1722963 (Refugee)

[2018] AATA 4531

1722963 (Refugee) [2018] AATA 4531 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722963

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Paul Windsor

DATE:17 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 17 September 2018 at 10:55am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – family members of transgender people – not conforming to traditional gender expectations – female uncircumcised Muslim children – female genital mutilation – community and family pressure to conform – member of the same family unit – late registration of birth – access to education and health care – 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

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 4 July 2017.

3. The applicant applied to the Tribunal for review of this decision on 25 September 2017.

4. The applicant appeared before the Tribunal on 8 May 2018 and on 29 August 2018 to give evidence and present arguments.  Due to the young age of the applicant and as requested by the representative, the applicant’s parents gave evidence on his behalf.  The first hearing on 8 May 2018 was a combined hearing with Tribunal case 1506440 (relating to the applicant’s parents and his elder brother) and case 1711264 (relating to the applicant’s sister, born in Australia on [date]).  The second hearing on 29 August 2018 was a combined hearing with case 1711264.  The Tribunal hearings were conducted with the assistance of an interpreter in the Malay and English languages.

5. The applicant was represented in relation to the review by their registered migration agent.  The representative attended the hearings.

   CRITERIA FOR A PROTECTION VISA

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

7. 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.

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

9. 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.  

10. 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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In the Protection visa application, which is signed on the applicant’s behalf by his mother, it is stated that the applicant is a citizen of Malaysia who was born in [Australia] on [date].  He is described as being ethnic Malay and as belonging to the Islamic religion.[1]

    [1] See the Departmental file (not folioed).

13. The applicant’s claims from the Protection visa application are summarised as follows: [2]

    ·He was born in [Australia].  Her parents fear that if he was to go to Malaysia he would be seriously harmed on account of his brother not conforming to traditional gender expectations and being transgender and/or perceived as transgender.

    ·They fear he would not be able to access protection from the harm he faces because the Malaysian authorities do not help family members of persons who do not conform to gender expectations and/or are transgender and/or are perceived as transgender.

    ·They fear the authorities themselves may harm the applicant on account of his relationship to his brother.

    ·They do not believe he would be safe anywhere in Malaysia as family members of persons who do not conform to gender expectations/are transgender are at risk of harm throughout the country.

    [2] See the Departmental file (not folioed).

14. On 5 July 2018 the Tribunal wrote to the applicant, via his representative, inviting him to comment on or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason or part of the reason, for affirming the decision under review.[3]  The particulars of the information  were:

    • On 4 July 2018 the Tribunal affirmed the decision not to grant Protection visas to the applicants (comprising your elder brother referred to in your Protection visa application and your parents) in Tribunal case number 1506440.
    • The decision to affirm the decision not to grant Protection visas to the applicants in that case was based on the Tribunal’s conclusion that it did not accept that your elder brother is a transgender person or a young boy who does not conform to traditional gender stereotypes or norms.

    [3] See folios 31-32 of the Tribunal file.

15. The applicant was advised that the information is relevant to the review because it was claimed that he will be seriously harmed in Malaysia on account of his brother not conforming to traditional gender expectations and being transgender or being perceived as transgender.  The applicant was also advised that if the Tribunal relies on this information in making its decision, it may find that he is not at risk of serious harm or significant harm in Malaysia because the Tribunal considers that his elder brother is not a transgender person or a boy who does not conform to traditional gender stereotypes, norms or expectations in Malaysia and therefore would not be perceived as ‘feminine’ or transgender; and this would be the reason or part of the reason for affirming the decision under review.

16. On 19 July 2018 the applicant’s representative forwarding a joint submission covering the applicant and his sister (case 1711264) in response to the invitation to comment on or respond to the information.[4]  The submission indicated that while they respectfully disagree with the Tribunal’s decision regarding the gender identity of the applicant’s elder brother, no further submissions in this respect are advanced other than to reassert the claims as they have been advanced.

    [4] See folios 34-37 of the Tribunal file.

17. A further claim was advanced, however, that the applicant’s sister, as a young Muslim female, would be forced to undergo Female Genital Mutilation/Cutting/ Female Circumcision (FGM/C/FC) if she returned to Malaysia, and that the applicant is owed protection as a member of the same family unit as his sister.  Relevant matters raised in the submission are summarised as follows:

    ·This claim was not raised previously as the applicant’s parents were preoccupied and distressed by their concerns for their elder son, whose situation was more urgent and disquieting for them, and they did not contemplate that the ‘present situation’ would arise.

    ·The applicant’s sister is at real risk of serious harm if returned to Malaysia on the basis of her membership of the particular social groups ‘female uncircumcised Muslim children’ and ‘female Muslims’.

    ·The World Health Organisation (WHO) is opposed to all forms of FGM and emphatically against the practice being carried out by medical practitioners (medicalisation).  WHO lists numerous short and long-term health risks of FGM.

    ·FGM is a social convention in Malaysia and the community is strongly motivated to continue with and adhere to the practice.

    ·Although the family consider avoiding the practice an impossibility, if they were able to avoid the practice it would lead to their daughter and whole family being cast out of the community and would prevent their daughter from marrying.

    ·The applicant’s sister’s lack of circumcision would be discovered during medical check-ups or after inquiries from the family and community.

    ·DFAT advice that in 2009 the National Fatwa Committee decided that ‘female circumcision’ was obligatory for all Muslims unless harmful to their health indicates that the practice is government-sanctioned and religiously motivated.  As Muslims the family will not be able to avoid discovery that the applicant’s sister has not undergone the procedure and will not be able to protect her from undergoing FGM without exposing her and their family unit to being ostracized and suffering harm from the community.

    ·As the applicant’s sister is ‘too old’ she will ‘suffer too much pain’ if she underwent the procedure.  They fear a midwife would come to their home and perform the procedure as a family needs finances to access the procedure in hospital.

18. The applicant was invited to attend a further hearing on 29 August 2018 (a combined hearing with his sister, the applicant in case 1711264).

    Pre-second hearing submission

19. On 20 August 2018 the representative forwarded a further statutory declaration of the same date from the applicant’s mother in relation to the review of this case and case 1711264.  The representative indicated that as the applicants are young children, their parents will attend the hearing to give evidence on behalf of the applicants.[5] 

    [5] See folios 47-49 of the Tribunal file.

20. Relevant additional matters raised in the applicant’s mother’s statutory declaration of 20 August 2018 are summarised as follows:

    ·As FGM is normalized and expected in Malaysia they fear that if their daughter does not have the procedure she and the family will be discriminated against and ostracized from their community.  Alternatively they fear they will be pressured to consent to their daughter undergoing the procedure against their will to avoid discrimination and harm from the community and so that she can access the schooling and services she is entitled to.

    ·She is certain her daughter’s lack of circumcision would be discovered during medical check-ups, including as part of schooling, or after enquiries from the family and community.  Every child in Malaysia has a health check-up book where it is noted if a girl has had the procedure.  This book would be available to schools or child care centres.

    ·She believes that if they take their daughter to a doctor, the doctor would pressure them to have the procedure.  She also fears a midwife would do the procedure at their home putting their daughter at risk of complications and infections, and that at her age (nearly 3 years old) the procedure will be more painful and have a higher risk of more complications.

    ·If her daughter does not have the procedure and is not accepted by the community, she not only would not have the same opportunities as other children but will also suffer long term mental health issues because she will be treated differently. 

    ·She fears her daughter’s ability to marry will be affected.

    ·She also fears that it will be difficult to obtain Malaysian identity documents for her daughter and the applicant, as they have not been registered with the Malaysian officials within one year of their birth.  They may not be able to afford any penalty and if so, will not be issued with the documents.

    ·She also fears the authorities will query them about what they have been doing in Australia and will consider that they have applied for protection in Australia because they have avoided contacting the Malaysian authorities during their time in Australia.

21. On 10 September 2018 the representative forwarded to the Tribunal a further submission addressing issues discussed at the second hearing.  The representative reiterated the assertion that, as a young Muslim Malay girl, the applicant’s sister is at real risk of being forced to undergo the FGM/C procedure in Malaysia, commenting that the procedure is particularly prevalent amongst Malay Muslims and the practice has been medicalised and state-sponsored in Malaysia.  The representative stresses that all forms of FGM/C have been defined by the WHO as ‘unacceptable from a human rights and health perspective’, that the risk to the applicant extends to all areas of Malaysia and that State protection is not available.  It is also asserted that the applicant and his sister could experience difficulties in obtaining citizenship due to their parent’s failure to register their birth with the Malaysian authorities to-date and that even a short period without citizenship and/or documentation would deny them access to basic services thereby threatening their capacity to subsist, amounting to serious harm.[6] 

    [6] See folios 51-64 of the Tribunal file.

    Findings and reasons

22. The issues in this review are whether the 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 him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.

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

    Identity

24. On the basis of the copy of the applicant’s birth certificate provided to the Department[7], the Tribunal accepts that the applicant’s identity is as claimed.  The Tribunal finds that while the applicant’s birth has not yet been registered with the Malaysian authorities and he has not yet been recognised by Malaysian authorities as a Malaysian citizen, he is eligible for Malaysian citizenship as the son of two Malaysian citizen parents.  The Tribunal finds that Malaysia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

    Assessment of claims

    [7] See the Departmental file (not folioed).

25. The key issue in this case is whether there is a real chance that the applicant will suffer persecution involving serious harm in Malaysia, either individually or cumulatively because his elder brother is, or is perceived to be, a transgender person or a person who does not conform to traditional gender expectations; because his sister would be forced to undergo FGM/C/FC or he, as a member of his sister’s family unit, would suffer treatment amounting to persecution involving serious harm as a consequence of his sister not having undergone FGM/C/FC; because he would be denied access to basic services, threatening his capacity to subsist, as a consequence of his parent’s having delayed registering his birth with Malaysian authorities and seeking to confirm his Malaysian citizenship; and because the Malaysian authorities would know he had sought protection in Australia.  In the alternative it is submitted that the applicant faces a real risk of suffering significant harm from the same sources of harm.

    Risk of harm due to elder brother being perceived as transgender or a person who does not conform to traditional gender expectations

26. As outlined above, the Tribunal put to the applicant and his representatives that the Tribunal had affirmed the decision not to grant Protection visas to his elder brother and his parents (in Tribunal case number 1506440) on the basis that the Tribunal concluded that it did not accept that his elder brother is a transgender person or a young boy who does not conform to traditional gender stereotypes or norms.

27. The applicant’s representative responded indicating that while they respectfully disagree with the Tribunal’s decision regarding the gender identity of the applicant’s elder brother, no further submissions in this respect are advanced other than to reassert the claims as they have been advanced. 

28. As the Tribunal has found that the applicant’s elder brother is not a transgender person or a boy who does not conform to traditional gender stereotypes, norms or expectations in Malaysia and therefore would not be perceived as ‘feminine’ or transgender, the Tribunal finds that the applicant does not face a real chance of suffering persecution involving serious harm or a real risk of suffering significant harm on the basis that he is the brother of such a person, should he return to Malaysia.

    Risk of harm due to sister’s FGM/C/FC status

29. At the second hearing the Tribunal put to the applicant’s parents that in their submission of 19 July 2018 they had indicated concern that their daughter would be forced to undergo Female Genital Mutilation/Cutting/Female Circumcision (FGM/C/FC) if she returned to Malaysia.  The Tribunal commented that their representative has referred to information from the World Health Organisation (WHO) indicating that WHO is opposed to all forms of FGM/C/FC and has expressed opposition to the practice becoming ‘medicalised’, that is, being carried out by medical practitioners.

30. The Tribunal summarised its understanding of the applicant’s parents’ concerns as follows:  they have indicated that FGM is a social convention in Malaysia and that the community is strongly motivated to continue with the practice, and therefore it would be very hard to avoid; if they were able to avoid the practice, it would lead to their daughter and the rest of the family being cast out/ostracised by the rest of the community; and it would prevent their daughter from marrying.  The Tribunal noted that they had also expressed concerns regarding their daughter having the procedure at her age; and the difficulty of not disclosing whether or not she had undergone the procedure.  The Tribunal indicated that in her statutory declaration of 20 August 2018, the applicant’s mother had commented that she felt certain that failure to undergo the procedure would be discovered during medical check-ups, referring to the Malaysian health check-up book which every child in Malaysia has and where it is noted if a girl has had the procedure; and had commented that this is provided to schools and child care centres and may have implications for her daughter being able to access those services.  The Tribunal noted that the applicant’s mother had submitted to the Tribunal before the start of the second hearing a copy of the relevant page from the health check-up book.

1. The Tribunal indicated to the applicant’s parents that it wished to discuss with them a range of country information regarding FGM/C/FC in Malaysia.  The Tribunal put to the applicant’s parents the following information from the current DFAT Country Information Report, noting that the representative had also referred to this information in her submission:[8]

   In 2009, the National Fatwa Committee decided that ‘female circumcision’ was obligatory for Muslims unless harmful to their health. The Ministry of Health developed guidelines for the procedure and allowed it to take place in health-care facilities. As a result, it has become increasingly common and is often performed during infancy. A university study conducted in 2012 found that, of over 1,000 women surveyed, 90 per cent of Muslim respondents had undergone FGM. DFAT has received mixed reports as to the extent of the medical procedure, with some contacts describing the procedure as symbolic, while others describe a more damaging medical procedure. The Minister for Health declared that FGM does not occur in Malaysia, but maintains a distinction between circumcision and mutilation. Public hospitals reportedly do not undertake the procedure, but private hospitals do.

   [8] DFAT, Country Information report, Malaysia, 19 April 2018, section 3.114.

2. The Tribunal referred to the United Nations Human Rights Commission’s (UNHRC) Committee on the Elimination of Discrimination Against Women (CEDAW) having raised the issue of 2009 fatwa with Malaysian authorities when considering the combined third to fifth period reports from Malaysia on its implementation of the Convention on the Elimination of All Forms of Discrimination Against Women.  It is reported that a Committee Expert remarked that in many other Muslim countries, a fatwa did not have the power of law, and raised the issue of FGM, stating it is not an Islamic tradition, and stating that the Committee considers it to be a form of violence against women.  It is recorded that the Malaysian delegation responded that: FGM or FC was considered to be part of the Sunni Islam tradition and should be observed by all Muslims; however, this opinion was not official and binding on all Muslims since the Fatwa had not been issued and gazetted by the State Fatwa Committee; Malaysia was following the provisions of the fatwa which established FC as an obligation for Muslims, therefore the Ministry of Health had developed guidelines for the implementation of FC; during their visit to the health centre at the age of 18 months, the perineum of Muslim baby girls was routinely examined and it had been found that 83 to 85 per cent of Muslim baby girls had been circumcised without any complications; and in Malaysia 93 per cent of Muslim women practised female circumcision and studies had found that female circumcision in Malaysia was harmless and did not have an impact on the sexual health of women.

3. The Tribunal commented that it had put that information to the applicant’s parents because it reflects the position of the Malaysian government representatives responding to the relevant United Nations (UN) committee and it indicates that while a fatwa has been issued, the fatwa has no effect in law which means there are no penalties for not adhering to the fatwa.  The Tribunal commented that it had also looked at the Syariah law provisions for Selangor state (where the applicant’s family had lived prior to coming to Australia) and found no reference to FC or the fatwa.

4. The Tribunal also referred to a 2015 academic article regarding the fatwa by Mary J Ainslie from the School of Modern Languages and Cultures at the University of Nottingham’s Malaysia Campus in Selangor state.[9]  The Tribunal commented that the article: points out that the nature of the practice in Indonesia and neighbouring South East Asian countries, including Malaysia, is quite different to practices labelled as FGM, commenting that the majority of the available literature available on FGC (the term used by Ms Ainslie) in South East Asia stresses the lack of severity of the procedure – she comments that in Indonesia it can vary from the cutting of the clitoris, the nicking of the clitoral hood and a purely symbolic procedure in some areas.  In relation to Malaysia she comments that studies since 1990 appear to confirm both the minor nature of the practice as well as its deep connection to Islam and Islamic notions of bodily purity.  She further comments that the studies indicate that Malay women undergo a very minor procedure as infants that involves nicking, cutting, pricking or braising the very tip of the skin covering the clitoris to the extent that no physical mark or excision of skin is evident in adult women.  The study also comments at length regarding how the fatwa came about.  The Tribunal commented that from its reading of the article Ms Ainslie seems to be saying that the fatwa was a reaction to Malaysian medical authorities seeking guidance on how to deal with increased demand for the procedure to be undertaken in safe/sterile conditions in medical facilities in the context of a practice that culturally was very prevalent.  There also seemed to be a desire to regulate the practice so that only trained medical practitioners carried it out and where there could be close supervision to ensure the practice did not become more severe.  The Tribunal noted that the author commented on the WHO’s zero tolerance approach to all forms of FGM/C/FC having brought the Malaysian approach into conflict with the UN body, which is seeking to eliminate all forms of FGM/C/FC.  The Tribunal also commented that the article notes that the Malaysian Ministry of Health is engaged in discussions regarding a purely symbolic swabbing procedure which would completely discount Malaysian FGC as a medical procedure.

   [9] Mary J Ainslie, The 2009 Malaysian Female Circumcision Fatwa: State Ownership of Islam and the current impasse’, Women’s Studies International Forum, 15 July 2015, >

   The Tribunal also referred to a range of press reports, commenting that they seem to reflect an active debate on FGM/C/FC in Malaysia.  A 2016 report in MIMS Today quoted an obstetrician and gynaecologist from Rawang, Kuala Lumpur as stating that she takes a needle and slits one millimetre off the top of the clitoris; refers to a 2012 study which indicated that up to 93% of Muslim women in Malaysia have undergone circumcision; and quotes Dr Farouk Musa, a senior medical lecturer at Monash University’s Malaysia campus as stating ‘there is not a single verse in the Quran or anything from the collections of hadiths (sayings of Prophet Muhammad) that makes female circumcision a requirement’ and as commenting that although circumcision in Malaysia does not involve severe mutilation compared to other countries, it is best not to do it because of the risks such as infection and psychological effects on the girl.  An Associate Professor at Universiti Kebangsaan Malaysia is quoted as saying ‘Unlike male circumcision, there has not been any finding to show that FGM is beneficial.  In fact, the procedure is risky’.[10]

   [10] ‘Female circumcision: A common practice in Malaysia and Singapore’, MIMs Today, 18 October 2016, >

   A 2015 article in VOA News comments that according to health officials the minimally invasive genital cutting typically practised in Malaysia falls under type IV of the WHO’s classification system and sometimes involves just a pin prick to the clitoris, is typically performed during infancy, and has few or no health complications for the women later in life.  It notes that the 2009 fatwa states female circumcision is required in all cases ‘except when harmful’ but international health experts say it is always harmful, even in its mild form in Malaysia.  The Tribunal noted that the article quoted Saira Shaheem a UN Population Fund worker based in Kuala Lumpur as saying health officials are trying to work with the fatwa committee to bring the ruling in line with WHO guidelines, commenting that the fatwa does not specify what the procedure should be which allows an avenue to define it in a non-invasive, non-harmful manner, and shift the practice accordingly. Shaheem commented that health ministry officials are trying to replace the practice of cutting with a routine alcohol swab of the genital area performed by the obstetrician at birth.[11]

   [11] ‘UN, Malaysia Groups Seek to Repeal Fatwa Requiring FGM’, VOA News, 2 March 2015, >

   A 2018 report in the Star Online refers to criticism directed at Malaysia by CEDAW officials who urged Malaysia to abolish FGM stating that it is not an Islamic practice but is an African tradition.  The report notes that the Malaysian delegation responded that it is part of Islamic teachings but can be exempted if it brings harm to the girl.[12]

   [12]‘Malaysia urged to abolish female genital mutilation’, The Star Online, 22 February 2018, >

   A February 2016 article in Free Malaysia Today records the personal reflections and regret of a Malaysian journalist who in the past had taken her daughter to have the procedure.  Referring to the view sometimes expressed that the practice reduces sexual urges and stops girls ’going wild’ the author concludes by urging Muslim parents ‘not to put your baby girls under the blade.  Raise your girls well so they are strong enough to protect themselves from sinful acts. Have some faith in your child.  Have some faith in yourself as a parent’.[13]

   [13] ‘Nothing cut-and-dried about female circumcision’, Free Malaysia Today, 24 February 2016, >

   A February 2018 article in the Malaysian Insight co-authored by Rozana Isa of Sisters in Islam cites the Mary Ainslie article and notes that Saudi Arabia had issued a fatwa making FGM/C haram, while a centre for Islamic research in Cairo Egypt had concluded that ‘the mutilation presently practised in some parts of Egypt, Africa and elsewhere represents a deplorable custom which finds no justification in the authoritative sources of Islam, the Quran and the practice of the Prophet’.[14] The Tribunal commented that this article suggests there is an active debate about the fatwa and the practice of FC in Malaysia; that there are influential voices within the Islamic community speaking out against the procedure; and that it is not the case that there is a consensus about it.

   [14] ‘Why is Malaysia still practising female genital mutilation’, The Malaysian Insight, 6 February 2018,  >

   The Tribunal put to the applicant’s parents that from considering this information it had drawn the conclusions that while a fatwa was issued in 2009 that said female circumcision was obligatory for Muslim women the fatwa does not have the force of law; the authors of the fatwa did not prescribe a particular procedure so it seems open that a symbolic procedure could meet the requirements; and there is also an exemption where it is deemed the procedure would cause harm – and as the authors had not specified where that might be the case, and some doctors are saying the procedure is always harmful, that would also seem to provide ‘an out’ from undergoing the procedure.

5. The applicant’s parents responded that they had never heard of a symbolic procedure.  They said in Malaysia the procedure is usually done within the first 40 days after birth and commented that now, as their daughter is nearly three years of age, even a little cut could be very painful for her.  This statement is consistent with a comment made by the applicant’s mother in her most recent statutory declaration that given her daughter is nearly three years old, she fears the procedure will be much worse and more painful for her and she will suffer more complications as a result of having the procedure at an older age.  While prefacing the Tribunal’s remarks with the comment that the Tribunal does not want to appear in any way to be an advocate for the procedure, the Tribunal also quoted from the Mary Ainslie academic article where Ainslie had indicated that online sources confirmed the minor nature of the procedure in Malaysia, including a blog where a mother indicated her daughter had a ‘tiny snip’ of flesh taken from the top of her clitoral hood and did not cry, and a blog by another mother indicating that while her daughter did cry, it was not as much as when she had an immunisation and there were no lasting effects and the family went to a shopping mall immediately afterwards.

6. The applicant’s mother said if she returns to Malaysia she will have nowhere to stay and will have to stay with her parents.  She commented that it is a typical Malay environment and it probably would be very difficult for her to avoid having her daughter undergo the procedure in such an environment.  The Tribunal commented that it is clear that the procedure is very common among Malay Muslim women in Malaysia – the DFAT report indicated that a study had found that 90 per cent of Muslim women had undergone the procedure while another study had quoted 93 per cent.  The Tribunal indicated that it accepted that it is likely that there will be family and community interest in whether her daughter has undergone the procedure and pressure for her daughter to have the procedure.  The Tribunal also commented, however, that on the other hand, the studies indicate that between 7-10 per cent of Muslim women in Malaysia have not undergone the procedure, which would amount to approximately 670,000-960,000 Muslim females who have not undergone the procedure.  The Tribunal put to the applicant’s parents that it had not come across any information to indicate or suggest that Muslim women in Malaysia who had not undergone the procedure, who amount to a large number, have suffered treatment amounting to serious harm as a consequence.

7. The Tribunal also put to the applicant’s parents that the page 23 excerpt from the Malaysian child health book they had provided to the Tribunal indicates that there would be comment on a range of areas of the body (the relevant page lists 21 areas of the body, including ‘Genitalia’ with three response columns labelled ‘Normal, ‘Abnormal’ and ‘Remarks’.[15]  The Tribunal put to the applicant that it would seem surprising that doctors might comment in this booklet on whether a child had undergone FC or not, given that nearly 40 per cent of the Malaysian population are ethnic Chinese and ethnic Indian non-Muslims who do not practice the procedure; and given the information regarding the nature of the procedure which indicates that in some case it is just a pinprick or slight nick, it was difficult to see that a doctor would record a remark indicating an abnormality if a child had not undergone the procedure.  The Tribunal also commented that its sense when it read the applicant’s mother’s comments regarding their daughter not having undergone the procedure possibly causing issues in relation to admittance to school or child care facilities was that such institutions would be more interested in the immunization status of the child and the risk of spreading infectious diseases, rather than whether parents had adhered to the fatwa regarding FC or not.

   [15] See folio 50 of the Tribunal file.

8. The applicant’s mother commented that as they have Muslim names people know whether they are Muslim or not, and will check the health book when they enrol their daughter.  She said when they check whether her daughter is immunized or not, if they see she has not been circumcised, because this might have been written in the remarks space, her daughter might be alienated and isolated at school.  The Tribunal asked the applicant’s parents if they had seen this written in their personal experience.  The applicant’s mother replied that she did not remember whether this was the case in her health book but she thinks something would be written.  The Tribunal asked whether they had ever seen it in relation to family or friends.  The applicant’s mother said her sister had [number] boys so she hadn’t seen it.  The Tribunal queried the applicant’s parents whether they were just speculating that this is the case.  The applicant’s mother replied ‘yes’.  She added that the book is private as well, so people don’t usually show it to others.  The Tribunal commented that this is an important point, and the Tribunal would also expect that such matters would be held privately and officials who saw information recorded in a health book would keep it private rather than share it more broadly.  The applicant’s parents responded that doctors are now recording health information on information technology systems, which may not be private, and commented indicating that some teachers think it is amusing to ‘broadcast’ over the internet some things that reflect poorly on students.  The Tribunal finds that the applicant’s parents’ comments regarding the ‘circumcision’ status of their daughter being recorded in her health book are entirely speculative.  In any event, the Tribunal does not accept that there is anything to indicate or suggest that such information, if recorded for whatever reason, would not be treated as confidential, and could impact on whether a child was accepted into schooling or a child care centre, or would be released more widely to shame a child or her parents.

9. The Tribunal also commented on the concerns raised that not undergoing the procedure might affect the marriageability of their daughter, noting that while that might be an important issue for some prospective spouses it would seem likely that it would not be an issue for others who are more progressive in their thinking (like the applicant’s parents).  The Tribunal also noted that given their daughter’s age such matters would not be an issue for a long time into the future and that when their daughter was a young adult she could make her own decision regarding whether she wish to undergo FC or not.  The Applicant’s parents responded that they want to prevent issues before they happen but the Tribunal considers this is an issue the applicant’s sister can deal with herself when she is a young adult.

10. Commenting on the statement in the applicant’s mother’s statutory declaration of 20 August 2018 that she was concerned that if she took her daughter to a doctor a doctor will pressure her to have her daughter circumcised, the Tribunal put to the applicant’s parents that the Tribunal’s sense from the country information is that there are many doctors who do not support the procedure and it would seem she should be able to find a doctor who would not pressure them to have their daughter undergo FC. The applicant’s mother responded that the doctors who do not agree to doing the procedure may be outside where her parents live but she will have to live where her parents live.  The Tribunal found this comment speculative and does not accept that the applicant’s parents could not find a doctor who would respect their wishes in relation to this matter, although they might have to travel a little further to attend such a doctor’s clinic.

11. The applicant’s mother commented that from what she knows, as a Muslim the procedure is obligatory, unless it is harmful for her daughter.  She commented indicating that her daughter does not know what shame is yet and if cut by a knife it will hurt her and cause her pain.  The Tribunal again stressed that it is not advocating for the procedure and is saying that she does not need to submit her daughter to the procedure.  The Tribunal again commented that it accepts the procedure is very common in Malaysia and that there is community pressure to have the procedure, but the 7-10 per cent who have not undergone the procedure amounts to a large number of women who have decided not to have the procedure, and the Tribunal has not located any information to indicate or suggest that those people have experienced difficulties as a consequence, other than having to be strong in the face of pressure from family, friends, and the community to have the procedure.  The applicant’s father suggested that maybe the 10 per cent who have not undergone the procedure are outside wedlock, or live deep inside a village, or are newcomers to Islam.

1. Following a break in the second hearing so that the applicant’s parents could consult with their representative, the applicant’s mother commented that because they would be living in one house with her parents the pressure from family and the community will be greater.  She said the issue is not so much with the law, but is with the pressure they will face from their community.  The applicant’s father commented further on the 10 per cent who have not had the procedure, saying they could be converts to Islam from the ethnic Chinese and ethnic Indian communities, and that it was not stated whether the people were adults or babies.  He said for Malay Muslims it is 110 per cent who have undergone the procedure.  He added that he did not want his daughter to undergo the procedure no matter how minor, and that they had never heard of an alcohol swabbing procedure and maybe that is something that is not being practised yet.  The Tribunal put to the applicant’s parents that there was nothing in the country information saying those who had not undergone the procedure were converts to Islam and the comments from Malay Muslim women cited previously suggest there are people in the community who are not supportive of the procedure and are advocating against people having it done.  The applicant’s father commented that it may be referring to Muslims but Muslims from different races.  The applicant’s father added that his fear is pressure from the community and teachers which will bring shame on him.  He said where they are from this is something they can’t not do.  The Tribunal does not accept the argument that all Malay Muslim women have undergone FGM/C/FC.  The country information discussed with the applicant’s parents makes clear that surveys of adult Muslim women reveal that 90-93% of the women have undergone the procedure.  There is nothing to indicate or suggest that the 7-10 per cent of Muslim women who have not undergone the procedure are children who are yet to have the procedure or recent converts to Islam from the ethnic Indian or ethnic Chinese communities.  The Tribunal does not accept the applicant’s parents’ assertions that this is something they can’t not do.

2. In the submission of 10 September 2018 the representative asserts that the applicant’s sister faces a real chance of being forced to undergo the procedure if returned to Malaysia, citing matters covered at length during the hearing: that the practice is culturally embedded among the ethnic Malay Muslim community in Malaysia; that this is reflected in studies showing a high percentage of Muslim women in Malaysia had undergone the procedure; and that WHO and CEDAW adopt a zero tolerance approach to all forms of FGM/C/FC and the ‘medicalisation’ of the procedure, including the ‘minor nature’ (as described by Ainslie in her article) procedure practiced in Malaysia (also referred to as Type IV).  The representative quotes from a press release issued by the End FGM European Network which is critical of those who propose alternative approaches such as supporting ‘minor’ procedures on a harm minimisation basis; and indicates that a range of UN bodies ‘responded strongly’ to an opinion piece published in the BMJ Journal of Medical Ethnics suggesting an alternative to FGM.  The Tribunal considers these issues and the debate around them were canvassed in the Mary Ainslie article discussed at the hearing.

3. The representative stresses that FGM is an entrenched social convention in Malaysia which the community is strongly motivated to continue with.  The Tribunal accepts this assertion and also accepts that it would be difficult to ban the practice given its popularity in Malaysia.  The Tribunal considers this is precisely why some academics (including Ainslie) continue to suggest alternative harm minimisation approaches despite the zero tolerance approach adopted by WHO and other UN agencies.  The Tribunal does not, accept, however, the representative’s assertion that the community is strongly motivated to adhere to the customary practice of cutting.  No evidence was put forward to support this assertion and the material discussed at the hearing (including from the DFAT Country Report) indicated there is evidence of a purely symbolic procedure (with no cutting involved) being practised on occasions in Malaysia and optimism in some quarters that this form of the procedure can become the norm.  While the applicant’s parents indicated they had not heard of a symbolic form of the procedure the Tribunal considers this does not indicate that it doesn’t exist and isn’t being promoted in some quarters.

4. In supporting the applicant’s parents’ claim that they feel they would be compelled to submit their daughter to a cutting procedure due to family and/or community pressure the representative states they come from strict Muslim families and communities who would not agree with the child being exempted.  In support of this claim she cites an article indicating that many girls are subjected to FGM several times, particularly if members of the family or their social network are not satisfied with the results of the first procedure.  A reading of this article (by Askew et al) reveals that the example given relates to Sudan, a country where far more extreme forms of FGM are practised.  The representative advanced no evidence to indicate or suggest that family or community members in the Malaysian context pressure family members to undergo repeat FGM because they are not satisfied with the results of any initial procedure.

5. In relation to the fatwa providing an exemption where it brings harm to the child, the representative notes that, as discussed at the hearing, there does not appear to be any guidelines regarding what might be considered harm in this context but notes that a Malaysian Health Ministry official had been quoted as commenting that FGM is a ‘harmless’ procedure that is done under medical guidelines drawn up by the Ministry.  The Tribunal accepts that an official made this generalised remark but, given the fatwa includes a reference to exemptions on health grounds, and noting that the information discussed at the hearing indicates that there are doctors who do not support a cutting procedure on the basis that there are always physical and psychological risks (see the 2016 MIMS Today article referenced above) considers this exemption, as well as a purely symbolic form of the procedure, would seem to be avenues that the applicant’s parents could pursue if they wished.  In this regard, and noting the applicant’s mother’s comment at the hearing implying all the doctors in her area are conservative and would pressure her to submit her daughter to the procedure, the Tribunal considers that the applicant’s parents could use resources such as Sisters in Islam (referred to in the 2018 Malaysian Insight article cited above) to obtain referrals to more progressive and sympathetic doctors.

6. In the context of the Tribunal’s comments at the hearing that it had not found any information to indicate or suggest that those Muslim women in Malaysia who have not undergone the procedure have suffered significant harm as a consequence, the representative has referred to a 2015 Tribunal case (1417056) where the member found that the applicant, a Muslim infant girl of third country descent, was at real risk of being forced to undergo FGM if returned to Indonesia, on the basis that family members might take the child to be circumcised without her parents’ consent.  As acknowledged by the representative, decisions of the AAT are not binding precedent.  Furthermore, the individual circumstances of cases differ and having considered the case referenced by the representative, the Tribunal finds the individual circumstances of that case to be quite different to the circumstances of the present case under consideration.

7. The applicant’s parents have made clear that they do not wish their daughter to undergo any FGM/C/FC procedure regardless of how minor.  The key issues in relation to this matter, therefore, are whether the applicant’s sister would be forced to undergo this procedure against the will of her parents, and if not, whether she and her family, including the applicant, would suffer treatment amounting to significant harm as a consequence of her not undergoing the procedure.  The applicant’s parents concede that the 2009 fatwa does not have the force of law but maintain that they would not be able to resist family and community pressure to submit their daughter to the procedure.  They claim their situation is exacerbated because they will have no option but to live with family members, who they claim are socially and religiously conservative, if they return to Malaysia.  They fear they will be shamed into taking their daughter to undergo the procedure.  As discussed at the hearing, given the prevalence and hence acceptance of the practice among the Malay Muslim community in Malaysia, the Tribunal accepts that there will likely be some interest from family and friends in the community regarding whether their daughter has undergone the procedure.  If they tell family members and others that their daughter has not undergone the procedure, the Tribunal accepts that there would likely be comment from family and others possibly expressing disapproval and seeking to convince the applicant’s parents to agree to their daughter undergoing the procedure, including by saying it is an Islamic requirement.  The Tribunal does not accept, however, that such comments or verbal pressure would amount to serious harm.  The Tribunal does not accept that in this case, there is anything to indicate or suggest that family members or anyone else would take the applicant’s sister and force her to undergo the procedure without the consent of her parents.  As put to the applicant’s parents at the hearing, the Tribunal accepts that they may have to be strong in the face of family and community pressure, but does not accept that such pressure would be so great that they would have no choice and would feel compelled to submit their daughter to the procedure.  In this regard the Tribunal finds that the country information clearly indicates that there is an active debate within the Islamic community in Malaysia regarding the practice, and there are voices speaking out against the practice, including voices drawing on broader international Islamic views from countries such as Saudi Arabia and Egypt that the practice has no basis in the authoritative sources of Islam.  The Tribunal considers the applicant’s parents can draw on arguments from these sources, if necessary, when putting their position to family or community members who might be critical of their actions. 

8. The Tribunal accepts that family pressure could be such that the applicant’s parents might find it intolerable for the family to reside with the applicant’s mother’s parents.  The Tribunal does not accept, however, that the family have no other choice but to live with her parents.  At the first hearing the applicant’s parents indicated that they had both been employed in relatively well paying jobs in Malaysia (with salaries of RM4,000 per month each) and the applicant’s father had been renting a room close to his workplace in Kuala Lumpur while the applicant’s mother had been living with her parents in Selangor.  The applicant’s family are living independently in rental accommodation in Australia and the applicant’s father is in employment in Australia.  While it might cause them some financial hardship to live in rental accommodation in Malaysia if necessary, the Tribunal does not accept this would amount to serious harm. 

9. In relation to the claim that if the applicant’s sister does not undergo the procedure she and other members of the family will be outcast, isolated and ostracised from the community, as discussed with the applicant’s parents, the Tribunal finds that a significant number of adult Malay Muslim women in Malaysia have not undergone the procedure and there is no evidence that they have suffered treatment amounting to significant harm as a consequence.  The Tribunal does not accept that the applicant and his family members will be outcast and suffer isolation from the Malay Muslim community in Malaysia generally as a consequence.

10. After carefully considering all the available evidence, the Tribunal finds that there is not a real chance that the applicant’s sister will be forced to undergo FGM/C/FC by family members, community members, Malaysian doctors/other health officials or Malaysian government or religious officials or school or child care officials.  The Tribunal does not accept that the applicant’s parents will be compelled by family and/or community pressure and feelings of shame to submit their daughter to FGM/C/FC against their will.  The Tribunal does not accept that, as a consequence of the applicant’s sister not having undergone FGM/C/FC, there is a real chance that the applicant and his family members will be cast out/ isolated and/or ostracised by their community to an extent that they would suffer significant harm.

    Risk of harm due to late registration of birth

11. In her statutory declaration of 20 August 2018 the applicant’s mother claimed that she fears it will be difficult to obtain Malaysian national identity documents for their two youngest children born in Australia (including the applicant) if they are forced to return to Malaysia; that they fear they will be penalised for not registering their two youngest children with the Malaysian authorities sooner; and that if they cannot afford the penalty they will not be issued with the documents.  She also claimed that Malaysian authorities will ask them why they did not register their children earlier and, even if they did not disclose their protection claims, fears the authorities will believe they applied for protection in Australia because they have avoided contacting the Malaysian authorities during their time in Australia.  In this context the Tribunal put to the applicants that an October 2017 article from Free Malaysia Today indicated that Malaysian Deputy Home Minister Nur Jazlan Mohamed had announced that the fine for parents who fail to register their children within 60 days of birth had been increased from RM50 to RM1,000 (approximately AUD335 at the current exchange rate) with immediate effect.[16]  The Tribunal commented that it noted that the DFAT Country Report indicates parents must supply their national identity card and marriage certificate in order to register their child and also advises that national identity cards are only compulsory for all citizens aged 12 years and above.[17]

    [16] ‘RM1,000 fine for late birth registration’, Free Malaysia Today, 11 October 2017, DFAT Country Information Report, Malaysia,19 April 2018, sections 5.30 and 5.33-5.35.

The Tribunal also notes that a report in Malaysiakini indicates that the Deputy Minister, responding to criticism that the high fine would burden the poor, clarified the next day that the fine is negotiable on a case-by-case basis, with the National Registration Department (NRD) allowing for reductions and even exemptions for parents who are unable to afford the RM1,000 fine.[18]

[18] ‘Nur Jazlan: RM1k fine for late registration of birth is negotiable’, Malaysiakini, 12 October 2017, >

The applicant’s mother indicated that if they are sent home they will have issues getting passports for their Australian born children as they need their wedding certificate and a birth certificate but they have not registered them for birth certificates.  The Tribunal commented that the children have Australia birth certificates.  She replied that they need birth certificates issued by the Malaysian authorities and the parents’ birth certificates to get passports.  The Tribunal commented that the country information indicates that they will now have to pay a fine to register the children with the Malaysian authorities.  The applicant’s mother commented that their previous lawyer told them to avoid the Malaysian Consulate but now they need to register their children they need papers that they do not have.  She added that they have heard from people who are Australian residents that the Malaysian authorities do not treat them well when they are applying for Malaysian visas and she was concerned that the authorities might treat them badly because they wanted to get out of Malaysia and sought protection.  She said her issue is that when they apply for passports for their children the Malaysian authorities will look at her passport and will see that she has applied for a Protection visa.  When queried that her passport does not indicate that she has applied for a protection visa the applicant’s mother commented that the Malaysian authorities want to know what visa they are on.  When the Tribunal commented that the visa is a Bridging visa E, the applicant’s father replied that the Malaysian authorities ‘know’ what it means to hold that visa.  He added that ‘every day is the same thing’ and the Malaysian authorities say that ‘we make it difficult’ because we come to Australia and apply for protection.

The Tribunal put to the applicant’s parents the following excerpt from the DFAT Country Information report regarding the treatment of returnees to Malaysia:[19]

Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return because of their absence. Authorities pay little attention to Malaysians who over-stay their work or tourist visas or breach visa conditions in other countries upon their return to Malaysia. Likewise, failed asylum seekers would be unlikely to face adverse attention as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport has expired while abroad. The International Organization for Migration (IOM) assists voluntary returnees and Malaysian authorities cooperate with the IOM in these arrangements.

[19] DFAT Country Information Report, Malaysia,19 April 2018, section 5.22.

The applicant’s mother replied that in theory that might be the case but it is not so in practice.  When asked what she feared might happen in practice, she said they know what Malays are like and if they do not give the Malaysian authorities what they want, the authorities will not give them what they want.  The Tribunal responded that there are many failed asylum seeks from Australia who return to Malaysia and the information indicates that they do not suffer serious consequences that might extend beyond an unpleasant conversation with a surly Malaysian government official.  The applicant’s mother replied that her point is about them not having the necessary documents, their birth and marriage certificates, to apply for the passports for their children and that what happens when they get to Malaysia is a different matter.  When the Tribunal queried whether they could arrange to have those documents sent to them from Malaysia or access them online or through the Malaysian Consulate she replied that they have no contacts with anyone in Malaysia.

In her submission of 10 September 2018 the representative contends that Malaysian law does not grant citizenship automatically, but parents must register their children and provide proof that the child was born in the country.  She refers to a Bernama news report of June 2017 quoting the Malaysian Deputy Home Minister as stating that ‘Children who are registered late will have to get permanent residence status under the Application for Citizenship Under Article 15 (2)’.  She submits that the denial of citizenship and/or documentation to the applicants, even for a short period of time, would deny them access to basic services, threatening their capacity to subsist, amounting to serious harm within the definition of s.5J of the Act.  She refers in particular to access to health care and to education.

1. Publicly available information from the Malaysian National Registration Department (NRD) and the High Commission of Malaysia in Australia indicates that where a child is born outside Malaysia an application to confirm the citizenship status of the person based on the status of the father is made under Article 14 of the Malaysian Federal Constitution.  Applications can be submitted at Malaysian [Consulates].  Where an application is made to register a child for a Malaysian Birth Certificate after the child is one year of age, and where there is a Malaysian father, the child’s Australian Birth Certificate must be submitted along with the parents’ Malaysian Marriage Certificate, their Birth Certificates, identity cards and passports.  There is a fee of AUD 25.  The information indicates that the application will be submitted to Malaysia and that processing ‘could take up to 6 months and longer’.[20]

   [20] Ministry of Home Affairs, National Registration Department, Application for Citizenship Under Article 14 of the Federal Constitution – Confirmation of Citizenship (Born Outside Malaysia), >

   Based on the publicly available information the Tribunal accepts that the applicant’s parents would need to provide a range of documents to apply for registration of their children’s births with the Malaysian authorities and to confirm their status as Malaysian citizens, based on their father’s Malaysian citizenship.  The Tribunal accepts that there will be fees associated with this process, that it may take the applicant’s parents a period of time to access the necessary supporting documents, some of which they may not have brought with them to Australia, and that there will be a likely processing delay of six months or more once the relevant documents are submitted.

2. The Tribunal does not accept the applicant’s mother’s inference that it would be impossible for them to obtain documents such as their marriage certificate and birth certificates because these are in Malaysia and they are not in contact with anyone there.  The Tribunal considers that if the applicant’s parents were not prepared to approach family members in Malaysia regarding accessing these documents they could access them through contacting the NRD.  The Tribunal accepts that the applicant’s parents may be required to pay fines for late registration of the births of the two children born overseas which could amount to the equivalent of approximately AUD 670, but notes the relevant Deputy Minister’s comments that this fine is negotiable/may be waived in cases where it would result in financial hardship.  The Tribunal considers that such a penalty would not amount to serious harm and is a penalty that applies universally in all cases of late registration of the birth of a child.

3. The Tribunal does not accept the assertion that a delay in acknowledging the citizenship status/providing relevant documentation to the applicant would deny the applicant access to basic services, threatening the capacity of the applicant to subsist and therefore amounting to serious harm within the definition of s.5J of the Act.  The representative made specific reference to access to schooling and health services.  As the applicant is [age] he will not be seeking access to school services in the immediate future.  In relation to health services, the applicant’s parents have other documents such as the applicant’s Australian Birth Certificate (which includes his parent’s details) and their own Malaysian passports to demonstrate the applicant’s right to access Malaysian government health services, as an interim measure, if necessary.  In this regard, the Tribunal also notes the DFAT advice, put to the applicant’s parents at the hearing, that Malaysian Government Identity Cards are only compulsory for citizens aged 12 years and above, indicating that these are not compulsory for persons under 12 years of age to access relevant services.

4. In considering this matter the Tribunal also gives weight to the information in the DFAT Country Information Report, also put to the applicant’s parents, indicating that IOM assists voluntary returnees and Malaysian authorities cooperate with IOM in these arrangements.  The Tribunal considers that this indicates that IOM could assist with facilitating the applicant’s return to Malaysia if necessary.  The Tribunal also notes that in the case of involuntary returns, the Department makes return arrangements with the receiving country on behalf of the individual concerned.  The Tribunal assesses therefore that documentation issues would not prevent the return of the applicant to Malaysia or prevent the applicant from accessing relevant services to the extent that the applicant’s capacity to subsist was threatened. 

   Risk of harm due to being returnees who are failed asylum seekers

5. As discussed with the applicant’s parents at the hearing, based on the advice in the DFAT Country Report cited above regarding the treatment of returnees, including those who are failed asylum seekers, the Tribunal does not accept that the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm from Malaysian government officials on return to Malaysia.

   Does the applicant have a well-founded fear of persecution if he returned to Malaysia?

6. Having given careful consideration to the applicant’s claims, both individually and cumulatively, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from family or Malay Muslim community members, Islamic extremists, Malaysian government or religious officials, doctors or other health workers, school or child care officials, or anyone else, for one or more of the five reasons mentioned at s.5J(1)(a), due to his elder brother being perceived as transgender or not conforming to traditional gender stereotypes or norms, his sister not having undergone FGM/C/FC, his having been registered late for Malaysian citizenship purposes, and having applied for protection in Australia, if he was to return to Malaysia, now or in the foreseeable future.

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

   Complementary protection

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  

9. The representative has asserted that, in the alternative, the applicant faces more than a remote risk of suffering significant harm.  She submits that each of the sources of harm relied upon in relation to s.36(2)(a) are equally applicable in relation to s.36(2)(aa).

10. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of 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.[21]

    [21] 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].

11. Having carefully considered the applicant’s claims individually and cumulatively, the Tribunal, having regard to the findings of fact set out above, also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will be arbitrarily deprived of his life; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; and/or be subjected to degrading treatment or punishment, from the applicant’s family, Malay Muslim community members, Islamic extremists, Malaysian government or religious officials, doctors or other health workers, school or child care officials, or anyone else, due to his elder brother being perceived as transgender or not conforming to traditional gender stereotypes or norms, his sister not having undergone FGM/C/FC, his having been registered late for Malaysian citizenship purposes, and his having applied for protection in Australia, or for any other reason.

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

    DECISION

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

    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …

    
    

High Commission of Malaysia, Canberra Australia, Child Registration for Birth/Citizenship Certificate,

Key Legal Topics

Areas of Law

• Immigration

• Statutory Interpretation

Legal Concepts

• Judicial Review

• Procedural Fairness

• Jurisdiction

• Statutory Construction

• Natural Justice

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Citations

1722963 (Refugee) [2018] AATA 4531

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