1720360 (Refugee)

[2023] AATA 2460

1720360 (Refugee) [2023] AATA 2460 (2 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720360

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Paul Noonan

DATE:2 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 2 June 2023 at 1.20pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – original claim of fear of harm from ex-husband – additional ground identified at hearing – membership of particular social group – unmarried mother of young child with father from another country – father no longer resides in Australia – child not eligible for Malaysian citizenship or access to public health care and education – country information – women cannot pass citizenship to children born abroad on equal basis with men – state protection or relocation not available – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 21 March 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is owed protection by Australia.

3. The applicant appeared before the Tribunal on 8 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

4. For the purposes of her appeal to the Tribunal, the applicant supplied the Tribunal with a copy of the delegate’s decision.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

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

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

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

   Mandatory considerations

10. In accordance with Ministerial Direction No.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, 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

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Malaysia and she has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as the country of nationality and the receiving country.

12. In her written claim for protection, the applicant stated that she was born in Negeri Sembilan, Malaysia. She was born in [Year]. She identifies as a Malay Muslim. She separated from her ex-husband of [Number] years in [Year]. Her parents and [siblings] reside in Malaysia. In Malaysia she worked in [Job task] at a [Workplace] for several years and in [Related job sector] prior to that. She stated that she left Malaysia as her husband was physically abusing her and demanding money from her when she was paid from her work. She fears her life will be in danger from her husband if she has to return to Malaysia. Once she moved to her sister’s house but he found her and persuaded her to go back. She did not try and relocate anywhere else prior to coming to Australia. The authorities will not protect her as this is a family matter. She could not relocate as she needs to work at her old place of work.

13. The applicant informed the Tribunal that she is a single mother to a child born in Australia. The father is from [Country]. She confirmed that her child is not an Australian citizen. She has supplied the Tribunal with a copy of the child’s Australian birth certificate (born [Year]). She lives in [City] where she works in [Job sector 2]. She confirmed that she is legally divorced from her ex-husband. She stated that the divorce was agreed to by her husband. She has not had any direct contact with her ex-husband since then. He has not remarried. She knows this because he frequently sees her family in Malaysia and he has told them he has not remarried. When asked why he sees her family she submitted that he is vengeful towards her as she forced the divorce. He visits her father. He tells her father that he is upset that she ran away and came to Australia. The Tribunal noted that earlier she had stated they had both agreed to get a divorce. She stated that he was forced to as she had evidence. This consisted of bruising on her face about which she filed a police report. The police forced him to grant her a divorce as they agreed she needed a divorce for her own safety. The court granted the divorce after summoning her ex-husband on the basis of the evidence against him. The Court then granted the divorce in [Year].

14. Once the divorce was granted the applicant stated that her ex-husband was bitter. She remained afraid of him so she made a decision to leave for Australia. He has asked for her phone number from her family but she told them not to give it to him. As she has a child, she now also fears he may harm her child.  

15. While the Tribunal discussed, and has considered the applicant’s claims and country information related to victims of domestic violence, the Tribunal considers it is unnecessary to set out that country information and findings in these reasons. This is because the Tribunal has identified an implied claim, made in the course of the applicant’s evidence, that confers upon her refugee status.

16. During the hearing the Tribunal put to the applicant that country information reflects that there is a reported high level of domestic violence in Malaysia and that while the situation is improving, there remains a range of factors such as a perceived lack of support and resources for victims.[1] The applicant again responded with worry about her child. She stated that she has applied for a Malaysian passport for her child but accidently put the wrong name down on his birth certificate and has now been told he can’t be a Malaysian citizen anyway.

    [1] DFAT Country Information Report, Malaysia, 29 June 2021, p. 44

17. The Tribunal noted that the applicant expressed several times during the course of the hearing worry about the fate of her child without clearly articulating why. The Tribunal notes that the applicant is unrepresented. The Tribunal noted that the DFAT report states that if a child is born overseas to an unwed Malaysian mother, the child receives Malaysian citizenship after registration at a Malaysian consulate, or at the National Registration Department in Malaysia.[2] However, and relevant to the particular circumstances of this case,  the Tribunal also notes that a child born outside of Malaysia to a Malaysian mother and a non-Malaysian father (as is the case here) is not guaranteed Malaysian citizenship.[3] The Tribunal notes that the child’s birth certificate does not retain details of the father.

    [2] Ibid, p. 64

    [3] Ibid, p. 50

18. The Tribunal accepts that the applicant has a child born in Australia to a non-Malaysian citizen who no longer resides in Australia.

19. The Tribunal notes that, in August 2022, Malaysia's Court of Appeal overturned a landmark 2021 High Court ruling which would have allowed Malaysian mothers with foreign spouses the right to pass down citizenship to children born abroad. The UN denounced the decision and pointed out that the country remains one of a handful in the world in which women cannot confer citizenship based on their nationality to their partners and children on an equal basis with men.[4]

    [4] Office of the High Commissioner for Human Rights, Malaysia: UN experts denounce gender-discriminatory citizenship law, 5 September 2022, <>

    UN experts made the following comments in relation to the discriminatory laws and practices in Malaysia:

    We are deeply concerned that Malaysian women are not granted equal citizenship rights, which provide them with the much-needed safeguards and protection for them and for their offspring. The right to citizenship is a cornerstone for the enjoyment of other rights. Discriminatory nationality and citizenship laws embody patriarchal values that undermine women’s basic human rights and expose them and their children to harm and further discrimination. Denying Malaysian Mothers, the ability to pass on citizenship to their children has far-reaching negative impacts on children's rights to education, health care and freedom of movement as well as their social lives and identities.[5]

    [5] Ibid

20. The situation, therefore, for the applicant, should she be required to return to Malaysia, would be as a single mother to a child with no prospect of being accorded nationality and citizenship in Malaysia. As such, the child would be denied benefits provided by the state to its citizens such as access to public health and education. The Tribunal finds that the applicant is a member of a particular social group – women in Malaysia who have children born overseas to male partners who are not Malaysian citizens. In Malaysia, mothers who are Malaysian citizens do not have the right to confer citizenship on their children who are born overseas. On the other hand, the law is different for fathers who are Malaysian citizens, as they have the right to confer citizenship on their children born outside Malaysia.

21. The Tribunal accepts that, given the above country information, the applicant’s young child born outside Malaysia will be rendered stateless if returned with the applicant to Malaysia. DFAT assesses that stateless children in Malaysia do not have access to education or healthcare, and risk immigration detention and possible deportation.[6]

    [6] DFAT Country Information Report, Malaysia, 29 June 2021, p. 50

22. Given the above country information, the Tribunal accepts that there is a real chance that the applicant will be subjected to serious harm in the form of significant economic hardship that threatens the person’s capacity to subsist, as she would be forced to care for the child without any assistance from the state such as access to schooling, which would seriously compromise her ability to work. The Tribunal is satisfied that the essential and significant reason for the persecution is the applicant’s membership of a particular social group and the persecution involves systematic and discriminatory conduct. As the agent of persecution is the state, protection is not available to the applicant and relocation is not an option as the real chance of persecution relates to all areas of Malaysia. She also cannot take reasonable steps to modify her behaviour so as to avoid persecution as the status of her child is an innate and immutable characteristic of her membership of the particular social group.

23. Finally, there is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Australia and as such the exception with respect to third country protection contained at s 36(3) does not apply.

24. For the reasons given above, the Tribunal is satisfied that the applicant faces a real chance of persecution in Malaysia in the reasonably foreseeable future and therefore the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

    DECISION

25. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Paul Noonan
    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.

    …