1930442 (Refugee)
[2025] ARTA 1437
•26 March 2025
1930442 (Refugee) [2025] ARTA 1437 (26 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1930442
Tribunal:General Member R. Germov
Date:26 March 2025
Place:Melbourne
DecisionThe Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act 1958 (Cth).
Statement made on 26 March 2025 at 12:56pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Malay ethnicity – religion – Muslim – feared harm from father and brother – physical and sexual abuse – forced marriage – a member of the particular social group – a Muslim female – applicant faces a real chance of serious harm throughout Malaysia – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147Any 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 Immigration and Multicultural Affairs –“the delegate”) made on 21 October 2019 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant sought review of the delegate’s decision on 25 October 2019 within prescribed time limits.[1] On 14 October 2024, the Administrative Appeals Tribunal (the “AAT”) was abolished and became the Administrative Review Tribunal (“the Tribunal”). Under the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”), review applications before the AAT that were not finalised before 14 October 2024 are deemed to be applications for review to the Tribunal. The Transitional Act gives the Tribunal authority to continue and finalise any aspect of the review not already completed by the AAT.
[1] Section 412(1)(b) of the Act and Regulation 4.31 of the Migration Regulations 1994 as these provisions existed before 14 October 2024
The Tribunal is satisfied that the review application was validly made and that it has jurisdiction to determine the review.[2]
[2] Sections 412(1)-(3) of the Act as they existed before 14 October 2024
The applicant appeared before the Tribunal on 17 January 2025 with the assistance of an interpreter in the Malay and English languages. The applicant’s sister, Ms [Ms A], also gave evidence over the telephone from Malaysia. The applicant confirmed that she could understand the interpreter and was happy to proceed with his assistance.
BACKGROUND TO THE REVIEW APPLICATION
The applicant is a female, Malaysian national of Malay ethnicity and the Muslim faith now aged [age] years. She arrived in Australia on [date] December 2018 as the holder of a subclass 601 Electronic Travel Authority (“ETA”) authorising her to remain until [date] March 2019. The applicant applied for a protection visa on 17 March 2019.
In her protection visa application, the applicant stated that she had completed middle school in Malaysia in December 2013 and that she had been employed as a [occupation] immediately before coming to Australia.
The applicant stated in her protection visa application that she came to Australia to escape from her father who had beaten her when she refused to marry her father’s employer in settlement of a loan taken by her father from his employer. The applicant stated she was too young to get married and did not want to marry her father’s employer who was old and incompatible with her.
The Delegate’s Decision
The applicant was not interviewed by the delegate. The delegate decided that the applicant could obtain effective protection from the Malaysian authorities and that her claims did not enliven Australia’s protection obligations. Forced marriages are punishable under Malaysian law and the country information demonstrated that the Malaysian police were willing to enforce the law.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal wrote to the applicant by email on 22 April 2024 to request her to complete a pre-hearing information form. This form enabled the applicant to confirm or update her contact details and to provide further information about her claims. The applicant responded to the Tribunal by email on 27 April 2024. Her response stated that she tried to run away from home to avoid being forced to marry her father’s employer but her father and his employer had connections throughout Malaysia which enabled them to find her. She stated she was physically abused by her father and brother while she in high school whenever she disobeyed their instructions. In addition, she stated that she woke to find her father kissing her on the lips and he stopped immediately when she protested. She feared that he might have gone further if there had been no other people at home.
The applicant decided to escape as she was depressed and traumatised. She chose to come to Australia because women had better rights and legal protections. She claimed that the Malaysian authorities did not take complaints against family members seriously.
No further information was submitted and, on 15 November 2024, the Tribunal sent the applicant a letter by email inviting her to attend a hearing before it on 17 January 2025. On 13 January 2025, Tribunal received some photographs and a letter from the applicant’s younger sister dated 3 January 2025. The photographs purported to be photographs of the applicant showing bruising to her face and leg as well as bleeding under her chin.
The letter from the applicant’s sister stated that she saw their father physically abuse the applicant around midnight on 20 December 2018 because the applicant refused to marry their father’s boss. The applicant’s sister gave her telephone contact number but was not listed as a witness in the applicant’s response to the Tribunal’s hearing invitation.
The applicant’s evidence at the hearing is summarised as follows.
The applicant was born in the city of Sandakan in Sabah and grew up there. She is not a citizen of any other country and does not have a right to reside in any country apart from Malaysia. She applied for the ETA to come to Australia through a travel agent.
The applicant has no family in Australia and has never married. She is currently employed full-time as a [occupation] by [a company] in [a suburb]. She is one of six children, two brothers and four sisters. The applicant is the second youngest and has no contact with any family members apart from [Ms A], who is aged [age] years.
Both of the applicant’s parents are alive. All her siblings are employed apart from her youngest brother. Her father worked as a [occupation]. The applicant had not travelled to any other countries before coming to Australia. She paid for her own airfare and paid a person $2000 to prepare and lodge her protection visa application. The applicant came to Australia to seek protection because she was abused by her father and brother. Her brother had sexually assaulted her while she was in primary school and her father had also stroked her in a sexual manner but had not taken his sexual attention further than this and kissing her on the lips while she slept. The applicant told the Tribunal she was deeply ashamed of this conduct and had never told anyone about it, even [Ms A].
The applicant said that most of the abuse was beatings from her father and brother, [Mr B], who is now aged [age]. Her father was very hot tempered and would yell at her or hit her if she delayed in doing something he asked of her. He also hit [Ms A] though not as often as her. [Mr B] had the same hot temper as their father. The applicant said she would be beaten two or three times a month with a coat hanger or belt which left her with cuts and bruises.
In early 2018, her father borrowed money from his Malaysian Chinese employer to start his own on-line business. Her father promised to repay the loan within six months. Her father never told the rest of the family about this business and she did not know how much he borrowed. Her father quit his job to run his business but he did not know anything about running a business and was not very good at it. The applicant seldom saw her father until she got home after work and she could see he was struggling. His former employer asked him to repay the loan and her father told him he could not do so. The business folded after only seven months and he resumed his position as a [occupation]. He was sacrificing some of his wages to repay his employer. His employer then told her father that he would like to marry the applicant as settlement for the debt. The applicant’s father told her on 20 December 2018 that she had to marry his employer. The employer was of similar age to her father and not a Muslim.
The applicant refused because she was still young and had a future life to live. Her father became angry telling her that she had to obey his wishes. The applicant told him that she could not see why she should have to bear his debt. Her father told her that her other sisters were married and that [Ms A] was still at school. The applicant said she pleaded with her father not to force her to marry his employer. He hit her on the thigh and chin. They were in the living room at the time and he shoved her and she fell hard on the glass topped coffee table. The applicant’s mother and sister tried to calm her father down. They took the applicant to her bedroom.
The applicant was in a panic and rang a friend of hers to come and collect her. The friend took her to the [Suburb 1] police station, which was close to her home. The applicant filed a police report against her father but did not mention anything about the forced marriage. The applicant took photos of her injuries and gave them to the police. The police told her that the police would investigate the complaint. The applicant went to stay with a friend.
A few hours later, [Ms A] rang the applicant to ask her where she was. [Ms A] told the applicant that the police had come to the family home and spoke to their father who went crazy and wanted to know the applicant’s whereabouts. The applicant’s father and [Mr B] went looking for the applicant. The applicant said she panicked and turned off her mobile phone. She asked her friend to take her to the airport. The applicant flew to Kuala Lumpur where she was picked up by another friend. The applicant stayed with her friend for a week.
The friend knew that the applicant was hit by her father and suggested that she travel to Australia and apply for protection. The applicant said that she had tried to run away from home several times but was always found because her family had many relatives all over Malaysia, including some who were police officers. The applicant was found by her mother and sister. Her mother slapped her and dragged her back home. The police at [Suburb 1] knew her family and her father told them that it was a private matter that did not require police involvement.
The Tribunal asked the applicant what her mother thought about her father’s treatment of her. The applicant said her mother just went along with whatever he did. Her father had been married and divorced twice before marrying her mother. He offered no support to his former wives and children from those marriages because he was an irresponsible person. The applicant said that the father had entered her bedroom on two or three occasions while she slept and touched her body and kissed her on the lips. He often “felt her up” when no-one else was in the house. The applicant asked him why he was doing this to her and he just scolded her and became angry. The applicant confirmed that his sexualised conduct did not go any further than what she had described.
The applicant said [Ms A] was away at boarding school and her other sisters were married. She was too ashamed to tell anyone about her brother and father’s sexual touching. She told the Tribunal that when [Mr B] was [age] and she was [age], he pulled her into the bedroom and started to “feel her up”. She told her mother about this and her mother accused her of making it all up because [Mr B] was not a person who would do such a thing. The applicant said she was traumatised and withdrew from her brother. [Mr B] “felt her up” a few times but it did not go further than that because she avoided being alone with him as much as she could.
The Tribunal asked the applicant whether she ever considered approaching the Women’s Aid Organisation (“WAO”). The applicant said it never crossed her mind and she was too ashamed. The Tribunal asked the applicant why she could not move to Kuala Lumpur away from her family. The applicant said she had tried to in the past but her family had many relatives there and she was always found. Some of her relatives were police officers. The applicant told the Tribunal that she had not received any mental health counselling to deal with the trauma she experienced and would like to do so.
The Tribunal asked the applicant to comment on the fact that forced marriages were illegal in Malaysia and that marriages between Muslims and non-Muslims were not recognised. The applicant said that non-Muslims converted to Islam just for the sake of getting married but were not serious about the religion.
The applicant was asked why her sister was allowed to go on with further studies. The applicant said that the youngest sister was their parents’ favourite and that they gave her anything she wanted whereas she was never encouraged to continue with her education. The applicant said [Mr B] was enrolled in a polytechnic and that her other sisters married quite young. She worked as [an] assistant before coming to Australia.
The applicant said that she became distressed when she thought about the sexual contact with her father and brother. She wanted to continue her studies and obtain mental health treatment to assist her in dealing with the trauma caused by the physical and sexual abuse she underwent.
Evidence from [Ms A]
The witness told the Tribunal that she was not at the family home around 80% of the time because she was away at boarding school. However, she was at home on 20 December 2018 when their father announced that he wanted the applicant to marry his Chinese employer. The whole family was shocked and the applicant immediately refused. The witness said that their father was very hot tempered and insisted that he be obeyed. She was shocked when their father hit the applicant as the whole thing happened out of the blue.
The witness said that she did not move and just stared at what was happening. The applicant fell and cut herself. Their mother said to their father - “Oh God – why are you doing this? Stop it.” The witness took the applicant upstairs to her bedroom while their mother tried to calm their father down. They could hear their father shouting. The witness told her sister to calm down and that everything would be all right. They went to bed and around midnight, they heard their father’s voice shout “what’s this?”. There was a police officer at their front door.
The witness ran to her sister’s bedroom and saw that she was not there. She called her on her mobile phone, asked her where she was and told her that their father wanted her to come home. She asked the applicant if she had filed a police report. The witness saw her father chatting with a policeman and stating that this situation was a family matter. He lied to the police officer and said that he had hit his daughter to teach her a lesson. The witness said that she had thought their father knew the policeman because no further action was taken.
It was not the first time the applicant had run away from home and she was the one who suffered abuse when she was the only one at home. The applicant had rung her after a few months to ask how things were at home. The witness said that every time the applicant’s name was mentioned, their father lost his temper. Their father holds grudges and he also hit the witness occasionally but nowhere near as often as the applicant.
The witness was being forced to marry her cousin but told her father that she had to finish her studies first. She felt guilty that she was not there to support her sister, the applicant, but was glad that she was safe. The witness said that she was trying to study as long as possible to avoid getting married. She told the Tribunal that she knew that their father had borrowed money from his employer and that the employer wanted the applicant to marry him to pay out the debt.
The Tribunal asked the witness why their father was forcing the applicant to marry a non-Muslim. The witness said that their father did not care about this and that many people were Muslim in name only. The witness said that she was glad she was away at boarding school. The witness said that their father gets angry very easily. Their mother tried to calm him down and he had hit her too. The witness said that she had completed her bachelor’s degree [and] that she was going to study for her Masters. The witness was working as a [occupation] to assist in paying for tuition fees.
The Tribunal asked the witness why she thought the applicant would not be safe in Kuala Lumpur. She responded that they have relatives who are police officers and that they would always find her. The witness said that she always tried to do as she was told in order to avoid being hit. She said that [Mr B] was still living with their parents and was unmarried. She saw him hit the applicant over a disagreement about a telephone.
The Tribunal asked the witness about whether the VAO could assist the applicant. The witness said they have never contemplated approaching that body. The witness said that she would never consider moving away because she wanted to protect their mother and that she was resigned to her fate in marrying her cousin once her studies were completed. The witness said that their mother asked about the applicant but she told her that she did not have contact with the applicant because she was afraid their mother might let slip to their father that they were in contact.
Post Hearing Evidence
Pursuant to the Tribunal’s request at the end of the hearing for copies of the photographs of her injuries with their time stamps, the applicant emailed copies thereof to the Tribunal on 17 January 2025 showing the time stamp as 20 December 2018 at 11.51.
The applicant was referred to [a clinic] by her general practitioner to obtain mental health treatment. Her treating psychologist, Ms [C], provided a report dated 6 March 2025 concerning the applicant’s mental health. Ms [C] is a registered psychologist who had three consultations with the applicant at the time of writing her report. Ms [C] stated that the applicant presented with severe distress and low mood during her first appointment as she was uncertain about disclosing her experiences.
Ms [C] stated that the applicant did not know how to access mental health assistance and that she described feeling unable to ever have a relationship as she did not trust men. Ms [C] noted that the applicant had told her that her father was an alcoholic, violent and domineering who tried to force her into an arranged marriage with an older man.
Ms [C] noted that the applicant was very keen to pursue therapy and she intended to use a combination of Cognitive and Behavioural Therapy, Acceptance and Commitment Therapy and supportive counselling.
PROTECTION VISA CRITERIA
The criteria for a protection visa are set out in section 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 sections 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: section 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: section 5H(1)(b).
Under section 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. A real chance is one that is not remote, insubstantial or far-fetched: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279 at p.389 per Mason CJ; at p. 398 per Dawson J; at p.407 per Toohey j and at p. 429 per McHugh J. A fear can be well founded even if the possibility of persecution or serious harm occurring is less than 50%: at p. 398 per Dawson J.
The concept of well-founded fear has subjective and objective elements. “Fear” refers to the applicant’s feelings and “well-founded” connotes that the fear has a rational basis that is supported by independently verifiable objective facts concerning the situation in the applicant’s home country.[3]
[3] Refugee Law Guidelines at paragraph 3.4.2
Persecution must involve serious harm to the person and systematic and discriminatory conduct. Serious harm includes threats to a person’s life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where that denial threatens the person’s capacity to subsist and denial of the capacity to earn any kind of livelihood where that denial threatens the person’s capacity to subsist: section 5J(5). Any of the aforementioned reasons must be an essential and significant reason for the serious harm being inflicted: section 5J(4).
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 sections 5J(2)-(6) and sections 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in section 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: section 36(2)(aa) (‘the complementary protection criterion”). The Full Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) FCR 505 at [246] held that the real risk test was the same as the real chance test.
The meaning of significant harm is exhaustively defined in section 36(2A) of the Act, meaning that the person will be arbitrarily deprived of their life, be subjected to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The terms cruel and inhuman treatment and punishment or degrading treatment or punishment are further defined in section 5(1) of the Act and the definitions are included in the legislative extracts appended to this decision as attachment A.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that they could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [36]-[40].
The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11 at [60]–[61].
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.84, made under section 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 (“the DFAT Report”), to the extent that they are relevant to the decision under consideration.
The most recent report from DFAT is the Country Information Report for Malaysia dated 24 June 2024 together with the country information referred to in this decision.
The Refugee and Complementary Guidelines prepared by the Department contain legal analysis and provide examples of how the relevant law has been applied in different jurisdictions. They also provide guidance as to how the law is to be applied.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal is required to make findings of fact on relevant matters in determining whether an applicant is owed protection obligations. This will often involve an assessment of an applicant’s credibility. The Australian courts have made a number of observations concerning credibility assessment in the protection visa application context and the Tribunal is mindful of the difficulties faced by applicants in a foreign legal system and culture. Such difficulties can be compounded by an applicant’s experiences of trauma, their level of education and state of physical and mental health.[4] However, this does not mean that the Tribunal is obliged to accept what an applicant says uncritically.[5]
[4] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30]; Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45 at [30] and [34] per curiam; Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 per Gray J
[5] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1004) 52 FCR 437 at 451 per Beaumont J
Section 5AAA of the Act makes it the applicant’s responsibility to specify all the particulars of a claim and provide sufficient evidence to substantiate any claim that enlivens Australia’s protection obligations. The Tribunal does not have any responsibility or obligation to specify or assist an applicant in specifying or establishing any particulars of their claims. This reflects the long-established legal principle in Australia for that it is up to the applicant to make out their own case[6] and that the Tribunal is not in the position of contradictor or cross-examiner. It is not required to have evidence rebutting an applicant’s assertion in order to find that an applicant’s assertion is not made out.[7]
[6] Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 per Gleeson CJ, Gummow, Callinan and Heydon JJ at [57]; Luu v Renevier (1989) 91 ALR 39 at p. 45 per coram; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p. 170 per Wilcox J
[7] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437at [57] per Gummow and Heydon JJ; Gleeson CJ agreeing and [85] per Kirby J; Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576[187] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [18] per curiam.
The Tribunal accepts that Malaysia is the receiving country for the purpose of assessing Australia’s protection obligations based on the applicant’s Malaysian passport and the Department’s biometrics verification report. There is nothing before the Tribunal to cast doubt on the authenticity of those documents.
The applicant and her witness impressed the Tribunal as forthright and credible. It was obviously difficult for the applicant to recall her past experiences in Malaysia and her trauma and distress were evident. The Tribunal was careful not disclose the sexual abuse to the applicant’s sister as the applicant had not told any other person about that matter.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal had the benefit of taking evidence directly from the applicant and her sister as well as Ms [C]’s report.
The Tribunal believes the applicant’s evidence concerning the physical and sexual abuse she experienced from her father and older brother as well as her claim that her father was trying to force her into a marriage with his employer. The Tribunal also accepts that the applicant tried to run away from home and that she reported the abuse to police. The Tribunal accepts the evidence of the applicant and her witness that their father is a violent, hot-tempered person who has not forgiven the applicant for disobeying him and is not likely to do so were she to return to Malaysia in the reasonably foreseeable future.
There is country information before the Tribunal that incest is an issue of concern in Malaysia and that it was under-reported due to the victim’s sense of shame, fear and societal taboos.[8] Some 6300 cases were reported between 1997 and 2022.[9] Incest is prohibited by the Malaysian Penal Code and there is evidence that incest is on the increase in Malaysia, particularly in low-income families. The authorities are attempting to provide better reporting mechanisms and educational materials that are directed at reducing the stigma and shame felt by victims.[10]
[8] “Continued existence of incest is worrying” – Sivanisvarry Morhan, The Sun, 28 June 2024.
[9] Ibid.
[10] “Nation faces growing issue of incest” – Kirtinee Ramesh, The Sun, 20 January 2025
Family violence is also a major problem in Malaysia. The Malaysian Constitution bans discrimination against women but nevertheless such discrimination continues to persist and violence against females is significant and under-reported.[11] The Malaysian authorities have introduced initiatives such as the Domestic Violence (Amendment) Act 2017, women’s shelters, specialised one stop crisis centres in hospital emergency apartments, Emergency Protection Orders and specially trained female police officers. However, the requirement to report family violence to the nearest police station to the incident can make it difficult for women because the perpetrator may be on friendly terms with the police and most women’s shelters are under-resourced to meet the demand.[12]
[11] DFAT Report at paragraphs 3.11 and 3.15
[12] Ibid.at paragraphs 3.119-3.123.
The Women’s Aid Organisation (“VAO”) provides advice, training to organisations and government bodies, referrals to One Stop Crisis Centres and assistance with making police reports and applying for Emergency Protection Orders.[13]
[13]
In a survey done by the VAO in 2021, 53% of Malaysians considered that domestic violence against women was a normal reaction to everyday stress and frustration.[14] DFAT assesses that females in Malaysia face a moderate risk of gender-based violence in the form of domestic violence and that State protection is not consistently reliable in that not all police stations have female officers and police often fail to follow up reports of gender-based violence.[15]
[14] [14] Women’s Aid Organisation – A Study on Malaysian Public Attitudes and Perceptions towards Violence Against Women November 2021 at pp 39-40.
[15] DFAT Report at paragraphs 3.117-3.118 and 3.125.
Incestuous relationships are prohibited by shariah and under the Malaysian Penal Code,[16] and the offence focuses on sexual intercourse between persons in a prohibited degree of relationship.
[16] Section 367A of the Malaysian Penal Code
The applicant did not claim that sexual intercourse occurred but she did claim she was sexually assaulted which caused her a high level of distress. The Malaysian Penal Code does not contain any provisions that expressly mention sexual assault. The offence of Outrages on Decency in section 377D refers to acts of acts of gross indecency done in public or private. Gross indecency is not defined in the Penal Code and this offence is punishable by two years’ imprisonment. The Women’s Aid Organisation website lists the forms of sexual assault covered by Malaysian law apart from rape and it mentions various offences against children as well as Outrages on Decency and use of force with the intent to outrage modesty which is punishable by imprisonment up to 10 years or whipping.[17]
[17] Sections 377D and 354 of the Penal Code; >
The Tribunal accepts that the applicant did attempt to escape and made a formal report to the police. The police did act on the report but were easily fobbed off by the applicant’s father due either to a personal relationship between the father and the local police or the Malaysian police’s widely reported tendency not to follow up complaints of family violence. The applicant showed fortitude in seeking to escape and report her father. Her complaint of sexual assault from her brother was dismissed by her mother as being so awful that she could not believe her son to be capable of it. The applicant’s sister did not raise any issue concerning sexual assault from her brother or father despite concerted questioning by the Tribunal which did not refer to sexual assault directly. There was no evidence before the Tribunal that the father also beat [Mr B] if he were disobedient or irritated the father in some way.
The Tribunal must assess whether the applicant faces a real chance of serious harm in Malaysia for reasons of her race, religion, nationality, membership of a particular social group or political opinion. The applicant’s gender is clearly relevant. The Tribunal has considered whether being a Muslim female is a particular social group as defined in section 5L of the Act and whether this is a significant and essential reason for the harm which the applicant experienced in the past and which she has a real chance of experiencing in the future if she were to return to Malaysia.
Females in general share an innate or immutable gender characteristic[18] that is fundamental to their identity,[19] their gender distinguishes from society,[20] and they are perceived by most societies as being a particular social group. This does not automatically make them a particular social group for the purposes of section 5L and 5J(1)(a) of the Act. Females in general as well as victims of domestic violence and sexual assault are as disparate a collection of people as the parents who did not accept China’s one child policy: Applicant A v Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225 at p. 247 per Dawson J, at p. 265 per McHugh; at pp 270 and 285 per Gummow J.
[18] Section 5L(c)(i)
[19] Section 5L(c)(ii)
[20] Section 5L(c)(iii)
The Tribunal notes that the definition in section 5L of the Act is broader than the concept considered by the High Court in Applicant A supra when the Court construed Article 1A(2) of the United Nations Convention relating to the Status of Refugees Convention 1951 (the Refugees Convention”) Section 5L(c) provides three alternatives to the common characteristic that is shared or perceived to be shared by members of the group, only one of which needs to be satisfied.
The fear the applicant claims to have is that she will be harmed by her father and brother. Section 5L(d) of the Act specifies that the particular social group characteristic must not be a fear of persecution or serious harm. However, in the Malaysian context, social and religious expectations of Muslim females are that they will comply with shariah laws which emphasise the right of male members of the family to control female members of the family. The physical and sexual abuse directed at the applicant by her father and brother are based on their perceived right to expect obedience from females.
Although family violence and sexual assault can be experienced by males, these acts are predominantly experienced by females.[21] The Tribunal finds that a combination of the applicant’s gender and religion are common characteristics that are not a shared fear of persecution. Consequently, the essential and significant reason for the harm experienced by applicant in the past is due to her membership of a particular social group: section 5L and 5J(1).
[21] Women’s Aid Organisation – A Study on Malaysian Public Attitudes and Perceptions towards Violence Against Women November 2021 at p. 17; National Domestic and Family Violence Bench Book, Australian Institute of Judicial Administration, Attorney General’s Department, Commonwealth of Australia, June 2023 at p.1433
The evidence before the Tribunal indicates that state protection is not reliable or durable within the meaning of section 5LA of the Act. Moreover, the resources available to women affected by family violence, sexual assault and incest are inadequate to meet demand.[22] A significant obstacle to women accessing the sources of assistance available is lack of knowledge of their existence, fear and shame in disclosing what has happened to them.[23]
[22] DFAT Report at paragraph 3.117
[23] Women’s Aid Organisation Report – op.cit. at pp 36, 73, 78
The Tribunal considers that forced marriage to her father’s employer is a remote possibility given that seven years have passed since that demand was made of the applicant. The Tribunal finds that the applicant faces a real chance of being subject to significant physical ill-treatment from her father and brother if she returns to Sabah as an unmarried Muslim female who is expected to obey them. The Tribunal found it plausible that the applicant has relatives who are police officers and that their assistance has been called upon to locate her when she ran away in the past, even to a large city like Kuala Lumpur.
The applicant’s evidence was that she stayed with a friend in that city and it is likely that her family knew who her friend was. The applicant’s family has shown persistence in locating the applicant in the past and her father’s holding of grudges indicates that they would be motivated to pursue her if they became aware she had returned to Malaysia. The Tribunal finds that the applicant faces a real chance of serious harm throughout Malaysia.
Consequently, the Tribunal finds that the applicant is a refugee within the meaning of sections 5H(1)(a), 5J(1) and 5J(5)(c) of the Act and finds that she faces a real chance of serious harm if she were to return to Malaysia in the reasonably foreseeable future.
Conclusion
Section 65(1)(a)(ii) of the Act requires the Tribunal to be affirmatively satisfied that the criteria for the visa are met. This does not require the Tribunal to reach a decision only if a particular matter is established.[24] The visa criteria are set out in sections 36(2A) and 36(2)(aa) as well as in part 866 of Schedule 2 to the Migration Regulations.
[24] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [17]
There is no evidence to suggest that the applicant has any right to enter and reside in any other country apart from Malaysia and, consequently, the Tribunal finds that section 36(3) of the Act does not apply.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration in accordance with the order that the applicant meets section 36(2)(a) of the Migration Act.
Date of Hearing: 17 January 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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