new definitions relating to misappropriating victims’ property, threatening a victim, or communicating with a victim. I note that these sources of country information were well documented in a decision dated 10 October 2019 by the Tribunal differently constituted. The country information discussed in that decision was put to the applicant at the second hearing.[11]
[11]Tribunal Ref: 1713491, per Member Smolicz.
I accept that the applicant’s relationship with her former husband has ended, and that from the applicant’s perspective, there will be no further contact between the parties if possible. I also note that Malaysian law permits either party to seek divorce by way of a unilateral petition and that there are relevant grounds for this in Malaysia.[12] I find that effective state protection measures are available to the applicant in Malaysia that she can access if necessary, which the authorities are willing and able to provide, while I acknowledge the applicant’s concerns that her approaches to police have been ineffective in the past. Having examined the relevant country information relating to domestic violence in Malaysia, discussed above, I am satisfied that the Malaysian domestic violence laws have been strengthened significantly since the applicant left that country in August 2016.
[12]Law Reform (Marriage and Divorce) Act 1976 (My) at ss.53–54.
The protection available to the applicant in Malaysia consists of an appropriate criminal law relating to domestic violence matters, and a reasonably effective police force. The legislation I have referred to not only has laws to prevent violence in the long term, but also to provide victims with appropriate short-term acute relief. For example, there are a range of orders in Malaysia extending from stop violence orders, no contact orders, ouster orders.[13] The Domestic Violence Act also provides for Enforcement Officers who have the duty of assisting survivors to move to alternate accommodation where necessary, arranging transport to access medical assistance or shelter, or to retrieve personal belongings from a residence. Enforcement Officers can also assist women in filing criminal complaints.
[13]Domestic Violence Act 1994 (My)
It is also open to police to seek interim protection orders under the Domestic Violence Act in situations of domestic violence. I also note that Malaysia is one of only two countries in the ASEAN region that has domestic violence laws, including provisions that allow for monitoring. There is also a requirement for a court registry to maintain records of complaints filed under the domestic violence law.[14]
[14]As discussed in Tribunal Ref: 1713491; see UNIFEM, Domestic Violence Legislation and its Implementation, An analysis for ASEAN countries based on International Standards of Good Practice ( at p.30.
Given the foregoing, I am satisfied that the protection now offered to women in the position of the applicant amounts to effective protection measures for the purposes of s.5LA of the Act and I so find.
Accordingly, given that there is nothing to suggest that the applicant would be denied protection in a discriminatory fashion by the Malaysian authorities for any of the five reasons mentioned in s.5J(1)(a) of the Act she does not meet the requirements for a well-founded fear of persecution on the basis of s.5J(2) of the Act.
Having considered the applicant’s claims individually and then cumulatively, for the reasons discussed above I am not satisfied that there is a real chance that the applicant would suffer serious harm from her former husband or from any other person if she were returned to Malaysia now or in the reasonably foreseeable future. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations at s.36(2)(a) of the Act.
The threshold for the real risk test under s.36(2)(aa) of the Act is the same as that for the real chance test under s.36(2)(a) of the Act. Given this and given also my findings above relating to the availability of effective state protection in Malaysia for persons in the position of the applicant, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant otherwise complies with s.36(2)(b) of the Act as being a member of the same family unit of a person who is owed protection in Australia.
DECISION
The Tribunal affirms the decision under review.

END OF ORAL DECISION [3.15 PM]