1711954 (Refugee)

1711954 (Refugee) [2022] AATA 4050 (1 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711954
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Windsor
DATE:1 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 1 August 2022 at 4:34 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – threats of harm by ex-husband – inconsistent evidence – concocted evidence and claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas on 20 December 2016.
In her application, [the first applicant] indicated she was born in Negeri Sembilan state, Malaysia on [date]. She stated she is ethnic Malay and a Muslim. She indicated she divorced [in] 2013 and remarried to [the second applicant] [in] March 2016. She indicated she departed Malaysia legally [in] November 2016 and arrived in [City 1], Australia on [date] November 2016, entering on a visitor visa. She indicated she had visited Australia previously, from [January] until [March] 2016, on holiday and to see a friend.[1]
[1] See the Departmental file.
In his application, [the second applicant] indicated he was born in Selangor state, Malaysia on [date]. He stated he is ethnic Malay, a Muslim, and married [the first applicant] [in] March 2016. He indicated he departed Malaysia legally [in] November 2016 and arrived in [City 1], Australia on [date] November 2016, entering on a visitor visa.[2]
[2] See the Departmental file.
In his application, it was indicated that [the third applicant] was born in Selayang in Selangor state, Malaysia on [date]. It stated he is ethnic Malay and a Muslim. It stated he departed Malaysia legally [in] November 2016 and arrived in [City 1], Australia on [date] November 2016, entering on a visitor visa.[3]
[3] See the Departmental file.
In their applications, the applicants indicated that they left Malaysia and came to Australia because they fear they will be harmed by [the first applicant]’s ex-husband (and [the third applicant’s] biological father), [Mr A].[4]
[4] See the Departmental file.
Noting the applicants had outlined their situation in minimal details and with no supporting evidence, and considering relevant country information, the delegate found the applicants would receive effective protection from the Royal Malaysia Police (RMP) and judiciary in Malaysia. While accepting the applicants may not have absolute protection in Malaysia, the delegate found country information indicates that the Malaysian authorities are able to provide an ‘adequate level of protection’. The delegate also was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed to Malaysia, there is a real risk the applicants will suffer significant harm as defined in s36(2A) of the Act.
The applicants sought review of this decision on 6 June 2017. They provided the Tribunal with a copy of the delegate’s decision record.[5]
[5] See the Tribunal file.
The applicants appeared before the Tribunal on 28 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [the first applicant]’s mother, [named], and her sister, [named]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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 of Home Affairs (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.
CONSIDERATION OF Claims and evidence
Claims
The applicants’ claims, as set out in their protection visa applications, are summarised as follows:
·[The first applicant] was married to her ex-husband, [Mr A], [in] October 2010. While their relationship was good initially, suddenly things changed. He became cold towards her, seldom came home, scolded her and forced her to do things she did not want to do. When she refused, he spanked her and forced her to do it. She was mentally, physically and sexually abused. She became sad and afraid.
·She tried to run but he caught her and threatened he would kill her if she tried to run again.
·She reported to the authorities that she was abused and claimed for divorce. They were divorced in [2013].
·A month later, [Mr A] was caught by police in relation to drugs. They found some drugs hidden at her home and she was tested for drug use but cleared.
·A week after that incident, she found out she was pregnant. She decided not to tell [Mr A] about their son for their safety.
·When [Mr A] came out of jail he looked for her. When he found out she had remarried, he became angry and told her mother he wanted to kill her husband.
·After [Mr A] was released from jail, [the second applicant] began receiving text messages from unknown numbers stating he will kill him for taking what is his and causing the betrayal of his wife. He knew it was [Mr A] but just ignored them. One day he found all four tyres on his car had been punctured. Since then he had a bad feeling that things could get worse. He fears [Mr A] will kill him. He did not seek help as he did not want anyone to get into trouble. They did not have enough evidence to accuse [Mr A].
·[The first applicant] knows her ex-husband will not leave things be, especially if he finds out about their son. She became terrified for the safety of herself, her son and her husband so decided to leave Malaysia and seek protection in Australia.
·She made a police report and asked for help from her family but there is not much they can as they were afraid to get involved. She did not seek to relocate within Malaysia as her ex-husband has connections everywhere in the country and will look for them. She fears he will kill her and her husband.
·[The first applicant] fears if her ex-husband knows about their son he will insist on taking him, causing chaos and resulting in her son suffering trauma and depression.
Evidence from the hearing
At the hearing the applicants submitted copies of a number of personal documents, including two Malaysian police reports, made on 1 April 2014 and 31 October 2016; a birth certificate for [the third applicant]; a divorce certificate for [the first applicant]; and a marriage certificate for [the first applicant] and [the second applicant].[6] These documents were in Bahasa Malay and translations were not provided.
[6] See the Tribunal file.
At the hearing the Tribunal initially took evidence from [the first applicant] and [the second applicant] separately, and then spoke to them together and took evidence from their witnesses later in the hearing, in the presence of the applicants.
[The first applicant] indicated that she did not complete the protection visa applicant herself, because of her limited English language skills, but did it with the assistance of a friend. She said she did not pay her friend for their assistance.
[The first applicant] confirmed she was born in Negeri Sembilan state in Malaysia but indicated her family lived in the Gombak district of Selangor state and she grew up and lived there before coming to Australia in November 2016. She indicated her father passed away on 22 January 2019 but her mother and two sisters live in the family home in Gombak. The applicant confirmed the advice in her application that she worked as [an occupation] for over six years before coming to Australia. [The first applicant] has had [number] children with [the second applicant] since coming to Australia but indicated she has been working in Australia for the last six months with [Employer 1].
[The first applicant] indicated that she lived with her ex-husband’s family (also in Gombak) for a time after they married, then returned to her family home after they separated. She indicated she also lived with [the second applicant]’s mother in her home in Klang in Selangor state, after they married.
[The first applicant] confirmed that she was divorced from her ex-husband [in] 2013 and married [the second applicant] [in] March 2016.
When asked why she departed Malaysia [in] November 2016, came to Australia and sought protection here, [the first applicant] said her ex-husband threatened to kill her, her son and her husband.
When asked to tell the Tribunal about her relationship with her ex-husband, [the first applicant] said they met in 2010 and he started hitting her. She said their marriage only lasted less than two years. When queried that she indicated in her application that their relationship started in November 2008, [the first applicant] acknowledged this was the case. She said she met him at [an Employer 2] function because he worked for [Employer 2]. She indicated that while their relationship was good initially, after they married it started to go bad as her ex-husband became a drug addict and was sacked from his job. When asked, she said she thought he took Ice.
When asked, [the first applicant] said she decided she wanted a divorce when she found out she was pregnant and her ex-husband was still hitting her. She indicated she went to live with her mother when she was [number] month’s pregnant and started divorce proceedings [number] days after she gave birth to her first son, [the third applicant] (who was born on [date]). [The first applicant] indicated the file was opened on 18 February 2013 and her husband was summonsed to appear in the Sharia court but failed to appear or make any submissions on eight occasions. She said on the ninth occasion he attended with his father and granted her a divorce on [date] 2013.
Noting that some elements of [the first applicant]’s account at hearing were at odds with the written statement at Question 89 of her application (regarding why she came to Australia), the Tribunal read her statement to her and queried her regarding the inconsistencies. The Tribunal asked her where she ran to. She said she went to an uncle’s place in [Town 1], Selangor. When asked, she said her ex-husband found her and took her home. The Tribunal queried [the first applicant] regarding her written statement that a month after she divorced in [2013] (that is, in [month] 2013), her ex-husband was caught by police for using drugs, and that a week later she found out she was pregnant. The Tribunal observed that [the third applicant] was born on [date], so she would likely have become pregnant in [2012] (not [month] 2013). [The first applicant] commented that her son was born prematurely, at [number] months. The Tribunal observed he was still born well before [month] 2013.
The Tribunal also queried [the first applicant] that her written statement seemed to be indicating that her ex-husband had not been aware of her pregnancy, and that she was fearful of him now finding out that they have a son together, but she had indicated at hearing that she left him when she was [number] months pregnant The Tribunal also noted that her ex-husband is named on the birth certificate and [the third applicant] bears his name ([specified]). She acknowledged this is the case and commented that while she did not tell her ex-husband she was pregnant he found out. She added she may have mistakenly completed some of the application form.
The Tribunal asked [the first applicant] how long her ex-husband was jailed for. She said she was not sure. When asked, she said he was jailed in 2014 and it might have been for 2 years. The Tribunal asked [the first applicant] to tell it when her ex-husband told her mother that he wanted to kill her current husband. She said it was when he was released from prison and found she had remarried. She said this was in 2016. When asked, she thought it was probably 3-4 months before they came to Australia. When queried that this would be around July 2016, she replied, ‘probably’.
The Tribunal queried [the first applicant] why she wrote that their safety became ‘very bad’. She replied that when she filed a police report, no action was taken. When asked, she indicated she was referring to the report she made on 1 April 2013. She indicated that the report from 31 October 2016 also submitted was not made by her but was made by made by her teenage nephew. She said her nephew and father were at home when her ex-husband came to the house. When queried why her father didn’t make the report rather than her nephew, [the first applicant] said they went to the station together but indicated her father did not wish to make the report.
The Tribunal queried why she referred in her statement to her concern about their safety from [Mr A] being ‘one’ of the reasons that she decided to come to Australia. [The first applicant] said she did research and also found Australia is strong on human rights issues and is a peaceful country.
The Tribunal queried [the first applicant] regarding the statement in response to question 95 of the application that if [Mr A] knows about [the third applicant] he will insist on taking him, observing that he already knows about their son. She acknowledged that this is the case but commented that she does not want him to come looking for [the third applicant]. The Tribunal observed that [Mr A] did not contest the divorce or seek custody of [the third applicant] and queried why he would seek custody now. [The first applicant] commented that her ex-husband did not think [the third applicant] was his child when she was carrying him, but said he will come and seek custody. She indicated he did not contest the divorce or seek custody because he had lost his job and had no money. The Tribunal observed that it seems very unlikely her ex-husband would be able to get custody of [the third applicant], who will be [age] years old in [month] and has never seen, lived with or had any relationship with his biological father; her ex-husband has never provided for [the third applicant]; and her ex-husband is or has been a drug addict who has served time in prison. [The first applicant] commented that she fears he may try. She said she does not know what her ex-husband’s situation is like now or if he is working. When asked, she said she has had no contact at all with her ex-husband since they were divorced.
The Tribunal asked [the first applicant] why she came to Australia for two months from [January] 2016 (as indicated in her application). She said she came with her cousin to do some research. When queried that it was a long visit and asked how she supported herself, she said she did some part-time work. She said she went home to get married and then returned with her current husband and son. The Tribunal asked why she did not take her son with her in January 2016 and seek protection then if she was concerned that [Mr A] might harm them. She said at that time she did not know what the situation was like in Australia and needed to do some research. She added that she did not have enough money to bring her son with her.
The Tribunal asked the interpreter to verbally translate the two Malaysian police reports the applicants’ had submitted at the hearing. The interpreter indicated the first report was made by [the first applicant] at the [police station] in the [Town 1] district of Selangor state on 1 April 2013. He said it indicated that at around 1326 hours on 31 March 2013 she received an SMS from her husband, [Mr A], regarding his dissatisfaction with her and wanting to sell the contents of her house. Around 1420 hours she went to her house at [Location 1] in [Suburb 1] to meet with him and discuss. When she arrived she found a few men who were known to her who are friends of her husband and her husband was also in the house. They were all waiting for her and her house was damaged. The front door was damaged and she found out a 42 inch LCD Sharp TV was no longer in her house. She believes it had been taken by her husband. Her husband tried to attack her using a truncheon but he was prevented by his cousin, [named]. Her husband was very angry and kept asking her ‘where was the man’ while holding a fist in her direction, but his cousin prevented him from hitting her by hugging him in order to calm him down. During the argument her husband threatened to kill her and the aforementioned man because he was dissatisfied that she had demanded a divorce in the Sharia court. She suspected that her husband was being aggressive so much so that he was willing to attack her and threatened her and to damage the property in her house because he was under the influence of drugs. She was afraid to attend the Sharia court because her husband had threatened to create a scene at the court. And she was afraid that her husband may set fire to her house because he was unhappy with her. The reason why she is making the police report is because she is afraid of the threats made against her by her husband and also for her own safety and that of her family and she wants the police to take action.

[The first applicant] indicated the police took no action in response to that report. When asked if they spoke to her and suggested they would do anything, she indicated they did speak with her and asked her to reconcile the matter with her husband in front of their respective families.
When asked what house she was referring to in the report, [the first applicant] said it was the house in [Location 1] where she had lived with her ex-husband. When asked who was the man she indicated her ex-husband was referring to in the report, she said it was her cousin, because he always came to help her and her ex-husband suspected she was having an affair with him.
The interpreter indicated the second police report was made by [named] ([the first applicant] indicated he is her nephew) at the [police station] in the Gombok district of Selangor state on [date] October 2016. He indicated it states that at around 2120 hours on [date] October 2016 while I was in my house at [Location 2] in [Suburb 1], Selangor, I heard a noise outside and I rushed out from my room and when I went out I saw four people, one of them was a man and three women. They asked me to open the door but I reused. Then they threatened that the police would come to the house. Before this I was told by my auntie, [the first applicant], not to open the door in case they came. I told them that there was no one else in the house except me and my grandfather. When my grandfather came out he invited them into the house and I went inside my bedroom. The interpreter advised there was nothing else in the report.
The Tribunal commented that the report seems a bit strange and queried why her nephew made such a report which does not indicate what action he is seeking or why he made the report. [The first applicant] said he made the report because there was a commotion outside which the neighbours could hear and he was still ‘a kid’ so went back to his room because he did not want to know what was happening. The Tribunal asked why her father (the grandfather referred to in the report) didn’t make the report, given he invited the people in and could explain what happened from that point. She said he refused to do so but she doesn’t know why. She said she was not there at the time but had received a message from her ex-husband saying they were planning to come to the house. When asked who the three women were, [the first applicant] said they were her ex-husband’s sister, his auntie and his cousin. When asked, [the first applicant] said they came to her parent’s home to discuss the house in [Location 1] where she had lived with her ex-husband because they wanted to claim their share of that house. When asked what happened to that house, [the first applicant] said she thinks her former mother-in-law is now renting it out to someone else. When queried regarding who owned the property, she indicated the title was jointly under the names of her ex-husband, her former mother-in-law and herself. When asked if she was still a co-owner she said she was not. When asked if they bought out her share she said they did not.
The Tribunal asked [the first applicant] what she fears if she was to return to Malaysia now. She commented that she knows her ex-husband will come looking for her and their son and fears he may kill her. She commented that their houses are not that far from each other (the family homes are both in the [Suburb 1] area of Gombak district in Selangor state).
[The second applicant] indicated that he has his parents and four surviving siblings in Malaysia. He indicated that his parents are not well with his mother being on dialysis. He said his father, who is retired, suffers from high blood pressure and has lost his memory following surgery. He indicated his father previously had run a school canteen. He indicated his elder brother is a lorry driver while his younger siblings are still at school.
[The second applicant] confirmed the advice in his application that he attended school in Klang district in Selangor state and worked as a store hand in [a business] for the five years before he came to Australia in November 2016. He indicated that in Australia he recently commenced work in [occupation]. Before that he worked as a [driver] for a [company] for a couple of years and worked at a [shop] for a couple of years before that.
He indicated he met [the first applicant] though social media and they married in March 2016. When asked, he indicated he became aware that there were issues regarding her ex-husband after they became engaged in January 2015. He said [the first applicant] just told him that her ex-husband has a temper and takes drugs. He added that he told her he did not want to know much about it.
The Tribunal asked [the second applicant] what experience he had of [the first applicant]’s ex-husband. He said he had never come face to face with him. When asked if her ex-husband had ever contacted him, he indicated he had not. He said her ex-husband only came looking for him after they became serious. He said [the first applicant]’s ex-husband threatened her, trying to get more information about him. The Tribunal asked how he threatened her. [The second applicant] said he may try to take custody of her child, and made threats against him. When asked, he indicated [the first applicant]’s ex-husband never contacted him directly and never threatened him directly. He indicated that [the first applicant] ex-husband never damaged any of his property. He said that [the first applicant]’s ex-husband only went to [the first applicant]’s house and did not have any information about him. When asked if [the first applicant]’s ex-husband ever damaged his car, [the second applicant] indicated he did not have a car, only a motorbike.
Noting that his responses were inconsistent with the written statement of claims in his protection visa application, the Tribunal asked [the second applicant] if he prepared the application by himself. He indicated that [the first applicant]’s friend completed it. When asked if he told her what to write, he said [the first applicant] told her what to write.
The Tribunal read to [the second applicant] what had been written in response to question 89 of the application (regarding why he left Malaysia), which indicated that he started receiving texts from unknown numbers mentioning he would be killed, which he knew were from [Mr A], and one day all four of his car tyres were all punctured when he wanted to go from work, which gave him a bad feeling things could get worse. When queried about these written statements he said sometimes when he went to work he used [the first applicant]’s car. The Tribunal observed that that does not explain why he told the Tribunal there had been no damage and he had not had any contact with her ex-husband. He said he really had no contact with him.
The Tribunal asked [the second applicant] whether he was aware of [Mr A] having been found to be a drug user. He said [the first applicant] did tell him that, and that [Mr A] spent some time ‘inside’, but reiterated that he had never met him. He said he did not know how long [Mr A] had spent in prison. He said [the first applicant] found out about it through Facebook as she was still friends with [Mr A]’s sister. When the Tribunal sought to query what year this was, [the second applicant] indicated he did not know, commenting that he did not want to know the details. When asked if it was 2016, the year he came to Australia, he said it was not, but added that when he came to Australia [Mr A] was looking for them. When asked how he knew that, [the second applicant] said in October 2016 [Mr A] came to the house, but he was not there. The Tribunal observed that the interpreter had verbally translated the police report regarding this incident for the Tribunal and it indicated that [the first applicant]’s ex-husband and three female relatives came to her father’s home to talk with her about the home she had lived in with her ex-husband, not about him.
The Tribunal asked [the second applicant] what he fears might happen if they returned to Malaysia now. He indicated he fears for the safety of his family as [the first applicant]’s ex-husband takes drugs and might take [the third applicant] away and do something to him. The Tribunal queried why he thought any authority might give [Mr A] custody of [the third applicant] given his age, that he has never had any contact with [Mr A] and given [Mr A]’s history. He said the issue of custody is not on his mind and he does not think [Mr A] would ever seek that, but he worries that he might try to do ‘something’.
When the Tribunal spoke with [the first applicant] and [the second applicant] together it raised the inconsistencies in his written and oral evidence regarding having received text messages from [Mr A] and finding his tyres punctured, and his comment that his written statement was prepared by [the first applicant]’s friend with [the first applicant]’s input. The Tribunal observed that, based on [the second applicant]’s oral evidence, it seems these events did not happen as [the second applicant] had no knowledge of them. [The first applicant] commented that her current husband had shown her a message from an unknown number which appeared to be threatening and perhaps he may have forgotten. In relation to the car tyres, she commented that she had a car which he borrowed once and there was an incident. When queried that [the second applicant] does not seem to be aware of that incident, [the second applicant] indicated he doesn’t remember the incident, adding that he never thought it was caused ‘by him’.
When the Tribunal took evidence from [the first applicant]’s mother, she indicated that she is afraid of her daughter’s ex-husband because he takes drugs and once he threatened to kill her daughter and her daughter’s son. When asked when he did that, she said she doesn’t remember because it was a long time ago. She said it was after her daughter remarried, when her grandson ([the third applicant]) was still small. The Tribunal asked when was the last time she had any contact with her daughter’s ex-husband. She said she had not had any contact with him since they were divorced. The Tribunal asked if he made that threat to her personally. She replied that he did not, he made it to her daughter ([the first applicant]) who told her about it. When asked, she indicated there was nothing else she wished to tell the Tribunal.
When the Tribunal spoke with [the first applicant]’s sister, she said she is aware that her former brother-in-law had threatened her sister and nephew that he would kill them. She said this occurred before her sister asked him for a divorce. When asked if the threat had been made to her, she said it had not, and that her sister had told her and their mother about it. When asked why her sister’s ex-husband would have threatened to kill her nephew, she said she was not around at the time and that is what her sister had told her. When asked if her sister’s ex-husband had served time in prison she said he had but did not know how long he spent in prison, commenting it was a long time ago. She then suggested it was probably a year or two. She said she couldn’t remember when he was released because it has been a while. When asked, she indicated there was nothing else she wished to tell the Tribunal.
The Tribunal also discussed with the applicants advice from the current DFAT Country Information Report relevant to the availability of effective protection in Malaysia.[7] DFAT indicates that the Domestic Violence (Amendment) Act (2017) strengthened protections for victims of domestic violence. The Act expanded the definition of domestic violence, and protects spouses, former spouses, children and family members. The amendments also introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week and prevent a perpetrator from entering a safe location. In addition to EPOs, victims of domestic violence can obtain interim protection orders (IPOs) and standard protection orders (POs). Violations of any of the protection orders can result in a prison sentence of up to six months and/or a fine of MYR2,000 (AUD630), while multiple violations can result in the offender being jailed for between 72 hours and up to two years and fined up to MYR5,000 (AUD1,600). If a perpetrator of domestic violence commits acts of violence when violating a protection order they can be fined up to MYR 4,000 (AUD 1,260) and/or receive a prison sentence of up to one year.
[7] DFAT Country Information Report, Malaysia, 29 June 2021, sections 3.125-3.130, 5.5-5.9 and 5.14-5.18.
DFAT also indicates there are support services such as referrals and crisis intervention, counselling and legal assistance available to women facing family violence, such as the Women’s Aid Organisation NGO, which has a hotline and WhatsApp distress channel, and One Stop Crisis Centres (OSCCs) which are now in 102 Malaysian hospitals nationwide.
DFAT indicates that the Royal Malaysia Police (RMP), which is based on the British constabulary model, has approximately 115,000 officers operating from over 800 police stations across Malaysia. Notwithstanding some concerns about corruption (which the government has sought to address) the RMP is considered by local and international sources to be a professional and effective police force. Reforms implemented in response to a 2005 Royal Commission, including the establishment of compliance units within the RMP, resulted in a number of police officers subsequently being tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.An Integrity and Standards Compliance Department was established within the RMP in July 2014 to enhance police integrity and image. External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which was created in 2009, and which monitors enforcement agencies for misconduct. The Malaysian Human Rights Commission SUHAKAM also receives complaints against the RMP and has investigated police behaviour.
It is also clear that the Malaysian Penal Code is based on British law and therefore contains laws criminalising offences such as criminal intimidation, assault and kidnapping.[8] DFAT also comments that most cases in the Malaysian civil courts, which hear the majority of Malaysia’s criminal and civil law matters, comply with the rule of law and legal procedure.
[8] Malaysia Penal Code – Act 574 (1936, rev. 1997), Penal Code – Act 574 (1936, rev. 1997) | International Commission of Jurists (icj.org)
The Tribunal commented that the country information suggests effective protection measures would be available to the applicants in Malaysia if they needed it, as there are appropriate criminal laws, a reasonably effective police force and an impartial judicial system, and the protection is accessible from well-staffed police stations across Malaysia and is durable.
[The first applicant] commented that the amendments to the domestic violence law were made in 2017 but she made her police report in 2013. She said at that time the police expected that she and her then husband would settle their differences amicably and it was clear they would not take action until ‘blood was drawn’, so she was afraid of what might happen.
The Tribunal also reminded the applicants of the statement made during the Tribunal’s introductory remarks, that the law requires the real chance of persecution be in all areas of their country, observing that their concerns seem to relate to a single individual in a particular part of Malaysia, the Gombak district of Selangor state. The Tribunal commented that while [the first applicant]’s family and her ex-husband’s family appear to live close by each other, they could live somewhere else where they could avoid the risk of accidental unwanted contact with [the first applicant]’s ex-husband. [The first applicant] commented that the houses are near to each other (in the [Suburb 1] area of Gombak district) and said if they returned her ex-husband could find her. The Tribunal suggested that, if necessary, they could relocate out of Selangor state, say to Penang state.
When asked if he had any comments he wished to make, [the second applicant] said his wife’s ex-husband is no ordinary person and has a lot of friends. He added that her ex-husband is a gangster. He indicated he did not want to talk about this in front of [the third applicant]. The Tribunal observed that it found this difficult to accept this claim because it had not been raised before in any of the (written or oral) submissions (including when the children, all four of whom attended the hearing, were not present in the hearing room). [The second applicant] acknowledged he had not raised this matter previously.
Findings and reasons
Identity
On the basis of the copies of their passports submitted to the Department,[9] the Tribunal accepts that the applicants are citizens of Malaysia and that their identities are as claimed. The Tribunal accepts that Malaysia is their ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[9] See the Departmental file
The issues in this review are whether either applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of either applicant being removed from Australia to their receiving country of Malaysia, there is a real risk either applicant will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind 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 (see MIMA v Rajalingam (1999) 93 FCR 220).
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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims

The Tribunal accepts that [the first applicant] was married to [Mr A] from October 2010 until [2013]. The Tribunal accepts that, after an initial period where the relationship was a positive one, the nature of the relationship changed and [the first applicant] suffered domestic violence at the hands of her former husband, including mental, physical and sexual abuse. The Tribunal accepts that the difficulties she experienced in her relationship with her former husband may have been caused or exacerbated by illicit drug use on his part, and compounded by him losing his job.
The Tribunal accepts it is possible that at some point in her marriage, [the first applicant] may have gone to stay at her uncle’s home (noting she indicated she received support from a male cousin over this period) but was found by her former husband and returned to live with him for a time.
The Tribunal notes, however, that despite [the first applicant]’s written claim that her husband threatened he would kill her if she tried to run away from him again, [the first applicant]’s oral evidence indicated that she did leave him and returned to her parent’s home. The Tribunal accepts her oral evidence at the hearing that she separated from her former husband when she was [number] months pregnant with their son, [the third applicant], and left the home they were sharing with his mother in [Location 1] in [Suburb 1], and returned to her family home at [Location 2] in [Suburb 1]. As [the third applicant]’s birth certificate confirms he was born on [date], the Tribunal finds this would likely have been in [month] 2012, given her oral evidence that [the third applicant] was born prematurely, at [number] months.
Given the above, the Tribunal finds that it is clear that the advice in [the first applicant]’s written statement of claims, that she found out she was pregnant about a month and one week after she and her ex-husband divorced [in] 2013 (that is, in May 2013) is not the case. The Tribunal also finds that the written claim that she decided not to tell [Mr A] about their son, and the implication that he still has no knowledge that he has a son, is not true. As she acknowledged at the hearing, it would have been obvious to her former husband that [the first applicant] was pregnant when she separated from him. Furthermore, [the third applicant] bears his biological father’s name and his father is named on his birth certificate as the ‘INFORMANT’.
The Tribunal found the evidence regarding [the first applicant]’s ex-husband being imprisoned for drug use to be vague. She could not state with any certainty when he was jailed, for how long and when he was released, beyond stating it was he was jailed in 2014 and it might have been for two years. The Tribunal considers that if she was fearful of him and concerned he might harm her, her son [the third applicant] and her current husband as claimed, she would have had a clearer sense of when her ex-husband was jailed and when he was released. Notwithstanding these concerns, the Tribunal accepts it is possible that [the first applicant]’s ex-husband was jailed for a time for illicit drug use.
Considering the police report submitted by the applicants regarding events that occurred on 31 March 2013, made by [the first applicant] on 1 April 2013, the Tribunal accepts that there was an incident on that day, after [the first applicant] had separated from her ex-husband and immediately before their divorce was finalised. The Tribunal accepts her husband was very angry, had caused some damage to the door of the house they had shared (with his mother) and removed a TV, tried to attack [the first applicant] with a truncheon but was restrained by his cousin, and threatened to kill her and another man. The Tribunal notes, however, that this other man was [the first applicant]’s cousin (not her current husband), who had been providing her with support at this time.
The Tribunal accepts that the police response to this report may have been to suggest that the families should seek to bring about a reconciliation between [the first applicant] and her then husband. In this regard the Tribunal notes DFAT’s advice that some police in Malaysia may perceive domestic violence issues as private family matters.[10]
[10] DFAT Country Information Report, Malaysia, 29 June 2021, section 3.128.
The Tribunal notes, however, that [the first applicant], having separated from her former husband, was successful in obtaining a divorce three days later on [date] 2013. The Tribunal finds that there is no evidence that her former husband sought custody of their son [the third applicant] at that time or subsequently, or has ever expressed an interest in having contact with [the third applicant].
The Tribunal also notes that there is no clear evidence that [the first applicant]’s ex-husband has threatened to harm her since the incident on 31 March 2013, or that he threatened to harm [the third applicant] or [the second applicant]. In her written statement of claims and oral evidence at the hearing, [the first applicant] indicated that when her ex-husband came out of prison (which she suggested was sometime in 2016) and found out she had remarried, he became angry and told her mother he wanted to kill her husband. At the hearing, however, [the first applicant]’s mother, who gave evidence from Malaysia by phone at [the first applicant]’s request, with [the first applicant] and [the second applicant] listening-in by speaker phone, indicated that she had not had any contact with her daughter’s ex-husband since they were divorced (on [date] 2013); and that rather than the threat being to kill [the second applicant], it was that he would kill her daughter and her daughter’s son. Furthermore, she indicated that the threat was not related directly to her but indicated it was made to her daughter ([the first applicant]), and [the first applicant] told her about it.
Similarly, when the Tribunal took evidence from the applicant’s sister in Malaysia, she indicated that she is aware that before her sister ([the first applicant]) was divorced she was threatened by her husband that he would kill her and her child. She said [the first applicant] had told her and their mother about this threat.
Considering the evidence of [the first applicant]’s mother and sister, the Tribunal finds that [the first applicant] has concocted her written evidence that, when her ex-husband came out of jail he looked for her, and when he found she had remarried, told her mother he wanted to kill her new husband.
This conclusion is also supported by [the second applicant]’s evidence at the hearing that he has never had any contact with [the first applicant]’s ex-husband, that he did not receive threatening text messages that he knew were from her ex-husband, and there was never an incident where his car tyres were all punctured by her ex-husband. The Tribunal finds that it is clear from consideration of all the available evidence that [the first applicant] concocted these claims with her friend who assisted her to complete the protection visa applications.
The Tribunal finds the second police report submitted to the Tribunal, made by a nephew of [the first applicant] on 31 October 2016, simply indicates that her ex-husband came to her parents’ home on 29 October 2016, a few days before she left for Australia, because he wanted to discuss with her and his mother, sister and a cousin, ownership issues regarding the property she indicated she had shared title to, in which she he had lived with her ex-husband and his mother (the [Location 1] property). [The first applicant] was vague regarding why this report was made by her teenage (17 year old) nephew and why her father, who she indicated spoke to her ex-husband and the three accompanying woman, did not wish to make the police report. [The first applicant] indicated she was not present at the time and could shed little light on what transpired, but there is nothing in the report or other evidence provided to indicate or suggest that her ex-husband made threats towards her, [the third applicant] or [the second applicant].
Furthermore, [the first applicant] indicated in her oral evidence, when asked, that she had had no contact with her ex-husband since they were divorced (that is, over the period of over three and a half years from [date] 2013 until she left Malaysia [in] November 2016). The Tribunal finds this is inconsistent with her claims that her ex-husband looked for her when he came out of jail, became angry when he found out she had remarried, and she became terrified for her safety and that of [the third applicant] and [the second applicant]. It would seem that her ex-husband could have contacted her relatively easily had he wished to.
In considering her claim to have been terrified of her ex-husband, the Tribunal also gives some weight to the fact that [the first applicant] first came to Australia in January 2016, without her son, spent two months in Australia, but then returned to Malaysia, married [the second applicant] and returned to Australia with him and [the third applicant] around 8 months later. [The first applicant] indicated that she could not afford to take her son with her and she needed to do some research on Australia, but the Tribunal considers that if she was terrified of her ex-husband as claimed, and fearful he would harm their son and/or her fiancé, they could all have travelled to Australia together, or she could have stayed in Australia and had [the third applicant] and [the second applicant] join her in Australia.
The Tribunal has also considered the claim, made by [the second applicant] late in the hearing, that [the first applicant]’s ex-husband is a gangster. The Tribunal finds there is no evidence to support this claim. It was not raised at all in the written statements and neither [the first applicant] or [the second applicant] raised it in their oral evidence to the Tribunal given separately. While [the second applicant] suggested he did not wish to discuss it in front of [the third applicant], he had the opportunity to discuss it with the Tribunal when he gave oral evidence without [the first applicant] and the children present. In his earlier oral evidence, [the second applicant] stressed that he had never had any contact with [the first applicant]’s ex-husband and what he knew about him he knew from what she had told him. When asked, he said he knew her ex-husband has a temper and takes drugs, but indicated he told her he did not want to know much about it. He did not say that she told him her ex-husband was a gangster or associated with gangsters.
For the reasons discussed above, the Tribunal finds that [the first applicant] has concocted some of her claims. Considering the totality of the evidence, the Tribunal does not accept that [the first applicant]’s ex-husband ever threatened to kill [the second applicant], that he has made a threat to kill [the first applicant] since the incident on 31 March 2013 (as reported in the police report of 1 April 2013), or that he has any interest in seeking custody of his son, [the third applicant], or becoming involved in [the third applicant]’s life in any way.
Accordingly, The Tribunal finds there is not a real chance that any of the applicants would suffer treatment amounting to persecution involving serious harm from [the first applicant] ex-husband, his agents or associates, should they return to Malaysia now, or in the reasonably foreseeable future.
While the Tribunal considers that effective protection would be available to the applicants in Malaysia if they needed to avail themselves of it, as the Tribunal finds they do not face a real chance of suffering serious harm from [the first applicant]’s ex-husband and/or his agents or associates, the Tribunal considers they do not require protection from the Malaysian authorities.
While the Tribunal also notes that they may wish to avoid the [Suburb 1] area of Gombak district in Selangor state so as to avoid any incidental contact with [the first applicant]’s ex-husband, given his family home and [the first applicant]’s family home are located relatively close by each other, and they might find this unpleasant; on the available evidence, the Tribunal does not accept that such contact would place them at a real risk of serious harm. In this regard, the Tribunal also notes the family could likely return to live with [the second applicant]’s family in the Klang district of Selangor state, where [the first applicant] indicated they lived after they married in March 2016 and before they came to Australia, and where such incidental contact would be much less likely to occur.
Do any of the applicants have a well-founded fear of persecution if they were to return to Malaysia?
Having carefully considered the applicants’ claims, for the reasons given above, the Tribunal does not accept that there is a real chance that any of the applicants will suffer persecution involving serious harm from [the first applicant]’s ex-husband and/or his agents or associates, for one or more of the five reasons mentioned at s.5J(1)(a), if they were to return to Malaysia, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that none of the applicants meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that any of the applicants will suffer significant harm, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[11]
[11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the circumstances of each applicant individually and cumulatively, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia, there is a real risk that any of the applicants will suffer significant harm, as set out in s.36(2A), from [the first applicant]’s ex-husband and/or his agents or associates or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
In reaching this conclusion, while the Tribunal considers that the applicants, if needed, could obtain from an authority of Malaysia, protection such that there would not be a real risk that they would suffer significant harm, as the Tribunal finds they do not face a real risk of suffering significant harm from [the first applicant]’s ex-husband and/or his agents or associates, the Tribunal considers they do not require protection from the Malaysian authorities.
The Tribunal has also indicated that the applicants might wish to relocate to another area of Malaysia, such as Penang, to avoid any incidental contact with [the first applicant]’s ex-husband, which they might find unpleasant. The Tribunal finds that both [the first applicant] and [the second applicant] are relatively young (at [age] and [age] years respectively) and healthy; they both had a history of stable employment in Malaysia prior to coming to Australia; they have demonstrated independence and resilience by coming to Australia, a country with a different language and culture; and have been able to find employment and accommodation and support themselves. In the applicants’ particular circumstances, the Tribunal considers it would be reasonable, in the sense of practicable, for the applicants to relocate within Malaysia away from Selangor state, to another state in peninsula Malaysia, such as Penang.
In reaching this conclusion, the Tribunal also finds that any economic hardship [the first applicant] and [the second applicant] might experience if removed to Malaysia, including feelings of emotional distress and/or humiliation due to reduced economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing them to suffer significant harm.
Member of the same family unit
There is no suggestion that any of the applicants 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, none of the applicants satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Paul Windsor
Member

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

[2022] AATA 4050

1 August 2022

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice