1803786 (Refugee)

1803786 (Refugee) [2018] AATA 4881 (27 September 2018)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803786 and 1620794
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Alison Murphy
DATE OF DECISION:  27 September 2018
DATE CORRIGENDUM
SIGNED:11 December 2018
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The case number reflected on the cover of the Decision Record ‘CASE NUMBER: 1803786’ should reflect ‘CASE NUMBER: 1803786 and 1620794’

The DIBP References on the cover of the Decision Record ‘REFERENCE(S):     [two file numbers]’ should reflect ‘DIBP REFERENCE(S):        [three file numbers]’
Alison Murphy
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803786
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Alison Murphy
DATE:27 September 2018
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 27 September 2018 at 5:06pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – High Court remittal – race – Indian Tamil – religion – Hindu – particular social group – single mother of Tamil Indian ethnicity – nationality – stateless – family violence –late registration of birth – access to education and health care – child of unmarried parents – state protection – complementary protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant S v MIMA (2004) 217 CLR 387
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIMA v Khawar (2002) 210 CLR 1
SZEOH v MIMIA [2005] FMCA 1178
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 on 19 January 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants are a mother (the applicant) and son (the applicant son). The applicant is [an age] year old citizen of Malaysia who applied for the visa on 8 January 2016. She seeks to invoke Australia’s protection obligations so she does not have to return to Malaysia, where she claims to fear harm from her former husband, her family, her former employer and money lenders. She also claims to fear harm on the basis of her profile as a single mother of Tamil Indian ethnicity and Hindu religion.
The applicant son was born in Australia on [date] and has not departed since. It is claimed on his behalf that he is stateless and if returned to Malaysia he will face harm from his mother’s former husband and family, his mother’s former employer as well as from money lenders pursuing his mother in Malaysia and problems affecting his father. He also claims to fear harm on the basis of his Indian Tamil ethnicity, his Hindu religion and his statelessness.
The issue in this case is whether either of the applicants meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether they are 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 of such a person.
In assessing the applicant’s claims, I have taken account of policy guidelines prepared by the Department of Immigration – 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, I have concluded that the decision under review should be remitted back to the Department for reconsideration.
History of proceedings
The delegate’s decision indicates the applicant first entered Australia [in] March 2015 as the holder of a [temporary] visa. She departed Australia [in] April 2015, returning on a further [temporary] visa [in] October 2015.
The applicant applied for the visa on 8 January 2016. A delegate initially refused to grant the visa on 12 February 2016 without inviting the applicant to an interview. The applicant sought Ministerial intervention and commenced proceedings in the High Court and [in] February 2017 the High Court ordered that the matter be reconsidered. The applicant was interviewed in respect of her claims on 3 April 2017 and a fresh decision to refuse her the visa was made on 19 January 2018. The delegate’s decision records that she was not satisfied Australia had protection obligations to either applicant.
The applicant sought a review of the delegate’s decision from this Tribunal. The applicant appeared before the Tribunal to give evidence and present arguments on 30 July 2018.
The applicants were represented in the review application by their representative. Further documentary evidence and submissions were provided after the hearing.
Medical evidence before the Tribunal
I have had regard to the medical report from [Hospital 1] dated 20 July 2018 which indicates the applicant mother has been diagnosed with [specified conditions].
In a social worker’s report dated [August] 2018 it is stated that the applicant is highly symptomatic for anxiety and depression and has a previous history of suicide attempts in 2014 and currently experiences occasional passive suicidal ideation. A report from a psychiatric unit at [a hospital] in Kuala Lumpur dated [February] 2018 confirms the applicant was admitted to the emergency department after an overdose of prescription drugs and diagnosed with adjustment disorder and mixed depressed mood and anxiety.
A further report from [a department of Hospital 1] department dated [in] August 2018 states the applicant suffered soft tissue injuries after an assault by her brother on [in] August 2018.
I accept the contents of the medical evidence before me.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of nationality
It is not in dispute that the applicant is a Malaysian national and she has produced to the Department copies of her Malaysian passport. The Tribunal finds that the applicant is a citizen of Malaysia and has assessed her claims against that country.
An issue arises as to whether the applicant son is also a Malaysian citizen. An Australian birth certificate confirms his birth in this country on [date] and his parents are named as the applicant and [Mr A]. The Department’s movement records confirm the applicant son has not departed Australia since his birth. The applicant gave evidence her son’s father is a Malaysian citizen currently resident in Australia, but they have never been married to each other and separated soon after the applicant son’s birth.
She stated she had contacted the Malaysian Consulate in Australia about obtaining a Malaysian passport for her son, but had been told that it could not be issued unless she provided a marriage certificate proving her marriage to his father [Mr A]. She says that as she is not married to [Mr A], she cannot produce a marriage certificate and the Malaysian Consulate will not issue him a Malaysian passport or recognise him as a Malaysian citizen.
The United Nations Commissioner for Refugees outlined Malaysian citizenship laws as follows:
In Malaysia, children born in the country to either Malaysian mothers or Malaysian fathers automatically acquire Malaysian nationality. But children born to Malaysian mothers outside of Malaysia may only acquire Malaysian citizenship at the discretion of the Federal Government through registration at an overseas Malaysian consulate or at the National Registration Department in Malaysia[1].
[1] UN High Commissioner for Refugees (UNHCR) 2014, Background Note on Gender Equality, Nationality Laws and
Statelessness 2014, 8 March >
As the applicant son was born to a Malaysian mother outside of Malaysia, I accept he has not automatically obtained Malaysian citizenship through his mother.
The father of the applicant son is also a Malaysian citizen resident in Australia and country information indicates that children born abroad to Malaysian citizen fathers can acquire Malaysian citizenship under Malaysian law. However for children born overseas, this requires an application under the ‘Confirmation of Citizenship’ process under Article 14 of the Constitution. Information contained on the website of the National Registration Department of the Malaysian Ministry of Home Affairs indicates that application may be lodged at a Malaysian Consulate in a foreign country, however the required documents include a marriage document for the parents. The parents are also required to have registered their marriage at the High Commission of Malaysia[2].
[2] High Commission of Malaysia n.d., Child Registration for Birth and Citizenship Certificate
The delegate found the applicant son was a Malaysian citizen because his mother was married to his father, [Mr A]. This was because the birth certificate for the second applicant records that the applicant and [Mr A] registered a domestic relationship in Malaysia [in] April 2014, which led the delegate to consider they married on that date. This in turn caused the delegate to believe the applicant must be divorced from her first husband. The applicant denies this, stating that she told her case officer who assisted her to register her son’s birth that [the date in] April 2014 was the date she commenced her relationship with [Mr A], but that they have never married because she is not divorced from her first husband.
I accept the applicant’s evidence in this regard. I consider there is clearly an error on the Australian birth certificate, likely caused by language difficulties between the applicant and the case officer who assisted her to lodge the application for a birth certificate. In Australia a registered domestic relationship refers to a legally recognised relationship between two adults who are not married. Had the applicant told her case officer that she had married [Mr A] in Malaysia [in] April 2014, the birth certificate would record that date as the date of marriage rather than the date they entered into a registered domestic relationship.
For these reasons I accept the applicant’s evidence that she is not married to [Mr A] and as a result she has been unable to obtain a Malaysian passport for her son from the Malaysian Consulate.
While possession of a passport creates a prima facie presumption that the holder is a national of the country of issue, the absence of a passport does not necessarily mean that the person is not a national of the claimed country. However in this case it appears that the Malaysian Consulate’s refusal to issue the applicant son a passport is a result of the fact he is not registered as a citizen in Malaysia. I consider this a strong indicator the applicant son is stateless.
While it may be possible for the applicant son to return to Malaysia on a temporary travel document in the future and apply for registration under Malaysia’s Federal Constitution, Article 18(3) states that a person who gains citizenship by registration shall be a citizen from the date of registration. Therefore I accept that at the time of the Tribunal’s decision, the applicant son is not a Malaysian citizen. It is not suggested he is a citizen of any other country, including Australia, therefore I find he is stateless.
As such his claims must be assessed against his country of former residence in accordance with Article 1A(2) of the Convention. I have been asked to assess the applicant son’s claims against Malaysia, notwithstanding he has never entered or resided in that country which makes a factual finding that Malaysia is his country of former habitual residence difficult. The Australian courts have held that in circumstances where an applicant child was born in Australia and had no nationality or country of former habitual residence then it is appropriate, sensible, practical and fair for the Tribunal to consider that child’s claims against a return to the child’s mother’s country of nationality and the country against which her claims of fear of harm were made.[3] For these reasons I assess the applicant son’s claims again Malaysia.
The applicant’s personal background
[3] SZEOH v MIMIA [2005] FMCA 1178 (Nicholls FM, 26 August 2005) at [8]-[9].
The applicant is an Indian Tamil of Hindu religion, born in Kuala Lumpur. In her visa application she states her father was killed when she was [age] years old because of his membership of the Malaysian Indian Congress, although she doesn’t know any further details. Her mother lives in Kuala Lumpur, but is very unwell. She is cared for by the applicant’s sister, while another sister lives in Johor but has little to do with the family.
The applicant also has [number] brothers. At the time of the visa application, they were all living in Kuala Lumpur. However by the time of the Tribunal’s decision, [one] brother [Mr B] had arrived in Australia on a [temporary] visa. Movement records show he entered [in] June 2018 on a [temporary] visa which expired on 18 September 2018.
The applicant married her former husband in 2001 and they have one daughter, [Miss C], currently [age]. At the time the applicant came to Australia, [Miss C] was in the care of her mother and sister in Kuala Lumpur. However at the time of the hearing, the applicant’s mother’s health had deteriorated, as a result of which [Miss C] had gone to live with her father.
In 2014, the applicant commenced a relationship with [Mr A], a Malaysian national. They travelled to Australia together in March 2015, visiting [Mr A’s] [relative] in [Australia]. They told her they planned to marry but she would not accept it because the applicant was already married with a child. The applicant and [Mr A] returned to Malaysia in April 2015. They separated soon afterward and [Mr A] returned to Australia to live with his [relative] in [Australia].
When the applicant returned to Australia in October 2015, [Mr A] travelled to [a certain city] to see her and they recommenced their relationship. The relationship was troubled because his family would not accept it and [Mr A] had mental health issues and they separated several times over the next year. Their son, the second applicant, was born in Australia on [date] and [Mr A] is named as his father on the Australian birth certificate.
The applicant’s relationship with [Mr A] ended shortly after their son’s birth, but [Mr A] continues to see his son and provide some practical support with the child. The applicant believes [Mr A] had some difficulties in Malaysia, but does not know the details of his problems.
At hearing the applicant gave evidence that only her mother and one sister in Malaysia are aware of her relationship with [Mr A] and the birth of her son. She gave evidence that they were angry at first but now accept it. She has not told her brothers or her uncle because she fears they will be angry because she is not legally divorced from her ex-husband. She has not told her daughter, because her daughter will be hurt and she is afraid of her ex-husband’s reaction. She intends to tell her daughter about her brother when she is able to see her daughter in person.
Relationship with brother, [Mr B]
In June 2018, the applicant’s brother [Mr B] arrived in Australia. The applicant claims to have been physically and sexually abused by [that] brother since childhood. She says he is a violent and dangerous man who was recently released from jail in Malaysia where he served [number] years for [committing] offences. He has been violent and abusive towards his own wife and children as a result of which his wife has left him.
Medical and legal documents provided to the Tribunal indicate [Mr B] assaulted the applicant on [a day in] August 2018 and she was granted an interim intervention order against him [later in] August 2018. He also faces criminal charges in relation to the assault and the matter is due to return to court [in] December 2018.
The applicant says the assault occurred after she told her brother she was unable to help him obtain a visa to remain in Australia. She claims he became hostile and aggressive towards her, calling her names and demanding she return to her former husband in Malaysia and threatening to tell her former husband that she had a child with another man.
I note the intervention order made [in] August 2018 records [Mr B] was present in court when the order was made and did not agree to the intervention order. I note the medical report from [the department of Hospital 1] dated [in] August 2018 states the applicant suffered soft tissue injuries [after] an assault by her brother [in] August 2018.
I accept the applicant’s account of her relationship with her brother and his assault on her [in] August 2018. I note he entered Australia on a [temporary] visa which has now expired and departmental movement records indicate he remains in Australia unlawfully. I accept it is likely he will be required to depart Australian and return to Malaysia. I consider his past behaviour towards the applicant is an indicator of his likely future behaviour towards her and I accept there to be a real chance he will again be violent towards her if she returns to Malaysia. I further accept the risk extends to the applicant son, given that his mother is his primary care giver. In making that assessment I the applicant son was present in the house when the applicant’s brother assaulted her [in] August 2018 and her evidence is that her brother has also assaulted his own wife and children in Malaysia.
Relationship with her former husband
The applicant claims to fear harm from her former husband, [named], whom she married in 2001 when she was [age] years old. In her protection visa application she states it was an arranged marriage and the problems started as soon as they started living together. Her husband was jealous and controlling, accusing her of seeing other men. He didn’t like her talking to any other men at all, even her uncle and brothers. He beat her with his hands [and objects]. He threatened to pour acid on her face and bit her, often forcing her to have sex with him.
At hearing the applicant gave compelling evidence about the violence in her marriage. She described being raped by her husband in [year] during her pregnancy and beaten with [an object]. This was the first time she approached the police. A female police officer took her report and photographed her injuries, telling the applicant she would be imprisoned before calling her husband and informing him of the complaint. Her family told her it was just normal fighting and she would have to tolerate it and she withdrew her report and returned to her husband. This pattern repeated a number of times during the marriage and the applicant attempted suicide in 2004.
I accept her husband was violent from the commencement of their marriage, causing the applicant to approach the police seeking protection a number of times during her marriage but later withdrawing her complaints. I accept the applicant frequently fled the family home to stay with her mother, returning when her husband would come and convince her mother that everything was okay. I accept the applicant became more afraid of her husband after her daughter was born in [year], being concerned about her safety and that of her daughter. I accept she attempted suicide in 2004.
I accept the marriage ended in 2006 when the applicant’s uncle came and took her away from her husband’s home, having formed the view she would be killed by her husband if she remained living there. He took her to a government lawyer in Kuala Lumpur who commenced divorce proceedings but her husband refused to participate in the court’s counselling processes. She was told she would need a private lawyer to progress matters through the court and as she was unable to afford a lawyer, she does not believe the divorce proceedings were ever finalised.

After leaving her husband in 2006, the applicant returned with her daughter to her mother’s home in Kuala Lumpur. In the same year her husband abducted their daughter during an access visit, taking her to live with his parents [time range] away from Kuala Lumpur. The applicant involved the police who returned her daughter to her because she was only [age] years old and advised her ex-husband to get a lawyer and a divorce. After that her husband had some contact with his daughter during school holidays.
Her ex-husband continued to threaten the applicant for some years after their separation and refused to divorce her. He gave her number to his friends who called offering to pay her for sex. She knows it is his friends because they mentioned her ex-husband’s name. She last saw him in person in 2009 when he came to her mother’s house and talked to her mother, telling her he wanted the applicant to return to living with him. The applicant refused to do so.
When the applicant’s mother became very sick after the applicant came to Australia and there was no-one else available to care for her daughter [Miss C], [Miss C] went to live with her father. The applicant has frequent telephone contact with her daughter but her daughter will not discuss her father, other than asking the applicant to come home. [Miss C] sometimes visits her grandmother in Kuala Lumpur during school holidays, but other times her father forbids it. I accept the applicant is genuinely distressed and fearful that her daughter is now living with her father.
Given my findings above, I accept the applicant has a genuine fear of harm from her former husband. I have considered whether there is a real chance or a real risk of serious harm from her former husband, given the lack of direct contact between them over the past eight years. However I consider there have been significant changes to the circumstances in recent years which increases the risk he will again seek to harm and control her.
Firstly, he has gained custody of their daughter and now exercises control over who her daughter sees. I accept that if the applicant returns to Malaysia, further contact between herself and her former husband will be necessary in order to resume her relationship with her daughter. While the police intervened on her behalf when her husband abducted her daughter in 2006, that was in the context of her daughter being a very young child who had always been in the primary care of her mother, but the situation now is quite different.
Secondly, the applicant has now had a child to another man even though she and her former husband have not legally divorced. The applicant is fearful of his reaction when he finds out, believing he will view this as a matter of great shame and dishonour. I have accepted he has been extremely jealous and violent towards her in the past and I there to be a real chance he will be so again.
Thirdly, the applicant’s own family who have provided her with some level of protection in the past may now be unwilling or unable to do so. Her mother with whom she lived after separating from her husband has become ill and now needs care herself. The applicant fears her uncle and brothers will be angry that she has given birth to a child while still legally married to her former husband. Given the actions of the applicant’s brother in Australia, I consider it plausible that her male family members in Malaysia will not support her if she returns.
In these circumstances I accept there to be a real chance the applicant’s former husband will again seek to harm the applicant if she returns to Malaysia, now or in the reasonably foreseeable future. As she is the primary carer for her young son, I accept there to be a real chance the applicant son will also be exposed to harm from the applicant’s former husband.
The essential and significant reason for the harm feared
Having found both applicants face a real chance of serious harm from the applicant’s former husband and brother if she returns to Malaysia, I have considered whether the harm they fear is for the essential and significant reason of their race, religion, political opinion, nationality or membership of a particular social group for the purposes of s.5J(1). While I accept the applicants are of Indian Tamil ethnicity and Hindu religion, I do not consider that the harm they fear from the applicant’s former husband and brother will be directed at them for these reasons, nor for reasons of her nationality or political opinion.
I have considered the submission that the applicant will face harm because of her membership of a particular social group. The nature of that particular social group is not clearly particularised in the submissions made to the Tribunal, but I understand it to relate to the applicant’s profile as a single Indian Tamil woman who has defied social mores by leaving her husband and having a child outside of marriage. I note though that the applicant faced serious harm from both her brother and former husband long before she left her marriage and had a second child. While I accept those matters exacerbate the risk of harm, I am not satisfied they constitute the essential and significant reason for that harm for the purposes of s.5J(4).
In submissions made to the department, it was suggested the applicant faced serious harm in Malaysia for reasons of her membership of the particular social groups ‘Tamil women in Malaysia’, ‘single Tamil mothers in Malaysia’, ‘Tamil women in Malaysia subject to domestic violence’, ‘Tamil women without male protectors in Malaysia’ and ‘Tamil women in Malaysia with a child outside of marriage’.
The High Court has summarised the determination of whether a group falls within the Article 1A(2) definition of ‘particular social group’ in this way:
First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large[4].
[4] Applicant S v MIMA (2004) 217 CLR 387 at [36]
The second part of that definition, being that the characteristic or attribute common to all members of the group cannot be the shared fear of persecution, appears to me to exclude recognition of ‘Tamil women in Malaysia subject to domestic violence’ as a particular social group for the purposes of s.5J(1).
Even if all or any of those groups constituted particular social groups for the purposes of s.5J(1), I do not consider the harm she fears from her former husband or brother is for the essential or significant reason of her membership of any of those groups. For example I do not consider they are motivated to harm her for reasons of her Tamil ethnicity, nor because she is single or has a child outside of marriage (she was harmed before and during her marriage and prior to the birth of her son and while under the ‘protection’ of men).
Rather I consider the motivation for the feared harm is the personal relationship between the applicant and her former husband and brother, both non-state agents, rather than any reason set out in s.5J(1). Harm from non-state agents may amount to persecution if:
· the motivation of the non-state actor is for reasons of a person’s race, religion, political opinion, nationality or membership of a particular social group, and the State is unable to provide adequate protection against the harm; or
· the motivation of the non-state actor is not for reasons of a person’s race, religion, political opinion, nationality or membership of a particular social group, but state protection from the feared harm will be discriminatorily withheld for one of those reasons[5].
[5] MIMA v Khawar (2002) 210 CLR 1
As I consider the motivation for the feared harm is the personal relationship between the applicant and her former husband, rather than any reason set out in s.5J(1), I have considered whether the protection of the state will be discriminatorily withheld from the applicant for any reason set out in s.5J(1).
DFAT reports that domestic violence against women is under-reported in Malaysia because of traditional beliefs in the sanctity and privacy of marriage. Malaysian laws prohibit domestic violence and victims can obtain protection orders attracting prison sentences and fines if breached. DFAT notes that Malaysia has taken significant steps to reduce domestic violence, with an increase in conviction rates over the past decade. A number of government and non-government agencies provide shelters and assistance to victims, but those sources are inadequate to meet demand. Police training on domestic violence is limited and the judiciary receives little or no training on the application of the relevant laws[6].
[6] Department of Foreign Affairs and Trade (Australia) 2018, Country Information Report – Malaysia, 19 April at 3.105-3.111
While I accept there to be capacity, training and resource issues relating to the effectiveness of protection for women experiencing family violence, the DFAT advice does not indicate that protection is being discriminatorily withheld. For these reasons I find the applicants do not meet the criteria set out in s.36(2)(a) of the Act in relation to the harm they fear from the applicant’s brother and former husband.
Complementary protection
For the reasons set out above, I have accepted the applicants face a real chance of serious harm, including serious physical assault, from the applicant’s ex-husband and brother, if they return to Malaysia.
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 the Refugee Convention definition.[7] It follows that I accept that there is a real risk the applicant will suffer harm from her brother and former husband if she returns to Malaysia, now or in the reasonably foreseeable future.
[7] 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 Jagott JJ at [297], Flick J at [342].
I accept that the harm feared by the applicants involves severe physical and mental pain and suffering, which would be intentionally inflicted on them. I also consider that harm involves acts intended to cause extreme humiliation which is unreasonable. I therefore accept that the treatment that the applicants will be subjected to amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in s.5(1) of the Act and that such treatment amounts to significant harm for the purposes of s.36(2A)(d) and (e).
In considering whether it would be reasonable for the applicants to relocate to an area of Malaysia where there would not be a real risk they would suffer significant harm pursuant to s.36(2B)(a), I note the applicant is a single mother of a very young child born outside of marriage who has experienced serious harm at the hands of her brother and former husband. While she has had the support of her mother and sister in the past, her mother is now very ill and being cared for by the applicant’s sister. The applicant is suffering from anxiety, depression and has in the past attempted suicide. She maintains a close relationship with her daughter, but her daughter is currently in the care of the applicant’s former husband from whom the applicant fears harm. In these circumstances I do not consider relocation to be reasonable, even if there were an area in Malaysia which was safe for her and her son. I am also satisfied that the real risk of harm to the applicants is faced by them personally and is not one faced by the population of Malaysia generally (s.36(2B)(c).
I have considered whether the applicants could obtain from the Malaysian authorities protection such that there would not be a real risk that she would suffer significant harm as referred to in s.36(2B)(b). As noted above, the information contained in the DFAT report indicates that there are general measures of state protection in place in Malaysia as well as functioning laws. Malaysian laws prohibit domestic violence and victims can obtain protection orders attracting prison sentences and fines if breached. DFAT notes that Malaysia has taken significant steps to reduce domestic violence, with an increase in conviction rates over the past decade[8].
[8] Department of Foreign Affairs and Trade (Australia) 2018, Country Information Report – Malaysia, 19 April at 3.105-3.111
However in order to satisfy s.36(2B)(b), the level of protection offered by Malaysia must reduce the risk of significant harm to something less than a real one[9]. I have also had regard to the Department’s Complementary Protection guidelines which relevantly state:
The fact that a receiving state has generally functioning laws and standard protections in place that are available to the general community is one element that may be taken into account in determining whether a person faces a real and personal risk of significant harm. Nevertheless, an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place.[10]
[9] MIAC v MZYYL (2012) 207 FCR 211 at [40]
[10] Department of Immigration and Border Protection, PAM3 ‘Complementary Protection Guidelines’, paragraph 38
DFAT assesses that while the situation for women seeking protection from family violence in Malaysia is improving, ambiguity between federal and state laws, the lack of application and capacity within the police and judiciary and lack of awareness of their rights create difficulties for women to gain adequate state protection or safely leave violent relationships[11]. In light of the DFAT advice and the applicant’s own past experiences, I am not satisfied that the general measure of state protection in Malaysia is sufficient to remove the real risk of significant harm in the applicant's case.
[11] Department of Foreign Affairs and Trade (Australia) 2018, Country Information Report – Malaysia, 19 April at 3.105-3.111
Therefore I am satisfied that s.36(2B) does not operate to exclude the applicants from meeting the criterion set out in s.36(2A).
For the above reasons I find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk they will suffer significant harm. Therefore the applicants satisfy the criterion set out in s.36(2)(aa).
As such it is not necessary for me to go on and consider the applicants’ other claims.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(aa) of the Migration Act.
Alison Murphy
Member

Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
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.
…

Malaysian National Registration Department n.d., Application For Citizenship Under Article 14 Of The Federal
Constitution (Born outside Malaysia)

[2018] AATA 4881

27 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness