1707900 (Refugee)

[2022] AATA 2610

1707900 (Refugee) [2022] AATA 2610 (8 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1707900

1718553

1725050

1802041

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jessica Henderson

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 April 2022 at 11:00 am (WA time)

DATE OF WRITTEN RECORD:                25 July 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the first applicant satisfies s 36(2)(a) and the second through fifth applicants satisfy s 36(2)(b) on the basis of membership of the same family unit as the primary applicant.

Statement made on 25 July 2022 at 9:30am

CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – divorced victim of domestic violence – original claim on political and economic grounds – ground of domestic violence raised for first time at tribunal hearing – coercive control and physical and mental abuse by husband – police and hospital reports – consistent, credible and persuasive  claims and evidence – reasonable explanation for not raising ground at first opportunity – members of family unit – dependent children, some aged over 18 – country information – legal provisions, community attitudes and perceived lack of support and resources – decision under review remitted

LEGISLATION       
Migration Act 1958 (Cth), ss 5(1), 36(2)(a), (b)
Migration Regulations 1994 (Cth), r 1.05A, Schedule 2

CASE
MIMA v Khawar (2002) 210 CLR 1

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 March 2017 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 8 April 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. I have before me four applications but five applicants for review of decisions made by delegates of the Minister for Immigration and Border Protection.  The applicants first appeared before the Tribunal on 8 March and consented to their matters being listed together.

   Criteria for a protection visa

4. The criteria for a protection visa are set out in section 36 of the Act and schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in section 36(2)(a), (aa), (b) or (c).

5. That is, they must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on other complementary protection grounds, or alternatively, be a member of the same family unit as such a person where 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 themselves of the protection of that country.  The 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 will be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. 

8. Sections 36(2)(b) and (c) provide as alternative criteria that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in section 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 the third person. Section 5(1) also provides that member of the family unit of the person has the meaning given by the regulations for the purpose of the definition. It includes children under the age of 18, a dependent child between the ages of 18 and 23, and a dependent child over the age of 23 who satisfies the criteria in regulation 1.05A.

9. In accordance with Ministerial Direction 84, made under s.499 of the Act, I have taken into account the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs.  I have also taken into account country information assessments prepared by the Department of Foreign Affairs and Trade, expressly for protection status determination purposes.

   Claims and evidence

10. The first issue in this case is whether the first applicant has a well-founded fear of persecution in Malaysia because of her claims of domestic violence. I would just pause to note that I am going to refer to [the first applicant] as the first applicant.  I will refer to the other applicants by their first names.  I mean no disrespect in doing so, it’s just simply to clarify who is who. 

11. If the Tribunal decides that first issue in the negative, then the issue will be whether there are substantial grounds for believing that as a necessary and foreseeable consequence of removal from Australia, there is a real risk that the first applicant will suffer significant harm in Malaysia.

12. For the following reasons, I have concluded that the first applicant’s matter should be remitted to the Department for reconsideration. 

13. The first applicant’s original application for protection pressed an economic claim, she referred only to facing political and financial issues. But in her response to the tribunal’s s 424(2) correspondence sent on 8 October 2021, the first applicant raised new claims before the Tribunal.  Those claims included that her ex-husband is capable of abusing her and her children both mentally and physically. 

14. In support of her domestic violence claim, the first applicant has provided the Tribunal with translations of various police reports, I will not traverse the evidence in detail because I am aware the first applicant does not want her children to hear the details of that evidence.

15. But I am satisfied that the domestic abuse has been perpetrated over a very long period of time and has been abuse that would be considered in Australia to be very serious matters.  The occasions on which the applicant reported those matters to the police, she was not taken sufficiently seriously by the police.

16. I am particularly persuaded by the difference in the descriptions between the police report, and the hospital report, of the first applicant’s injuries on the occasion where she was seen by both the police and the hospital. 

17. The Tribunal accepts the first applicant’s evidence that her first priority was staying with her children.  The Tribunal particularly accepts this in circumstances where the first applicant was herself separated from her mother, after her mother separated from her father.

18. The applicant’s account of her husband separating her from her children in 2011 is credible and consistent with all the information that’s before the Tribunal.  And I find it credible that the applicant’s now former husband might attempt to separate the first applicant from her children again if they returned to Malaysia.

19. In the period between 2011 when the first applicant first applied for divorce, and 2016 when the first applicant left for Australia, I accept that her then husband exercised coercive control over the first applicant and her immediate family.  That is a form of domestic violence which, in Australia, is taken nearly as seriously as physical violence.

20. I accept the evidence of the first applicant that during this period her then husband was in trouble with the law for his violent behaviour towards third parties who are not members of the family unit.  Without traversing the evidence any further, I wish to be clear that the applicant’s evidence was coherent, consistent and convincing.

21. She is a credible and persuasive witness and I believe what she has told me today.  What she has told me is consistent with the written evidence before me. 

22. Applicants are expected to present their case in full before the primary decision maker and not wait until after the primary decision has been made. I am required to draw an adverse inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made.  But in this instance, I am satisfied that the applicant has a reasonable explanation for why the claim was not raised before the primary decision maker. I accept that she did not have evidence with her of the domestic violence and that her consistent experience of dealing with government authorities was that without evidence, the claim would not be taken seriously.  It was reasonable in the circumstances that she did not think that raising domestic violence as an issue with the primary decision maker would be useful and I understand that it’s a very traumatic subject matter to traverse, unless it’s going to be useful to do so. 

23. The applicant fears that if she returns to Malaysia, her husband will – her former husband will engage with her again.  She is afraid of him; she is afraid that he will try and coerce her daughter into a hijab.

24. She points to the gravity of the offence that he has committed against a third party as evidence that he is capable of worse than what he has already done to her.  There is also a risk that he may seek to take the two children who are still under 18 years old away from her.

    Country information

25. Country information is to the effect that domestic violence is an issue in Malaysia.  NGOs report that domestic violence remains a significant problem, notwithstanding recent improvements in the law.  The country information for Malaysia includes specifically, at paragraph 3.127:

    Local sources believe that domestic violence, rape and family sexual abuse remain underreported 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, while there was reportedly a significant increase in reports of cases of domestic violence immediately following the passing of the amendments, reporting rates subsequently tapered off due to a perceived lack of support and resources for victims. The government does not separate domestic violence deaths from other forms of unlawful killing, so it is difficult to ascertain accurate statistics.  No statistics or government reports identify whether, so called, honour killings (murders committed to punish individuals perceived to have brought shame upon their family or community), occur.

26. The Department of Foreign Affairs and Trade assesses that while the situation is generally improving, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection and/or leave family settings safely.  These factors include ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, lack of awareness of rights, and recently, the economic and social impacts of the COVID-19 lockdowns.

    Conclusion – first applicant

27. I have taken account of the first applicant’s evidence (which I accept) that her former husband is a very religious Muslim, that he inhibited her ability to work, that he controlled her, that he controlled the clothing that she wore, that he was employed by the government and that he became much worse after his retirement, including in his use of illicit and mind-altering drugs.  

28. The reports that the applicant made to the police do not reflect that the police took seriously what she was telling them.  Given that the applicant had lost her own mother when her parents separated, it’s not surprising that she gave emphasis to remaining together with her children.

29. Being a divorced victim of domestic violence in Malaysia is an immutable characteristic that can be shared by a group.   It is a characteristic or element which unites members of the group and distinguishes them from society at large.  Although the applicant’s former husband’s criminal conduct is the immediate source of harm to the first applicant, there is a real risk that she will be subjected to further abuse without state protection, and a lack of state protection will be because of the social group I have previously identified or rather, because of her membership of that social group.  I consider the case to be relevantly similar to the case of Khawar[1], in that the primary applicant’s risk arises from a personal threat from an ex-partner, but the threat is likely to be tolerated and condoned by authorities for a refugee nexus reason.

    [1] MIMA v Khawar (2002) 210 CLR 1; [2002] HCA 14

30. For all of those reasons, I am satisfied that the first applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).

    Conclusion – second through fifth applicants

31. With respect to the second applicant, I am not satisfied on the current evidence that he is a person in respect of whom Australia has obligations for the purposes of 36(2)(a) directly. I am, however, satisfied that he is the son of the primary applicant and in a relationship of dependency with her.  He is over the age of 23 but I am of the view that he satisfies the criteria in regulation 1.05A.  

32. The other three applicants appearing before me today, may satisfy section 36(2)(a). I do not currently have sufficient evidence before me to make a positive finding in that regard. I have cut short the delivery of evidence because the third applicant is only just turned 18 and the subject matter is extremely distressing. And I am satisfied that the three remaining applicants do satisfy section 36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as the primary applicant. It is therefore, unnecessary for me to make a positive finding that they satisfy section 36(2)(a).

33. The fate of the applications of the second to fifth applicants, therefore, depends on the outcome of the first applicant’s application.  They will be entitled to protection visas, provided the criterion in section 36(2)(b)(ii) and the remaining criteria for the visas are met.

34. So essentially, if the first applicant is granted a protection visa, then the second through fifth applicants will be eligible for protection visas, by virtue of being the same family unit.  As I told you at the outset of the hearing, I can’t grant you a visa.  But what I can do is remit the matter for reconsideration with the following directions to the department.

    DECISION

35. The Tribunal remits the decision under review with the direction that the first applicant satisfies section 36(2)(a) of the Migration Act, and the other applicants satisfy section 36(2)(b) of the Migration Act on the basis of membership of the same family unit as the primary applicant.

    Jessica Henderson
    Member