1811319 (Refugee)

1811319 (Refugee) [2024] AATA 3026 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1811319
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Adrienne Anderson
DATE:13 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 13 February 2024 at 10:30am
CATCHWORDS
REFUGEE – protection visa – Malaysia – gender – family violence perpetrated by brother – particular social group – women – gender-based violence – government rhetoric and policies – internal relocation – close family relationship – pattern of coercive control – effective state protection – legislative framework – state unresponsiveness to domestic violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 Home Affairs on 20 April 2018 to refuse to grant the applicants, citizens of Malaysia, protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas on 15 January 2018.
The applicants appeared before the Tribunal on 12 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants’ backgrounds
The first named applicant (the first applicant) is a [age]-year-old man from Pahang, Malaysia. He has [number] siblings, all of whom reside in Malaysia. His mother also resides in Malaysia. His father is deceased. The first applicant completed secondary schooling and trained as a [Occupation 1] in Malaysia.
The second named applicant (the second applicant), the first applicant’s wife, is a [age]-year-old woman from Kuala Lumpur. Her mother, [number] brothers and sister reside in Malaysia. Her father is now deceased. The second applicant completed secondary school and worked in various administrative roles and as a [Occupation 2] in Malaysia.
The applicants were married [in] October 2017. They travelled to Australia on [date] October 2017 and applied for protection on 15 January 2018.
The applicants have two young children born in Australia who are not the subject of this review application.
The Tribunal accepts the above matters to be true.
The applicants’ claims for protection
Before the Department
Each applicant submitted a protection visa application naming the other as the second applicant. Each application contained almost identical claims, setting out that they feared harm from their families who did not approve of their marriage. The applications stated as follows:
a.Their family did not approve of their marriage because they already had other options in mind.
b.Their family had hired someone to separate the applicants and had threatened to kill them if they continued their relationship.
c.The applicants fled to Australia a couple of days after their marriage out of fear for their lives if the marriage was discovered.
d.In relation to state protection, the applicants would not receive help because the authorities would see it as a personal issue.
e.They could not relocate because they would be found wherever they go using modern technology that can detect them.
f.In response to a question asking what would happen on return to Malaysia, they feared they would be separated and harmed by their family.
A copy of the applicants’ marriage certificate was enclosed with their application.
The applicants were not invited to attend an interview with a delegate. The department combined their applications, deeming the first applicant to be applicant one (the principal applicant) and the second applicant to be applicant two. The application was refused in a single decision record sent to the applicants on 20 April 2018.
The delegate refused to grant the visas on the basis that country information did not support a finding that the applicants faced a real chance of serious harm from their families. The delegate also considered that the applicants would not be targeted for harm for a s 5J(1)(a) reason and that state protection was available in relation to any risk of domestic violence and/or forced marriage.
Before the Tribunal
The applicants applied for combined review of the delegate’s decision to the Tribunal on 20 April 2018.
On 18 October 2023, the Tribunal invited the applicants to complete a ‘Pre-hearing information form’ seeking further information about their protection claims. On 25 October 2023, the applicants provided the completed form in response. The completed form repeated the claims, in the same words, set out in their protection visa applications.
The Tribunal took evidence from both applicants separately at the hearing on 12 January 2024. At hearing it became clear that the risk of harm in relation to both applicants arose solely from a member of the second applicant’s family. This account, given primarily by the second applicant and substantiated by the first applicant, is detailed below.
The applicant gave the following evidence in relation to her family life:
a.The second applicant was raised in an abusive household. Her father was a drug addict who had been violent and abusive to the second applicant’s mother since the second applicant was a young child. She and her siblings heard their mother screaming and crying every day and lived in fear.
b.The second applicant’s eldest brother, [Mr A], having witnessed the domestic violence, became abusive like their father. He began physically abusing the second applicant, hitting and kicking her, from the time she was approximately five years old. Once when the applicant was small, he kicked her in the face repeatedly until it was bloodied and then acted like nothing had happened.
c.The second applicant’s other brother, [Mr B], and her sister were indifferent to the second applicant’s abuse. They did not help her and on one occasion her sister told her it would be better if she were dead. They occasionally physically abused her as well, though not to the same extent as the second applicant’s eldest brother [Mr A].
d.The second applicant’s parents did nothing to intervene or protect her. Approximately seven years before the second applicant left for Australia, her father had a stroke which severely incapacitated him. The second applicant has since learnt of his death while she has been in Australia.
e.The second applicant’s eldest brother [Mr A] had always been controlling of the second applicant, but after their father’s stroke he became even more so. He monitored where the second applicant was going and who she was seeing, would search through her belongings, and order her to do things for him around the house.
f.If the second applicant refused to follow an order or gave an answer her brother [Mr A] did not like, she was beaten. On one occasion, the second applicant refused to make him a drink because she was unwell. He punched her in the face for this refusal.
With regards to her relationship with her husband (the first applicant), the second applicant gave evidence that:
a.The applicants first met when the second applicant was 16 years old and the first applicant was 14 years old, at the second applicant’s cousin’s house in [Town 1], where the first applicant lived. They talked and exchanged phone numbers, but the relationship did not go anywhere due to their young age and the fact that the first applicant was still attending school some distance from the second applicant’s home.
b.Approximately two years later, when the second applicant was 18 years old, and the first applicant had finished schooling, they met again at the second applicant’s cousin’s house. They began messaging each other via telephone. They did not meet because the second applicant was too afraid to anger her brother and she did not have much freedom.
c.Once the second applicant began working outside of the house, she was able to secretly meet the first applicant after her workday finished while her brother thought she was still at work. The applicants met around once a month.
d.One day in April 2017 the second applicant was met by her eldest brother at the door of their house on her return from shopping. He immediately punched her in the face and interrogated her about a photo of the first applicant he had found in her handbag. He threatened to beat her with a hockey stick if she ever saw the first applicant again.
e.The applicants continued to see each other in secret. In September that year, they brought their families together to discuss their marriage. The meeting did not go well. The first applicant’s family is more well off than the second applicant’s family, and when the first applicant’s family made comments insinuating that it was not a good match for that reason, the second applicant’s eldest brother became angry. He threw the first applicant’s family out of the house and threatened to kill the first applicant if he continued to have a relationship with the second applicant.
The first applicant added that his family objected to the idea of him marrying the second applicant due to her lower social status and that they wished for him to marry someone of higher social standing. They threatened to disown him if he married the second applicant. The first applicant did not tell his family of the applicants’ marriage, which took place the following month, or of his planned departure from Malaysia.
The applicants each gave evidence of the reasons they married against their families’ wishes. The second applicant explained that she had never felt love from her own family and that when she met her husband, he gave her love and good advice. She married him because she loves him. The first applicant married his wife despite his family’s objections and his fear of the second applicant’s brother because he did not wish to have his life dictated to him by others.
The applicants gave evidence that they were married in secret [in] October 2017 at a mosque near the second applicant’s house. They each returned to their respective houses and then left Malaysia two days later without telling their families that they were leaving. Neither applicant has had contact with their families since their departure from Malaysia. The only person they have been in contact with is a trusted cousin of the second applicant who has informed them of their fathers’ deaths and that the families have become aware of their marriage through local gossip.
The applicants’ fears are for themselves and for their children. The second applicant gave evidence that she did not want her children to grow up experiencing abuse like she did and that she feared her brother would do anything, including harming the children, to punish her. She stated that he had told her that he did not care about going to prison and would do whatever it takes to punish her.
FINDINGS AND REASONS
Country of nationality
The applicants have given consistent evidence that they are citizens of Malaysia and provided copies of their Malaysian passports to the Department and Tribunal. The Tribunal finds that the applicants are Malaysian citizens and has assessed their claims against Malaysia as the country of nationality and the receiving country.
Credibility
The Tribunal accepts the applicants’ account given at hearing in its entirety. Each applicant gave evidence that was generally consistent with the other’s account and were able to provide spontaneous detail about their experiences at the hands of the second applicant’s brother. The second applicant gave detailed and compelling evidence of her family dynamics and the longstanding abuse she suffered.
At hearing, some matters going to the applicants’ credibility arose requiring discussion, but which have ultimately been resolved in the applicants’ favour. First, the applicants’ protection visa applications contained an aspect of past harm they did not press at hearing, namely that a member of one of their families had hired someone to separate them. This evidence was repeated in pre-hearing correspondence with the Tribunal, as outlined above. At hearing, the applicants gave evidence that, at the time the protection visa applications were completed, they had (orally) told their stories to a friend of the first applicant, who transcribed their claims in writing, in English, a language which the applicants did not speak at the time. The applicants only became aware of this aspect of the account when they requested a copy of the application from the Department once lodged.
The Tribunal accepts the challenges facing applicants for protection visas who are newly arrived and required to fill out a complex and lengthy form without English language skills and relying on a third party. The Tribunal therefore accepts these circumstances to be a reasonable explanation for this (relatively minor) inaccurate or embellished claim. At hearing, the second applicant, who had completed the pre-hearing form and submitted it to the Tribunal, explained that he simply repeated the claims from the protection visa application on the advice of a friend. In the circumstances, where applicants are unrepresented and lack English literacy, the Tribunal considers that it is understandable that applicants may not have the foresight or capacity to correct an error in writing. The mistake was admitted at hearing, which was the applicants’ first opportunity to discuss their claims through an interpreter. Given the rest of the evidence accepted to be credible by the Tribunal in relation to instances of past harm and serious threats experienced by the applicants, this inaccurate or embellished aspect of the claim is not determinative of their credibility.
Second, both protection visa applications also indicated, at question 41 – which asks whether an applicant is in contact with relatives outside of Australia – that they were in contact once a month by telephone with their parents in Malaysia. This information, if accurate, potentially undermined their claims to have married against their families wishes and to fear the second applicants’ eldest brother, who to their knowledge, continued to reside with the second applicant’s mother. For the reasons above, the Tribunal accepts the applicants’ explanation that they did not personally answer this question and were not aware of the answer that had been given by the first applicant’s friend.
Third, and more significantly, the applicants’ marriage certificate named the second applicant’s other brother, [Mr B], as the wali, or guardian, who had given his consent to the union. Involving a member of the second applicant’s family in the marriage potentially undermined her claims to be at risk from one of her brothers as a result of that marriage. This was particularly so given that the relevant laws applying to the applicants at the time of their marriage provided for a process to obtain a state representative to stand in as wali where there is no male relative or where consent is refused without sufficient reason.[1]
[1] Islamic Family Law (Federal Territories) Act 1984 (Malaysia).
DFAT reports that ‘[t]he Constitution provides men and women equal rights to inherit, acquire, own, manage, or dispose of any property, including land. While federal civil law applies to all Malaysian women, syariah [Islamic law] applies to Muslim women at the state level for a number of family matters, including succession, betrothal, marriage, divorce, adoption and guardianship.’[2] The governing legislation in Kuala Lumpur, where the applicants’ wedding took place, is the Islamic Family Law (Federal Territories) Act 1984, section 13 of which states that:[3]
A marriage shall not be recognized and shall not be registered under this Act unless both parties to the marriage have consented thereto, and either--
(a) the wali of the woman has consented thereto in accordance with Hukum Syarak; or
(b) the Syariah Judge having jurisdiction in the place where the woman resides or any person generally or specially authorized in that behalf by the Syariah Judge has, after due inquiry in the presence of all parties concerned, granted his consent thereto as wali Raja in accordance with Hukum Syarak; such consent may be given wherever there is no wali by nasab in accordance with Hukum Syarak available to act or if the wali cannot be found or where the wali refuses his consent without sufficient reason.
[2] Department of Foreign Affairs and Trade (DFAT), Country Information report – Malaysia (29 June 2021) [3.77].
[3] Islamic Family Law (Federal Territories) Act 1984 (Malaysia).

The second applicant explained that the marriage was solemnized by a judge because her father was not able to stand as wali given his medical condition following a stroke. The government official visited their home to see her father and confirm his incapacity. The second applicant gave evidence that this visit took place without the second applicant’s eldest brother’s knowledge as he was at work at the time. The applicants explained their situation to the officials who agreed to allow the second applicant’s other brother to give his consent to the marriage and to witness the ceremony rather than her eldest brother, who otherwise would have stood in for her father. The Tribunal accepts this explanation as it accords with the country information on guardianship and syariah law.
The second applicant explained that her brother, [Mr B], agreed to secretly give his consent and attend the wedding ceremony because he did not have a good relationship with [Mr A] either. He also told the second applicant that he would give his consent but that after the marriage he did not want to see her again or have anything to do with her. The wedding took place a short distance from the second applicant’s home without her brother finding out because it was a short ceremony of about 20 minutes which took place early in the morning. The second applicant’s cousin later registered the marriage and posted the certificate to the applicants in Australia. The Tribunal finds this explanation plausible in light of the second applicant’s other evidence about her family relationships and accepts that the applicants were able to marry legally without her eldest brother’s knowledge.
For the reasons which follow, the Tribunal has concluded that the matter should be remitted for reconsideration. The second applicant’s claims are assessed first, below, given that both applicants’ claims relate to a member of her family.
Assessment of second applicant’s claims
Refugee criteria
Real chance of serious harm
The Tribunal accepts that the second applicant has suffered physical and emotional abuse in the past at the hands of her brother [Mr A] and was subject to controlling tactics including surveillance, isolation, intimidation, and threats to her life. Such harm, when perpetrated between siblings, constitutes family violence.[4]
[4] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
Domestic and family violence is rooted in beliefs that men are entitled to use violence to enforce gender roles and to prevent or punish behaviour which does not conform to societal gender norms.[5] These social norms and the context of gender inequality in the relevant society as well as the dynamics of family violence are relevant to assessments of both the forward-looking risk of suffering domestic and family violence in the future and the reasons for that violence.
[5] CEDAW Committee, General Recommendation No 35 on Gender-Based Violence against Women, Updating General Recommendation No 19, UN Doc CEDAW/C/GC/35 (26 July 2017) 7 [19].
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) 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. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal has had the benefit of hearing from the applicants which provided significantly more information than that which was before the delegate on the past behaviour of the first applicant’s brother [Mr A]. On the evidence before it, the Tribunal is satisfied that there is a real chance that the first applicant’s brother [Mr A] will seek to harm her on return to Malaysia. The Tribunal considers that the first applicant’s past experiences and the level of control and abuse exerted by her eldest brother in the past, as well as his threats to kill the applicants if they continued to see each other is indicative of their risk on return. The second applicant has defied her brother’s orders not to see her husband and ran away from the family home and the reach of his control. In the past when she refused his orders or talked back to him, she was punished with physical violence and the Tribunal finds that there is a real chance her brother will again be violent in response to her perceived defiance of his authority.
The harm feared includes threats to her life, deprivation of liberty and significant physical harassment and ill-treatment amounting to serious harm under s 5J(5) of the Act.
Reason for the feared harm
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
The Tribunal considers that the harm the second applicant fears from her brother is for the reason of her gender. Domestic and family violence is widely acknowledged to disproportionately affect women and girls.[6] High rates of gender-based violence are found where women are accorded less value and access to power than men. Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independent in public and private life and social attitudes condoning violence against women.[7]
[6] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[7] Our Watch, Change the Story: A Shared Framework for the Primary Prevention of Violence against Women in Australia (2^nd ed, 2021) 36.
Country information indicates that ‘violence against women in the form of rape, domestic violence, and family sexual abuse remains a significant problem’ in Malaysia.[8] The Malaysian legal framework is supportive of a strong male role in the family, particularly for Muslim women. Syariah-based family laws confer less rights on Muslim women than women of other religions in relation to marriage, divorce, guardianship of their children and inheritance.[9] Malaysian organisations Musawah and Sisters in Islam have concluded that ‘[t]he concept of male authority (qiwamah) and male guardianship (waliyah) over women play a central role in institutionalizing, justifying, a patriarchal model of families in Muslim contexts…’[10]
[8] DFAT, Country Information report – Malaysia (29 June 2021) [3.127]. See also US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia (20 March 2023).
[9] Musawah and Sisters in Islam, Joint Report on Muslim Family Law and Muslim Women’s Rights in Malaysia, 69^th CEDAW Session, Geneva, Switzerland (February 2018) 5.
[10] Ibid 10.
These patriarchal attitudes and roles for women and men contribute to the disadvantaged position of women in Malaysia.[11] DFAT reports that women’s participation in government, business and civil society is limited because of cultural and social barriers.[12] Child bearing and care remain principal reasons for the low participation rate of women in the workforce.[13] Women earn 77 per cent of what men earn for similar work and only 44 per cent of professional and technical workers are women.[14]
[11] CEDAW Committee, Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia, UN Doc CEDAW/C/MYS/CP/3-5 (14 March 2018) [19].
[12] Department of Foreign Affairs and Trade (DFAT), Country Information report – Malaysia (29 June 2021) [3.119].
[13] Ibid [3.121].
[14] Ibid [3.120].
Views about the role and place of women in the home and the justifiable use of violence against women are officially sanctioned in Malaysia. Malaysian government rhetoric and policies such as dress codes and other modesty policies[15] reinforce traditional roles and make women vulnerable to gender-based violence. For example, in response to increasing rates of divorce, a government official stated publicly that women ‘should fulfil their “true functions as wife and mother”’.[16] During the height of the Covid-19 pandemic the government responded to increasing rates of domestic violence with advice that women should refrain from nagging their husbands, ‘giggle coyly’ and wear make-up at home.[17]
[15] Women’s Aid Organisation and Joint Action Group for Gender Equality, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019) 147-148.
[16] Ibid 160.
[17] DFAT, Country Information report – Malaysia (29 June 2021) [3.130]; Yiswarey Palansamy, ‘Ministry’s MCO advice to women: Wear make-up while working at home, speak to spouse in Doraemon voice and giggle coyly’ Malay Mail (31 March 2020)
A recent survey of societal attitudes to violence against women in Malaysia demonstrated a high level of social condonation of domestic and family violence.[18] Half the survey respondents endorsed beliefs that domestic violence was a normal outcome of stress, anger or jealousy.[19] Significantly, over a third of those surveyed endorsed the view that men should control familial relationships and be the head of the family.[20] A third of respondents also believed men to be more capable and trustworthy leaders in the political sphere.[21]
[18] Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 37.
[19] Ibid 39-40.
[20] Ibid 52.
[21] Ibid 51.
For these reasons the Tribunal accepts that the essential and significant reason for the harm the second applicant fears from her brother is her gender and membership of the particular social group of ‘women’. This group is defined by a shared innate or immutable characteristic[22]– gender – which is not a shared fear of persecution.[23] As such, the Tribunal finds that the second applicant fears harm for a s 5J(1)(a) reason.
Real chance in all areas of Malaysia
[22] Section 5L(c)(i) of the Act. Gender has long been recognised as an innate characteristic, see UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2002) [30]. For recent acknowledgement in Australia, see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 178 at [1220].
[23] Section 5L(d) of the Act.
In assessing whether the second applicant’s real chance of being persecuted extends to all areas of Malaysia, the Tribunal has considered her evidence that her brother [Mr A]’s job as a [Occupation 3] would allow him to locate her throughout Malaysia. The second applicant stated that this job has allowed him to make friends all over Malaysia who may coincidentally meet the applicant and inform her brother of her whereabouts. The Tribunal does not accept this to be a reasonable possibility.
However, the Tribunal finds that, given the close family relationship involved, the second applicant’s eldest brother has the means of finding out that the applicants have returned to Malaysia and their whereabouts through other family members. The Tribunal also accepts that he would have the motivation to seek and harm the second applicant once becoming aware of her location. In making this assessment, the Tribunal has considered the dynamics of domestic and family violence. Empirical research demonstrates that where perpetrators engage in multiple forms of abuse, and exhibit controlling behaviour, the risk of repeat and often very serious forms of violence is heightened.[24] [Mr A]’s past behaviour demonstrates a pattern of coercive control which causes the Tribunal to accept that he will be motivated to seek to punish the second applicant for defying him and to attempt to regain control over her.[25] The second applicant’s risk is also heightened by the fact that her brother made threats to kill her, including when she was an adult and immediately prior to her departure from Malaysia.[26] In this light, the Tribunal considers that the real chance of harm exists wherever the second applicant lives in Malaysia, despite the passage of time without contact between the second applicant and her brother.
Effective state protection
[24] ‘Factors affecting risk’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[25] Ibid.
[26] Ibid.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
DFAT advises in relation to Malaysia that ‘[l]ocal and international sources consider the [Royal Malaysian Police] to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption.’[27] In addition to these not insignificant reservations in relation to the general effectiveness of the Malaysian police, country information indicates considerable deficiencies in protection in relation to domestic and family violence.
[27] DFAT, Country Information report – Malaysia (29 June 2021) [5.5].
Malaysia’s domestic violence framework has been recently strengthened, with the Domestic Violence (Amendment) Act 2017 expanding the definition of domestic violence to include violence experienced by family members in addition to spouses and introducing Emergency Protection Orders which can apply immediately for up to a week and prevent a perpetrator from accessing a specific location.[28] Victim-survivors of domestic violence can also apply for interim protection orders and standard protection orders.[29] The penalties for violating these orders are as follows:
Violations of any of the protection orders can result in a prison sentence of up to six months and/or a fine of MYR2,000 (AUD630), while multiple violations can result in the offender being jailed for between 72 hours and up to two years and fined up to MYR5,000 (AUD1,600). If a perpetrator of domestic violence commits acts of violence when violating a protection order they can be fined up to MYR 4,000 (AUD 1,260) and/or receive a prison sentence of up to one year.
[28] Ibid [3.125].
[29] Ibid.
Despite these improvements to the legislative framework, DFAT assesses that:
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…[30]
[30] Ibid [3.133].
The US Department of State similarly states that ‘NGOs reported that the government did not take action in cases of domestic violence; victims must keep evidence, gather witness testimony, and ensure their own safety.’[31]
[31] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia (20 March 2023).
In a December 2021 report, the Malaysian Women’s Aid Organisation (WAO) reported in this context that ‘[b]arriers in accessing justice often arise because the police fail to take serious action or conduct a proper investigation.’[32] WAO attributed these failures to a lack of training and awareness of domestic violence procedures.[33]
[O]ne of the biggest findings from survivor interviews is that formal sources of support often do not know how to respond to survivors on a practical level…this may appear as the police not knowing the necessary steps to pursue justice for a survivor of violence. For example, when Sofia sought an IPO [Interim Protection Order], she was met with a police officer who did not even know what an IPO was.[34]
[32] Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 104.
[33] Ibid 105.
[34] Ibid.
There are also examples of the state denying its services to women seeking protection from domestic violence based on attitudes minimising or justifying violence against women. DFAT reports that ‘police commonly return victims of domestic violence to the perpetrator, as they perceive the issues as private family matters’.[35] This was acknowledged by the Ministry of Women, Family and Community Development in 2022.[36] WAO similarly reports in relation to police officers’ attitudes to reports of violence that ‘[t]he most common barrier comes from mistrusting women’s reports of violence.’[37]
[35] DFAT, Country Information report – Malaysia (29 June 2021) [3.128].
[36] ‘Women’s minister says aware some cops refuse to accept domestic violence reports, will bring this up with Home Ministry’, Malay Mail (28 March 2022) < Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 103.
Reasonable effectiveness does not require a guarantee of safety. However, the available information indicates a pattern of state unresponsiveness to domestic violence despite the existence of a legislative framework designed to punish such offending. Malaysian authorities turn away victim-survivors of domestic violence and/or take no action on their complaints and as such are unable to effectively respond to domestic violence complaints.[38]
[38] ‘Reasonable effectiveness’ in relation to the police in this context requires that the police respond to a complaint within a reasonable time: Department of Home Affairs, Policy: Refugee and Humanitarian – Refugee Law Guidelines (re-issued 27 November 2022) 3.14.4.3.
The Tribunal also finds that the applicant would not be able to access protection from the harm she fears because protection against domestic violence is intermittent and inconsistent. The Tribunal finds that effective protection measures against domestic violence are not available in Malaysia.
For these reasons, the Tribunal is satisfied that the second applicant faces a real chance of persecution in the reasonably foreseeable future if she returns to Malaysia. Therefore, she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Assessment of first applicant’s claims
Refugee criteria
The first applicant did not claim to fear harm and the Tribunal finds he would not experience harm from his family if he were to return to Malaysia. As set out above in relation to the second applicant, the Tribunal accepts the applicants’ explanations as to why the protection visa application contained inaccuracies including that it did not reflect the full account of who the applicants feared and why. The Tribunal has thus assessed the first applicant’s risk of harm from his brother-in-law [Mr A].

The Tribunal accepts the first applicant’s account of being threatened with death if he continued to see the second applicant. While [Mr A] may be principally motivated to target the second applicant, the Tribunal accepts that the first applicant faces a real chance of serious harm at the hands of his brother-in-law because he has defied his orders in continuing to have a relationship with the second applicant and because his ongoing relationship to the second applicant exposes him to discovery and the risk of harm in the event that [Mr A] were to seek out the second applicant, which the Tribunal considers to be reasonably possible for the reasons above.
The first applicant is at risk of being targeted because of his relationship to the second applicant. The Tribunal is therefore satisfied that the reason for the harm feared by the first applicant is his membership of the particular social group of the second applicant’s family. Given that the second applicant fears harm for a s 5J(1)(a) reason, as set out above, the qualification in s 5K of the Act does not apply.[39]
[39] Section 5K provides that in assessing whether membership in a family constitutes a particular social group the Tribunal must disregard any fear of persecution or any persecution that any other member of the family has experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a).
The Tribunal considers that the risk of harm faced by the first applicant extends across all parts of Malaysia. Because the applicants will reside together on return to Malaysia, the findings of the Tribunal in relation to the second applicant equally apply to the first. Specifically, that given the family relationship between the second applicant and her brother, there is a possibility that he will find out that the applicants have returned to Malaysia and be able to discover their whereabouts through other family members. Further, given the brother-in-law’s past course of conduct in relation to the second applicant, the Tribunal considers that the first applicant may be at risk of harm wherever he resides within Malaysia because the Tribunal has accepted that [Mr A] would have the motivation to seek and harm the second applicant (and therefore also the first applicant and their children) once becoming aware of her location.
In relation to the provision of state protection to the first applicant, the Tribunal assesses that this would not be available to the first applicant for the same reasons given above in relation to the second applicant. In making this assessment, the Tribunal notes that country information demonstrates that the Malaysian authorities are unable to provide reasonably effective protection against domestic and family violence and that victim-survivors are not able to consistently access protection from this form of harm. For this reason, in the first applicant’s circumstances – being at risk of violence from a member of his extended family – the Tribunal is satisfied that effective protection measures are not available to the first applicant and that he would not be able to access protection.
For these reasons, the Tribunal is satisfied that the first applicant faces a real chance of persecution if he returns to Malaysia, now or in the reasonably foreseeable future. Therefore, he is also a person in respect of whom Australia has protection obligations under s 36(2)(a).
CONCLUSIONS
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. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has taken all possible steps to avail themselves of a right to enter and reside a third country. In this case, there is no evidence to suggest that the applicants have any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Adrienne Anderson
Member

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

[2024] AATA 3026

13 February 2024

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