1905585 (Refugee)

1905585 (Refugee) [2024] AATA 4148 (23 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1905585
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Windsor
DATE:23 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 July 2024 at 3:36 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – disliked by new stepmother and threatened with black magic – no claims that stepmother used black magic, or of harm – combined hearing with sister’s separate application – sister chosen to marry friend of father and stepmother – unwilling, but agreed while planning to leave country to avoid doing so – late claim of ongoing threats – no mention of sister’s claim in applicant’s application, with applicant relying on sister’s claim at hearing – application prepared by another person without applicant checking – work and repayment of loan from another sister – country information – discrimination against women unlawful but some conservative practices continue – effective protection measures and organisational support available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 7 November 2018.
In her protection visa application, the applicant indicated she was born in Klang in Selangor state, Malaysia on [Date]. She stated she is ethnic Malay and a Muslim. She declared her relationship status as ‘never married’. She indicated she departed Malaysia legally [in] September 2018 and arrived in Sydney, Australia on the same day, entering on a Visitor visa.[1]
[1] See the Departmental file.
In her application, the applicant indicated that she left Malaysia because her new stepmother does not like her and threatened to use black magic on her if she did not listen to her and do what she asks her to do, causing her to be fearful.[2]
[2] See the Departmental file.
The delegate found that the applicant is not a refugee as her claimed fear of harm was not for one or more of the reasons mentioned in s 5J(1)(a) of the Act. In relation to the complementary protection criterion, after considering relevant country information, the delegate found that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that she would suffer significant harm.
The applicant sought review of this decision on 9 March 2019. She provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal on 19 July 2024 to give evidence and present arguments. With the consent of both applicants, this was a combined hearing with [Ms A] (case 1907364), who is the applicant’s sister. Both the applicant and her sister declared their relationship, that they are living at the same address, and that the other also had an application currently before the Tribunal, in their responses to pre-constitution outreach emails sent to each of them in February and March 2024. At the request of the applicants, who are living in [Town] in regional Victoria, the Tribunal hearing was conducted via MS Teams videoconference. The hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant’s claims, as set out in her protection visa application, are summarised as follows:
·She left Malaysia because her father married [a Country] woman. Her new stepmother doesn’t really like her.
·Her stepmother was always threatening to use black magic on her if she didn’t listen to her.
·She had to follow what her stepmother asked her to do. Her stepmother always yelled at her. This made her feel depressed. She lived in fear and could not sleep properly.
·She also felt insecure and feared what would happen if her stepmother used black magic on her.
·She did not seek help as they would not believe what she says. She cannot seek help from the authorities as this is not considered a crime in Malaysia. They don’t believe in black magic and there is no law about it.
·She did not seek to move to another part of Malaysia because she doesn’t have any relatives or a place to stay. She has no choice but to stay with her new stepmother.
·She fears if she returns to Malaysia she will get sick or even die because her stepmother will use her black magic on her. It cannot be healed by doctors as only the person who did the black magic can get rid of the black magic from the body.
On 3 March 2024, the applicant responded to a pre-constitution outreach email sent to her on 27 February 2024, returning a completed pre-hearing information form. The form includes a section which gives applicants the opportunity to provide more information about their claims for protection and the reasons why they are afraid to return to their home country. The applicant reiterated her previous claims regarding her stepmother threatening to use black magic on her if she disobeys her stepmother. She added the following additional comment:
·If she returns to Malaysia, she does not know what will happen to her because she knows her stepmother is angry with her because she came to Australia without letting her know.
Evidence from the hearing
At the start of the hearing, the Tribunal asked the applicant and her sister to both confirm that they consent to their cases being heard in a combined hearing. They both confirmed that they had no objection, for privacy of any other reasons, to the hearing proceeding as a combined hearing.
The applicant and her sister also consented to the Tribunal addressing them by their first given names, [the applicant] and [Ms A] respectively, during the hearing. Both applicants were present together during the entire hearing.
When asked at the start of the hearing if she is sure everything in her application is true and correct as far as she knows and believes, contrary to what was stated in her application [the applicant] said that ‘someone did’ her application for her, adding that she is not sure if it is correct or not. She indicated she paid the person between $100-300 for their assistance. When asked, she indicated that she did not ask the person who assisted her to read back to her in her own language what they had put in the application but just read what was written.
Noting that the claims in her response to the pre-constitution outreach email were very similar to the claims in her application, the Tribunal asked [the applicant] if the same person helped her prepare that. She indicated they did not and said she just copied what had been written in the application. The Tribunal queried why she did not get someone to help her check the accuracy of what had been written in the application. She commented that she went through it and realised that it is not as she asked them to do, but added that it is not all wrong. The Tribunal asked her why she had not corrected it at the time she sent the pre-hearing information form, rather than leave it until now. She replied that she thought it would be better that she explain it face to face at the hearing.
When the Tribunal asked [Ms A] if she is sure everything in her application is true and correct as far as she knows and believes, she said she was. Contrary to what was stated in her application, she also indicated that she paid someone (between $150-300) to help her with the application. She said she can’t remember exactly how much she paid as it was many years ago and she has forgotten.
[The applicant] and [Ms A] had both indicated in their applications that they were born in Klang in Selangor state, Malaysia, lived at the same address in Klang all their lives, travelled to Australia together on [in] September 2018 and were living at the same address in [Location], NSW at the time of their applications. They also indicated in their pre-hearing information forms that they were both living at the same address in [Town], Victoria. Neither of them, however, indicated in their applications that they had any relatives in Australia (including each other) or overseas. When asked about this at the hearing, they indicated that they have their father and [siblings] living in Malaysia. They indicated that their mother passed away in March 2018,
When asked, [the applicant] indicated their father remarried before their mother passed away. When asked if her parents divorced, she said her father just told them that he got married and has children from that marriage. When asked, she acknowledged her father took a second wife. She indicated her father ran a small hawker style eatery at his home.
When asked if she and [Ms A] were living in their father’s home before they came to Australia, [the applicant] said they stayed at their mother’s home, not with their father, who lived with their stepmother in another house. She indicated the Klang address provided in their applications was where they lived with their mother. When asked why that was the case, she indicated that when their mother passed away in March 2018 they went and stayed at different places, including her friend’s house. When asked why they did not stay living at her mother’s house, [the applicant] said they ran away, commenting that the reason has to do with [Ms A]’s case.
When asked about their siblings in Malaysia, [the applicant] said they have an older and younger brother and an older and younger sister. She indicated their siblings all live together but said she is not sure precisely where they are living now as they moved house. She confirmed, however, that they are all still living together in Selangor state. She indicated that she remains in contact with her siblings, primarily with [one sister], who is [Age], but sometimes with her younger sister, who is [Age]. She indicated that neither are married and her older sister works as [an occupation 1] and her younger sister works as [an occupation 2].
[The applicant] also indicated both their brothers are unmarried. She said her older brother, who is [Age], is not working at the moment, commenting that he changes work often. She said her younger brother, who is [Age], has started work as [an occupation 1] since leaving school.
When asked, [Ms A] indicated that what her sister had told the Tribunal regarding their family members is correct.
The Tribunal confirmed with [the applicant] and [Ms A] that their education and employment details stated in their protection visa applications are correct. These indicate that [the applicant] completed a three year Diploma in [Subject 1] at [University 1] in Negeri Sembilan state in November 2012, and worked freelance in Malaysia in [job task 1]; and that [Ms A] completed a three year course at [University 2] in Shah Alam, Selangor state in 2015, and worked as [an occupation 2] in a [workplace] in Klang. When asked, [Ms A] said her university course was in [Subject 2].
[The applicant] and [Ms A] confirmed that they left Malaysia and travelled together to Sydney [in] September 2018. In response to the Tribunal’s observation that both of their applications stated they stayed at an address on [Road] in [Location], NSW, [the applicant] said they met a friend of a friend who took them to find accommodation and they worked for him [doing job task 2] in [Location]. When asked, she indicated that after that they moved around, firstly to [City] then elsewhere, [doing a similar job task]. She indicated that they followed a friend to [Town] in around September 2019 where they did various work before obtaining employment in [a] Factory. She indicated they are now working between 8-12 hours per day as casual [occupation]s at the [factory], where they earn $29 per hour.
When asked if they send any money to their family members in Malaysia, [the applicant] indicated that they have only sent money to [one] sister, as they borrowed RM10,000 from her to come to Australia. When asked, she indicated that they have now repaid that debt.
When asked why they decided to come to Australia [in] September 2018, [the applicant] said she took her younger sister and ran away to Australia because their father wanted [Ms A] to marry his friend. When asked, she said this was after their mother passed away in March 2018. Observing that she has indicated that none of the [siblings] in her family are married, the Tribunal asked why her father decided that [Ms A] should marry. She said her older sister was working and supporting their younger brother who was still studying and the youngest sister had just finished school, so her father’s friend chose [Ms A]. [Ms A] commented that she had never met this man and did not know him other than knowing he is her father’s friend.
The Tribunal read it’s summary of [Ms A]’s key claims, as follows, to [the applicant] and [Ms A]:
·Her family sought to force her to marry someone they had chosen, which she didn’t like. She did not want to be married to a man she doesn’t even know.
·She felt overwhelmed and depressed because she wanted to marry someone of her own choosing. Her family kept on pushing her to marry the person they had chosen.
·She moved to a few places but her parents kept calling her. It made her so miserable she felt like she wanted to commit suicide because it stressed her out a lot.
When asked, [Ms A] indicated that is an accurate summary and said there was nothing she wished to add. The Tribunal asked why she referred to her ‘family’ seeking to force her to marry. She said she was referring to her father and her stepmother, adding that this man was their friend. The Tribunal asked if she experienced any pressure from her siblings to marry this man. She indicated that she did not.
The Tribunal also observed that she had indicated in her written statement of claims that she did not seek help because this is a personal matter which is only among her family and there is no law regarding this in her country. She said that is correct.
The Tribunal observed further that she had indicated in her written statement of claims that she can’t relocate within Malaysia because she lives with her family and doesn’t have any relatives in Malaysia. She responded that they are not close with relatives on either their mother’s or father’s side of the family. The Tribunal asked her why they came to Australia rather than stay with their brothers and sisters. [Ms A] commented that she was living with her siblings but her father and stepmother kept coming and harassing them, so she asked [the applicant] to take her away.
When asked if there was anything she wished to add to her written statement of reasons (which made no mention of the issues raised in [Ms A]’s claims), [the applicant] said they tried to get away from their father and stepmother. She said they went to friends’ places but their father and stepmother were able to ‘trace them down’. When asked how they were able to do that, she said they remained in touch with their siblings and they would tell their father where she and [Ms A] were. She said they could not handle all the harassment and did not have enough money so returned to the house where their siblings were living. She added that she had a friend who was working in Australia so decided they should go to Australia. She indicated that all the houses where they stayed were relatively close by each other, including her mother’s house in [Neighbourhood] and father’s house in [Neighbourhood 2] in the Rantau Panjang area of Klang, in Selangor state. (Google maps indicates that ‘Kampung’ (village) Rantau Panjang is a district within Klang, which is a city and former capital of Selangor).
The Tribunal read to [the applicant] it’s summary (detailed above) of her written statement of claims. She commented that it is true her stepmother never liked her. The Tribunal observed that, contrary to her written statement, at the hearing she indicated she was not staying with her father and stepmother. The Tribunal also asked her about the references in her statement of claims to black magic, querying if she believes in black magic and if her stepmother ever threatened to use black magic, or actually used black magic on her.

[The applicant] said her stepmother had threatened to use it but she does not think her stepmother had ever actually done it. She indicated she believes in black magic. When asked why she believes in it, she said she has seen people who have been affected by it. The Tribunal asked what happened and how the person was affected. [The applicant] said it is done through food. She said the person gets very sick and can’t be treated. The Tribunal suggested that it sounds more like poisoning of the food given to someone rather than black magic. [The applicant] commented that the doctor could not say what happened. The Tribunal queried whether belief in black magic, which seems like superstition, is compatible with the teachings of her Islamic faith. She said initially she did not believe in black magic but has since seen it with her own eyes. She said it happened to her mother’s friend who passed away after a while but no one could say why she died as there was no disease.
The Tribunal observed that nearly 6 years have now passed since they left Malaysia in September 2018 and suggested it is likely their father’s friend has now married someone else. The Tribunal asked [the applicant] and [Ms A] what concerns they have if they had to return to Malaysia now. [The applicant] commented that [Ms A] initially agreed to the proposed marriage and so all the preparations were made. She said their elder sister has told them that their father and his friend got very angry when they left because they had been shamed. She added that is why their siblings have moved house on two occasions already, because the man always comes looking for her and [Ms A], saying ‘wait until they come back’. She said her father never liked her and now he likes her less and they are still very angry.
The Tribunal observed that there has never been any previous mention made of [Ms A] agreeing to the proposed marriage, their father being angry, his friend being angry or his friend coming to the house where their siblings are living. The Tribunal asked her, if this was the case, why it was not mentioned in the responses to the Tribunal’s pre-hearing outreach earlier this year. She commented that she did not know how to write it so decided to wait until the hearing.
When asked to comment, [Ms A] said she just said ‘yes’ because they had to go back to the place where her sister was staying to get the money to come to Australia, but at the same time they were planning to run away. She said she said ‘yes’ to the proposed marriage to ‘throw them off’.
In relation to [Ms A]’s comment in her statement of claims that she did not seek help because this is a personal matter among her family and there is no law regarding this in Malaysia, the Tribunal had regard to relevant country information which indicates that both syariah law (which applies in relation to family matters in the case of Muslims) and civil law in Malaysia have provisions against forced marriage. The Tribunal observed that Malaysian law requires that all marriages must be based on mutual consent and using force or threat to compel a woman to marry against her will is an offence punishable by fine or imprisonment.[4]
[4] Organisation for Economic Co-operation and Development 2014, Social Institutions and Gender Index 2014 – Malaysia, >
The Tribunal also referred to effective protection measures available in Malaysia, drawing on the following information from the current DFAT report,[5] and other sources as indicated. DFAT indicates that the Royal Malaysia Police (RMP), which is based on the British constabulary model, has approximately 115,000 officers operating from over 800 police stations across Malaysia. Notwithstanding some concerns about corruption (which the government has sought to address), the RMP is considered by local and international sources to be a professional and effective police force. Reforms implemented in response to a 2005 Royal Commission included the establishment of an Integrity and Standards Compliance Department within the RMP to enhance police integrity and image. External investigations into allegations of police misconduct, previously undertaken by the Enforcement Agency Integrity Commission, which was not well regarded by complainants, was replaced by an Independent Police Conduct Commission (IPCC) in July 2023. The Malaysian Human Rights Commission SUHAKAM also receives complaints against the RMP and has investigated police behaviour.
[5] DFAT Country Information Report, Malaysia, 24 June 2024, sections 5.5-5.8 and 5.12-5.13.
It is also clear that the Malaysian Penal Code is based on British law and therefore contains laws criminalising offences such as criminal intimidation.[6]
[6] Malaysia Penal Code – Act 574 (1936, rev. 1997), Penal Code – Act 574 (1936, rev. 1997) | International Commission of Jurists (icj.org)
DFAT states that the Malaysian civil courts hear the majority of Malaysia’s criminal and civil law matters. The current report comments that, while the ability of individuals to seek legal redress through Malaysian courts is variable, strict rules of evidence apply in court.[7] The previous report noted that most cases in the Malaysian civil courts comply with the rule of law and legal procedure.[8]
[7] DFAT Country Information Report, Malaysia, 24 June 2024, section 5.13.
[8] DFAT Country Information Report, Malaysia, 29 June 2021, section 5.18.
Country information also indicates there are support services such as referrals and crisis intervention, counselling and legal assistance available to women facing family violence, such as the Women’s Aid Organisation NGO, which has a hotline and WhatsApp distress channel,[9] and One Stop Crisis Centres (OSCCs) which are now in 102 Malaysian hospitals nationwide.[10]
[9] The Women’s Aid Organisation (WAO) website ( and Instagram page advise that they provide free advice, shelter and crisis support to women & children who have experienced abuse and gender based violence.
[10] DFAT Country Information Report, Malaysia, 24 June 2024, section 3.122.
The Tribunal commented that the country information suggests effective protection would be available to them in Malaysia if they needed it, which is accessible and durable and comprises appropriate laws, a reasonably effective police force and an impartial judicial system.
[The applicant] posed the question: how long can they give us effective protection’. The Tribunal observed that, if harassed by their father and/or his friend, they could approach the Women’s Aid Organisation to seek advice and assistance to stop them from harassing and/or threatening them.
When asked if they had any other comments they wished to make, both [the applicant] and [Ms A] indicated they did not.
When asked if there was anything else they wished to raise before the conclusion of the hearing, both [the applicant] and [Ms A] indicated there was not.
Findings and reasons
Identity
On the basis of the copy of her passport submitted to the Department,[11] the Tribunal accepts that the applicant is a citizen of Malaysia and her identity is as claimed. The Tribunal finds that Malaysia is her ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[11] See the Departmental file
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1)(a) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, 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.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
The Tribunal finds that [the applicant in this case] is a [Age] year old ethnic Malay Muslim woman who has never married. The Tribunal accepts that [Ms A] is her [Age] year old sister. The Tribunal finds that they came to Australia together [in] September 2018.
In her application, [Ms A] claimed that she came to Australia because her stepmother does not like her and threatened to use black magic on her. Curiously, she made no mention of her sister in her application, or her sister’s claim that she fled Malaysia because her family sought to force her to accept an arranged marriage proposal against her will.
At the hearing, contrary to what was stated in her application, [Ms A] said someone else had prepared the application of her behalf. She indicated she did not check what the person had put in the application until recently, and then realised it was not what she had asked them to do. The Tribunal finds it concerning and difficult to accept that the applicant apparently had so little regard to ensuring her written claims reflected her true circumstances. This concern is exacerbated by her advice that she did not seek to correct this when she replied to the pre-hearing outreach by the Tribunal, even though she added an additional claim (that she knows her stepmother is still angry with her for going to Australia without letting her know).
At the hearing, [the applicant] indicated that her main claim is that raised by her sister [Ms A] in her application, that she fled to Australia because their father (and stepmother) were seeking to force [Ms A] to enter into an arranged marriage against her will. While [the applicant] did not mention her sister at all in her application and written statement of claims, the Tribunal accepts it is possible that this is the case. In this regard, the Tribunal notes that the DFAT report indicates that, while discrimination against women is banned under the Constitution and women participate widely across various aspects of Malaysian society, ‘some conservative cultural and religious practices continue to limit their choices’.[12]
[12] DFAT Country Information Report, Malaysia, 24 June 2024, section 3.111.
The Tribunal does not accept, however, that if the applicant and her sister returned to Malaysia, her sister would be forced into an arranged marriage or that either of them would face a real risk of suffering serious or significant harm from their father, stepmother or the man it was proposed that [Ms A] marry. This is for the following reasons, considered cumulatively.
Both [the applicant] and [Ms A] (who stated at the hearing that everything in her application was true and correct) indicated in their written statements of claims that they lived with their father and stepmother. [The applicant] stated she has no choice but to stay with her new stepmother. [Ms A] stated that she could not relocate as she lives with her family. At the hearing, however, they both indicated that, prior to coming to Australia they lived with their mother, not with their father and stepmother. They further indicated that, after their mother passed away in March 2018, they lived with their four siblings or stayed with friends. The Tribunal finds that, should they return to Malaysia, [the applicant] and [Ms A] could live independently of their father and stepmother, as they did in the past.
[Ms A] stated in her written claims that she could not seek help in relation to the proposed arranged marriage, because there is no relevant law prohibiting this. The relevant country information cited above indicates, however, that this is not the case and that both civil and Islamic marriages must be by mutual consent. The Tribunal finds that their father could not force either [Ms A] or [the applicant] to marry someone against their will.
While the Tribunal accepts that their father and stepmother may have continued contacting [Ms A] while she was in Malaysia trying to convince or compel her to accept the proposed arrangement, the Tribunal does not accept that she ever agreed to this arrangement. This was never mentioned in her written statement of claims (which she indicated was all true and correct). When the Tribunal read its summary of [Ms A]’s claims to her at the hearing, in the presence of [the applicant], [Ms A] indicated it was accurate and said there was nothing she wished to add. [The applicant] did not interject to indicate there was anything she wished to add. It was only when the Tribunal put to [the applicant] and [Ms A] later in the hearing that, given the passage of nearly six years since they left Malaysia, it would seem likely their father’s friend would have married someone else, that [the applicant] commented that [Ms A] had agreed to the proposed married, and their elder sister has told them their father and his friend were and remain very angry because they were shamed. [Ms A] then indicated this was the case (even though she had never mentioned it previously). The Tribunal considers that if it was the case that [Ms A] agreed to the proposed marriage and arrangements had been made as claimed, and the man involved was making ongoing threats, she would have mentioned this in her written statement, response to the Tribunal’s pre-constitution outreach and spontaneously at the hearing.
The Tribunal also found unconvincing [Ms A]’s comment at the hearing that she and [the applicant] had to return to the home where their siblings were living to get the money they needed to travel to Australia. [The applicant] indicated at the hearing that this money (RM10,000) was borrowed from their elder sister. The Tribunal does not see why they would have needed to return to the home where their siblings were living, if this would have made them more vulnerable to harassment from their father, to arrange this loan, which could have been done through phone contact or by meeting at another agreed location. This is particularly the case if, as a consequence, [Ms A] would have felt she needed to agree to the proposed marriage arrangement, which she indicated she found abhorrent, to ‘throw them off’, as she claimed at the hearing.
In relation to [the applicant]’s claim that she fears her stepmother might use black magic on her, the Tribunal considers this is based on superstition rather than science. In any event, she indicated she and her sister were not living with their stepmother and the Tribunal considers there would be no need for them to live with their father and stepmother in the future, as is the case with their four siblings. As [the applicant] indicated she believed the ‘black magic’ was administered through food, she and her sister could avoid any risk of harm by ensuring they avoided contact with their stepmother and any food she may have prepared or come into contact with.
Both [the applicant] and [Ms A] indicated in their written statements of claims that their claimed circumstances in Malaysia in 2018 made them feel depressed. While they have not provided any medical evidence in support of this, the Tribunal accepts that they may have felt anxious and depressed due to harassment from their father and stepmother regarding the proposed arranged marriage, prior to coming to Australia. The Tribunal accepts it is likely they will remain estranged from their father and stepmother in the future if they return to Malaysia. As the Tribunal considers that the proposed arranged marriage will not be an ongoing issue, and they have not indicated that they have suffered any ongoing mental health issues in Australia, the Tribunal does not accept that they will suffer depression for the previously claimed reasons on their return to Malaysia.
While the Tribunal does not consider [Ms A] or [Ms A] would require the protection of the Malaysian authorities should they return to Malaysia, the Tribunal notes that the country information indicates that the Women’s Aid Organisation NGO is a very useful resource that they could approach for advice and assistance if they felt concerned about the possible actions of their father, stepmother or their father’s friend.
Does the applicant have a well-founded fear of persecution if she returned to Malaysia?
Having carefully considered the applicant’s claims, for the reasons given above, the Tribunal does not accept that there is a real chance that she will suffer persecution involving serious harm from her father, stepmother, father’s friend and/or their associates or agents, or any other person, group, authority or organisation, for one or more of the five reasons mentioned at s.5J(1)(a), if she was to return to Malaysia, now or in the reasonably foreseeable future.
As the Tribunal finds the applicant does not face a real chance of persecution, the Tribunal finds she does not require the protection of the Malaysian authorities.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[13]
[13] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

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

Islamic Family Law (Federal Territories) Act 1984, Section 13, Islamic Family Law (Federal Territories) Act 1984 (commonlii.org)
Women’s Learning Partnership, Marriage and Divorce Act of Malaysia, 2006, Section 22(6), Marriage and Divorce Act of Malaysia (document, English) | Women's Learning Partnership

[2024] AATA 4148

23 July 2024

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