1838191 (Refugee)
[2020] AATA 5517
1838191 (Refugee) [2020] AATA 5517 (24 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1838191
COUNTRY OF REFERENCE: Malaysia
MEMBER:Jason Pennell
DATE:24 November 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 24 November 2020 at 4.12pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – particular social group – domestic violence victim – discrimination based on physical characteristics – perceived as being disabled – no physical or mental impairment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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
1.This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2.The applicant, who claims to be a citizen of Malaysia, applied for the visa on 23 May 2016. The delegate refused to grant them a visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations.
3.The Tribunal affirmed the delegate’s decision in first instance and that decision was set aside by the Federal Circuit Court. The matter is now again before the Tribunal pursuant to an order of the Court.
4.The applicant appeared by video link before the Tribunal on 19 June 2020 to give evidence and present arguments. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video via Microsoft Teams. It determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
5.The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
6.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
7.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.
8.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).
9.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.
10.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
11.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.
Applicant’s identity and Nationality
12.By his protection visa application, the applicant claims he was born on [date] [in] Selangor, Malaysia.[1] The applicant confirmed to the Tribunal his date of birth and stated that he was born in Kuala Lumpur, Malaysia. The applicant has provided the department with a copy of the biodata page of his Malaysian Passport, which confirmed the date and place of the applicant’s birth[2]. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.
[1] Application Protection Visa Application dated 20 May 2016; Department file No [deleted] @ p.42.
[2] Applicant’s Passport issued [2016]; Department file No [deleted] @ p.44.
13.There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that he is a citizen of Malaysia and as such his protection claim will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
Applicant’s Migration History
14.The applicant entered Australia on a valid Malaysian passport [in] February 2016 on a [temporary] Visa. The applicant applied for protection onshore on 23 May 2016. Prior to arriving in Australia, the applicant had not travelled outside of Malaysia.
Claims for protection and supporting documentation
15.The applicant’s claims for protection are detailed in his application for a protection visa dated 20 May 2016 as follows:[3]
[3] Applicant’s Protection Visa Application dated 13 January 2018 @ p.59 of 66
Why did you leave that country(s)?
‘I comer to Australia because I have family problem. My dad was drug addict every day, me and my mother be his victim. He asked money from my mother, if my mother said she have no money, he would hit, kick and stepped my mother. I was too pity to see my mother and I send my mother to welfare centre. I bring myself to Australia to run away for him.
What do you think will happen to you if you return to that Country(s)?
If I return back to my country, I need to face my father, he will hit me, asked me the money. He was not good father ever. I can do nothing unless he died.
Did you experience harm in that country(s)?
Yes. My father always hit me and kicked me. He want the money to buy a drug. I do not have too much money.
Did you seek help within the country(s) after the harm?
No. I do not seek help because I was too scared with my father.
Dd you move, or try to move to another part of that country(s) to seek safety?
I do not seek safety because I do not know any people from outside. My mother family was so far from us.
Do you think you will be harmed or mistreated of you return to that country(s)?
Yes. My father will be harmed me as usual he did to me.
Do you think the authorities of that country can and will protect you if you go back?
Yes. If I go back to Malaysia, the might protect be protect me If I tell to welfare centre before, I cannot do because my father always follows us.
Do you think you would be able to relocate within that country(s)?
Yes. If my father getting old and died.
16.The applicant’s claims are summarised in the delegates decision[4] as follows:
[4] Delegate’s decision 29 November 2016 @ p.2; Department File [number deleted] @ 48
(a)The applicant’s father was a drug addict and he and his mother were victims.
(b)His father asked for money from the applicant’s mother and if she said no, he would hit and kick her.
(c)The applicant felt pity for his mother, so he sent her to a welfare centre.
(d)The applicant brought himself to Australia to run away for his father.
(e)If the applicant returns to Malaysia, he will have to face his father. He will hit him and ask for money. He has never been good father and he can’t do anything unless he dies.
(f)The applicant’s father always hit and kicked him and wanted money for drugs. He didn’t have money.
(g)The applicant did not seek help because he was too scared of his father.
(h)The applicant did not seek safety in Malaysia because he did not know any people from outside. His mother’s family were very far for them.
(i)The applicant believes that his father will harm him like before he returns.
(j)If the applicant returns to Malaysia the authorities might protect him if he tells the welfare centre. He could not do this before as his father always followed them.
(k)The applicant may be able to relocate of his father gets old and dies.
17.Finally, the applicant submitted at the hearing that there is a real chance that he will be seriously harmed if he is returned to Malaysia by reason:
(a)That he will be seriously harmed by his father, and
(b)that he is likely to be perceived as disabled by reason of his physical stature
Applicant’s documents.
18.For the purposes of the hearing the applicant supplied the Tribunal with written submissions[5] which include:
(a)Statement of claims - [applicant’s name deleted]
(b)Royal Malaysian Police Report dated [date] January 2016.
(c)Copy of the applicant’s passport issued [2016].
[5] Tribunal file, Doc ID no.: 7251472, created 12 May 2020
Applicant’s evidence
19.The applicant claims that he was born on [date] in Malaysia. The applicant claims that he is a Muslim and an ethnic Malay. He claims that he speaks, read and writes Malay and reads English.
20.The applicant’s parents are living in Malaysia. The applicant’s father worked odd jobs and did not work regularly. His mother was engaged in home duties. The applicant is an only child.
21.The applicant attended school in Kuala Lumpur. In his application he indicated that he attended primary school [and] High [school]. The applicant’s evidence was that he was not able to complete high school due to his family’s financial difficulties. As a result, his evidence was that he left school in the third year of high school (year [number]).
22.The applicant claimed that, after he left school, he was not able to find work. The applicant claimed that he came to Australia to escape his father. The applicant’s evidence was that his family life was very stressful. His father was a drug addict and would demand money from his mother to support his addiction. The father would beat and kick his mother and the applicant when she was not able to give him any money. The applicant claimed that he was abused by his father from around the time he began high school.
23.The applicant claimed that he worked from time to time [at specified odd jobs]. In addition, he arranged for his mother to receive benefits from welfare services.
24.The applicant’s evidence was that, in or about January 2015, an incident occurred in which his father verbally abused his mother and attacked her with his belt, striking her until he was ‘tired’. The applicant claimed, as a result of trying to help his mother, his father also beat him. As a result, the applicant and his mother lodged a Police Report on [date] January 2016. A copy of the report was provided with the applicant’s submissions. His evidence was that the police took their statement and wrote a report detailing the incident. However, he claims that the Police did not take any further action. As a result, he claims that he no longer felt safe going to the police.
25.After making the Police report the applicant decided that he had to flee Malaysia for his safety. The applicant arranged for his mother to live in a community housing facility in [City 1] to ensure her safety. He also arranged for his own passport and travelled to Australia.
26.The applicant claims that he has not seen his father since the incident. His evidence was that his mother continues living with the charity which provides her the basic services to survive such as food and shelter.[6] As the charity is largely dependent on donations from the community, the applicant’s claims that he worries about the future care for his mother.
[6] Applicant’s Statement of Claims; Doc ID no.: 7251472, created 12 May 2020
27.The applicant claims that, as an adult, he is short in stature being [number] cm tall. As a result, he claims that he has suffered discrimination in Malaysia due to his physical characteristics. The applicant claimed that he was not able to secure employment because of his physical appearance. He claimed that employers laughed at him, thinking that there was something wrong with him. As a result, he was reduced to performing odd jobs around the neighbourhood to afford basic day to day living expenses.
28.The applicant claims that, as a result of his stature, if he returned to Malaysia he would be discriminated against and unable to secure employment. As such, he claims that he would struggle to meet his day to day expenses and be forced to live in a place where I will be unable to survive. The applicant’s claims that his stature affects his ability to earn a living but also his well-being, confidence and self-esteem. The applicant’s evidence that under the law in Malaysia he would not be deemed to be disabled person due to his height and therefore not be able to claim the relevant welfare support. Nevertheless, he claims that he is perceived as being disabled due to his physical stature and as a result suffer discrimination.
29.The applicant claims that if he is returned to Malaysia there is a real chance he will be seriously harmed by his father. In addition, he claims that there is a real chance that he will be seriously harmed as a result of his stature. He claims that, as a result of his stature, he will be discriminated against and suffer serious harm as a result of being unable to gain employment and will not as such will not have the capacity to subsist.
COUNTRY INFORMTION
30.The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). In particular, the DFAT report on Malaysia dated 13 December 2019 (‘the DFAT Report’).[7] In particular, the Tribunal has considered those parts of the report reproduced in Annexure A of these reasons.
[7] DFAT Country Information Report Malaysia 13 December 2019
CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility
31.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
32.The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[8]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[9]
[8] s.5AAA Migration Act 1958.
[9] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
33.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[10] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[10] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
34.If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[11] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
Applicant’s Refugee Claim
Relevant Grounds
[11] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
35.The applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act by reason of his membership of a particular social group (PSG) as a result of a being a family member who is subjected to domestic violence and, in the alternative, as a man who is likely to be perceived as disabled due to his stature.
36.When a person claims to fear being persecuted for reasons of their membership of a PSG, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it or must distinguish the group from society.[12]
[12] Section 5L Migration Act 1958; Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285. Section 5L Migration Act
37.The Tribunal accepts that the applicant is a family member of a family who have been subjected to family violence. The applicant’s family represents a PSG as it has a common element or characteristic that unites the applicant with his family and sets him and his family apart from society at large. As such, the Tribunal accepts that the applicant’s family, for the purposes of this decision, is a PSG pursuant to s.5J(1)(a) of the Act.
38.In addition, the applicant submits that his claim falls within the scope of s.5J(1)(a) of the Act as a PSG as a person who will is perceived as having disability due to his stature. The Tribunal has some reservations that the applicant’s stature represents a common element or characteristic that unites the applicant with a group and sets him and the group apart from society at large, to the extent he would be considered part of a PSG as claimed. Nevertheless, for the purposes of this decision the Tribunal accepts that the applicant is a member of a PSG pursuant to s.5J(1)(a) of the Act.
Applicant’s well-founded fear.
39.An applicant must have a well-founded fear of persecution. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In the case of a PSG, as claimed by the applicant, the persecution said to be feared by the applicant must be for reasons of membership or perceived membership of the group.[13]
[13] Section 5H(1) and section 5J(1)(a) of the Act; See Applicant A v MIEA (1997) 190 CLR 225 at 240.
40.The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below fifty (50) per cent.[14] Section 5J(4) of the Act requires that the reason for the persecution must be the essential and significant reason and that it must involve systematic and discriminatory conduct.
[14] Chan Yee Kin v MIEA (1989) 169 CLR 379
41.In this case, the applicant claims that he has been threatened with serious harm by reason of domestic violence inflicted by his father. For the reasons expressed below the Tribunal finds that the applicant does not well-founded fear of persecution due to his father’s domestic violence, either a subjective or objective basis.
42.In addition, the applicant claims that he fears being seriously harmed by reason of being perceived as having a disability as a result of his stature. While the Tribunal accepts that the applicant would suffer discrimination, for the reasons stated herein, it does not accept that the applicant has a well-founded fear of persecution, on a subjective or objective basis, by reason of being perceived as disabled as claimed.
Accepted Facts.
43.Based on the applicant’s evidence and the documentary evidence provided to the department and the Tribunal, the Tribunal finds that the applicant:
(a)was born on [date] in Malaysia.
(b)is a Muslim and an ethnic Malay.
(c)speaks, reads and writes Malay and reads English.
(d)is an only child.
(e)attended primary school [and] High [School].
(f)has a father who was a drug addict and was violent towards the applicant and his mother.
(g)has a mother who lives in a community housing facility in [City 1], Malaysia.
(h)is short in stature, being [number] cm tall.
Applicant’s Claim as a Refugee
Domestic Violence Claims
44.The applicant claims that there is a real chance that he would be seriously harmed if he returns to Malaysia by reason that he has suffered domestic violence from his father. The applicant’s evidence was that his father was a drug addict and alcoholic who would use the applicant and his mother to fund his habit.
45.The applicant submitted[15] that he came from a strict Muslim household and, as such, his father was considered the head of the household and to be obeyed. He submitted[16] that to question, disrespect or disobey his father would have been considered a great sin. As a result, he submitted that due to his religious nature he could not defend himself against his father because it would conflict with his religious obligation to respect him and obey him no matter that he was suffering ill treatment at his hands.[17]
[15] Applicants submissions ID 7251472 dated 12 May 2020
[16] ibid
[17] ibid
46.Nevertheless, his evidence was that he and his mother filed a report to the police dated [date] January 2016 in relation to his father’s violence toward him and his mother. The Tribunal notes the Police report dated [date] January 2016 refers to an incident in or about January 2015 in which the father assaulted his mother and that he continued to do so up to the date of the complaint. It also states that the applicant was abused several times.
47.The available country information submitted by the applicant states that issues of alcoholism and drug addiction are prominent in Malaysia. The country information notes that over a third of those people who drink alcohol in Malaysia abuse its consumption.[18] It notes that the abuse of alcohol and drugs is one of the major factors leading to domestic violence. An article into domestic violence cases in Malaysia[19] outlines that husbands with alcohol and drug addictions are the main cause of women and children becoming victims of violence and abuse. Therefore, based on the country information and together with the applicant’s own evidence in relation to his father’s drug and alcohol abuse (and in the absence of any evidence to the contrary) the Tribunal accepts that the applicant’s father was abusive toward the applicant and his mother as claimed.
[18] Applicants submissions ID 7251472 dated 12 May 2020; Op Cit; The Star, ‘Domestic violence cases on the rise’ dated 9 July 2016 the applicant’s evidence was that he had not seen his father since the incident. Despite claiming that he did not know where his father is now living, the applicant claimed that if he was returned to Malaysia his father would find him and harm him. The applicant’s evidence was that he had arranged, without his father knowledge, care accommodation for his mother in community accommodation. In circumstances where the applicant’s father remains unaware of where his mother is living in Malaysia, the Tribunal has considerable reservations about his father’s willingness and ability to locate the applicant upon his return to Malaysia. The applicant’s evidence was that his father would demand money from the applicant or his mother for the purposes of supporting his drug and alcohol habit. If they refused or were unable to provide the money the applicant’s father would beat them. As such, other than his father’s demand for money to support his habit, there appears little reason for the applicant’s father to contact the applicant. In circumstances where the applicant claims that his father was embarrassed by his appearance and having lost contact with his father, there appears no reason for him to pursue the applicant. As such, given the applicant’s evidence that he has not seen his father since the incident in January 2015 (5 years and 11 months ago) and given the passage of time, it appears that there is no real chance the applicant’s father would pursue the applicant or even be aware if the applicant returned to Malaysia. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed by his father in the event that he returns to Malaysia as claimed.
Access to state protection
49.In the alternative, if the Tribunal accepted that the applicant would be seriously harmed by the applicant’s father as claimed (which it specifically finds he would not) then based on the available country information the Tribunal finds that the applicant would be able to obtain effective protection to the extent that there would be no real chance that he would be seriously harmed in the event that he returned to Malaysia.
50.The country information provides that the Domestic Violence Act (DVA) was enacted in 1995 in response to action taken by various women's NGO.[20] The DVA provides[21] that domestic violence includes (amongst other acts) willfully or knowingly placing, or attempting to place, the victim in fear of physical injury and causing physical injury to the victim by such act which is known, or ought to have been known, would result in physical injury. The DVA also provides for extensive provisions relating to protective orders (POs) which can be issued by the courts. These include provisions on:[22]
(a)Issuance of interim POs pending investigation of any alleged domestic violence offence prohibiting the person against whom the order is made from using domestic violence against the spouse, a child, an incapacitated adult or any other member of the family;
(b)Issuance of POs prohibiting the person against whom the order is made from using domestic violence against the spouse, a child, an incapacitated adult or any other member of the family during the course of any proceedings before the court involving a complaint of domestic violence; and
(c)Attaching of additional orders to the protection order.[23]
[20] Ariffin, Rohana (1999). "Feminism in Malaysia". Women's Studies International Forum. 22 (4): 417–423. doi:10.1016/s0277-5395(99)00039-4
[21] MahWengKwai & Associates The Domestic Violence Act: an Overview ibid
[23] ibid
51.Application for such orders can be made at the Social Welfare Department, (known as the Jabatan Kebajikan Malaysia) office nearest to where the victim or the offender resides, the domestic violence occurred or where the victim is temporarily sheltered.[24]
[24] ibid
52.The DFAT report[25] notes that the amendments to the DVA strengthened protections for victims of domestic violence to include spouses, former spouses, children, family members, ‘incapacitated adults’ who are living as members of the family, and de facto spouses (couples who have gone through a religious or customary marriage ceremony, but have not registered their marriage). In addition, the amendments also introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week and prevent a perpetrator from entering a safe location. In addition to EPOs, victims of domestic violence can also obtain interim protection orders (IPOs) and standard protection orders (POs).[26]
[25] DFAT Report @ p.42
[26] ibid
53.The DFAT report notes that violations of any of the protection orders can result in a prison sentence of up to six months and/or a fine of RM2,000 (AUD705), while multiple violations can result in the offender being jailed for between 72 hours and up to two years and fined up to RM5,000 (AUD1,762).[27]
[27] ibid
54.The applicant submits[28] that the DVA is not effective in providing necessary protection and referred to the NGO CEDAW Shadow Report[29]. General Recommendation 19 of that report refers specifically refers to violence against women. It notes that that the implementation of the law has been inconsistent and that have been delays in obtaining interim protection orders against a perpetrator of domestic violence from between 24 hours and 3 months. In addition, it notes that the implementation of DVA is inconsistent across states and is dependent on the discretion of the police, the welfare department and the courts. In addition the DFAT report notes that in relation to violence against women, while the situation is improving, difficulties exist for those subjected to violence (in particular women) to gain adequate state protection as a result of ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame and lack of awareness of rights, adequate state protection and/or how to leave family settings safely.
[28] Applicant’s submissions ID 7251472 dated 12 May 2020.
[29] NGO CEDAW Shadow Report, for the Malaysian Government’s Review by the CEDAW Committee, at the 69th CEDAW Session in February 2018, Submitted on 29 January 2018 at p.24 the Tribunal accepts there are limitations to the implementation to the DVA, the Tribunal notes that the applicant is an adult male, who has already demonstrated an ability to arrange community services for his mother’s accommodation. In circumstances where the applicant has displayed the skill of dealing with a bureaucratic organisation for the care of his mother, he appears to have the skills to be able to obtain a protection order if required.
56.In addition, the Tribunal notes that the police report was made approximately 12 months after the incident in which it is alleged that his father attacked his mother. There is no reference of the applicant having been attacked during the incident in January 2015. Rather, the reference to the alleged assaults on the applicant in the report are vague and lacking in detail. It refers only to the applicant having been ‘assaulted several times’ but provides no details of timing or circumstances of the attacks. Finally, the report does not seek any specific order but merely requests the police to take such action that they deem appropriate. Therefore, in this case, even accepting the limitations of implementing the DVA, the lack of detail in the police report and the absence of any request for specific action appears to be a basis for the police failure to act rather than any indication of an inability to safeguard the applicant as claimed. While the applicant is not expected to remain in danger in a high-risk environment, the applicant is expected to exercise his rights in seeking effective protection in a timely and efficient manner. In circumstances where the applicant has delayed in making a report to the police and failed to provide adequate details of the alleged attacks as claimed, the Tribunal finds that the applicant failed to act in a timely and efficient manner.
57.The DFAT report[30] notes that several government and non-government bodies provide shelters and assistance to victims. It is noted that these services are inadequate for demand. The government introduced One Stop Crisis Centres (OSCC) in the emergency departments of Malaysian hospitals in 1996, which aim to provide a centralised one-stop facility to victims. In addition, there are a number of NGO’s available in Malaysia such as Malaysia Care, Awam, MyKasih, Sols 24/7 and World Vision. These organizations provide a range of community services including providing food, aid, health care for less fortunate individuals. The applicant acknowledged to the Tribunal that that such organizations are present in Malaysia but said that he had not accessed any community service provider. Given the applicant’s evidence that he was able to access community services applicants to arrange accommodation for his mother, there seems no impediment to the applicant being able to access such services.
[30] DFAT Report @ p.42
58.While corruption can limit the effectiveness of Royal Malaysian Police (RMP) action, the DFAT report[31] states that the RMP is based on the British constabulary model and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. The DFAT report[32] notes that Malaysians perceive the police as one of the most corrupt institutions in the country. However, the 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion. External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission [EAIC], which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts. DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
[31] Op Cit @ p.55
[32] ibid
59.Nevertheless, having considered the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that, if it did accept that there is a real chance that the applicant would be harmed by his father upon his return to Malaysia (which it specifically does not), effective protection measures are available to the applicant in Malaysia. Based on the available country information, the Tribunal finds as a mature male adult the effective protection measures are available to the applicant by the State[33] and that the State is able and willing to provide such protection.[34] Based on the applicant’s own evidence, the Tribunal finds that he is able access the available protection and the protection provided is durable.
[33] s.5LA(1)(a) of the Act
[34] S.5LA(1)(b) of the Act
60.From the available country information, the Tribunal finds that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system.[35] Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as victim of domestic violence inflicted by his father as claimed, or any related claim or any other reason.
[35] S.5LA(2)
61.Accordingly, by operation of s.5J(2), the Tribunal finds that the applicant does not have a well-founded fear of persecution and finds that the applicant does not satisfy s.36(2)(a) regarding the claims by the applicant as a victim of his father.
Applicant’s Physical Characteristic
62.The applicant claims that, as a result of his short stature, he has been subjected to discrimination in Malaysia as a person who is perceived to have a disability. The applicant claims that there is a real chance that he will be seriously harmed by reason of being perceived as having a disability as a result of his short stature.
63.The applicant submits[36] that disabilities in Malaysia are considered as one of the most vulnerable minority groups in the Malaysian population. He refers to the fact that the Malaysian government has instituted the Persons with Disabilities (PWD) Act, 2008 for the purpose “to provide for the registration, protection, rehabilitation, development and wellbeing of persons with disabilities, the establishment of the National Council for Persons with Disabilities, and for matters connected therewith.” The law defines “persons with disabilities” to include those who have long term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society.[37] The law goes further and defines “persons with severe disabilities”. The Act outlines that “persons with severe disabilities” means a person suffering from one or more disabilities who is dependent on others for basic daily living activities.[38] The applicant submits that the application of the law is a proactive step in combatting discrimination and providing adequate protections but states that the DFAT Report, and other articles, refer to the fact that that discrimination towards disabled person continues to occur within Malaysia.[39]
[36] Applicants submissions ID 7251472 dated 12 May 2020.
[37] Applicants submissions ID 7251472 dated 12 May 2020;
International Journal of Social Science and Humanity, Vol. 5, No. 3, March 2015 ‘Rights of the People with Disabilities and Social Exclusion in Malaysia’ by M. Rezaul Islam; ibid
[39] Applicants submissions ID 7251472 dated 12 May 2020;
64.It is submitted by the applicant that Malaysia’s limited understanding of disability has resulted in the creation of stigma surrounding disabled persons, and negative attitudes are commonly held by society towards this vulnerable community. In his submission the applicant referred to an article[40] which referred to a study that revealed that 58.4 percent of Malaysians are underinformed about disability. However, the study also states that the 87 percent of people surveyed also wanted to know more and 80 percent of the people surveyed recognised physical limitations.[41] The applicant submitted that disabled persons are socially excluded in Malaysia and experience marginalization across all aspects, experiencing a substantially poorer quality of life, lack of integration within society, institutional discrimination and a lack of access to services[42]. As a result, the applicant claimed that the stigma surrounding disabled persons has prevented them from accessing services made available by the authorities for their benefit, due to the shame and embarrassment they experience.[43]
[40] THE STAR, ‘Study shows that Malaysians don't understand disability’ dated 21 November 2017 by S. Indramalar; ibid
[42] Applicants submissions ID 7251472 dated 12 May 2020;
International Journal of Social Science and Humanity, Vol. 5, No. 3, March 2015 ‘Rights of the People with Disabilities and Social Exclusion in Malaysia’ by M. Rezaul Islam; Borneo Post Online, ‘Stigma prevents many disabled from being registered’ dated 11 August 2017 by Anthony Aga; Applicants submissions ID 7251472 dated 12 May 2020;
65.The applicant argued that the PWD itself is inadequate and requires reform in relation to its enforceability.[44] As such, the applicant submitted that the presence of the PWD does not guarantee protection for the rights of disabled persons in Malaysia due to the lack of strict enforceability and adequate penalties, and that reform is required to enhance the effectiveness of the Act to guarantee the rights of persons with disabilities in Malaysia. Based on the country information and the applicant’s submissions, the Tribunal accepts that disabled people in Malaysia are socially excluded and experience marginalization as claimed.
[44] Applicants submissions ID 7251472 dated 12 May 2020;
66.The applicant submits that the applicant is perceived as disabled and, as a result, will suffer the same discrimination.[45] It is claimed that such discrimination will have a significant impact on the applicant’s ability to access employment, basic services and integration with Malaysian society. He will not be perceived an equal within society and will suffer widespread ill-treatment with no prospect of adequate protection as he does not satisfy the legal definition of a disabled persons.
[45] ibid
67.The applicant submits that his height does not fall within any of the seven established OKU Categories,[46] and claims that if he is returned to Malaysia he will suffer discrimination and, as a result, suffer serious harm due to being denied employment and a capacity to subsist. The applicant’s evidence to the Tribunal was that, in Malaysia, he was ridiculed and embarrassed as a result of his physical appearance. He claimed that he was not able to find full time employment because of his short stature. His evidence was that he was ridiculed and told that he was too small, particularly in [Industry 1]. As a result, the applicant claimed he only worked odd [jobs]. The applicant claims that if he is returned to Malaysia, he would experience similar behaviour again to the extent that he will be deprived the opportunity to earn a living and be subjected to a destitute lifestyle.[47] The applicant claims that, as he is not afforded the same protections under law as a disabled person as defined under the PWD, he will continue to be discriminated against in Malaysia based on his physical characteristics. As a person perceived with a disability, he claims that he will be subjected to an array of persecution including discrimination, physical and verbal abuse, denial of subsistence and serious psychological harm if he returns to Malaysia.
[46] Applicants submissions ID 7251472 dated 12 May 2020; Applicants submissions ID 7251472 dated 12 May 2020;
68.However, the applicant’s evidence to the Tribunal as to his attempts to find employment were vague and lacking in any detail. The Tribunal notes that the applicant has limited education and, as a result, his employment opportunities are likely to be more limited. Nevertheless, save for stating that he had attempted to look for work and that he was told he was too small for [Industry 1], the applicant did not provide any specific details of the positions he had applied for or the industries in which he had sought employment.
69.While the Tribunal accepts that the applicant has a short stature and that he will suffer discrimination in Malaysia, it does not accept that he will suffer serious harm as a result of being perceived as having a disability as submitted by the applicant. As noted above, the definition of a person with a disability under the Act includes those who have long term physical, mental, intellectual or sensory impairments which hinder their full and effective participation in society.[48] The Tribunal accepts that a lack of knowledge and misconceptions about disability, has resulted in stigma against people with disabilities in Malaysia and limited their access to their rights to be a part of society. However, the Tribunal notes that the country information refers to people with disabilities as those people with a physical or mental impairment. For example, the article referred to by the applicant in The Star refers to an individual who was born with no arms who overcame his disability to be able to go to school and later learn to ‘scuba dive, participate in marathons, trail runs and a myriad of other activities that most people haven’t tried.’[49] There is no suggestion, other than the applicant’s height, that the applicant is in any way physically or mentally impaired. In fact, that applicant’s evidence was that he was able to perform odd jobs including [details deleted]. In addition, his evidence was that while in Australia he was been employed as [an occupation].
[48] The Star, ‘Study shows that Malaysians don't understand disability’ DATED 21 NOVEMBER 2017 BY S. Indramalar; while the Tribunal accepts that he is short, in circumstances where there is no evidence that he is physically or mentally impaired, the Tribunal does not accept that the applicant would be perceived as being disabled. There was no evidence that the applicant suffered discrimination because of a perception that he was disabled as claimed. Rather, the applicant’s evidence was that he ridiculed because of his short stature and not as a result of any impairment to him physically or mentally. As such, the Tribunal does not accept that he would be perceived to be disabled as claimed and finds that any discrimination the applicant may have suffered was as a result of his short stature and not because of any perception that he suffered for a physical or mental impairment.
Applicant’s Employment.
71.The Tribunal has taken into consideration whether the applicant will be able to obtain gainful employment upon his return to Malaysia. The Tribunal notes the applicant’s submission that the employment rate of people with disabilities in Malaysia is significant lower in comparison to their counterparts given job discrimination and lack of accessibility to employment opportunities.[50] However, the Tribunal has found that the applicant is not physically or mentally impaired and, as such, is not disabled and is not perceived to be disabled in Malaysia as claimed.
[50] Applicants submissions ID 7251472 dated 12 May 2020. University of Malaysia ‘Employment rights of persons with disabilities in Malaysia,’ May 2017, Harlida Abdul and Zainal Amin AyubWahab; the Tribunal does accept that the applicant may be subjected to discrimination as a result of his height. It accepts that his physical characteristic may have prevented him from obtaining certain types of employment and that he has been humiliated and ridiculed by employers as claimed. The applicant claims that as a result of not being able to secure regular employment he was placed in a difficult financial position and was unable to support himself. As such, his evidence was that he had to resort to odd community jobs to afford basic living expenses.
73.However, the based on the applicant’s own evidence, in the face of serious financial difficulties, he was able to find employment for the purposes of meeting his and his mother’s expenses. The Tribunal notes the relatively negligible poverty rates in Malaysia. The applicant is youthful and fit. He has been motivated and able enough to find work in Australia indicating that he possesses a good work ethic and that he will be able to find employment in anywhere in Malaysia. The Tribunal acknowledges that he will face difficulties and challenges arising from finding work in Malaysia and, in particular, because of his height. However, it does not accept that he will not be able to access paid employment given his overall motivation, work experience and the relative economic prosperity of Malaysia.
74.The Tribunal notes the applicant’s claim that he will suffer harm as he is not able to access disability welfare. The Tribunal accepts that he will not be able to access disability welfare but notes that it has found that he is capable of finding employment for the purposes of maintaining his capacity to subsist. As such, it does not accept that the fact that the applicant cannot access disability welfare is a cause of serious harm to the applicant.
75.However the Tribunal acknowledges the applicant’s fears that he has the burden of generating an income for his mother and that he holds a personally held fear regarding the cost of living being too high and the remuneration for low skilled work too low if he were to return to Malaysia. However, the Tribunal has placed considerable weight on the country information[51] that the Malaysian economy is growing in size and sophistication. The country information[52] notes that Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capita GDP was USD10,942 (AUD14,630). Malaysia has transformed from a commodity-based economy into a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. The DFAT report[53] notes that Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012 falling from over 50 per cent in the 1960s to less than 1 per cent today. The applicant made no claim concerning the Malaysian Government intentionally inflicted harm on the applicant. Nevertheless, based on the available country information, the Tribunal finds there is no intention on the part of the Malaysian Government in its role of managing the economy in combination of market forces to inflict serious or significant harm, including subjecting the applicant to serious harm in the event that he is returned to Malaysia.
[51] DFAT Report @ p.10
[52] ibid
[53] ibid
76.For these reasons, the prospects of finding work in Malaysia based on the applicant’s circumstances does not amount to the applicant facing a harm that will amount to serious harm, in the sense that the applicant will experience significant economic hardship or be denied a capacity to earn a living that threatens his capacity to subsist or that he will be denied access to basic services.[54] There is no substantial reasons for believing that the applicant will face serious or significant harm as a necessary and foreseeable consequence of being removed from Australia for Malaysia based on his economic circumstances.
[54] The instances of serious harm as referred to in section 5J(5) of the Act are not s case the instances of harm
77.Accordingly, the Tribunal find that the applicant does not have a real chance of serious harm arising out of being unable to access employment as a result of his short height or his economic circumstances as claimed for reasons mentioned in s.5J(1)(a) or any other claimed reasons, if he was to return to Malaysia from Australia now or in the reasonably foreseeable future.
78.The applicant submits that cumulatively, the harm to the applicant is as a result of;
(a)the risk of harm as a victim of domestic violence abuse in which his perpetrator remains a continued threat. For the reason expressed above the Tribunal has found that there is no real chance the applicant will be seriously harmed by reason of his claims of domestic violence. The Tribunal has found that the applicant has access to adequate protection. Based on the available country information the Tribunal has found that the RMP is a professional police force capable of providing adequate protection to the applicant. In addition, there are NGOs in Malaysia capable of proving care and assistance to the applicant. The applicant has displayed, through finding accommodation for his mother, that he is capable to accessing such community services. Finally, the applicant’s own evidence was that he had not seen his father since the time of the incident in 2015 and that he was not aware of where his father is now living. In such circumstances, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of domestic violence if he returns to Malaysia.
(b)the applicant facing risk of harm as a victim of societal discrimination pertaining to his physical height which renders him disabled in the face of the community. The Tribunal has found that, based on his own evidence, he has no physical or mental impairment. As such, he is not considered disabled. While the Tribunal accepts that he would be subjected to a degree of discrimination by reason of his height, it has found that such discrimination would not rise to the level of serious harm.
(c)the lack of protection and support on a governmental, legal, community and familial level presents profound issues for the applicant to subsist in Malaysia as a vulnerable member of the community. While recognising that it will be difficult for the applicant, the Tribunal does not accept that he will not be able to obtain employment for the purposes of maintaining his capacity to subsist.
79.Therefore, having assessed all of the applicant’s claims individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c), if he is returned to the Federation of Malaysia, and does not satisfy the criterion in s.36(2)(a).
Complimentary protection.
80.The Tribunal also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'. The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind.
81.For the reason above, the Tribunal has not accepted that the applicant has a real chance of serious harm from domestic violence by his father. As a result, for the reason expressed under the applicant’s refugee claim the Tribunal finds that there is no real risk he will be significantly harmed if he returns to Malaysia as a result of domestic violence.
82.However, in circumstances where the Tribunal did accept there is a real risk of significant harm to the applicant then under s.36(2B) of the Act (which the Tribunal has specifically found that there is not), there is no real risk of significant harm if the applicant can ‘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’[55] To satisfy s.36(2B)(b)[56], the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[57] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[58] However, the test in s.36(2B)(b) is differently expressed to the effective protection measures test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection. That is, section 36(2B)(b) requires the Tribunal to be satisfied that the protection available would remove the real risk of significant harm.
[55] s.36(2B)(b) of the Migration Act 1958
[56] MIAC v MZYYL (2012) 207 FCR 211
[57] MIAC v MZYYL (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.
[58] In MIAC v MZYYL (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).
83.Having considered the country information and the accepted circumstances of the applicant as discussed under the Tribunal’s effective protection findings for s.36(2)(a), the Tribunal finds that the level of protection from state and other authorities available to the applicant if removed from Australia to anywhere within the applicant’s country of reference, would remove the real risk of significant harm. That is, the Tribunal finds that the RMP will provide effective protection to the applicant from physical harm. In addition, it finds that there are adequate NGO’s capable of proving assistance to the applicant and that he is capable of accessing such assistance. Based on these findings, the Tribunal is satisfied that the applicant could obtain, from a government authority and or an NGO in Malaysia, protection such that there would not be a real risk that he will suffer significant harm. Accordingly, pursuant to s.36(2B)(b), there is taken not to be a real risk that the applicant will suffer significant harm in Malaysia and does not satisfy s.36(2)(aa) in this regard.
84.Further, the applicant has considered the applicant’s claim that he will suffer significant harm as a result of being perceived as having a disability. For the reason stated above, the Tribunal has not accepted that the applicant has a real chance of serious harm as a result of being perceived as disabled. As a result, for the reasons expressed under the applicant’s refugee claim, the Tribunal finds that there is no real risk he will be significantly harmed as a result of being perceived as having a disability if he returns to Malaysia as claimed.
85.In addition, having considered the country information and the accepted circumstances of the applicant as discussed under the applicant’s claim as a refugee, the Tribunal does not accept that the applicant will not be able to gain employment and, as a result, suffer economic harm to the extent that would constitute significant harm. As such, the Tribunal does not accept that the applicant has a real risk of significant harm as outlined in s.36(2A)(c) and (d). Accordingly, the Tribunal finds that there is no real risk the applicant will be significantly harmed by reason not being able to access paid employment as claimed or as a result of the Malaysian economy more generally.
86.In all the circumstances, the Tribunal finds that, pursuant to s.36(2)(aa) there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk that he will suffer significant harm of any kind.
87.At no stage did the applicant advance any other reason, such as his race, nationality or religion, in his written or oral claims that he is owed Australia’s protection obligations. The Tribunal, therefore, finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered pursuant to s.36(2)(a) and s.36(2)(aa) of the Act.
88.Having considered his claims and accepted circumstances, both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk he will suffer significant harm, including that he will be arbitrarily deprived of his life; suffer the death penalty; be subjected to torture; be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment, as required by s36(2)(aa).
Conclusions
89.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 the Act for the reasons mentioned in s.5J(2). Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
90.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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
91.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
92.The Tribunal affirms the decision not to grant the applicants a protection visa.
Jason Pennell
Senior MemberAnnexure A
ECONOMIC OVERVIEW[59]
[59] DFAT Report @ p.10
2.6The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2018, its real GDP growth was 4.7 per cent, while per capita GDP was USD10,942 (AUD14,630). Malaysia has transformed since independence from a commodity-based economy, focused predominantly on producing rubber and tin, to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia is the world’s second largest producer and exporter of palm oil. Manufactured goods comprised 84 per cent of Malaysia’s exports in 2018. Malaysia is the Association of South East Asian Nations’ (ASEAN’s) largest energy exporter and income from oil and gas provides the government’s largest single revenue source. The drop in oil price in 2015 and 2016 negatively affected government revenues, but the rebound in oil prices in 2017 has seen revenues pick up again. The International Monetary Fund forecast economic growth of 4.5 per cent for 2019.
2.7Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (USD 8.50 (AUD 12.26) per day in 2012) falling from over 50 per cent in the 1960s to less than 1 per cent today. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, which predominantly consists of Bumiputera. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The UNDP’s Human Development Index ranked Malaysia 57 out of 189 countries in 2018, placing it in the ‘high human development’ category. In October 2019, Prime Minister Mahathir Mohamad launched a new plan for sustainable and equitable economic growth in Malaysia called ‘Shared Prosperity Vision 2030.’ The plan is focused on providing a decent standard of living for all Malaysians and narrowing the wealth gap and the urban-rural divide by 2030.
Employment[60]
[60] DFAT Report @ p.11
2.6The Malaysian Department of Statistics reported a labour force participation rate of 68.6 per cent in June 2019, while in February 2019 the Malaysian Department of Statistics reported an overall unemployment rate of 3.3 per cent. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.
2.7The International Labour Organization estimates that three to four million migrants (including irregular migrants) currently work in Malaysia, constituting up to 30 per cent of the country’s workforce. Of the migrant worker population, 1.7 million are registered, and an estimated 1.9 million are undocumented (irregular) migrants. Labour migration policy in Malaysia has tended to be formulated largely from the standpoint of controlling immigration and maintaining public safety rather than labour administration, as indicated by the authority granted to the Ministry of Home Affairs over migration issues. Recent years have witnessed a rise in increasingly virulent rhetoric against migrants within the popular media, blaming migrants for a host of social problems ranging from electoral fraud to increases in street crime. Scapegoating of migrants, regardless of realities, has contributed to an environment where exploitation and abuse are sometimes viewed as acceptable.
2.8An increasing number of reports have documented serious labour rights abuses against migrant workers in Malaysia, including cases of forced labour and human trafficking (see Trafficking in Persons). The Global Detention Project reports that potential trafficking victims may be charged with immigration offences and detained in the criminal justice system due to the lack of formal victim identification procedures. The estimated 300,000–400,000 migrant domestic workers employed in Malaysia lack protection under labour laws. Due to the physical isolation of workplaces, restrictions on movement and inadequate mechanisms established to ensure accountability of employers, a large number of domestic workers are also exposed to abusive working conditions. Economic migrants rarely obtain permanent residence status. Undocumented migrant workers from the Philippines and Indonesia tend to be employed in the construction, palm oil and fishing industries in Sabah and Sarawak. DFAT is aware of reports of ethnic tensions between Indonesian and Filipino migrant workers working on plantations in Sabah, which have led in some cases to fatalities. DFAT is also aware of reports of the children of undocumented migrant workers working on plantations in Sabah
Violence against Women[61]
[61] DFAT Report @p.42
3.121Section 375 of the Penal Code defines rape as when a man forces sexual intercourse with a woman without her consent, against her will, or if she consented out of fear for her life. Section 375(g) states it is an offence to have sexual intercourse with a girl who is below 16, with or without her consent. Section 376 provides for punishment of between 10 and 30 years’ imprisonment, while whipping can also be imposed on those who commit rape in certain circumstances. Section 574 provides for a maximum penalty of five year’s imprisonment for marital rape should it have caused hurt or fear of death. The application of this provision is reportedly weakened in many states due to ambiguity between it and syariah-based law, which prohibits wives from disobeying the ‘lawful orders’ of their husbands and therefore discourages them from reporting to authorities.
3.122Amendments to the Domestic Violence (Amendment) Act (2017) strengthened protections for victims of domestic violence. The Act expanded the definition of domestic violence, and protects spouses, former spouses, children, family members, ‘incapacitated adults’ who are living as members of the family, and de facto spouses (couples who have gone through a religious or customary marriage ceremony, but have not registered their marriage). The Act still does not cover non-married couples, however, and does not include marital rape in the definition of domestic violence. The amendments also introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week and prevent a perpetrator from entering a safe location. In addition to EPOs, victims of domestic violence can also obtain interim protection orders (IPOs) and standard protection orders (POs). Violations of any of the protection orders can result in a prison sentence of up to six months and/or a fine of RM2,000 (AUD705), while multiple violations can result in the offender being jailed for between 72 hours and up to two years and fined up to RM5,000 (AUD1,762). If a perpetrator of domestic violence commits acts of violence when violating a protection order they can be fined up to RM 4,000 (AUD 1,410) and/or receive a prison sentence of up to one year.
3.123Section 376A of the Penal Code criminalizes family sexual violence (‘incest’); defining it as sexual intercourse with someone the perpetrator is not allowed to marry due to law, religion or custom. A person found guilty of incest may be sentenced to a maximum of 30 years in prison and is liable to whipping. According to RMP statistics, there were 296 reported cases of incest in 2017. These numbers are likely to understate considerably the actual number; however, with in-country sources suggesting that incest is one of the most under-reported of all crimes. While family sexual violence occurs across all cultural groups and socio-economic levels, sources suggest that it is more likely to occur in rural and remote areas.
3.124Despite the enhanced legal protections available to victims, NGOs report that violence against women in the form of rape, domestic violence, and family sexual abuse remains a significant problem. According to RMP statistics, there were almost 5,000 cases of domestic violence against women reported in 2018, and 5,513 cases of domestic violence and 1,582 cases of rape reported in 2017. Local sources believe that domestic violence, rape and family sexual abuse remain under-reported because of traditional beliefs in the sanctity and privacy of marriage, the level of shame involved, and reluctance to expose a perpetrator within the family. While there was reportedly a significant increase in reports of cases of domestic violence immediately following the passing of the amendments, reporting rates subsequently tapered off due to a perceived lack of support and resources for victims. The government does not separate domestic violence deaths from other forms of unlawful killing, so it is difficult to ascertain accurate statistics. No statistics or government reports identify whether so-called ‘honour killings’ (murders committed to punish individuals perceived to have brought shame upon their family or community) occur.
3.125Women’s groups report the need for increased training, enforcement, and resources for state protection bodies engaged in preventing violence against women, along with further legislative improvements. Although the RMP’s Criminal Investigation Division includes a Sexual Investigation Division, overall police training on issues related to violence against women is reportedly limited. For example, sources report that police commonly return victims of domestic violence to the perpetrator, as they perceive the issues as private family matters. The judiciary also reportedly receives little or no training on the application of relevant laws. Although conviction rates in relation to violence against women have reportedly increased in recent years, this comes from a very low base. The Home Ministry reported in 2016 that only 16 per cent of reported rape cases in the preceding decade had gone to court, and that just 2.7 per cent of all reported cases had resulted in guilty verdicts.
3.126Several government and non-government bodies provide shelters and assistance to victims, but contacts report that these services are inadequate for demand. The government introduced One Stop Crisis Centres (OSCC) in the emergency departments of Malaysian hospitals in 1996, which aim to provide a centralised one-stop facility to victims. The Women’s Aid Organisation reports that there are OSCC services in 102 government hospitals nationwide, with the number of clients who access each OSCC varying from fewer than 10 to over 500 a year. The OSCC in Kuala Lumpur includes examination by female doctors, evidence management, referrals and crisis intervention, counselling, temporary shelter and legal assistance. According to the Women’s Aid Organisation, the quality of OSCC services differs among hospitals in Malaysia, and that significant barriers kept OSCCs from functioning as intended. These barriers include: a lack of routinely available emergency contraception; referral for abortion for unwanted pregnancies being dependent on the views of the Head of the Obstetrics and Gynaecology Department; low levels (or lack) of follow up to identify and treat HIV and other infections; and low levels (or lack) of support for the emotional well-being of the women who accessed the centres. The Women’s Aid Organisation also reported that many survivors of domestic violence and rape living in rural areas did not have access to a coordinated service.
3.127A 2009 JAKIM fatwa ruled that ‘female circumcision’, better described as female genital mutilation (FGM), was obligatory for Muslim women and girls, unless harmful to their health. Although no Malaysian state has gazetted the 2009 fatwa, the Ministry of Health subsequently introduced guidelines in 2012 that reclassified FGM as a medical procedure, permitting it to occur legally in health care facilities. According to the World Health Organization, the most common form in which FGM is practiced in Malaysia is Type I, involving the partial or total removal of the clitoris, although some women undergo Type IV, a ritual form that includes a symbolic pricking or nicking of the genitals. The procedure is often performed during infancy. In-country sources report while that public hospitals do not conduct the procedure, private hospitals do.
3.128There are no recent verifiable statistics available in relation to the prevalence of female genital mutilation (FGM), but a 2012 university study found that 93 per cent of Muslim women surveyed had undergone ‘circumcision’. According to the 2012 study, more than 80 per cent of respondents said religious obligations were behind the decision to be ‘circumcised’, while 16 per cent said the ‘circumcision’ was performed ‘to control sexual drives’. Although international organisations such as CEDAW have urged the government to abolish FGM, officials have defended it as ‘a cultural obligation’ and have sought to draw a distinction between FGM and ‘female circumcision’.
3.129DFAT assesses that, while the situation is improving, ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, and lack of awareness of rights continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely. Young Muslim girls face a high risk of societal violence in the form of being subjected to some form of FGM.
Welfare Recipients[62]
[62] DFAT Report @ p.48
3.149The Department of Social Welfare, Ministry of Women, Family and Community Development, provides financial support to the elderly (aged 60 years and above), the economically disadvantaged, children, people living with a disability, those affected by natural disasters, victims of domestic violence, victims of trafficking, and the otherwise vulnerable. The elderly are also entitled to apply for a government aid fund, which pays up to RM1250 (approximately AUD400) annually.
3.150According to media reporting, the government approved the introduction of unemployment benefits including allowances and support for training in October 2017. Businesses and NGOs also have various programs to support the poor; the ‘Mykasih program,’ a private sector program which is assisted by the government, also provides a platform to give food aid to the poor through a centralised system (the platform allows people to use their MyKad for payment at selected supermarkets). Malaysian culture places significant emphasis on family support. Food kitchens are available within large cities to alleviate urban poverty and homelessness. Government-provided shelters are also available.
Royal Malaysia Police (RMP)[63]
[63] DFAT Report @ p.55
5.5The RMP is based on the British constabulary model and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
5.6According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
5.8The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. Suhakam also receives complaints against the RMP and has investigated police behaviour. The government is not formally required to consider Suhakam’s reports or recommendations.
5 (1) Interpretation
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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
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(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.
…
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Statutory Interpretation
Legal Concepts
Judicial Review
Jurisdiction
Procedural Fairness
Statutory Construction
Natural Justice
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