1727124 (Refugee)

1727124 (Refugee) [2024] AATA 1276 (22 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1727124
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Genevieve Hamilton
REPRESENTATIVE:  Clare Hughes
DATE:22 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(aa) of the Migration Act.

Statement made on 22 February 2024 at 2:29pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – member of particular social group – family violence by husband/father from well-connected family – abuse, assaults, threats to kill or kidnap children, theft of money from company and attempt to take over, car set on fire and bribes to police not to take action against complaints – frequent relocations – multiple police reports provided – members of family unit children and mother – son’s mental health – country information – effective protection measures available – claim on refugee criteria not accepted – different requirements for complementary criteria and real risk of harm found – limited resources and not reasonable to relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 June 2017. The delegate refused to grant the visas on 1 November 2017.
The first named applicant appeared before the Tribunal on 21 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
CRITERIA FOR A PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The first-named applicant (“the applicant”) was born in Pahang, Malaysia, in [year]. She speaks reads and writes Tami, English and Malay. Her religion is Hindu. Her occupation is business. She is married. The relationship began on [date] and the marriage took place in Pahang on [date]. She arrived in Australia [in] June 2017 travelling on a Malaysian passport. She said she was not in contact with relatives outside Australia. The applicant said she finished school and withdrew from two diploma courses.
From 2012 to 2017 was the owner of a [business] in Johor Bahru (address is one of her residential addresses). The applicant outlined a complex recent address history indicating frequent moves and irregular lodgings.
The applicant said she left Malaysia because her husband was a womaniser who abused her and her children for many years. When she questioned him he would hit her and the kids and threaten to kill them if she left the house or if she told anyone. On 25 January 2017 she found out he was in an affair with a [Country 1] woman, and left the house with her children and her mother. Since then he was even more angry and continued to make death threats including her mother. She had made police reports but he would bribe the police not to take action. [In] February 2017 she made a report with recorded evidence.
He was also trying to get the money from her business, and wanted her to put the company into his brother’s name. He stole from the company and tried to cheat her clients. She appointed a lawyer and then he and his brothers chased her from place to place. 7-10 days later (after [date] February) he was arrested at a different station. He was let out on bail. He was even more angry. He, his brothers and unknown guys called on the phone and whatsapp to threaten and sexually harass her. [In] February they burn her mother’s car (which the applicant herself used) as a warning. The police said it would only make him more angry if she reported him as they could not charge him without evidence. The applicant was terrified. He called her and told her to withdraw the case or he would kidnap and kill the children. So she did. She tried to move to different places but they always found her because they [do business] all over Malaysia and also [in Country 1 and Country 2].
If she goes back he and his family will kill her, her kids and her mother. She first went to her mother’s house in [Town 1], but he knew that home and so he came there and disturbed them. Then she moved to her brother’s house (actually her cousin) in Selangor, he found them there as well. The police know he’s dangerous, but they took bribes from him and took no serious action. Even though they arrested him he was out on bail.
The applicant’s mother echoed her claims. The children did not make claims of their own but have implied claims encompassed in the applicant’s claims.
In an undated statement the applicant outlined her background and the relationship history. He was [an Occupation 1] working for his father doing [job task]. When he wanted to start his own business he asked her for money, and she gave him about 100K rm. After she gave him money his behaviour changed. He started to abuse her when she asked his whereabouts and found out he was sexting with girls. He hit her, breaking her glasses and causing swollen and black eyes. He locked her in a room for 16 hours without water or food. She was afraid to question him after that. He was arrested for molesting a woman in her hostel. She had to borrow money to bail him out under threat. He was locked up for three days. She used to see pornographic videos he sent to many women. She questioned him again and he hit her again and pushed her to the floor even though she was heavily pregnant with their first child. He showed no love to her or their unborn child. He restricted her conversations. He didn’t allow her to go anywhere without his permission. After her baby was born her mother paid for everything. He refused to. After the naming ceremony he hit her for not serving her food event though she was feeding the baby. His business was not successful and he was taking drugs and sexually abusing her. She tried to explain to his family but they said she had to try her best to change him. He hit her with a wooden stick. He hit her 18 months old son when he was crying, and threatened them with a knife. She was heartbroken to find out she was pregnant again. He took her phone from her, broke it and hit her when he found out she was telling her mother what he was doing. He locked her and her son in separate rooms, then hit her son. She told him she would report him. He said he knew how to manage the police officers with bribes. He threatened them again with a knife, and cut her hands. After her daughter was born he abused her as well. She stayed quiet and followed his orders to protect the kids. He forced her to change his business into her name. She agreed. He asked her to open new accounts which he controlled. He still wouldn’t give her money even for food. She had to do office work but he didn’t pay her. Since January 2016 he stayed outside. He would visit every month or two but still she had to beg for money. Then on 25 January 2017 she found out about the affair, and left with the children. She replaced her ATM card. He and his brother called many times threatening to kill her, her mother and the children. She was so scared she gave then all her money. Then they took over her business. She immediately appointed a lawyer to communicate with her clients. The last income from the business she used to pay its debts and the rest gave to her husband and his brothers. They chased her wherever she went including her “cousin brother’s" house in [Location 1]. They could find her in 3-4 days because they have friends all over Malaysia, even if she was in a hotel. He bribed the police not to act on her reports. On 8 February she told the police she would have no choice but suicide, and gave them recordings of the calls, this time they arrested him but he was out on bail in 4 days. He continued to make threatening calls and burnt her mother’s car, threatening to do the same to her and her family. He forced her to withdraw the report, so she did, on 20 May. She received lots of phone calls and pornographic videos and people are sexually harassing her over the phone. She can’t handle this as a single mother.
The applicant submitted a further written statement summarising her claims to have been abused physically, verbally, emotionally, sexually, financially and socially, since the early days of her marriage. She said her husband’s father was [a political party’s] branch leader in Pahang district. He used his influence to get his son out on bail. The police advised her that her husband was very dangerous and she should hide herself and her family as much as possible. The police will not protect her because she is a woman when money and influence speaks to them. He used to give her number to other men so they could sexually harass her. He doesn’t know where she is now. She speaks of the trauma to the children and her need to ensure their needs are welfare are met.
The applicant submitted a number of police reports summarised as follows:
·[January] 2017 Ledang District, Johor. 25 January she found out he was having an affair, they had a verbal fight. He told her to keep quiet if she didn’t want anything bad to happen. She feels scared because he has always hit her before, causing her to suffer physically and emotionally. She wants to divorce him. She doesn’t want to be liable for business matters done in her name.
·[January] Seremban. She married on [date], 7 months later found out he was having an affair. When she confronted him, he hit her, breaking her glasses and causing her eyes to swell. He warned her not to make a police report so she told her mother to make it. In [year] he trespassed in a women’s hostel and was detained b the police. On 25 January she found out he was having an affair with a [Country 1] woman. She left the house and made a report about him. He called her telling her to declare that he owns the company (she does). He also called her from a bar and threatened her and her mother and to kidnap the children to get her savings. He also has a case of fighting in December 2016. She is worried for the safety of herself and her children.
·[February] 2017 Seremban. Her husband has threatened to close the company, and wants all the money from the business. He has started a company with a similar name. He has contacted clients to stop them paying her and told them she has run away. He is bankrupt. He has been making contracts without her knowledge. She is worried he will commit fraud in the company/business name. She is scared that something bad will happen to her and the business. She is afraid to go into the office as he threatened her. He is using letterhead to commit fraud and deceive her. She does not want to be responsible for his fraud or breach of contracts.
·Sembaran district police report dated [February]. She and her husband are divorcing related to police reports dated [in] January [and] February. On [date] February she received a call from him repeatedly threatening to kill her and her mother. The call was recorded. He threatened to close the business and take the balance. She left the office. From a driver she found out he had done something to files relating staff and salaries without her knowledge. He has her cheque book and threatened to hurt her on marriage matters. She is terrified of him. She makes the police report because she is scared that something bad would happen.
·[February] complaint. She was at hotel, got a call from [Company 1] that her husband had informed her that the company name has been changed and the new name registered under her husband’s brother’s name ([Mr A]). Her husband wanted money from the company credited into the new account. This has been done without her knowledge. A worker has called her asking for his pay. She told him that the company was managed by her husband. On 29 January she had put money into the brother’s account, and on 1 February she put money into an account in her name (but the card is held by her husband) to pay for wages. He also wrote checks on another account of hers that had no money in it, and her account at that bank was blocked. She suspects him of falsifying company records and smearing her good name and her company name by lying to clients and workers that she has embezzled the money. She reports this because she is dissatisfied with his actions and also “for further actions”.
·[February] complaint. Refers to striking workers and blaming her husband for not paying wages, his brothers called her and cussed her about her about her family and company matters. Suspects [Mr A] of falsifying workers’ pay slips. She has reported to [Company 1] that she is not associated with [Company 2]. She doesn’t want the two brothers harassing them on company matters.
·[February] 2017 police report by applicant mother. She parked her car in the car park under her apartment. 0230 hours she was informed by the security guard that the car was on fire. She went down and found the fire was big, so she called the fire department. Car was badly damaged. She suspects her son in law.
·[May] withdrawal of [Date] Feb complaint.
·Police report [June] 2017. The applicant mother is the complainant and states that the applicant had a lot of problems in her marriage and, when she left him, he harassed them and tortured then emotionally. On 3 June he came to the house to see the children but started arguing. Once he waited outside the house. She is scared of him and worried about her own safety and that of her daughter and grandchildren.
·The applicant also made a report [in] June 2017. He is out on bail. She refers to the fact that she withdrew a report [in] May. Reference to sexual harassment via obscene messages and videos.
The application on review
The then representative made a written submission in January 2018. The applicant submitted medical records verifying that her son had been hospitalised with an overdose in 2016. She also submitted photos of the car when it was new, and after it was torched.
In a further written statement dated 18 August 2023 in support of her review application, the applicant reiterated that she and her children had experienced years of violence and abuse from her husband, with threats to kill her, and he was able to find her each time she moved to a new location, staying in hotels, with family members and police station car parks. She said the person referred to as her “cousin brother” that she turned to for protection when she left her husband, is actually her maternal cousin. She outlined a happy childhood as an only child, unfortunately cut short when her father committed suicide in 2010. Abuse from her husband started a few months after they married, and became more frequent. He was also having affairs and if she challenged him about this he would fly into a frightening rage and threaten to kill her. He also sexually abused her. When her son was about two years old her husband threatened them both with a knife and she let him cut her instead of her son. He was very controlling of the children, yelling at them and hitting them. He once slammed a metal grate on her daughter’s hand when she cried, causing her fingernail to fall off. Once he overdosed her son on paracetamol causing him to bleed from his bowel, and he had to spend a night in hospital. This was when she decided to leave the family home. The police discouraged her and her mother from reporting the abuse because her father in law was a well known political figure. In February 2018 a police officer did investigate her claims and verified threats left on her phone. Her husband was arrested and released on bail four days later. She withdrew the complaint on further death threats by her husband and the setting of her mother’s car on fire. After that he said he was going to set fire to them all, and sell the children in [Country 1]. Women’s organisations advised her to leave her husband. She moved around many times in a six months period but he kept finding her. Then she decided to leave Malaysia. Her husband went to her cousin’s house and threatened him as well.

The applicant outlined the impact on her mental health and supports she had sought out in Australia for this. Her son had received counselling from [refugee services provider] due to being traumatised by his father.
At the hearing, the applicant said her father had a [business] in Pahang. She lived there until she was [age] years old. Then she went to Sepang for 1 year and Sabah Jayu for two years where she lived in hostels. Her father passed away in her [second year], he killed himself with paraquat (weedkiller). She was not in the right frame of mind to continue her studies. She went to Johor with her mother where they rented accommodation and both got work. She met her husband in a workplace late 2010 and married in 2011. They lived with her mother in law and his siblings for six months then rented their own place. They went to Pahang where his father lived a few kms away. He didn’t not want to her to work. He was [an Occupation 1] for his father’s [business]. Her mother stayed in Johor.
He was very dominant and abused her in every way. Their son was born in [year] and daughter in [year]. She gave him money for the business but it did not go well. Early in 2017 she left him. She was afraid to do this even though she had wanted to. He was bankrupt and had put the business into her name. [Company 2] was registered in her name and she was the owner of the company. But he was running it. She put more of her assets in but no loan was documented.
The applicant said she never went to hospital. When her daughter’s finger was injured she was treated at a clinic. She was not sure how much paracetamol her husband gave to her son. He ordered her not to not to say he did it. The doctor said it could have been dangerous to the liver.
Abuse was an every day issue. The kids were not allowed to play. She and her mother went to the police but they discouraged a formal complaint. His father was a district leader in [a political party] and had connections. She was not sure what drugs he was on. He would not tell her.
After she left him, she went to the marriage registry and got a divorce application but she could not go ahead because she was moving around so much and could not attend to day to day tasks. First she went to her mother’s house in Pahang. She made the first police report on the way. It was incomplete – the police just focused on the last thing that had happened. The Tribunal said it appeared that she had complained about him having an affair. The applicant said they focused on that as the reason she was leaving the marriage.
Asked if she consulted a lawyer she said she did, in relation to the problems with the business for which she might be held responsible. But they only talked over the phone.
They were transporting workers to the [Company 1] worksite. Once the debts were sorted out the company was closed – she cancelled the registration and wound up the company. But his brother took over the clients. In the meantime they were calling her and wanting all her money and writing fake pay slips, and accusing her of having debts she did not have.
The Tribunal observed that the police reports all seem to be focused on a business dispute. The applicant said this was because the lawyer had said she would be responsible for any fraud and she had to cover herself. Her husband had had other legal problems. He was arrested for molesting women and fighting. But he was able to bribe his way out of it with the help of his father and brothers. They would talk about these things in front of her. The Tribunal questioned whether he had as much protective influence as she claimed or that the police were as corrupt as she was suggesting. The applicant said he is known in every state and knows police HQ.
The applicant said it was the female police officer that was angry with her and forced her to withdraw the complaint. Even though that police officer got him arrested, she did not even want to take the police report until the applicant gave her the phone with the obscene recordings. The officer was then in trouble with her superiors and was also threatened by the applicant’s husband. The phone has all the data but that is still with the police. The applicant said she had never thought she would need to keep it.
The Tribunal put to the applicant that she HAD been able to make a lot of police reports. The applicant referred to the obscene threatening phone calls that she kept getting despite changing her number.
The applicant said she always had to go to the nearest police station where any incident occurred. She was renting for a bit in Sabang Jaya, he found her there so she went to Penang Perak, staying in hotels. She did not know exactly how he found her. He was out on bail when he set fire to the car.
The applicant said her husband insisted on sex and in that he would insist on doing sex acts she did not want to do. She did not report this to the police because she was ashamed. They weren’t even interested in the beatings she had taken. She did talk to the women’s organisation about it. They said there was nothing they could do if the police would not get involved. She still has scars on her arms from when he cut her. There were incidents like this every day but the police always downplayed it.
The car was parked inside a fence. There was a loud knock on the door and some one said her car was burning. They went downstairs and called the fire fighters. There was a flame thrower nearby. He called and said “you will be next”. The police said they would need CCTV evidence to prosecute. Fortunately it was insured.
Her husband did not know that she and the children and her mother were leaving. He went to her cousin’s house to try to find out where she had gone.
There was a discussion of the passage of time and whether the applicant was still at risk.
In a post hearing submission the representative observed that:
“a documented eight police reports were filed by [the applicant], and two by her mother against her husband, where only after her fourth police report dated [February] 2017 which was completed at a different police station, was her husband arrested and placed into custody. He was released on bail within four days and allowed and continued to reoffend. In addition to this, despite the countless police reports being made by [the applicant], the authorities in Malaysia continued to discourage her actions due her father in law being a well-known and respected political figure in this district.”
The representative submitted that while legislation designed to protect women and promote equality before the law exists in Malaysia, major inconsistencies exist in its application. They cited a number of sources concerning the barriers to accessing justice for victims of domestic violence, including patriarchal attitudes.
In a post-hearing statement the applicant commented on a number of matters. Of note she mentioned that her son had spent some time in hospital during 2023, where his last name was used a lot by the medical staff. He now wishes to change his name so that he does not have to use the same surname as his father.
The representative submitted a [refugee services provider] counselling report regarding the applicant son. It reads in part as follows:
Source of referral and history of contact
[The second applicant] was referred to [Refugee services provider] by the Student Wellbeing Coordinator (SWC) [Ms B] at [School 1] where [the second applicant] was attending school in [specified grade]. The SWC’s referral stated that [the second applicant] was experiencing the following difficulties:
• Very clingy behaviour, separation anxiety and not wanting to go to school;
• Lots of worries, fearful and hyper aroused;
• Overreacting to noises in the environment;
• Dissociative at times in the classroom.
I met with [the second applicant] for assessment over four appointments and counselling was provided over eight appointments beginning August 2018 and concluding October 2019. In addition, I met with his class teacher and his mother as part of the assessment. Counselling was delivered to [the second applicant] using play therapy and parenting support to [the applicant].
Psychological state and psychosocial functioning over the course of counselling
I began my assessment of [the second applicant] when he was [age] years old and he turned [age] in the course of my intervention. Information gathered from his teacher, [Ms C], and mother were reports of his reluctance to attend school. His teacher had commented on his regular absences and difficulty separating from his mother at drop off on the days he did attend. She described him becoming distressed, crying and asking [the applicant] to stay everyday when he first started school however this lessened over time as he became familiar with the teacher and school. The teacher also spoke of [the second applicant]’s self-reports of stomach aches when he was at school which is a common way children express anxiety.
In our appointments, [the second applicant] expressed concern for his safety and said he repeatedly checked that the doors and windows were closed and locked in the family home. He also draws the blinds so that people cannot see into the house. He specifically stated being worried about his father breaking into his house. Although he was [age] years old, he needed to share a bed with his mother to feel safe enough to sleep although he suffered from nightmares on a regular basis.
I explored [the second applicant]’s understanding of, and feelings about his family. When I asked him to draw a picture of his family, he excluded his father from his drawing. When I asked about his father, [the second applicant] said he was not a part of his family drew a large figure, who he described as angry, on the other side of the page and turned it down onto the table and squashed the page down in an aggressive manner, which I interpreted as a wish to minimise and over-power his father. In a different appointment [the second applicant] referred to his father as the “bad man” which his mother has also referred to in her statement.
On two occasions [the second applicant] referred directly to the violence he witnessed in Malaysia. During the assessment period he said he saw his father attack his mother when they were standing by the family car. He described running away into the house to be safe from his father. During the counselling phase [the second applicant] said his father set his mum’s car on fire.
[The second applicant] was always well behaved and compliant in our early appointments indicating his learned mode of interacting with adults was to please them and not draw unnecessary attention to himself and in turn, keep himself safe. He was afraid of new experiences and lacked confidence, seeming unsure whether he was likeable. This is a common trait for people who have suffered attachment trauma and an unsafe primary caregiver. The impact this had on his relationship with his peers was that [the second applicant] struggled in friendships, feeling unsure of himself and unable to assert himself when necessary. As time went on, [the second applicant] became livelier and more boisterous in our appointments and in the classroom. He enjoyed playing games and was quite competitive.
Conclusions
[The second applicant] exhibited anxious behaviour when he was initially referred to counselling. It affected his capacity to attend school and engage in learning. With adequate support to build trust with the school system and a counselling space to share his worries and make sense of his experiences of family violence in Malaysia, [the second applicant]’s anxiety decreased. He was able separate from his mother to attend school, learned to trust his teacher and make friends which were significant gains for a then [age] year old child. [The applicant] did her utmost to be a supportive parent who tried to understand the needs of her child.
FINDINGS AND REASONS
Based on the information in his application the Tribunal finds that the applicants’ country of nationality is Malaysia and that they do not have a right to enter and reside in a third country.
For the purposes of this decision the Tribunal accepts that women are a particular social group in Malaysia.
The Tribunal accepts that the applicant has experienced serious harm on account of her gender, and that her husband remains an ongoing risk.
DFAT’s Country Information Report on Malaysia provides the following information:
Despite the enhanced legal protections available to victims, NGOs report violence against women in the form of rape, domestic violence, and family sexual abuse remains a significant problem. According to RMP statistics, there were almost 5,000 cases of domestic violence against women reported in 2018, and 5,513 cases of domestic violence and 1,582 cases of rape reported in 2017. A study conducted in 2020 which compared five domestic violence surveys found that the prevalence of intimate partner violence against women ranged between 5 and 36 per cent, with the wide range partly attributed to the difficulty in measuring this form of violence. Local sources believe that domestic violence, rape and family sexual abuse remain under-reported because of traditional beliefs in the sanctity and privacy of marriage, the level of shame involved, and reluctance to expose a perpetrator within the family. While there was reportedly a significant increase in reports of cases of domestic violence immediately following the passing of the amendments, reporting rates subsequently tapered off due to a perceived lack of support and resources for victims.
…
Women’s groups report the need for increased training, enforcement, and resources for state protection bodies engaged in preventing violence against women, along with further legislative improvements. Although the RMP’s Criminal Investigation Division includes a Sexual Investigation Division, overall police training on issues related to violence against women is reportedly limited. For example, sources report that police commonly return victims of domestic violence to the perpetrator, as they perceive the issues as private family matters. The judiciary also reportedly receives little or no training on the application of relevant laws.
…
Several government and non-government bodies provide shelters and assistance to victims, but contacts report that these services are inadequate for demand.
…
DFAT assesses that, while the situation is generally improving, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely. These factors include: ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, [and] lack of awareness of rights.
Notwithstanding the difficulties described above, the Tribunal is satisfied that effective protection measures are available in Malaysia.
It follows from the foregoing that none of the applicants has a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that none of the applicants is a refugee as defined in s.5H(1).
Regarding complementary protection, the Tribunal finds that there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm as defined in the Act. The risk is one faced by the applicants personally.
Whereas state protection, as understood in the refugee law context, relates to an adequate or effective, rather than perfect, level of protection, complementary protection requires the Minister to be satisfied that the protection available would remove the real risk of significant harm. In MZYYL, for example, the Court expressly rejected that s 36(2B)(b) requires only that the receiving country have an effective legal system for detection, prosecution and punishment, or a system that meets ‘international standards’.
Based on their experiences to date, the Tribunal is not satisfied that the applicants could obtain protection from Malaysian authorities, such that there would not be a real risk that they will suffer significant harm.
Given that they have limited family support, financial resources or skills, and a traumatised child, it would not be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that they will suffer significant harm. They need to live where the applicant mother comes from or close to their few other relatives.
CONCLUSION
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(aa) of the Migration Act.
Genevieve Hamilton
Member

[2024] AATA 1276

22 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice