1912254 (Refugee)
[2024] ARTA 807
•9 December 2024
1912254 (REFUGEE) [2024] ARTA 807 (9 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1912254
Tribunal:General Member A Hirsch
Date:9 December 2024
Place:Melbourne
Decision:The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
General Member A Hirsch
Statement made on 9 December 2024 12:43:20 PMCATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of domestic violence – employment – economic conditions – fear of terrorist activity – physical assault – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BMY18 v Minister for Home Affairs [2019] FCAFC 189
Chan Yee Kin v MIEA (1989) 169 CLR 379Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
FCS17 v MHA (2020) 276 FCR 644
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 15 March 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant lodged her application for review before the Administrative Appeals Tribunal (AAT) on 17 May 2019. While this was outside of the prescribed timeframe for an application for review (which would have been 11 April 2018), the notification letter from the Department resembles the error identified in DFQ17 v Minister for Immigration and Border Protection[1] and BMY18 v Minister for Home Affairs.[2] As such, the application for review is valid.
[1] [2019] FCAFC 64 (DFQ17) at [41]–[65] per Perram J.
[2] [2019] FCAFC 189 (BMY18) at [32]–[35] per Reeves, Perram and Charlesworth JJ.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 22 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Evidence before the Department
Evidence before the Department consisted only of the applicant’s protection visa application form. That application states that the applicant left Malaysia for the following reasons: ‘1) RIOT 2) TERRORISM ACTIVITY 3) SERIOUS CRIME 4) LOST CONFIDENT TO THE COUNTRY LEADER NEVERFULLFILL HIS PROMISE 5) RASICM’.
The application states that the applicant moved to the east of Malaysia, including Sabah and Sarawak, but the ‘the situation is more horrible. They are seeking their own independence’. The application states that if they return to Malaysia they will be ‘jobless, can’t survive, can’t support own family, worry to become victim of terrorist or criminal’.
The delegate of the Department did not invite the applicant for an interview.
The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations. The delegate found that the applicant was not a refugee as per s 36(2)(a) of the Migration Act because there was no evidence the applicant would face serious harm for reasons of race. The delegate also found that the applicant was not owed protection obligations under complementary protection as per s 36(2)(aa) of the Migration Act because they could obtain protection from authorities in Malaysia such that would not be a real risk of significant harm.
Evidence before the Tribunal
The applicant lodged an application for review of the delegates decision on 17 May 2019 (as noted above, this application was valid despite being outside of the prescribed timeframe). On 13 March 2024, the applicant returned a Pre-Hearing Information form indicating they would provide their claims for protection at the hearing.
On 30 October 2024, the applicant was invited to attend a hearing on 22 November 2024. The applicant completed and returned the Hearing Response form indicating she will attend the hearing, and also provided copies of the following documents:
·Malaysian marriage certificate from 2014 between [Husband A] and [the applicant].
·Birth certificate of [Child A], born in [specified year] to [Husband A] and [the applicant].
·Birth certificate of [Child B], born in [year] to [Husband A] and [the applicant].
·Birth certificate of [Child C], born in [year] to [Husband A] and [the applicant].
·Malaysian identify card of [Child A].
·Malaysian identity card of [Child B].
·Malaysian divorce certificate dated [in] Jun 2019 for [Husband A] and [the applicant].
Also in the Hearing Response form, the applicant stated that she wished her [Child A], to appear as a witness (via telephone in Malaysia), noting that ‘[they] witnessed everything my ex husband is not a good father’. However, at the hearing, the applicant said that [this child] was in school and wouldn’t be able to be called as a witness at that time.
On 5 December 2024, the applicant appointed a representative from Refugee Legal, Ms Madelyn Madeira.
At the hearing, the applicant was given two weeks to provide additional documents. On 6 December 2024, through her representative, the applicant provided the following documents:
·Translated police report from the Royal Malaysian Police dated [in] March 2012 which references a domestic violence incident and indicates that applicant doesn’t wish to pursue the case and only wishes to seek a divorce.
·Translated versions of the documents provided before the hearing (outlined above).
·Translated statement from [Witness A] dated 3 December 2024 stating that the witness has known the applicant since 2013 and witnessed an incident in 2017 in which the applicant’s brother-in-law hit the applicant.
·Screenshots of messages purporting to be between the applicant and the applicant’s ex-husbands new wife, [named]. The messages concern a dispute over money and debts.
The applicant’s representative also provided a statement on 6 December 2024 outlining the reasons why the applicant fears harm upon return to Malaysia as per s 36(2)(a) of the Migration Act.
I have read and considered all the documentary evidence provided by the applicant in reaching my decision.
The applicant attended a hearing on 22 November 2024.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, 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 it must distinguish the group from society.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was born and grew up in [Town 1], [District 1] in Sabah, Malaysia. When the applicant was [very young], she claims to be ‘kidnapped’ by her father and lived with her father and his wife. Around the age of 10, the applicant’s mother was able to obtain custody of her and she lived with her mother and her step-father. She only saw her father once after this, around the age of 12, in order to obtain an identity card. The applicant’s father passed away in 2004.
The applicant claims that when she was living with her father, the applicant’s stepmother (her father’s wife) did not allow the applicant to go to school. After returning to live with her mother, her mother tried to enrol her into school but could not afford the school fees. The applicant had disagreements with her step-father and left home at [age].
In 2005, at the age of [age], the applicant claims that her mother arranged for her to be married to [Husband A]. After two months of marriage, they moved to Tawau, Sabah, Malaysia. The applicant was not allowed to contact her mother or anyone else in her family.
The applicant had four children with [Husband A]:
·[Child A], born [date]
·[Child B], born [date]
·[Child C], born [date]
·[Child D], born [date]
The children now live with [Husband A’s] mother in Malaysia.
The applicant has worked in various manual labour roles, including [specified jobs].
The applicant arrived in Australian [in] December 2018 on an ETA authority visa. The applicant claims that she initially came to Australia for three months, seeking work to support her children, but that once here, she sought to stay longer.
The applicant claims that a friend of a friend helped her to apply for the protection visa, at a cost of $450. She has not seen what is in the application, including the reasons given in the application for seeking protection. When the visa was refused by the Department, she contacted the person again, who asked her to pay another $450. She paid the $450 and was asked to sign a document, but after taking that document to [her] Union, she was informed that she was signing an application to withdraw her visa application. She refused to sign, and the applicant never heard from this person again. I accept this explanation as the reason why she did not submit her application for review in a timely manner, and why she is not aware of the details of her protection visa application. She has explained the various circumstances of the difficulties she faced obtaining proper migration assistance and was generally credible and forthcoming in her evidence.
Claims of Domestic Violence
When the applicant was pregnant with her first child in [specified year], she claims that her husband started to physically abuse her. These attacks occurred regularly, often daily. These beatings would occur more often closer to his payday, when the applicant would ask her husband for money to pay for daily living costs. The applicant claims that [Husband A] would not provide her with any money to pay for food and household necessities.
The worst of the violence occurred shortly after the applicant gave birth to her third child in [year], after which she ran away to her mother’s house. The night she arrived at her mother’s house, her mother took her to the police station, where she made a police report regarding the incident. The police brought the applicant to the hospital, where the hospital also produced a report. She claims that the police had issued a warrant for [Husband A's] arrest, but that she did not want her husband to be arrested, but only wanted a divorce. As country information concerning domestic violence shows, this is not uncommon for victims of domestic abuse, especially considering the significant financial dependency of the applicant on her husband. The applicant has tried to obtain the police report and hospital records, but has not been able to locate them. The applicant was given an additional two weeks after the hearing to provide further documents, but did not do so in the agreed timeframe.
The applicant lived with her mother in [year] for a short period of time, but her mother did not allow her to stay for long. Her mother requested money, but the applicant was unable to work because she had just given birth. As such, she went back to live with her husband.
In approximately 2012, the applicant claims that she applied to the courts for divorce. However, in court, [Husband A] claimed under oath that the applicant was lying. The applicant claims to have submitted the 2010 police report as evidence in support of the divorce but the court did not accept it. The court sided with the husband, and refused to allow the divorce with justification. This is consistent with the police report provided by the applicant after the hearing, in which the applicant states that she does not wish to pursue the criminal matter but only wants to seek divorce.
The applicant also claims that [Husband A’s] brother and father also physically abused her, including beating her. In one example, the applicant claims that when her oldest child was [age] years old, her then-father-in-law came into a room where the child was, picked her up from her cradle, and started to violently squeeze and shake the baby. The applicant intervened, and in response the father-in-law hit her and caused an injury to her [body part]. She had to seek medical treatment for [that] injury. [Husband A] was away for work for a number of weeks, and when he returned, the applicant informed [Husband A] of the incident, showed him the medical report, and said that she wanted to file a police report. However, the husband did not allow her to file a police report because it would bring shame to the family. Her [Child A] has tried to find the medical file but was not able to locate it. However, this is also consistent with the witness statement from [Witness A] made on 3 December 2024, in which the witness states that she witnessed the applicant’s brother-in-law hit the applicant in 2017.
In 2019, while the applicant was in Australia, [Husband A] applied for divorce in Malaysia, claiming (according to the applicant) that the applicant had abandoned the family and her children to live in Australia. The applicant claims that [Husband A] filed for divorce in 2019 in order to marry another women, whom he was with before the applicant left for Australia.
Her ex-husband, and his brother and father, have said that the applicant is not allowed to see the children, and threatened to harm the applicant if she makes contact with her children. The applicant fears that violence will be worse if she returns, because she left her ex-husband and he would see retribution if she tries to make contact with her children upon return to Malaysia.
The applicant claims that if she returns to Malaysia the violence against her will be even worse. Because they are now divorced, and [Husband A] has custody over the children, the applicant fears physical harm if she tries to make contact with the children. She gave evidence that if she returns to Malaysia, she will try to seek to reunite with her children, which would bring her to the attention of her ex-husband.
The applicant claims that it will be difficult for her to relocate to another place in Malaysia. She cannot live with her mother, as her mother continues to demand money. The applicant claims it will be difficult for her to find work elsewhere, and she did not complete any education and does not have a Penilaian Menengah Rendah (PMR) (also known as the Lower Secondary Assessment). The applicant claims that employment is much harder now for those without formal education.
COUNTRY INFORMATION
I have considered country information relating to the applicant’s claims of domestic violence in Malaysia. The following presents an overview of the legal frameworks, socio-cultural dynamics, state protection mechanisms, and recent trends affecting the treatment of women facing domestic violence in Malaysia, relying on data from DFAT's Country Information Report Malaysia (24 June 2024)[3] and additional sources, including reports from CEDAW,[4] United Nations University International Institute for Global Health,[5] and the Women’s Aid Organisation (WAO).[6]
[3] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, pp 30-31.
[4] CEDAW Committee, Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia, UN Doc CEDAW/C/MYS/CP/3-5 (14 March 2018).
[5] Ghani, Fatima, Pocock, Nicola S., Lim, Shiang Cheng and Remme, Michelle (2019). Violence Against Women and Girls Worldwide and in Malaysia, United Nations University International Institute for Global Health (2019),
[6] Women’s Aid Organisation and Joint Action Group for Gender, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019); Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 104.
Domestic violence remains a significant, although frequently underreported, issue for women in Malaysia. While the prevalence of domestic violence is estimated to be relatively low based on available data, there is a strong indication that underreporting due to cultural sensitivities plays a major role. Deep-rooted cultural beliefs often prevent survivors from coming forward, as domestic violence is still seen by many as a private family matter. Women may fear repercussions from their partners, extended family members, or even the community at large if they speak out, which adds to the reluctance to report such incidents. The following presents an overview of the legal frameworks, socio-cultural dynamics, state protection mechanisms, and recent trends affecting the treatment of women facing domestic violence in Malaysia, relying on data from DFAT's Country Information Report Malaysia (24 June 2024)[7] and additional sources, including reports from CEDAW,[8] United Nations University International Institute for Global Health,[9] and the Women’s Aid Organisation (WAO).[10]
[7] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, pp 30-31.
[8] CEDAW Committee, Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia, UN Doc CEDAW/C/MYS/CP/3-5 (14 March 2018).
[9] Ghani, Fatima, Pocock, Nicola S., Lim, Shiang Cheng and Remme, Michelle (2019). Violence Against Women and Girls Worldwide and in Malaysia, United Nations University International Institute for Global Health (2019),
[10] Women’s Aid Organisation and Joint Action Group for Gender, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019); Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 104.
Prevalence and Contributing Factors
According to the DFAT report, violence against women and girls is an underreported but pervasive problem in Malaysia. Surveys suggest that intimate partner violence affects approximately 8% of ever-partnered women, but this figure likely understates the true scale of the problem due to the sensitivity surrounding the issue (DFAT 3.115). The Women’s Aid Organisation documented 2,815 cases of domestic violence between 2021 and March 2023, further emphasizing the scope of the issue. However, it is crucial to note that the true prevalence is likely much higher, as the stigma and cultural barriers surrounding domestic violence make many women unwilling to seek help or report their experiences.
A 2020 study published in BMC Public Health identified a number of significant factors that contribute to intimate partner violence in Malaysia, including lower education levels, lower socio-economic status, substance abuse, exposure to prior violence, condoning attitudes towards violence, controlling behaviours by partners, and lack of social support.[11] These factors interact in complex ways, often trapping women in abusive relationships due to limited options for economic independence or social safety nets. The United Nations University report adds that underreporting is often driven by societal stigma, fear of retribution, and financial dependence on the abuser, all of which contribute to the invisibility of many cases of domestic violence.[12] A 2021 survey found that 53% of respondents believed domestic violence to be a ‘normal’ response to stress or frustration. Women’s Aid Organisation report on public attitudes highlights that many Malaysians still hold attitudes that excuse perpetrators and mistrust women’s reports of violence, further perpetuating the issue.[13]
[11] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.116].
[12] Ghani, Fatima, Pocock, Nicola S., Lim, Shiang Cheng and Remme, Michelle (2019). Violence Against Women and Girls Worldwide and in Malaysia, United Nations University International Institute for Global Health (2019), Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 104.
Social norms play a significant role in shaping the prevalence and reporting of domestic violence. In Malaysia, traditional gender roles that depict men as the heads of households and women as subservient make it difficult for survivors to leave abusive relationships. These cultural expectations can create an environment where domestic violence is normalised, and women are pressured to endure abuse for the sake of family unity. Moreover, the concept of shame or ‘malu’ is deeply embedded in Malaysian society, leading many women to avoid seeking help out of fear of tarnishing their family’s reputation. The intersection of these socio-cultural factors significantly contributes to the high level of underreporting and the sustained prevalence of domestic violence.
Legal Framework and State Protection
State protection for women experiencing gender-based violence in Malaysia is mixed, and it remains inadequate in meeting demand.[14] There are special police units dedicated to handling gender-based violence (GBV) and child abuse, but the services are insufficient. Women may not always have access to a female police officer when seeking help, and they face pressure from both families and police to drop their complaints. The CEDAW Committee reports that despite Malaysia's commitment to international standards, ongoing reservations on several articles, including those related to marital rape, limit full legal protections for women.[15]
[14] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.117].
[15] CEDAW Committee, Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia, UN Doc CEDAW/C/MYS/CP/3-5 (14 March 2018).
Specialist GBV units, such as Branch D11 of the Royal Malaysian Police's Criminal Investigation Department, have demonstrated a comparatively sensitive approach, but front-line police officers have been criticised for inadequate follow-up, denial of police reports, and lack of transparency in the legal processes.[16] The inconsistency in the responses provided by different police units creates significant barriers to justice for survivors, who may already be in a vulnerable state. A requirement for women to engage the nearest police station can make it difficult to relocate following incidents of violence. For instance, a woman who has fled her abusive partner may be forced to return to a nearby police station, increasing her risk of encountering the abuser. Other barriers include financial constraints related to moving out and affording childcare, especially where families were previously involved in providing support.[17] This makes it very difficult for survivors to gain autonomy, particularly those with young children.
[16] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.118].
[17] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.119].
Amendments to the Domestic Violence (Amendment) Act (2017) have expanded legal protections for those experiencing domestic violence, including provisions for Emergency Protection Orders (EPOs). However, the scope of the Act remains limited as it does not cover domestic violence between unmarried couples or marital rape.[18] The exclusion of unmarried couples and the failure to recognise marital rape as a crime leave significant gaps in legal protection, which means many survivors are not entitled to the same support or legal recourse. The 2017 amendments also introduced measures such as clarifying protection order procedures and strengthening protections during police investigations. Nevertheless, practical implementation issues, such as inconsistent enforcement by police and insufficient awareness among survivors, remain significant challenges.[19] EPOs, intended to prevent perpetrators from accessing victims’ locations, are reportedly challenging to obtain and are often poorly enforced.[20] The lack of effective enforcement of these protective measures means that even when survivors do seek help, they may not receive adequate protection from the state.
[18] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.120].
[19] Women’s Aid Organisation and Joint Action Group for Gender, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019).
[20] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.121].
Support Services
Malaysia has introduced several initiatives to provide support for victims of domestic violence. One notable initiative is the establishment of One Stop Crisis Centres (OSCCs) in the emergency departments of hospitals, which aim to centralise services for women experiencing GBV. By 2019, there were OSCCs in 102 government hospitals, although these services are primarily accessible in city centres.[21] This geographic limitation presents a significant barrier for women in rural areas, who may not have the means to travel long distances to access these services. Additionally, government and NGO-operated shelters are available, albeit with varied conditions and accessibility restrictions.[22] These shelters play a crucial role in providing temporary accommodation and safety for survivors, but their availability is often limited, and some are overcrowded, which restricts their effectiveness.
[21] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.122].
[22] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.123].
Women may sometimes access these services without direct police involvement, such as by seeking help while receiving treatment for injuries. However, the lack of coordination between healthcare providers and law enforcement can sometimes result in missed opportunities to provide comprehensive support to survivors. Access to these services remains inconsistent, particularly for women from marginalised communities or rural areas. The challenges are compounded by limited public awareness of available support services and how to access them, which means that many survivors remain unaware of the help that exists. Furthermore, shelters often have strict rules that can discourage women from using them, such as limited stays and restrictions on children’s ages, which may make it difficult for mothers to seek refuge.
Challenges in Seeking State Protection
Women in Malaysia who experience domestic violence face numerous challenges, including societal, financial, and institutional barriers. Cultural pressures often influence women to remain in abusive relationships. In many instances, families or even the police can exert pressure to discourage women from seeking justice.[23] There are also significant limitations in state protection and law enforcement, as police often fail to follow up on reports or deny women the opportunity to formally document their experiences of violence.[24] The Women’s Aid Organisation report further reveals that public attitudes often dismiss the severity of violence against women, contributing to the persistence of the problem and creating an environment where survivors are mistrusted and discouraged from seeking help.[25]
[23] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.117].
[24] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.118].
[25] Women’s Aid Organisation and Joint Action Group for Gender, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019).
The broader socio-economic constraints of living independently, securing employment, and ensuring childcare further complicate the decision to leave abusive environments. Many women who face domestic violence are financially dependent on their partners, and the prospect of losing financial support can be daunting. Employment opportunities for survivors are often limited due to gaps in their work history or the psychological trauma of abuse, which can impact their ability to find stable work. The financial burden on women, particularly those who have relied on family-based support structures, is a key impediment (DFAT 3.119).[26] Without sufficient income or childcare support, many survivors feel they have no viable alternative but to stay with their abusers.
[26] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [3.119].
Additionally, the Women’s Aid Organisation reports that unresponsive and ineffective support systems further exacerbate the challenges survivors face, with many reporting inadequate assistance from police and social services.[27] Survivors who seek help often encounter bureaucratic obstacles, such as complicated paperwork or lengthy waiting periods, which can deter them from pursuing legal recourse. Moreover, the lack of a coordinated response between different agencies—such as police, healthcare providers, and social workers—often leaves survivors feeling unsupported and vulnerable. The limited availability of psychological support services also means that survivors may not receive the mental health care they need to heal from their trauma.
[27] Women’s Aid Organisation and Joint Action Group for Gender, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019).
The social stigma associated with being a victim of domestic violence remains a pervasive issue in Malaysia. Many women fear being ostracised by their communities or labelled as failures for leaving their marriages. This societal pressure is compounded by a lack of understanding and empathy towards survivors, both from the general public and from officials who are supposed to provide support.
Summary of Country Information
In summary, while Malaysia has implemented measures to address domestic violence, including the expansion of legal definitions and the establishment of support services, gaps remain in both legislation and practice. Women in Malaysia continue to face moderate risks of gender-based violence, and the support available to them—whether through police, legal recourse, or shelters—is frequently inadequate. Cultural attitudes and economic barriers further exacerbate the problem, making it challenging for many women to leave abusive relationships and find adequate protection.
REASONS AND FINDINGS
The issue in this case are as follows:
·Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
The applicant’s identity and country of reference
The applicant claims to be a citizen of Malaysia. The applicant provided a copy of her passport to the Department. The Department accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the application for protection.
The Tribunal accepts that the applicant is a citizen of Malaysia which is also her receiving country for the purposes of refugee and complementary protection assessments.
The applicant’s background and circumstances
I find the applicant’s oral evidence credible. The applicant was forthcoming, consistent and reliable in the hearing. While the applicant did not provide all relevant documents to substantiate her claims, I accept that that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims.[28] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.[29]
[28] SZLVZ v MIAC [2008] FCA 1816 at [25].
[29] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997), Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
I accept the applicant’s evidence about why her protection visa application does not specify the grounds for protection claimed at the hearing. I accept that she paid money to a friend of a friend, and she was not aware of the details in her application. I accept that the claims in her protection visa application are not her true claims, and I have not considered those claims any further.
Findings of fact
For the purposes of this decision, and on the basis of the evidence before me, I accept as credible the following:
·The applicant married [Husband A] in 2005 at the age of [age] and had four children with him, as detailed above.
·The applicant experienced domestic abuse, including domestic violence, coercive control and financial control at the hands of her then husband, [Husband A], as well as his brother and father. This domestic abuse occurred regularly since [year] until she left Malaysia.
·[Husband A], his brother and his father have threatened to harm the applicant should she make contact with her children.
·The applicant will attempt to make contact with her children, including trying to see them in person, if she returns to Malaysia.
I will now turn to consider whether the applicant meets the criteria for protection.
Does the applicant satisfy the refugee criterion for protection?
Based on the applicant’s evidence, I find that if she were to return to Malaysia, she would return to Tawau, Sabah, Malaysia, where her children live with her ex-husband’s mother. I find that the applicant is likely to seek to reunite with her children, as she indicated in the hearing.
I find that, should the applicant attempt to connect with her children, there is a real chance of harm from [Husband A], his father and/or his brother in the foreseeable future. This is based on the applicant’s previous history of domestic violence at the hands of these men, and the threats they made against her should she return to Malaysia and seek to contact her children. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.’[30] As I have accepted the applicant’s evidence that these threats were made by [Husband A] and his family, and I have also accepted that the applicant will seek to make contact with her children should she return to Malaysia (regardless of these threats), I therefore find that there is a real risk of harm upon return.
[30] Chan Yee Kin v MIEA (1989) 169 CLR 379.
I find that the harm that she is likely to face is serious, as set out in s 5J(5) of the Migration Act. This is likely to include threats to her life, depravation of liberty and serious physical harassment and ill-treatment.
Reason for feared harm
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
I consider that the harm the applicant fears from her ex-husband is for the essential and significant reason of being a member of a particular social group, specifically women in Malaysia, and within that more specifically, women who are mothers. Domestic and family violence is widely acknowledged to disproportionately affect women and girls[31] and the Tribunal’s gender guidelines acknowledge this form of violence as a form of gender-based violence that may be directed at a person on the basis of gender.[32] This group is defined by a shared innate or immutable characteristic[33]– gender and motherhood – which is not a shared fear of persecution.[34]
[31] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[32] AAT Migration and Refugee Division, Guidelines on Gender (July 2015) [8].
[33] Section 5L(c)(i) of the Act. Gender has long been recognised as an innate characteristic, see UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2002) [30]. For recent acknowledgement in Australia, see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 178 at [1220].
[34] Section 5L(d) of the Act.
As discussed above, country information highlights an ongoing pattern of persecution against women in Malaysia, especially domestic violence perpetrated by male family members. Social and religious views play a significant role in affecting the prevalence and reporting of domestic violence, as well as access to state protection. Women who are mothers are also at greater risk, because of their dependency on their husbands for income and their caring responsibilities for their children, which may hinder their ability to leave abusive relationships or otherwise bring them into contact with their perpetrators due to custody arrangements.
I also find that the harm is systemic and discriminatory, as required by s 5J(4)(c) of the Migration Act. As country information highlights, violence against women, including domestic violence, is a systemic issue in Malaysia. DFAT Country Report on Malaysia notes that ‘violence against women and girls is a significant, albeit underreported, problem… DFAT assesses that women and girls in Malaysia face a moderate risk of GBV in the form of domestic violence.’[35]
Does the harm relate to all areas of Malaysia?
[35] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, pp 30-31.
I am required by s 5J(1)(c) to find that the real chance of serious harm extends to all areas of the receiving country. When I asked the applicant whether she could relocate elsewhere in Malaysia, her response was that regardless of where the returns, she will seek to reunite with her children.
As such, even if the applicant moved to another part of Malaysia, I am satisfied that she would seek to reunite with her children, which would bring her to the attention of [Husband A] and his family. I am satisfied that should the applicant attempt to make contact with her children, [Husband A] and his family will seek to carry out their threats of harming the applicant. The fact that the applicant intends to contact her children, regardless of where she returns to in Malaysia, puts her at a real chance of serious harm. As such, I am satisfied that the applicant faces a real chance of persecution in all areas of Malaysia.
Can the applicant modify her behaviour?
Section 5J(3) provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic. The question in this case is whether the applicant can refrain from contacting her children.
The applicant is a mother with four children. A key behaviour that is essential to motherhood is contact with one’s children, especially when they are young. It is unreasonable to expect a mother to refrain from contacting her children, or to refrain from taking steps to pursue custody or other time with her children. Requiring the applicant to refrain from contacting her children will impose an unreasonable requirement that conflicts with an innate characteristic of the applicant – her status as a mother. I therefore find that the applicant cannot take reasonable steps to modify her behaviour as it would conflict with a characteristic that is fundamental to her identity.
Can the applicant access effective protection?
Section s 5J(2) of the Migration Act provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Subsection (2) provides that a state is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
Country information discussed above highlights the inadequate protection of the Malaysian authorities provided to victims of domestic violence. In relation to state protection, DFAT reports:
State protection for women and girls experiencing gender-based violence (GBV) is mixed. There are special police units that deal with child abuse and GBV; however, in-country sources told DFAT that these services were inadequate to meet demand. Women who approach police for help may not have access to a female officer. According to in-country sources, the families of women who have experienced GBV often placed pressure on them to drop the matter, either directly or through police officers dealing with the case.
According to in-country sources, police often failed to follow up on reports of GBV. It was not uncommon for a woman who has experienced GBV to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process.[36]
[36] DFAT, Country Information Report – Malaysia (24 June 2024) [3.117]-[3.118].
The available information indicates a pattern of state unresponsiveness to domestic violence despite the existence of a legislative framework designed to punish such offending. Malaysian authorities turn away victims of domestic violence and/or take no action on their complaints and as such are unable to effectively respond to domestic violence complaints.[37]
[37] ‘Reasonable effectiveness’ in relation to the police in this context requires that the police respond to a complaint within a reasonable time: Department of Home Affairs, Policy: Refugee and Humanitarian – Refugee Law Guidelines (re-issued 27 November 2022) 3.14.4.3.
I find that effective protection measures against domestic violence are not available to the applicant in Malaysia.
CONCLUDING PARAGRAPHS
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 22 November 2024
Representative for the Applicant: Ms Madelyn Madeira
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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