1815499 (Refugee)
[2025] ARTA 794
•20 January 2025
1815499 (REFUGEE) [2025] ARTA 794 (20 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1815499
Tribunal Member: Senior Member A Murphy
Date:20 January 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.
Statement made on 20 January 2025 at 4:59pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity – Butonese – particular social group – women who are victim-survivors of significant sexual abuse, child abuse, family violence and forced prostitution – father’s citizenship gained irregularly – applicant’s citizenship of other country through mother lost by gaining Malaysian passport – availability of process to reinstate citizenship insufficient to establish nationality – abuse by male relatives and former boyfriend – caught, punished and threatened after escaping – not a member of most claimed particular social groups as defined – harassment, discrimination and arbitrary detention – country information real chance of harm does not relate to all areas of country – complementary protection – significant and deteriorating mental health and treatment, with documentary evidence provided – risk to safety and no capacity to participate in hearing – decision made without hearing necessary – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (c), 5L(d), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 1958 (Cth), s 106(3)CASES
FER17 v MIBP [2018] FCCA 3767
FER17 v MICMA (2019) 269 FCR 580
SZBBP v MIMIA [2005] FMCA 5
SZBQJ v MIMIA [2005] FCA 143Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old woman who travelled to Australia from Malaysia in November 2017 and applied for the visa on 23 January 2018. The delegate refused to grant the visa on the basis of the assessment that the applicant did not engage Australia’s protection obligations.
The matter was first listed for hearing on 21 March 2024 before another member of the Tribunal. Upon consideration of the available materials, that member formed the view that the hearing should be adjourned and the matter reconstituted to a female member. It was also identified that there was a related review before the Tribunal (AAT proceedings 1921212). Shortly afterward, a pro bono legal service providing the applicant with limited assistance submitted medical evidence indicating that the applicant was at immediate risk of self-harm and asked that the matter be reconstituted to a female member due to the nature of her claims.
Both matters were reconstituted to me and adjourned for a significant period of time to enable the applicants to seek legal advice to prepare for the review. Attempts to progress the matter to a further hearing resulted in significant deteriorations in the applicant’s mental health as set out below and to date it has not been possible for a hearing to be held.
On 25 November 2024 the applicant provided additional documents and submissions in the review and requested the Tribunal to make a favourable decision without holding the hearing of the proceeding. Upon review of that information, it was apparent to the Tribunal that the evidence raised significant issue as to the nationality of the applicant which was not adequately addressed in the materials. The Tribunal wrote to the applicant inviting further information submissions on this issue which were received on 17 December 2024.
The Tribunal has considered the applicant’s submissions and accompanying documents and had regard to the significant risks to the safety of the applicant and her child that have presented in this matter. The Tribunal formed the view that the issues for determination in the proceeding can be adequately determined in the absence of the applicant and that it should make a decision that is wholly favourable to the applicant without a hearing pursuant to s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).
The applicant (and the applicant in the related proceeding) were represented in relation to the review. The issues that arise for consideration are largely the same in each case, but I have produced separate statements of reasons to preserve the privacy of each applicant in relation to particularly sensitive aspects of their evidence.
Criteria for 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 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia as the holder of an apparently genuine Malaysian passport, a copy of which appears on the Departmental file. While a genuine passport is prima facie evidence of the applicant’s nationality, aspects of the applicant’s evidence raise the issue of whether the applicant is legally entitled to Malaysian citizenship.
The applicant’s mother is an Indonesian national who holds an Indonesian passport. The applicant states her father was stateless when he arrived in Malaysia with his parents from Indonesia and that he received a Malaysian blue card through Project IC. Her father travelled to Indonesia to marry her mother in an arranged marriage, her own mother having died and her father being mentally ill. They travelled by boat through a river crossing between Sabah and Indonesia called Sungai Nyamuk for which they did not require documents.
The Tribunal has considered firstly whether the applicant is an Indonesian citizen, given that Indonesian citizenship laws indicate that children born to an Indonesian mother will be citizens of Indonesia in almost all circumstances, regardless of their father’s nationality and whether they were born into legal wedlock.[1]
[1] Article 4, Law of the Republic of Indonesia No. 12 on Citizenship of the Republic of Indonesia (Indonesian Citizenship Law) Article 4
However Indonesian citizen children who hold dual citizenship must choose one citizenship upon reaching the age of 18 or upon marriage. That decision must be recorded in writing and forwarded to Indonesian officials before the child turns 21. [2] An Indonesian citizen who acquires another citizenship voluntarily; or who does not refuse or relinquish their other citizenship when they have an opportunity to do so or who possesses a passport from a foreign country will lose their Indonesian citizenship by operation of law.[3] As the applicant holds a Malaysian passport that was issued to her in 2015 when she was [Age] years old, the Tribunal accepts that she will be considered to have lost her Indonesian citizenship by operation of Indonesia’s citizenship laws. While there are legal processes permitting the reinstatement of citizenship lost in such circumstances, a mere entitlement to nationality or a capacity to become a national under the laws of the country is insufficient to establish nationality under the Act.[4]
[2] Ibid Article 6
[3] Ibid at Article 23(a), (b) and (h)
[4] FER17 v MICMA (2019) 269 FCR 580 at [78]; FER17 v MIBP [2018] FCCA 3767 at [28].
In considering the applicant’s claims to Malaysian citizenship, country information indicates that Project IC was a scheme that allegedly provided Malaysian citizenship to illegal immigrants in exchange for votes in the late 1980s and 1990s. It was intended to alter the demography of Sabah in favour of Prime Minster Mahathir’s United Malays National Organisation (UMNO) political party and its allies.[5] DFAT also reports that Filipino and Indonesian irregular migrants in Sabah have bribed officials to obtain Malaysian passports while citing a different identity.[6]
[5] The Sabah RCI report in a nutshell’, Malaysiakini, 3 December 2014, 20241204141914
[6] DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, section 5.46, p.48, 20240624113833
A Royal Commission of Inquiry on Immigration in Sabah was set up in 2012 in relation to the alleged scheme, in which hundreds of thousands of illegal immigrants were said to have been given identity cards on the promise that they would vote for Barisan Nasional (BN). In its report, the RCI stated that Project IC referred to a covert programme, involving high-ranking members of the government, which issued MyKads to undocumented migrants for at least 10 years, starting in the 1980s. Project IC was stated to have two main goals, being to increase the number of Muslims in Sabah where the people were predominantly Christian and to overthrow the PBS-led state government of the day, which was also predominantly Christian.[7]
[7] ‘Debate RCI report on Project IC in Dewan Rakyat, says Sabah MP’, Free Malaysia Today, 6 March 2024
The persons granted citizenship under Project IC were Malay speaking Muslim immigrants, particularly those from the Indonesia and the Southern Philippines who settled in Sabah beginning in the 1980s. Those persons were issued ‘Blue Cards’ referring to the colour of the laminated paper MyKads that were a precursor to the current MyKads which have contained a smart chip since 2001. It is reported the Blue Cards were more susceptible to widespread forgery that the smart cards that replaced them.[8]
[8] When States Prefer Non-Citizens Over Citizens: Conflict Over Illegal Immigration into Malaysia’, Sadiq, K, International Studies Quarterly, volume 49, number 1, 2005, pp.101-102, 20241204134152
Analysts report that citizenship is weakly institutionalised in Malaysia, with legal documentation being either absent or barely present among indigenous populations. This leaves it vulnerable to the irregular entry of migrants using illegally procured documents to secure the privileges of citizenship.[9] The applicant states in her written statement that her father obtained his Malaysian identity card illegally and the Tribunal considers that to be consistent with the country information.
[9]
Country information suggests that the blue coloured identity cards afford bearers’ the privileges normally associated with Malaysian citizenship and it appears immigrants who obtained these cards are recognised as Malaysian citizens, even where they were obtained on the basis of falsified information. However the Royal Commission of Inquiry reiterated that the holders of illegally obtained identity cards is not proof of Malaysian citizenship:
… we need to dispel the misconception by many people that a blue IC is proof of Malaysian citizenship. It is not. It is merely evidence of Malaysian citizenship. One has to be a Malaysian citizen first before being entitled to a Malaysian IC. Malaysian citizenship is obtained mainly by operation of law or by naturalization or by registration.[10]
[10] ‘Report of the Commission of Enquiry on Immigration in Sabah’, Government of Malaysia, 14 May 2014, p.301, 20241204140853
The applicant states that she and her [siblings] all had some form of identification documentation based on her father’s Malaysian identity card, but her uncles and cousins (including her cousin [Ms A] who has a related case before the Tribunal) were stateless and undocumented. While a number of members of her family have Malaysian identity documentation as a result of her father’s documentation, her [uncles] and their children do not and remain stateless and undocumented.
The applicant reports that her parents falsely recorded her Malaysian born cousins [Ms A and Ms B] as their own children, because her father had a Malaysian identity card and the hospital allowed [Ms A]’s parents to take birth registration documentation home to complete, rather than filling it out in hospital. [Ms A]’s parents did not have Malaysian identity documents and moved to West Papua for a year where [Ms A]’s mother died. The applicant’s mother brought [Ms A] and her siblings back to Malaysia because their father was an alcoholic and unable to care for them and one of [Ms A]’s siblings died of malnourishment soon after arriving in Malaysia.
Given the applicant’s evidence that her father was stateless when he arrived in Malaysia with his parents from Indonesia; that her mother arrived in Malaysia via a river crossing which did not require documentation; that her [uncles] and their families were also stateless and undocumented and the applicant’s father received his own Malaysian blue card unlawfully through Project IC, the Tribunal concludes that the applicant’s father was not entitled to Malaysian citizenship at the time it was granted to him.
DFAT reports that Malaysia’s Human Rights Commission SUHAKAM recognises eight different stateless populations in Malaysia, being persons with long-standing residence since pre-independence who did not receive citizenship due to disengagement with the state (such as certain kinds of Indian Malaysian agricultural workers who grew up on self-contained estates); abandoned children born in Malaysia and adopted children in Malaysia; children of ‘mixed’ marriages or cases where children were born outside of marriage; children born outside of Malaysia to Malaysian mothers and non-Malaysian fathers; indigenous persons; ‘undocumented persons’; and stateless refugees originally from outside Malaysia.[11] While it is not free from doubt, none of those populations clearly capture formerly stateless refugees from outside Malaysia who were granted citizenship in accordance with Project IC.
[11] DFAT Country Information Report at 3.23
Ultimately the Tribunal is mindful that the applicant travelled to Australia as the holder of a Malaysian passport, granted to her on the basis of her father’s Malaysian citizenship at the time of her birth. There is no evidence that either the applicant or her father are not recognised as Malaysian citizens or that their citizenship has been revoked. In these circumstances the Tribunal finds that the applicant is a Malaysian citizen.
The Tribunal notes that if its assessment is wrong and the applicant is not a Malaysian citizen by operation of Malaysia’s citizenship laws, the applicant would appear to be stateless. If that is the case, the Tribunal must still assess her claims against Malaysia, being her country of former habitual residence.
For the above reasons the Tribunal has assessed the applicant’s claims against Malaysia as the country of nationality and the receiving country.
The applicant’s background
The applicant is a [Age]-year woman of Butonese ethnicity and Muslim religion.
In the visa application, the applicant did not provide details of her family composition. In the written statement submitted to the Tribunal, she states that she grew up in a household comprising her parents, [siblings], [uncles] ([some] of whom were married) and their children. Other illegal immigrants from Indonesia also stayed with the family.
In the visa application the applicant states she grew up in Kota Kinabalu, Sabah, completing high school in [Year] at age 17. In her written statement lodged with the Tribunal, she states that she left home in 2011 and lived in Kuala Lumpur for a period, returning to Sabah in 2015.
Departmental records states that she arrived in Australia in November 2017 as the holder of a Malaysian passport and an Electronic Travel Authority.
In Australia she met her former partner, also a Malaysian national, with whom she has a [child] who is now aged [Age]. The applicant and her partner have since separated, but he remains an involved father to their child.
The Tribunal accepts the above matters to be true.
Medical evidence
Medical evidence submitted to the Tribunal indicates that the applicant is at immediate and ongoing risk of self-harm and suicide in the context of a deterioration of her mental health arising out of complex PTSD and exacerbated by the current proceedings. She has been attending [Health provider] Refugee Psychiatry Clinic since May 2021 where she is reviewed by a psychiatry registrar every 4 – 6 weeks and by a psychiatrist every three months.
Her treating psychiatrist reports that she was referred to that clinic by [Health provider]’s Crisis and Assessment Triage Team (CATT) following a major depressive episode. Her primary diagnosis is complex PTSD with symptoms including recurrent self-harm, suicidal ideation, volatile anger outbursts, emotional dysregulation, nightmares, panic symptoms of chest pain and heart palpitations, flashbacks and dissociative experiences, activity withdrawal and poor appetite.
It is recorded that she has had eight emergency department admissions and one inpatient admission to a mental health ward. She is treated with medication and weekly or twice weekly counselling sessions. It was reported in March 2024 that although she has shown improvements in some domains, she continues to struggle with the burden of her symptoms and given the long standing nature of her illness it is likely that progress will be slow and modest.
Hospital discharge records indicate that she presented at emergency in June 2024 with acute psychosis and depression on a background of complex PTSD known to mental health services. Child protection services were contacted as her acute mental health deterioration meant that she was unable to take care of her [child] at home and she admitted to a psychiatric ward for crisis containment and optimisation of medications.
Medical records indicate that she continues to receive intensive mental health support, that there have been periods since her hospital discharge where her mental health has again deteriorated and she has experienced auditory and visual hallucinations and been assessed as having increased suicidal ideation. There are references in the medical records to her high levels of anxiety about the upcoming Tribunal hearing.
A statement from her counsellor dated 19 November 2024 (the most recent of several statements provided to the Tribunal) records that she has worked with the applicant since February 2022 and that the applicant currently attends weekly appointments. It is noted that the applicant’s significant mental health concerns impact on her ability to engage with the refugee determination process.
In particular her perceptual disturbances including auditory and visual hallucinations, flashbacks, panic attacks, dissociation and suicidal ideation increased after contact with her lawyers in June 2024 regarding her upcoming Tribunal hearing, becoming nightly, hours long episodes of complete dissociation with audio and visual hallucinations of being attacked by the perpetrators of her past sexual assaults. The counsellor’s report records that the applicant was referred to the CAT Team before being admitted to a Prevention and Recovery Care (PARC) residential program where she remained for several weeks.
During her stay at PARC she received treatment from a multidisciplinary team which was helpful, but after returning home she continued to experience PTSD symptoms including perceptual disturbances which led to a further presentation at a hospital emergency department followed by another episode with the CAT team.
It is reported that multiple attempts at engagement with lawyers, including attempts to draft the applicant’s statement of claims for the purpose of the Tribunal process, have directly resulted in a deterioration in her mental health, for example:
·In April 2024, the applicant experienced intrusive flashbacks, dysregulation and dissociated from her surroundings during a meeting with her lawyers that was unable to be continued;
·In June 2024, contact from her lawyers regarding her upcoming Tribunal hearing resulted in her referral to the [Suburb] Crisis and Assessment Team, her admission to hospital and subsequent admission to a Prevention and Recovery Care residential program;
·The applicant again presented to hospital after an interaction with the [Suburb] Crisis and Assessment Team in July 2024.
The Tribunal considers that the medical evidence indicates the applicant lacks the capacity to participate meaningfully in a hearing and also that holding a hearing presents significant risks to her own safety and that of her child. While the Tribunal has allowed adjournments of significant length in order that the applicant could receive medical treatment and legal assistance to prepare for a hearing, that has not eventuated and the medical evidence available to the Tribunal does not suggest that applicant will have the capacity to participate in a hearing in the foreseeable future.
Where a party is unable to meaningfully participate in a hearing, the Tribunal remains under a statutory obligation to complete the review quickly, with as little formality and expense as a proper consideration of the matters permits and in a way that is accessible and responsive to the diverse needs of the party. In light of the above information, and having regard to the fact that the applicant cares for a young child and concerns have been expressed for his safety in the context of the applicant’s deteriorating mental health, the Tribunal has formed the view that it should determine the matter without a hearing.
Claims for protection
In the visa application, the applicant states that was forced by her former partner to engage in prostitution and selling illegal drugs or face his violence. She states she has dishonoured her family by her status as a prostitute and she came to Australia to escape her former boyfriend and his abuse. She states that she made a police report but her case was closed without reason and she tried to escape her former partner but he caught her and punished her, warning her never to try and escape again.
In the material provided to the Tribunal the applicant claims to fear harm on the basis of her Butonese ethnicity and fraudulent identity documents, as well as harm from a former partner and certain male members of her family whom she says sexually abused her as a child. It is submitted on behalf of the applicant that she has a well-founded fear of persecution for the essential and significant reason of her membership of the following particular social groups:
a)Single women who are victim-survivors of gender-based violence including family violence and sexual abuse;
b)Women who are victim-survivors of significant child abuse and child sex abuse;
c)Women who are victim-survivors of significant sexual abuse;
d)Women with significant mental health concerns including suicidal ideation;
e)women who are victim survivors of forced prostitution;
f)Single mother who has experience family violence;
g)Women who are victim survivors of technology facilitated gender-based violence, including sextortion and image-based sexual abuse;
h)Women at high risk of re-victimisation;
i)Muslim women who are victim-survivors of significance sexual abuse and family violence;
j)Women lacking family and/or social supports;
k)People in Malaysia whose identity documents may have been obtained through fraud.
I record that I do not consider that the formulation of the groups set out above in paragraphs (a) to (j) are capable of constituting a particular social group for the purposes of s 5J(1)(a). This is because the characteristic shared by the members of these groups is fear of persecution, contrary to s 5L(d) of the Act. I note that the published Tribunal decision to which I have been referred to in the applicant’s submission does not formulate the particular social group in the manner suggested by the submission.
It is also submitted that the applicant has a well-founded fear of persecution for reasons of her Butonese ethnicity and because her identity documents have been obtained through fraud. For the reasons that follow, the Tribunal accepts that the applicant satisfies the complementary protection criteria.
Fear of harm from family
In a written statement to the Tribunal, the applicant states that if she returns to Malaysia she fears harm from her former partner and her own family members including her parents and her uncle [Mr C]. She states that she experienced physical, emotional and sexual abuse from her family and other persons in her household from a very young age and that she started self-harming at age 15. She states she is unable to discuss her experiences of abuse from her family members further without a significant decline in her mental health. She left her home in Sabah in 2011 aged [Age] for Kuala Lumpur, before she had to return to Sabah because she could not financially support herself. She states that she finds this period of her life difficult to talk about and that she has had panic attacks when trying to provide her lawyer with further information.
The Tribunal has also had regard to the evidence provided by the applicant’s counsellor, [Ms D], who states that she obtained information about the applicant’s circumstances through disclosures made to her in their counselling sessions together. [Ms D] stats that the applicant first disclosed her history of physical and sexual abuse by family members during her childhood and as a young adult in June 2022. That abuse is described as including being neglected and deprived of affection; regularly beaten and choked by her mother; being forced to begin physical work at about aged five and being sexually abused by a male relative from a very young age. It is stated that the applicant was also sexually abused by other men staying with the family and that this abuse persisted until she escaped the family home and moved away as a teenager. It is reported the applicant’s father has long-standing gambling addiction, that his debts are in the tens of thousands of dollars and that the family are fearful of debt collectors and loan sharks.
The applicant also claims to fear harm from an uncle whom she states is mentally unwell. She claims he constantly harasses her and is threatening to tell the government about what her parents and the applicant did to obtain her cousin’s birth certificates. She states that earlier this year he sent her photos of the inside of the family house with everything broken because of the fight he had with her parents. She states he called her and threatened to kill her earlier this year and that one of the reasons he was angry is that he wanted her to help his daughter get identification but she refused to do so because she did not want to be involved in anything that could get her into trouble with the authorities. She states that after a hospital visit in July this year she deleted WhatsApp and has not been in contact with him.
The Tribunal accepts the applicant’s account of the childhood abuse that she experienced. In her written statement the applicant states that she is no longer in contact with most of her family but that she speaks to her sister [Ms E] every few months and her mother perhaps every six months. The limited information available to the Tribunal indicates that the applicant has not lived in her parents’ home since 2011 when she [Age] years old. The information before the Tribunal does not establish whether the persons who sexually assaulted the applicant as a child are still alive or still resident in her family home or even resident in Sabah. The Tribunal considers that there is insufficient evidence available to establish that there is a real chance the applicant will face serious harm from her family members if she returns to her home state of Sabah, now in the reasonably foreseeable future.
Fear of harm from ex-partner
In a written statement to the Tribunal, the applicant states that in 2015 she returned to Sabah from Kuala Lumpur as she was not able to financially support herself. She began a relationship with a man who used and sold drugs and became extremely abusive and controlling. It is not necessary for me to recount the details of that abuse here, except to record that I accept it constituted gender-based violence rising to the level of serious harm.
The applicant states that she finally went to the [Location] police station where she waited three hours to report him, but was told that as he was her partner she had to resolve the issue with him. They refused to document her case and told to leave and she later learned that the police called her ex-partner who threatened her. While on the plane she blocked his number and deleted all his contact details and has had no further contact with him since. As far as she is aware, he still lives in Sabah. She states there is more information about the abuse and exploitation she suffered but she finds it extremely difficult to talk about and cannot say his name out loud. She is unable to discuss her experiences of harm from her ex-partner without her mental health being severely impacted.
[Ms E] reports that the applicant has disclosed to her that her ex-partner was physically, sexually and emotionally abusive towards her while they were living together and that he was stealing and using drugs. Again I do not consider it necessary to record here the distressing details of that violence set out in [Ms E]’s report. [Ms E] also reports that the applicant eventually went to the police for help despite her distrust and fear and made a statement about her ex-partner resulting in stalking her. The police took no further action and when she followed up her case some time later, she was told it had been closed.
The Tribunal accepts the applicant’s account of her relationship. In making that assessment the Tribunal has had regard to DFAT’s advice that violence against women is a significant problem in Malaysia and that it is under-reported due to it being a ‘sensitive topic.’ It is reported that contributing factors for intimate partner violence include ‘lower education background, lower socio-economic status, history/current substance abuse, exposure to prior abuse or violence, violence-condoning attitude; husbands or partners controlling behaviour, substance abuse and involvement in fights and lack of social support’. DFAT reports that a 2021 survey by the Women’s Aid Organisation found 53% of respondents believed domestic violence to be a normal reaction to stress or frustration.[12]
[12] DFAT DFAT Country Information Report: Malaysia 24 June 2024 at 3.115 – 3.116
The applicant’s account of her experience in seeking assistance from the Malaysian police is also consistent with DFAT’s advice. DFAT reports that state protection for women and girls experiencing gender-based violence is mixed; that police often fail to follow up reports of GBV and that it is not uncommon for women to be denied police reports and information about next steps in the legal process or whether an offender is charged or convicted.
The Tribunal notes the applicant’s statement that she has not had any contact with her former partner since 2017. She does not suggest that he has contacted her mother or sister in her absence. She assumes he is still in Sabah but has no information to that effect. On the limited evidence available, the Tribunal is not satisfied that there is a real chance she will face serious harm from her former partner if she returns to her home area of Sabah, now in the reasonably foreseeable future.
The applicant’s Butonese ethnicity
The applicant states, and the Tribunal accepts, that her grandparents and father are ethnically Butonese, but that they do not hold passports or identity documents from Indonesia. She has been told that the family fled Indonesia in the 1970s when some of her father’s siblings were killed in the riots but she has no further details.
Country information reports that the Butonese, also known as Orang Butung or Orang Butuni, is a collective term that embraces diverse ethnic groups, mostly Muslim, from the island of Buton and neighboring islands that constitute the Indonesian province of Sulawesi Tenggara (Southeast Sulawesi).[13] A group of ethnic Butonese, known as Kaledupa fishers, settled in Sandakan, Sabah, with some becoming Malaysian citizens or permanent residents:
The Kaledupa fishers, like many other ethnic Butonese, were originally seafarers, carrying cargo on sailing vessels to many parts of the archipelago. In the late 1960s and early 1970s, as motors replaced sails and unemployment levels grew, many left home to find work. One group settled in Sandakan, Malaysia, building a settlement that forms the core of Indonesian migrant community there today. Some of the longer-term settlers have become Malaysian citizens or permanent residents, but as in most migrant communities, there is a constant arrival of younger relatives, recruited to work as crew on the fishing boats.[14]
[13] Neelakantan, V. (2022, February 12). Butonese Muslims also known as “Orang Butung or Orang Butuni” [O]. doi: Stopping Abu Sayyaf Kidnappings: An Indonesia-Malaysia Case Study’, Institute for Policy Analysis of Conflict, 27 March 2020, p.2, 20200331080235
The applicant claims that because of the illegality of the family’s identification documents, she and her family always feared any involvement with the government. She claims that they are identifiable as Butonese by their darker skin and accent and assumed to be illegal immigrants from West Papua. She claims she was constantly bullied at school for being Butonese and the family were regularly harassed by police, with local government holding regular operations to ‘clean up’ illegal immigrants in Sabah.
She states that when police came to the house, they would often question how the family were able to obtain identification given their Butonese ethnicity. These conversations often ended with her father paying the police money to get them to leave. Once the police knew that they were Butonese, they would check their identification in the streets and regularly came to their home. She describes an occasion on which she was detained on the street with her uncle [Mr C] and held by the police for two hours, during which time [Mr C] was beaten in front of her. He kept telling the police that she was his niece, but she couldn’t admit it for fear that her family’s illegal identification documents would be investigated. She does not know how they were released, but assumes her parents paid money to the police as they had done in the past.
She claims that sometimes the police would take people from the family home to a detention centre but would then release them after the family paid bribes. When the police came to their home she often tried to hide. A number of people in the Butonese community in Sabah and in her family were detained and/ or deported from Malaysia because they didn’t hold identity documentation or it was found to be fraudulent. This included her father’s brother [Mr F] and his wife and [children], who were deported when the applicant was in secondary school.
The applicant’s mother has also told her about another family who assisted in the issuing of Malaysian birth certificates to non-biological children, the way that her own parents did for [Ms A and Ms B]. Her mother told her they were investigated by police and the whole family lost their citizenship and were deported.
In assessing the applicant’s claims, I note that country information indicates there is hostility to migrants in Sabah, especially those from Indonesia and the Philippines, and the Butonese community face discrimination and harassment from the authorities and the community in part because of their involvement in indentured labour practices as fishers.[15]
[15] ‘Stopping Abu Sayyaf Kidnappings: An Indonesia-Malaysia Case Study’, Institute for Policy Analysis of Conflict, 27 March 2020, p.13-14, 20200331080235
More broadly, migrant communities in Sabah may be raided and harassed by authorities due to the heightened security risk posed by concerns about nearby Abu Sayyaf activities and Abu Sayyaf penetrating local migrant communities:
. . . Hundreds of thousands of undocumented Filipinos and to a lesser extent Indonesians received the coveted “ICs” or identity cards that gave them access to employment, education and health services – and also allowed them to vote. More than 200,000 birth certificates were also issued to undocumented Filipinos. The impact of the so-called “Project IC” turned into a huge debate in the lead-up to the 2013 election with Sabahans demanding and securing a Royal Commission of Inquiry (RCI) on the extent to which the government or the ruling party was involved in issuing fake documents to increase its electoral advantage. The RCI issued a lengthy report that satisfied no one, though it confirmed that covert operations to use migrants to strengthen the UMNO vote had taken place.
Local antipathy to the migrants, which was already high, increased in February 2013 with the bizarre incursion into Lahad Datu, Sabah by an armed force claiming to represent the Philippines-based Sultan of Sulu – or at least, one of several claimants to the position. When it was over, 56 militants, ten Malaysian security personnel and six civilians were dead. The Filipino migrants were now seen not just as illegal voters but as a security threat, even though there was virtually no support on the ground for the Sultan. Mass displacement, deportations and voluntary returns followed. The incursion also led directly to the formation of ESSCOM.[16]
[16] Ibid
Malaysia tightened control over its immigrant population in response to criminal activity by Abu Sayyaf militants in Malaysian waters. Military operations by the Eastern Sabah Security Command [ESSCOM] included raids on migrant communities, sometimes accompanied by abuse and extortion. The following account was given by a Butonese fisher asked about ESSCOM’s efforts to register migrants:
ESSCOM only comes, takes notes, orders us to fill out forms, takes our photo and then demands fish. They always take the fish themselves in the boat’s tank, and they always pick the best ones. If we don’t give them what they want, they hit us, even in the open sea. We’re also wondering, why are there so many Abu Sayyaf kidnappings since ESSCOM was set up? [Abu Sayyaf] didn’t capture us before, the most that would happen is that they would ask for bait or food while we were at sea, and we would give it to them.
The repeated ESSCOM raids led some in the migrant community to leave the east coast and seek work in western Sabah, especially in the Keningau and Tenom area in the palm oil sector. It is not clear how many moved but interviews in Sandakan suggest that this is an ongoing exodus.[17]
[17] 'Stopping Abu Sayyaf Kidnappings: An Indonesian-Malaysian Case Study', Institute for Policy Analysis of Conflict (IPAC), 27 March 2020, p.14, 20200331080235
It is reported that opposition towards illegal immigrants in Sabah has an ethno-religious tone, coming from native Sabahans and Chinese communities as well as Sabahan political groups. In October 2015, a flash mob event entitled “Black Sunday 3.0” was organized by Solidariti Rakyat (SORAK), a non-governmental organization, to make demands of the state regarding so-called “illegal immigrants” in Sabah, including that:
·action be taken as soon as possible regarding the RCI report released in December of 2014;
·a demand for a solution to cleanse Sabah of “illegal immigrants”; and
·a demand for the registration and issuance of Sabah Identity Cards to all genuine Sabahans in accordance with the established laws of the country.
Those demands reportedly snowballed into a broader social campaign for widespread political change to recognise Sabah Identity Cards for ‘Pure Sabahans’, with those calling for Sabah-specific Identity Cards being predominantly from Sabah’s non-Muslim bumiputera groups, supported by the state’s ethnic Chinese communities and other political activist groups.
In light of the country information cited above, the Tribunal accepts the applicant’s account of her family’s experiences as ethnic Butonese living in Sabah. The Tribunal accepts that they faced harassment, discrimination and at times arbitrary detention from the Sabahan authorities and community who correctly assumed they had obtained their Malaysian identity documents unlawfully.
The Tribunal accepts that should the applicant return to her home area in Sabah, she would again face harassment and discrimination in the manner she has in the past for the essential and significant reason of her Butonese ethnicity. While such treatment may not in all instances rise to the level of serious harm, the applicant is in a position of extreme vulnerability for the reasons set out in the medical evidence cited above.
The Australian courts have recognised that there are times in which comparatively lesser forms of harm could have a more detrimental impact on one person than on others as a result of personal attributes or circumstances such as age or frailty. In SZBQJ v MIMIA [2005] FCA 143, the Court stated that ‘it is obvious that the impact and circumstances surrounding the application of a national policy may impact differently on different persons so that in one instance the impact may constitute persecution but in other cases the impact may not be so substantial as to amount to Convention persecution’. In SZBBP v MIMIA [2005] FMCA 5, the Court held that the Tribunal had erred in failing to take into account the applicant’s age and frailty when concluding that harm in the form of threats did not rise to the level of serious harm.
In light of the applicant’s personal circumstances and her documented and serious medical conditions, the fact she is responsible for a young child and estranged from her family, the Tribunal accepts that if she returns to Sabah, there is a real chance that the harassment and discrimination she will face for the essential and significant reason of her Butonese ethnicity will rise to the level of serious harm for the purpose of s 5J(1)(a).
However, the Tribunal does not accept that the real chance of persecution relates to all areas of Malaysia as required by s 5J(1)(c). In making that assessment, the Tribunal notes that there is no evidence that ethnic Butonese face discrimination or harassment outside of Sabah. Rather the circumstances in which the hostility towards ethnic Butonese and Filipinos has arisen relates to the specific goals of Project IC, being to increase the number of Muslims in Sabah where the people were predominantly Christian and to overthrow the PBS-led state government of the day, which was also predominantly Christian.[18]
[18] ‘Debate RCI report on Project IC in Dewan Rakyat, says Sabah MP’, Free Malaysia Today, 6 March 2024
On the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm outside of Sabah for reasons of her Butonese ethnicity and therefore she does not meet the criteria set out in s 5J(1)(c) and cannot come within the definition of a refugee.
Complementary protection criteria
For the reasons set out above, the Tribunal has accepted there to be a real chance the applicant will face serious harm in the form of harassment and discrimination if she returns to Sabah. In considering whether the harm she fears in Sabah amounts to ‘significant harm’ as that term is exclusively defined in s 36(2A), the Tribunal finds that it does. In particular the Tribunal is satisfied that the harassment and discrimination which she will face on return constitutes, in her particular circumstances, ‘degrading treatment and punishment’, being an act intended to cause extreme humiliation which is unreasonable and which is inconsistent with Article 7 of the ICCPR.
While the Tribunal has not accepted that risk of harm extends across all areas of Malaysia, it is not a criterion for complementary protection that the real risk of significant harm relates to all areas of the country. Rather, the applicant will be entitled to complementary protection unless it would be reasonable for her to relocate to an area of the country where she would not be at real risk of significant harm: s 36(2B)(a).
The Tribunal considers that relocation for the applicant is clearly unreasonable. Rather her serious and multiple mental health issues, together with the fact that the applicant is without family support and is responsible for a young child, render that entirely impracticable.
Given that the perpetrators of that harm include the Sabahan police and state authorities, the Tribunal is satisfied that the applicant would not obtain sufficient protection from the Malaysian authorities, such that there would not be a real risk that she will again suffer significant harm. Therefore, s 36(2B)(b) does not apply to her.
Finally, the Tribunal is satisfied that the real risk faced by the applicant is one faced by her personally and not faced by the population of the country generally. Therefore s 36(2B)(c) does not apply to her.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Representative for the Applicant: Ms Imogen Hines 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.
…
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