1812497 (Refugee)

1812497 (Refugee) [2024] AATA 2693 (11 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1812497
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Melissa Bray
DATE:11 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 July 2024 at 1:08pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – forced marriage – sexual abuse – credibility concerns – discrepancies between evidence in written application and at hearing – depression – access to mental health services – employment conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 6 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 8 January 2018. The delegate refused to grant the visa on the basis that she was not owed protection under Australian law.
The applicant appeared before the Tribunal on 27 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted in the presence of an interpreter in the Malay and English languages, however the applicant chose to speak in English for most of the hearing, with only minor assistance on a few occasions.
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, 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 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), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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 issue in this case is whether the applicant is owed protection in Australia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. I consider the applicant’s claims, evidence and arguments below in the context of my analysis, findings and reasons.
Findings and reasons
I accept the following information provided by the applicant in her protection visa application form (‘PVA form’). She was born in [year] in Keningau, Sabah, is a Malaysian citizen by birth, is Muslim, and arrived in Australia in October 2017 holding a Malaysian passport. She speaks, reads and writes English and Malay and requires an interpreter in the Malay language. The applicant indicated in the PVA form that she lived at a single address in Keningau, and (at the time of application) that she was not in contact with family members in Malaysia. I accept her clarification at the hearing that she and her family moved to Kota Kinabalu for her father’s work when she was aged around [age], that her family members still live at Kota Kinabalu and she is in touch with them usually monthly.
At the hearing, the applicant said she completed high school aged around [age] and came to Australia in her [age range]. Between ending high school and coming to Australia, she studied [Subject 1] at college for three years, completing a certificate. Having accepted elsewhere that the applicant finished high school some time before 2010, I find the overall period in which she studied and worked before leaving Malaysia was around seven years, so, longer than the five years accounted for by her evidence. I otherwise accept this account.
Summary of the applicant’s protection claims
The claims set out in the PVA form are as follows. The applicant had to leave Malaysia because she was forced to get married to some guy (sic.) she did not even know. Her parents told her they would get her married to a guy they have chosen for her. She told them that she would not marry him, but they insisted and that is why she flew here. If she returns to Malaysia, her parents will get her married to that guy. She was emotionally abused before she came here. She heard from her family that her parents borrowed some money from the guy she was supposed to marry and that is why they wanted her to marry him. She did not seek help in Malaysia because she did not want to get her parents into trouble with the authorities. She did not relocate elsewhere because she did not know anyone at any other place in Malaysia. She does not want to go back there as she is afraid her parents would still get her married to that guy. She will not report her own parents to the authorities (so therefore cannot access state protection). She cannot move to any other parts of Malaysia because she never knew anyone from other places, and even if she tried to move, she is afraid her parents will find her.
My summary of the applicant’s account at the hearing is as follows. (Further detail of these claims is described and considered elsewhere below).
She was sexually abused over a period of months in Malaysia when she was aged around [age] or so, by a healer who was treating her to redress the effects of black magic she experienced symbiotically with her mother, after her mother showed signs of being possessed. The applicant reported the abuse to the police with her parents’ support, made a statement and participated in an investigation during which the man was jailed for seven days then bailed. The case did not proceed to trial or result in any legal outcome. After the police case collapsed, the man’s relatives (who are connected to the applicant’s paternal aunt’s family) suggested that she marry the man. The man has a substantial profile in his local community and the applicant believes the allegations and police process had caused shame to him.
She ultimately left Malaysia many years later (in 2017) to escape the pressure arising from the man’s family’s ongoing suggestions of marriage to him, and to get better access to mental health support. Her parents have continued to pay money regularly to the man’s family to resist or at least delay the marriage, which they did not endorse. She could not find safety elsewhere in Malaysia because the man’s family would likely track her down. If she returns to Malaysia, she thinks she will be forced to marry the man or someone from his family, or else her sister will, or else the monetary payments will need to continue, her mental health will deteriorate, and she will not have access to good-quality support services.
Regarding her departure from Malaysia, the applicant said she started preparing to come to Australia after discussion with a former school friend, who gave her contact details for a friend in Australia (‘the contact’). She did not tell the friend anything about her experiences - she just gave a general idea of what happened to her, and he suggested trying for protection. She told the contact by telephone that she was having difficulty in Malaysia – it was really hard for her to trust the authorities in Malaysia because they were not doing a proper job to catch the man and she had to deal with all this situation. The man’s family were telling her to ‘marry this guy’. The contact said ‘come stay in Australia and start a new life’ – so she gave it a try. In Australia, the contact picked her up from the airport, she worked on a farm a little bit, while waiting to apply for the protection visa; she had a visitor visa at the time and it was illegal to work, so she did work on a farm.
When she applied for protection, she was hoping to stay in Australia and not have to go back to be reminded of all the bad things that happened in Malaysia. She was trying to have a proper life. When she left Malaysia, she was concerned about the whole thing – her mental health, her family’s situation, she worried about her sister a lot as she did not want her to experience what the applicant had. She wanted to start again and go far away so they could not find her. If they (the man’s family) approached her family, they could say she was in Australia and never coming back.
By the applicant’s account at the hearing, the sexual abuse occurred when she was around [age] years old, toward the end of high-school and before 2010 at least. She left Malaysia in 2017, having completed national service for three months, a three-year course after finishing high-school and around two years of work. I find above the period was likely around seven years. This is material to findings further below.
Consideration of the disparities between the claims and evidence between the PVA form and the tribunal hearing
I find the disparities between the claims and evidence in the PVA form and at the hearing (‘the disparities’) to be obvious, significant, and concerning. By the first account, the applicant’s parents are forcing her to marry a man they chose for her and borrowed money from and are in debt to, she feels she cannot report them and flees to Australia because they will find her in Malaysia and force the marriage. In the second account, the parents support the applicant to report sexual abuse to police and participate in an investigation, they do not support a suggested marriage to the perpetrator, pay money for many years to avoid it, and the applicant moves to Australia to avoid pressures, with her parent’s strong support.
I observed to the applicant that her protection claims and evidence at the hearing seemed substantially different to the claims set out in the protection visa application (‘PVA form’). I have considered her account at the hearing regarding the preparation of the application for protection, and her explanation for the disparities noted above.
Regarding preparation of the protection visa application, the applicant said she ‘did not go for a lawyer but had someone do the application for’ her. A friend of a friend (‘the person’) assisted her with the application. The reasons for applying were pretty personal, and she gave vague information to the person. She had no idea if it was really easy to get visa or long process, so the friend did that for her. She cannot remember the person’s name – a friend recommended them, she contacted them, they filled in the protection application form and gave it to the applicant to sign. The applicant said she gave the person a ‘pretty vague story’ and the person did not ask her many questions and just asked ‘why’ and filled it in. She told the person she was being forced to marry. She (the applicant) said ‘I’ll tell you this and you can put reasons’ and was ‘pretty vague’ – that is why the person put in the form that the applicant was facing forced marriage because her parents were owing money.
Later in the hearing when I invited her comments on the disparities, the applicant said that as she said previously, she told the person a very vague account, and the person is the one who created all the reasons because the applicant had no idea how the process would be. At the same time, she did not want to tell a random stranger about her whole ordeal and her mother had said it was best not to share the details to people because they would look at her in a different way if they knew. In Islam, you cannot shame yourself – that is why she told the person to make the reasons, make the story. The person wrote it and she (the applicant) just signed. She did look at the form when she signed it, but “had no idea she had to come to explain everything” - she “thought it would just be easy.” She said she was at the hearing today to clarify the real circumstances.
Asked at the hearing if the reference to ‘emotional abuse’ in the protection visa form was intended to reference her actual experiences or had a connection to her claims at the hearing, she said it did not. She said it was “all the person who did the writing – she pretty much created the whole reason”.
Findings about the applicant’s explanation for the disparities
I accept the applicant’s account that she was assisted to complete the protection visa application, that she provided some instruction about her personal information to the person assisting to make the claims, and that she (the applicant) read and signed the protection visa application form with awareness that details of the claims about forced marriage being put forward were ‘made up’ and did not reflect her actual circumstances.
I accept the applicant’s evidence at the hearing that the reference to ‘emotional abuse’ was made up by the person assisting her with the PVA form and was not intended to, and does not, relate in any way to her claims at the hearing.
I have some doubts about the applicant’s explanation that shame, privacy, and/or the influence of Islam and her mother meant she did not mention the abuse to the person assisting with the PVA form, given her account that in Malaysia, she was willing to report the abuse to police, actively participate in a police investigation and an intrusive physical test, and was prepared to participate in a court trial, and given that she confidently described her claims in detail at the hearing. That said, I acknowledge there are many complex reasons for a person not disclosing sexual abuse to others, including in the process of applying for protection. If the non-mention of the occurrence of sexual abuse (or the police process as specifically about sexual abuse) were the sole disparities, I would give the benefit of the doubt about their non-mention in the PVA. However, for reasons below, the applicant’s non-mention in the PVA of any other circumstances aligning even broadly to the claims made at the hearing leaves me in significant doubt about the reliability of her overall claims at the hearing, including her account of the occurrence of sexual abuse. I consider the applicant’s account at the hearing below, keeping these doubts in mind.
For the following reasons, I do not accept the applicant’s explanations and arguments about the multiple other disparities between her claims in the PVA form and the hearing.
Keeping aside non-mention of the sexual abuse specifically, for the following reasons, I do not accept that the applicant’s explanation reasonably explains the substantial disparities between the claims in her PVA form and at the hearing.
First, I do not accept the applicant’s explanations reasonably explains why she did not disclose to the person assisting or in the PVA form details of her circumstances in Malaysia in a way that broadly aligns with her claims at the hearing.
I find it was open to the applicant, without mentioning the sexual abuse specifically (thereby maintaining privacy, avoiding shame and acting consistently with her mother’s advice and Islam), to provide details to the person assisting her that at least broadly aligned with the experiences and concerns she described at the hearing. I have no fixed idea or expectation of what particular information the applicant might provide or the level of detail to be provided. For example, though, it was open to her (without mentioning the abuse or even necessarily the police matter being about the abuse) to indicate to the person assisting her that she left Malaysia because a family was suggesting she marry one of their relatives, that her parents had made ongoing payments in order to avoid or delay the marriage, and that she left Malaysia to avoid being forced to marry because that family would be able to find her anywhere she moved in Malaysia. I do not accept that influence of the applicant’s religion or her mother, a sense of shame and/or desire for privacy, would prevent disclosure of this type or level of detail.
Second, I find it implausible and do not accept the applicant would cede agency over the way her claims were described in the form, given her stated mindset about seeking protection in order to stay in Australia and avoid return to Malaysia.
By the applicant’s account she moved to Australia to start a new life and evade either forced marriage to her abuser or payments to his relatives and applied for protection hoping to stay in Australia. Given this, and having taken active steps to seek protection, even if she did not know if the process was easy or hard or what it involved or that she might need to speak to the claims, I find it implausible and do not accept that she would mention vaguely that she was being forced to marry but then be prepared to cede agency over the detail being provided in her protection application. Even if she was unsure what the process involved or whether it was easy or hard to obtain a protection visa, I find she was aware that her ability to stay in Australia depended on a successful application. Therefore, I find it implausible and do not accept that the applicant would not put forward claims related to her actual experiences and concerns in Malaysia, or that she would be willing to leave someone to make up further details, and to sign the form with awareness that the claims did not reflect her lived experience. Without awareness of the process, I do not accept she would be inattentive or unconcerned as to whether the claims being put forward would achieve her protection in Australia.

Given the above matters and findings, I accept the applicant consented to a set of claims about forced marriage being put forward in the PVA form which do not reflect her actual circumstances or concerns. However, I do not accept the claims in the form are a combination of her vague account about forced marriage and the person assisting making up the rest of the detail or a story. I find the claims set out in the PVA form about forced marriage have a clear, purposeful and logical internal coherence, but involve a factual context which is entirely different from the applicant’s overall account at the hearing. The information in the form appears to respond relevantly to, and align with, the questions in the form. I do not accept this coherence arose incidentally, from the person assisting adding content to a vague account by the applicant of her personal experience of forced marriage or without consideration of the questions.
Further, I find the way the claims are put forward in the PVA suggests the person assisting was aware of and addressed the questions in the form (for example, about past harm, state protection, relocation and future fears). I find it implausible that, in assisting the applicant to apply for protection, she would just ask the applicant ‘why’, and make up the claims based on a basic reference to forced marriage, without specifically asking the applicant’s responses to the questions in the form. Given this, I do not accept that the applicant did or could not provide information to the person that broadly aligns with her claims at the hearing due to the way the person consulted her. I have formed the view the person assisting wrote the claims in their entirety, on a nominated theme of ‘forced marriage’, with the applicant’s awareness and permission, but (given my findings above) not because the applicant was impeded from sharing some details of her true circumstances or experiences.
The common reference to ‘forced marriage’ alone in the PVA form and at the hearing does not persuade me that there is consistency in the claims between the primary and review process. I am not prepared to divest the reference to forced marriage in the PVA from its context, which is starkly different (in ways noted above) to the claims at the hearing. The common reference to the phrase forced marriage does not overcome or alleviate my concerns about the disparities.
I accept the applicant’s account at the hearing that her parents did not try to force her to marry a man because they had borrowed money from him and were in debt to him, they supported her with reporting abuse to the police and supported her plan to leave Malaysia. Accepting this, and given the collective findings and reasons above, I find the claims and circumstances set out in the PVA form did not happen to the applicant. Specifically, I do not accept her parents have, plan to or will in future force her to marry a man (‘the guy’) they borrowed from and owed money to in Malaysia. I find she did not report the situation or concerns about any matter relating to that claim to police and remained in her location because the situation did not happen. Accordingly, I find the applicant faces no real chance of serious harm (or real risk of significant harm) in Malaysia, now or in the reasonably foreseeable future, for any reason flowing from the claims set out in the PVA form.
Overall, having regard both to the gravity and scope of the applicant’s claims and evidence at the hearing and to her stated mindset about seeking protection (both as summarised above) and for the reasons above, I do not accept the applicant would cede agency over the detail of her protection claims in the PVA form if her experiences and concerns are as now claimed. Nor, for the reasons above, do I accept that the factors that would reasonably prevent the applicant disclosing sexual abuse prevented her disclosing other broad details aligned to her stated claims at the hearing, and I do not accept any of the explanations she offered satisfactorily account for the fundamental disparities between the claims in the PVA form and at the hearing.
Having regard to her cumulative evidence and arguments about the circumstances relating to the protection application, and for the above reasons, I find the applicant’s explanations do not reasonably explain the fundamental disparities between the claims in the primary and review processes. This leaves me in significant doubt about the accuracy and reliability of the applicant’s account at the hearing about her circumstances and concerns in Malaysia in relation to sexual abuse, the police process, the suggested marriage or the payment of money, or any matter arising from them. I have considered her evidence at the hearing, keeping these significant doubts in mind.
Consideration of the applicant’s claims and evidence at the hearing
At the hearing, the applicant said (in my summary) as follows.
She was sexually abused over a period of around three months by a (named) healer known to her aunt’s family (the eldest brother of the applicant’s father’s sister’s husband, herein ‘the man’), when she was aged around [age], toward the end of high school, and at least before 2010.
She had been under treatment with the man at [Town 1] while staying with her aunt for around three months. Her mother travelled, with her husband (the applicant’s father) to receive treatment in [Town 1] with the man, to heal or exorcise the effects from suspected black magic or possession, and the healer had studied in [Country 1], was well known for his work and had a high profile in his local community. He used techniques such as ritual bathing and citations from the Koran. The applicant then also came under treatment with the man because she was experiencing physical effects at home in Kota Kinabalu while her mother was being healed. This was thought to be a sign that the mother’s possession was transferring to her, so she required treatment herself. Her mother improved and her parents returned home to care for the applicant’s siblings, leaving the applicant with her aunt and under treatment with the healer for a period of around three months. The abuse occurred during that time, and the healer tried to persuade the applicant that it was love and consensual, and gave her natural medicines and treatments which affected her perceptions and behaviours. It was a confusing time for her.
The abuse happened under her family’s noses but without their awareness. She was devastated and her mother, when she found out, was traumatised. The applicant ultimately (around three months after she returned home) went to police with the support of her mother and an aunt. As part of a police investigation, she provided a statement, attended the area and the man’s home as a location of abuse to assist police enquiries, and underwent medical/physical examination, and the perpetrator was jailed for seven days then released.
The case was due to go to court but did not proceed. The applicant initially said the healer’s family wanted to go to court but she and her family had insufficient funds to hire a lawyer, and that ultimately, nearing trial, the case did not proceed due to insufficient evidence. Police suggested she see a psychologist, but her father did not support this and was sceptical of it. She has no paperwork from the process as the police kept it all and her mother is not prepared to obtain a copy of the applicant’s police statement or paperwork because she (the mother) does not want the issue and trauma brought up. The applicant returned to school and completed her final year, but she did not get the grades she needed for university and she entered a certificate course instead of a university course. She volunteered that two staff members at the school knew about her circumstances and she was not aware of any counselling support at school.
The healer had a high community profile, and the applicant believes the allegations and police process and detention cast shame on him and his family. The family of the perpetrator, via the applicant’s aunt when visiting the applicant’s parents, suggested that the applicant marry him, or if not, pay them money to address the shame. Her parents were opposed to or did not support the marriage suggestion and, ultimately agreed to pay money to his family instead, to at least delay any marriage. She has heard a rumour via her aunt that the man married a second wife, who is another of his other young abuse victims, though the aunt/family have never seen her. He is Muslim so can have four wives. She thinks her parents have paid money since that time – possibly monthly in a small or large amount. Her father is aged over [age] and does not work any longer and has no superannuation and her mother is a homemaker.
She fears if she returns to Malaysia now, she will immediately be asked for her hand in marriage, and either be forced to marry the perpetrator or (if he died for example) another male in his family, such as his son. If not, she is concerned that she or her family will need to continue paying money to avoid this outcome, or else she worries her younger sister may instead be forced to marry the perpetrator or one of his male family members. She thinks it will be difficult to find work and she will need to keep making payments to the family because her parents do not work. She has experienced depression due to the experiences; it was hard in Malaysia previously when she had been without psychological support. She has never been prescribed medication for depression or anxiety but has seen a psychologist a few times in Australia and it was helpful with strategies. She is not sure that support services in Malaysia will meet her needs, and thinks the services are not as good as in Australia. The use of such services in Malaysia tends to be stigmatised, with their use taken as a sign of weakness.
Findings and reasons about the claims and evidence at the hearing
I accept generally that arranged and forced marriages do occur and that, on occasion, some compensation may be expected and paid where an arranged marriage does not proceed. However, whether these matters occurred to the applicant personally requires assessment of her own account.
I have substantial doubts about the accuracy or reliability of the applicant’s overall account at the hearing regarding her protection claims, for the following reasons.
My impression at the hearing was that, in response to initially open questions about her concerns in Malaysia, the applicant confidently and readily offered a fluent, organised, factually complex and (with some key exceptions noted below) detailed account of her experiences, and had ready responses to a range of questions, including about preparation of the PVA form and the apparent disparities, with little pause or hesitation or reflection on any matter. She did so in fluent English, with almost no reliance on the interpreter, over a hearing of several hours. Even considering the diversity of ways a person might offer evidence, including due to nervousness or keenness or careful preparation given the stakes, and taking account of principles regarding assessment of credibility generally and in relation to gender-based claims specifically, this fluency and readiness left me concerned that her account, responses and explanations at the hearing were contrived, practised and not organic or spontaneous. The level of detail provided by the applicant at the hearing on a range of matters does not persuade me the events occurred or alleviate my concerns (for reasons noted) that they did not.
I am concerned the applicant has not provided any documentary evidence to support that the police report and/or process occurred, given she described it as a detailed formal process that came close to resulting in a trial and given that she could reasonably be expected to hold or obtain some form of documentation. Asked at the hearing if she had any supporting information about the police involvement or a copy of her statement to police, the applicant said she did not. She said she had asked her mother, who had been unwilling to request a copy from the Malaysian police because she did not want to drag up the trauma. The applicant made no suggestion at the hearing that she could or wanted to take further steps to obtain the statement (or other documents) and did not seek time to do so after the hearing.
I acknowledge that documentary evidence is not always possible to obtain to support or substantiate claims about a police process. However, I find it implausible the applicant would have no documentation from the detailed process she described, particularly given its significance to her claims. Regardless, I find it implausible and do not accept that the applicant’s mother would decline to seek information the applicant requested, and not take steps to request the police report or statement if the applicant asked her, regardless of her feelings, given the applicant’s account that her mother supported her with the police report and process and ‘100 per cent’ supported her leaving Malaysia to avoid pressures arising from her situation. In these circumstances, I find it implausible the applicant would not press her request and that the mother would not assist. The applicant offered a relatively detailed account of the investigation and process, including that she accompanied police to the man’s home and was photographed pointing to evidence, that the man was detained for seven days then bailed by his son. However, the detailed assertions do not alleviate my doubts arising from the introduction of the claims at the hearing. On the evidence before me, I have substantial doubts that the applicant reported to the police or that any investigation occurred or any trial was considered, or therefore, that the man was detained.
At the hearing, I noted a potential disparity in the applicant’s account of whether a court trial proceeded in relation to the police investigation following her report. My review of the hearing audio-record alleviated my concern on this specific point.
I have doubts about the plausibility of key aspects of the applicant’s account of the suggestions of marriage by the man’s relatives and their willingness to accept payment in lieu of marriage.
At the hearing the applicant said she believed the man’s relatives were motivated to suggest marriage to mitigate the shame or detriment to him arising from the allegations and police process, particularly given his strong profile in his local community. There is no suggestion in the applicant’s evidence that the man himself has suggested, or pressed for marriage to the applicant or been involved in suggestions or pressed the requests at any time, and by her account, the man’s relatives were prepared to accept payments for many years while the applicant remained in Malaysia, rather than force the marriage. I find it implausible the man or his relatives would, if motivated to redress the shame or impact on his community profile arising from the allegations, persist in suggesting marriage but not take further steps to force the marriage at some point in the several years the applicant and her family continued to decline the suggested marriage before she left Malaysia. I also doubt they would continue to suggest marriage for over a decade when the applicant has persistently declined and has been in Australia for around seven years. I also find it implausible that the man or his relatives would be satisfied that the payment of money would address the issue of shame and therefore be an acceptable alternative to them. These multiple concerns lead me to doubt overall that allegations or the police process or detention occurred such that the man was shamed or his community profile adversely affected.
I do not accept the applicant’s account of her concerns that her sister may be forced to marry the man or his family members if she (the applicant) does not. I accept the applicant’s sister has lived and worked in Malaysia throughout the time the applicant has been in Australia. There was no suggestion by the applicant at the hearing that that the man or his relatives have suggested or asked that her sister marry the man or any of his family members in place of the applicant (or for any other reason). I find it implausible, and do not accept, that the perpetrator’s family intend to, or are motivated to force the sister’s hand, or that the applicant’s family are willing to agree to, the applicant’s sister marrying the perpetrator or a member of his family instead of the applicant. If there had been any such intention or interest, I find it implausible the family of the man or his relatives would not have suggested this or acted upon the suggestion in the several years before the applicant left Malaysia when she was declining the marriage, and particularly in the six years or so since the applicant left Malaysia.
I found the applicant’s evidence at the hearing about the ongoing financial payments by her parents to the man’s relatives to be vague and limited, in contrast to the detailed evidence she offered in several other aspects of her account. She said she thought her parents might have been paying a small or large amount monthly, from the time the marriage suggestions were declined (many years before the applicant left Malaysia) and were ongoing. Within the applicant’s account, the ongoing financial payments by her parents to the man’s relatives are key to explaining why the man’s family were prepared to at least delay the marriage, and why the applicant would need to continue paying if she returned and did not accept the marriage. Given the importance of this evidence and given here detailed account on several other aspects of her account, her limited evidence about the payments leads me to doubt that they occurred in the past or are occurring now. By the applicant’s account she is in contact with her parents and asked her mother to obtain a police report – I find it has been reasonably open to her to seek details about the payments. I am concerned the applicant introduced this element of her claims to justify why the man’s relatives had tolerated her decline of the suggested marriage for many years, and to provide an ongoing nexus between the events and her protection needs.
I found the applicant’s evidence that the man had married another young victim of his abuse to be vague, based on rumour and unreliable. The applicant said she had heard rumours via relatives that the man married (thereby taking a second wife) a young victim of his sexual abuse. I accept he could have more than one wife as a Muslim man but given the very limited evidence from the applicant based on a rumour, I am not satisfied and do not accept that the man is married to another young victim of his abuse. I am concerned the applicant introduced this evidence, albeit it vaguely, to enhance both the sense of the man’s motivation to marry her, his pattern of behaviour and to lend credence to her account of the abuse toward her.
At the hearing, the applicant repeatedly highlighted her depression and the inability to access psychological support in Malaysia. She said she had felt depressed following the occurrence of the sexual abuse in the months after its occurrence, and psychological support had been suggested to her after the police case collapsed, but that her father had not been supportive, that such services carried stigma in Malaysia, and she thought services would be better in Australia than in Malaysia. However, I find the applicant’s account of her mental health needs arising from her experiences in Malaysia, and their relevance to her decision to move to Australia, to be mismatched to her account of the level of support she has since accessed in Australia.
Asked if she had sought treatment or support in Australia, she said she had a small number of telehealth appointments with a psychologist around most likely 2020 or 2021 during the Covid-19 pandemic period, and following a relationship in Australia she described as abusive. When she raised her past sexual abuse (in Malaysia) the psychologist said they were not expert in this area and recommended another practitioner. She (the applicant) made appointments with another psychologist, but these were repeatedly cancelled by the service, and she did not attend any further appointments. She said she had been taught helpful strategies and had never been prescribed medications for depression or mental health. She said she was in a positive, current relationship for six months or so.

I accept the applicant accessed a small number of telehealth appointments with a psychologist in Australia around 2020 or 2021 during the Covid-19 pandemic but I am not willing to accept uncritically (and do not accept) her assertion that she ceased appointments with her first psychologist or arranged further appointments with a psychologist specialising in sexual abuse or assault but did not attend due to repeat cancellations. While not alone determinative, her very limited access to supports in Australia leaves me in doubt that accessing better mental health supports due to sexual abuse or matters flowing from it was a key motivation in leaving Malaysia. I do not accept that the applicant’s attendance at a small number (around three) of appointments is evidence of depression or mental health impacts arising from her stated experiences of abuse and suggested marriage in Malaysia. In making these findings, I am not suggesting that sexual abuse can only be substantiated through attendance at appointments or that attendance at appointments strengthens the likelihood that abuse occurred – rather, my findings are based on the internal logic of the applicant’s own arguments about her stated mental state and her mindset about leaving Malaysia and seeking protection in Australia.
Overall findings about the applicant’s claims and evidence at the hearing
My cumulative doubts, concerns and findings above about multiple aspects of the applicant’s evidence at the hearing compound the already significant doubts (for detailed reasons above) about the multiple material disparities between the claims in the PVA form and the claims at the hearing. The overall level of detail provided at the hearing does not address, alleviate or overcome my doubts and I do not accept that any aspect of the applicant’s overall account at the hearing is reliable or credible.
For the cumulative reasons above, and given the strength and scope of my doubts, I ultimately do not accept the applicant’s overall account at the hearing regarding her experiences and concerns in Malaysia in relation to the occurrence of sexual abuse or suggested or forced marriage or any payments being made in lieu of marriage, or any matters flowing from or arising from or associated with these matters.
Specifically, and having considered important principles for protection decision-making about claims of gender-based harm and violence, I do not accept that the applicant or her mother interacted with a faith healer or that the applicant faced sexual abuse by the man, or that she reported abuse or made any allegations to police or that an investigation or process occurred at all, or that the man was ever detained or bailed, or that the case collapsed due to insufficient evidence. I do not accept the man or the man’s relatives suggested marriage between the applicant and the man (or any of his male relatives) or that he married another victim of his abuse, or that he or his relatives ever requested and have received ongoing payments from the applicant’s parents (or anyone) instead of the marriage. It follows that I do not accept the applicant left Malaysia for the reasons claimed or that she will face suggestions or requirement to marry the man or any of his male relatives on return to Malaysia, or that she or her family will be requested to or need to make payments to avoid any such marriage.
Given the above matters, findings and reasons, I find the applicant faces no real chance of serious harm in Malaysia in the form of ongoing requests, suggestions, or pressure to marry the man, or forced marriage to the man (or any other person) or else any need to pay the man’s family money. This finding includes harm arising in the form of or arising from sexual abuse as a teenager, requests, harassment or suggestion of forced marriage, or from any need to pay ongoing money to any person as compensation (or due to extortion) or from mental ill-health including depression.
Employment conditions
At the hearing the applicant suggested she may have difficulty finding a job if she returned to Malaysia and this would affect her ability to continue paying the man’s relatives given her father is now retired and her mother does not work. I have found for reasons above that the applicant and her family have not made past or ongoing payments in lieu of her marriage and that they will not need in future to pay money to the man or his relatives. The applicant did not suggest that she would be intentionally denied employment in Sabah for any reason set out in s. 5J(1)(a) and on the evidence before me I do not accept that she will be intentionally denied employment for those or any other reasons.
In describing her background at the hearing, the applicant said she had struggled to find a job after study in her area of qualification ([Subject 1]) and worked in a warehouse for [a] company in Kota Kinabalu for around two years before coming to Australia in October 2017. Her sister is a [Occupation 1] who works in an area outside her qualification, and her brother used to work in west Malaysia but returned home due to illness.
I accept the applicant may not find a job immediately on return to Malaysia, or in a field or role that she necessarily prefers. However, having regard to her evidence that she completed post-school study and obtained a certificate, has worked in Malaysia for some years and had worked in Australia both on farms and as a [Occupation 2] and supported herself for many years, I find she has relevant education, skills and experience to obtain some form of sustainable employment in Sabah in the reasonably foreseeable future. As I noted at the hearing, the Department of Foreign Affairs Report on Malaysia (29 June 2021) suggests the national unemployment rate is relatively low in Malaysia. I accept information from that report that the national rate is less than five percent, and while the rate in Sabah is likely higher, it is not significantly higher. I find an updated DFAT report dated 26 June 2024 is consistent with the 2021 report on these matters.
Based on the evidence and arguments before me and for the reasons above, I do not accept the applicant will be denied employment in Malaysia for any reason specific to her personally, including any of the reasons in s. 5J(1)(a). Regardless, I find there is no real chance the applicant in all her circumstances (as reflected by findings in this decision) will face serious harm in Malaysia due to economic or employment conditions, including serious harm in the form of significant economic hardship or the denial of a livelihood such that her ability to subsist will be threatened, now or in the reasonably foreseeable future.
Overall findings
For detailed reasons above, I have not accepted the applicant’s overall account at the hearing regarding sexual abuse or matters flowing from or arising from it, including regarding her mental health, and have found she faces no real chance of persecution in Malaysia arising from any claims in her protection application or her claims, evidence and arguments at the hearing.
Based on the evidence before me, and given the findings and reasons above, I find the applicant faces no real chance of serious harm now or in the reasonably foreseeable future in Malaysia, in any way arising from or associated with her claims and evidence as presented either in the primary process or the review process. I therefore find her stated fears of persecution in Malaysia are not well founded. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
I have therefore considered the alternative criterion in s 36(2)(aa). Having regard to the evidence before me, and applying the analysis, individual and cumulative factual findings and reasons above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country (including Malaysia) the applicant faces a real risk of significant harm in any form set out in s. 36(2A). Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Melissa Bray
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 2693

11 July 2024

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