2004950 (Refugee)

2004950 (Refugee) [2021] AATA 4055 (23 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2004950
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Penelope Hunter
DATE:23 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 July 2021 at 5:08pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – abused and threatened by husband – domestic violence – legal protections for victims of domestic violence – effective state protection – internal relocation – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 104, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 27 April 2018. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) or (aa) of the Act.
The applicant initially sought a review by the Tribunal on 5 February 2019. At that time it was determined that the application for review had been lodged out of time and the Tribunal, differently constituted, found that it did not have jurisdiction to review the decision of the delegate.
The applicant sought a further review of the decision before the Federal Circuit Court, and the Tribunal’s decision was set aside. The matter is now before the Tribunal pursuant to an order of the Court.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
The applicant is a single [age] year old woman, born in Negeri Sembilan, Malaysia. She can speak read and write Tamil, Malay and the English languages. She is of Tamil ethnicity and the Hindu religion. She entered Australia on a visitor visa issued on 5 February 2018.
In her visa application form she did not disclose any former residential addresses, education history, or employment history, and claimed not to have travelled to any other country in the past. She did not provide the Department with any supporting documentation other than a copy of her passport. In her application form she also set out the following brief claims for protection (in summary):
i.She left Malaysia because her parents borrowed money from a moneylender and he chased her to pay the amount. She did not have work to pay him and he used to try to misbehave with her.
ii.In response to the question of whether she had experienced harm in the past, the applicant stated that the moneylender was threatening to kill her.
iii.She did not seek help within her country because everyone was scared to help her.
iv.She did not move, or try to go to another part of the country to seek safety as she claimed that she could not go anywhere. She would not be able to relocate within Malaysia as he always watched her.
v.If she goes back to Malaysia she claimed that the moneylender would kill her. She did not think that the authorities would protect her because the moneylender had political support.
The applicant was not invited to attend an interview before the Department, and on 28 November 2018, the delegate reviewed her claims and determined to refuse the visa application.
The applicant has submitted to the Tribunal a copy of the delegate’s decision record under review. Other than submissions regarding the delay in application to the Tribunal, the applicant has provided to the Tribunal on review no further documents to support her claims.
The applicant was invited to attend a hearing before the Tribunal on 11 June 2021, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Tamil languages.
The Tribunal commenced the hearing by asking the applicant about her visa application. She told the Tribunal that she had help from a friend and an agent; the Tribunal showed to the applicant the forms supplied to the Department at the time of the visa application and she identified that it was her handwriting contained in the forms. When asked whether the content of the visa application was correct, the applicant identified that what she conveyed was correct, but what was documented was different and some of the form was wrong. The Tribunal queried how the applicant’s claims were documented and she said that she really did not know who did it, she had contacted an agent based in Melbourne through a friend and she did not see him face to face. If she did not see those who assisted her, the Tribunal then asked the applicant how her handwriting came to be on the visa application forms, and she replied that some documents came by email and she may have signed something. When shown the signature page at the end of the form, she then viewed the forms again and said that she did not think it was her signature. She later said to the Tribunal that she was confused as to whether or not it was her signature.
The Tribunal then asked the applicant how the application came to be made, and she said that she had issues with her husband and that she could not continue to stay in Malaysia. The Tribunal then discussed with the applicant the information contained in her visa application that she was single. The applicant responded that this was incorrect and that she had been married for 21 years and had five children. The Tribunal identified to the applicant consequences for providing incorrect information with a visa application; in particular, the applicant was informed it may impact upon the assessment of her credibility and her claims by the Tribunal, if she did not have a reasonable excuse. The Tribunal questioned why this information had not been disclosed and the applicant responded that she had told the agent over the phone about issues with her husband, but that she had also lost contact with her friend and emails went astray and the visa was refused. Only when her bridging visa was cancelled and after consulting a normal lawyer did she come to realise that the facts were not accurate.
It was noted that the applicant first applied to the Tribunal for a review of the delegate’s decision in February 2019, and the applicant was asked whether she was aware of the incorrect facts at this stage. She claimed that although her lawyer had obtained a copy of the delegate’s decision he did not provide her with the details. The applicant further claimed that she still did not know the content of the delegate’s decision when she made submissions to the Tribunal in May 2019 regarding the Tribunal’s jurisdiction to review the matter. The applicant said that after she had applied to the Federal Court, the matter was discussed with her lawyer and he told her that there was a reference to her having loans and things about her parents that she came to know were false. The Tribunal noted that on this evidence the applicant had been aware for over two years that her visa application contained incorrect information and she was asked what steps she had taken to correct things. The applicant claimed in response that she did not know who to tell. The Tribunal raised with the applicant that she had consulted a lawyer, and also raised with her that opportunities were provided when the Tribunal wrote to her about the matter being remitted from the Federal Court, and when the hearing invitation was sent in May 2021. The applicant said that she would only meet her lawyer on and off, and he told her that she could tell everything at the hearing. She also claimed not to have read the Tribunal communication.
The Tribunal went through the visa application form with the applicant to clarify her responses. She said that she had four sons and a daughter, [ages specified]. All of her children are in Malaysia, and her daughter is living with her eldest son. The younger two sons were currently studying, and her eldest sons had been working in [Country 1] but had return to Malaysia due to Covid-19 restrictions. Her father had passed away when she was young, her mother was still alive and she had three sisters and two brothers. She claimed that none of her siblings, with the exception of one sister, spoke with her due to issues with her husband. She had not spoken recently with her mother, but was in regular contact with her children.
The Tribunal asked the applicant about her previous residential addresses and she said that prior to coming to Australia she had lived in [Country 1] for 2.5 years and worked in [an occupation]. Before that she had lived with her mother for six to seven months in Negeri Sembilan, Malaysia after she left her husband. When she was with her husband she had lived in a house owned by her mother and sister, also in Negeri Sembilan, for 10 to 15 years. Her mother had given the house to her because she could no longer afford the mortgage repayments and told the applicant to sort out the payments.
When asked about her work history, the applicant said that she had worked in several places. Prior to going to [Country 1], she had worked in a [factory], she had also worked [at] a shopping centre.
The Tribunal read out to the applicant the reasons why she claimed to have left Malaysia as detailed in her visa application. She responded that it was not true, her father had been dead for a considerable time and her reasons for coming to Australia had nothing to do with a debt to a moneylender. The applicant said that she left because her husband used to drink daily and assault her and the children on a regular basis. He would consume drugs with his friends and commit sexual torture upon her. When the Tribunal asked the applicant how long this had been happening, she claimed that it was throughout her marriage but that she did not have any support and she had to tolerate it. The applicant was asked to provide further details about the harm she experienced and she claimed that she was chased in a public place, her husband had threatened her children with a weapon and also threatened her brother with a weapon. The Tribunal asked the applicant whether she had ever been harmed or sought medical treatment and she said that it did not go to that extent, most of the time they escaped but once she sustained a cut finger and a sore shoulder and this was the time she reported his conduct to the police.
The Tribunal asked the applicant about the police response and she said that they took her husband away for questioning and investigated. Her husband’s mother then looked at paying to get her husband released. Under further questioning the applicant said that for a short period she continued working in Malaysia but her mother-in-law came to plead with her to withdraw the complaint, and she assured the applicant that she would take her husband away and the applicant would not have any problems. Her brother advised her to respect her mother-in-law and the applicant said she withdrew the complaint with the police. Her husband was released and things were ok for a week and then he started to cause problems again. Her brother confronted her husband who drew a knife on her brother. Then her brother complained to the police, who acted on her brother’s complaint, but her husband was eventually released on bail. She does not know the outcome of the complaint against her husband from her brother. Due to this incident her brother has cut off all contact with her. The applicant said that because her husband was harassing her she had made arrangements for her children and left for [Country 1]. Her daughter was with her mother for a while, and she paid for her two younger sons to be boarded.
When the Tribunal asked the applicant whether she had thought about reporting further harassment to the police the applicant then claimed they would not do anything because she had previously withdrawn the complaint.
The Tribunal asked the applicant why she had left [Country 1] and she said that when she returned to Malaysia on holidays she could not see the children. Her husband was torturing her and took the children away. The Tribunal noted that some of the children were already adults at this time and the applicant was asked to provide further details. She said that her two eldest sons were also working in [Country 1] but when they would arrange to meet up as a family in Malaysia her husband would get annoyed and he took her daughter away. The Tribunal asked the applicant whether she sought assistance and she claimed that on one particular day she sought assistance from the police on three occasions; she went near the [border] and also to the police station near her mother’s house. The police told her it was a family issue and if she obtained a divorce that they might be able to do something. Her older son spoke to her husband to return her daughter so she could go to school. Her husband will not pay for any of the expenses for the children, including their schooling.
In 2017 she took steps to divorce her husband; he did not attend the first court appearance but she had left Malaysia before the second appearance and it was not finalised. The applicant said that she could not get a divorce as her husband has said he would definitely not consent, and she believed he would again try to take her daughter away.
The Tribunal asked the applicant why she decided to come to Australia and she said to work to support the children, she could not do so in Malaysia as her husband would torture and harass her. She said that when she worked at the factory in the past he would tell other transport drivers not to assist her, and she could not use the common transport for workers. She claimed that he would beat her in the head in the morning severely before she went to work. The Tribunal queried this claim given the applicant’s previous evidence about harm in the past, and the applicant said in these instances she had swelling but not bleeding. Also when she was in [Country 1] her husband would harass her when she returned. She said that she could not remain in Malaysia because she thought her husband would assault and beat her to death, and he would also assault the children. The Tribunal queried why the applicant would leave her children if they would be harmed, even with weapons in these circumstances. She then said that with the children when they had intervened in the past, what would happen is her husband would pick up and throw the children away, but as her sons were older he was no longer able to do this.
The Tribunal asked the applicant if she was still in contact with her husband and she said that she was not. The applicant was then asked when she last had communication with him and she said that occasionally she would hear him when she contacted her sons by phone. She claimed that her husband was often affected by the drug ice, and that he had not worked for a long time. Her husband was in contact with her children but would not stay with them for long, usually only a couple of days. Her husband was living in the house her mother gave her, she was continuing to pay the mortgage. She was also paying for her children to reside elsewhere, her two younger sons were boarded in accommodation close to their separate schooling and her daughter was now living in rented accommodation, which she paid for with her two older sons. The Tribunal queried why the applicant would still continue to pay for the house in which her husband was living if they had separated, and she said that the mortgage was not much, only AU$350 per month. Her mother wished for her to keep the house, and after she had paid off the mortgage her mother would transfer it to her. The Tribunal again questioned why the applicant continued to service this debt and did not just sell the house if she believed that she could not return to Malaysia, and the applicant claimed that she planned to give it to her daughter in the future. The Tribunal again questioned why, if she feared her husband, she was providing a house for him, when the house was not even her property and it was creating an additional expense. The Tribunal suggested if her family was going to ultimately give her the house, if she was not using it she could use funds from the sale to provide for her children and the costs of maintaining several other households. The applicant replied that the house was remote and did not have electricity.

The Tribunal asked the applicant if she would go back and live with her husband if she returned to Malaysia and she said that she would not. The applicant said that her husband would want to live with her, and when the Tribunal asked the applicant whether she would agree to that, and she said that she would not. The Tribunal discussed country information with the applicant for comment; it noted that there were reported to be support services and protection measures available to women in Malaysia, which was reported to be one of the first Asian countries to have laws protecting women and recognised domestic violence as an offence. The applicant said that the authorities would not provide her with protection as it was a family issue and they would not intervene without a divorce. The Tribunal then put to the applicant that there is information that there are laws in the Malaysian penal code providing protection to women which do not require a divorce. The applicant claimed that despite her complaint in the past the police had not taken serious steps. The Tribunal challenged this and put to the applicant her earlier information that when she had made a complaint to the police about harm they had arrested him; additionally they had acted on her brother’s complaint. The applicant acknowledged this. The Tribunal put to the applicant that it appeared that when she was willing to make a formal complaint, the police would act; she provided no verbal response to this contention. Then the Tribunal raised with the applicant reports that since she had departed Malaysia, the country information was that Malaysia had introduced further laws relating to domestic violence to assist her; in response the applicant said that her husband had been released from police custody in the past very easily. The applicant acknowledged under further questioning that this had occurred because she had withdrawn her complaint. The Tribunal noted that Malaysia has laws criminalising domestic violence. It was noted that Malaysia’s domestic violence laws had been amended to enable victims to seek orders restraining the perpetrator from coming into contact with the victim or entering their property. This was considered a relevant factor in assessing whether she would have access to effective state protection.
The Tribunal also raised with the applicant that there was country information about various support services available for women, and she was questioned as to whether she had ever tried to access any support services. The applicant responded that she did a long time ago, when she only had four children but it did not work out properly. She went to them and informed them of her difficulties and that her husband was not working. The person who worked there, who spoke Tamil, told her that she had arms and legs and could also work. She did not think much of this advice and did not pursue it further.
The Tribunal questioned the applicant’s claim that she would be unable to obtain a divorce in Malaysia. It was noted that according to the Malaysian Law Reform (Marriage and Divorce) Act 1976, as a non-Muslim woman who had been apart from her husband for more than two years, she was able to apply for a divorce and the court could grant the order. She could also make a petition on the basis that her husband had behaved in such a way that she could not reasonably be expected to live with him. The applicant was advised that upon reviewing the relevant marriage laws in Malaysia, the Tribunal had concerns about whether her claim that she would not be able to divorce her husband without his permission was correct. In response the applicant questioned whether she would be deported from Australia; she said that she wanted to remain in Australia. It was not that she had a different view about obtaining a divorce but she was afraid of her husband if she went back.
The Tribunal raised with the applicant country information that local and international sources consider the Royal Malaysian Police to be a professional and effective police force, although there were low wages and some concern with corruption. It was put to the applicant that generally the country information is that the police would act on a complaint, and as discussed with her earlier, there were laws that could be applied to protect her. The applicant responded that she did not wish to return to Malaysia but wanted to remain in Australia.
The Tribunal asked the applicant why she could not relocate and she replied that she did not know other places in Malaysia. When she came to Australia she had a known contact to assist her. She was used to Australia and did not think that she could adjust to another place in Malaysia. The Tribunal questioned this response as she had already demonstrated that she could adjust to a new place with her travels to Australia and [Country 1]. The applicant responded again that she did not want to go back to Malaysia.
The Tribunal again raised with the applicant its concern regarding her credibility, particularly given the changes to her claims and that they were not supported by any evidence. The applicant later undertook to provide to the Tribunal evidence of her marriage and children. The Tribunal asked the applicant how she came to allow an application to be lodged on her behalf that did not contain correct information and raised that the Tribunal may not be satisfied that she had demonstrated a reasonable excuse, and she said that she had only found out about the content of the delegate’s decision and the summary of her original claims in the weeks before the hearing when she saw her lawyer. The Tribunal questioned the consistency of this evidence, and noted she had previously said that she knew when she went to the Federal Court. In reply, the applicant claimed that her lawyer only explained basic things. In response to additional questions from the Tribunal, the applicant acknowledged that she had read and was informed about other information from the communication relating to her migration status such as bridging visa restrictions and Medicare eligibility. She said that she was not aware of what was written in other correspondence such as communications from the Tribunal; she said that even if she could read English she cannot understand. In her visa application the applicant set out that she could speak, read and write English. When questioned about this response at the hearing she said that her Malay and Tamil were very good, and her English was only moderate. Under further questioning, the applicant confirmed that she was aware that she was making a protection visa application. She further confirmed that she had provided full authority to those she engaged to complete the application on her behalf; in these circumstances the Tribunal asked the applicant why she should not be held responsible for the content. The applicant then said that she did not know about the procedure and did not think that she would have to answer questions about her claims. The Tribunal questioned whether the applicant reasonably expected that her claims would not be tested or checked, and the applicant again replied that she did not know the procedure.
On 15 June 2021, the applicant submitted to the Tribunal a copy of the driver’s licence for her eldest son, copies of the birth certificates for her other four children, her marriage certificate and an untranslated copy of documents identified to be loan documents for her mother’s house.
FINDINGS AND REASONS
On the basis of her Malaysian passport submitted to the Department and the Tribunal, it is accepted that the applicant is a national of Malaysia and not a national or citizen of any other country. The Tribunal further accepts that she does not have the right to reside in any country other than Malaysia. The Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act, and Malaysia is the receiving country for the applicant for the purposes of s.36(2)(aa).
Does the applicant have a well-founded fear of persecution and is the applicant a refugee?
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, an applicant’s claim to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v GUO (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–170.
Further, applicants are expected to present their case in full before the primary decision maker and not to wait until after a primary decision has been made. Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the applicant’s claims or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised, or the evidence was not presented before the primary decision was made.
Furthermore, there is an ongoing requirement under s.104 of the Act for an applicant to ensure that their relevant details are correct and inform in writing of any incorrect information as soon as practicable.
Considering the various changes to the applicant’s claims and having regard to the above legislative directions, the Tribunal is not satisfied of the credibility of the applicant. Having initially identified that it was her handwriting on her visa application, the Tribunal is not persuaded that the applicant was unaware of the significant omissions regarding her family and personal details and the errors in her claims. The Tribunal is further satisfied that there has been no fraud on the part of the applicant invalidating the visa application. The Tribunal is satisfied that a valid visa application was lodged because although she was unable to identify for the Tribunal when questioned those who assisted her with the visa application, the applicant confirmed that she was aware that a protection visa application was being lodged in her name, and that she provided complete authority to those assisting her in relation to the application. The Tribunal has also considered the role of the applicant in the visa application; she identified that she initiated the application, was sent relevant forms, and identified that it was her handwriting in the application, although possibly not her signature. When questioned about her responsibility for the content of her claims as submitted to the Department, she later conceded that she did not expect to be questioned on her claims. In these circumstances the Tribunal finds that the applicant was indifferent to the factual inaccuracies contained in her initial visa application.
The credibility of the applicant was further undermined for the Tribunal as a result of her constantly shifting evidence as to when she became aware of the inaccuracies in her claims, from when her bridging visa was refused, to the time of her Federal Court application, to a few weeks before the Tribunal hearing. Although the applicant has identified advice from her lawyer as a reason for not addressing inaccuracies in her claims earlier, the Tribunal notes that she has not identified that she is currently represented in relation to the application under review. The Tribunal is not satisfied that the applicant has a reasonable excuse for not taking any steps to inform the Department or Tribunal of incorrect information in her application since she lodged her initial application for review with the Tribunal in February 2019. The Tribunal considers that if the applicant was harmed to the extent that she claimed, and that if her fear of further harm was true, she would have outlined it in her application for protection or taken steps to correct her claims at the earliest opportunity.
Nevertheless, the Tribunal accepts the applicant’s claim that she was in a long and at times abusive marriage with her husband. Having regard to the documentary evidence submitted by the applicant post hearing, it is also accepted that, together with her husband, she is the parent of five children aged between [age] and [age] years. It is accepted that three of these children are now adults and the fourth child is aged [age]. The Tribunal also finds from the evidence of the applicant that she separated from her husband some time before 2016, when she moved to live with her mother, some six to seven months before leaving to work in [Country 1].
The Tribunal accepts that the applicant reported her husband to the police around 2016, when they separated and that they took action and removed her husband from the home for an extended period. It is also accepted that it was only when the applicant withdrew her complaint that her husband was released by the police. The Tribunal does not accept that her husband inflicted further assaults or would again beat her in the morning before work after he was released. The applicant claimed that she did not return to live with her husband after this time; further her evidence of severe beatings and head injuries was not consistent with earlier claims that she suffered physical harm on the one occasion. The Tribunal does not accept that the applicant has been physically abused by her husband since she separated from him. The Tribunal also does not accept that the applicant reported to the police claimed harassment or threats of assault from her husband once he was released. This is because the applicant of concerns about the applicant’s credibility and because she was able to provide when questioned limited detail about these reports. It is accepted that the applicant subjectively believed that action would not be taken given she had recently withdrawn her complaint.
The applicant claimed, and the Tribunal accepts, that she has been working to support herself and the children since before she separated from her husband. The Tribunal finds that she is not financially dependent on her husband, and has been supporting herself independently for several years, as well as maintaining several households, including her husband’s. The Tribunal is satisfied that she could continue to do so if she returned to Malaysia, Although it may be in a manner somewhat reduced to their current circumstances and she may benefit from some of her adult children contributing to their own financial upkeep. The applicant has not maintained that she is required to support her husband, provide him with accommodation or that she does so out of any fear. Given the claimed circumstances of their marital relationship, the Tribunal finds that the applicant would not continue to do so if she had any genuine ongoing fear of her husband.
The Tribunal is not satisfied that the applicant’s husband represents an ongoing risk of violence to, or kidnapping of, her children. It is noted that the applicant originally in her evidence made claims about her husband using weapons on her children, and then when challenged by the Tribunal about leaving them in Malaysia where he could access them, the applicant changed her evidence to state he would only throw them out of the way when they attempted to protect her. The Tribunal has concerns that the applicant was exaggerating her claims for the purpose of assisting the visa application. The Tribunal is satisfied that if the applicant genuinely believed that her husband represented any risk to her children, or that he would take them from her, she would not have left Malaysia without finalising her divorce or left them in circumstances where her husband can, and does, continue to have unrestrained access to them and will even stay with them on occasion. The Tribunal also takes note of the fact that only two of her children would be considered minors and if her husband had wanted to take her children away from her then such action could have been taken at any time since 2018, when the applicant arrived in Australia. The Tribunal further notes that the evidence of the applicant that she has not had contact with her brother for several years, and it is satisfied that no other members of the applicant’s family will be harmed. Due to concerns about the applicant’s credibility and her exaggeration of her claims, the Tribunal does not accept that the applicant’s husband will remove her children from her care or that he will use the children, or other members of her family, to inflict further harm upon the applicant. The Tribunal also notes that the applicant now has three adult sons who would intervene and assist her in the event of any threatened harm, as she claims that they have in the past.
The Tribunal also does not accept the claims of the applicant that she is unable to divorce her husband. As discussed with the applicant at the hearing, s.52 of the Malaysian Law Reform (Marriage and Divorce) Act[1] provides that either party may petition for a divorce on the breakdown of the marriage. Further, s.54 of that Act provides that proof of the breakdown of a marriage is that the parties have lived apart continuously for more than two years and that the respondent had behaved in such a way that the petitioner cannot reasonably be expected to live with them. Should the applicant desire a divorce the Tribunal is satisfied that she can take this action.
[1] Law Reform (Marriage and Divorce) Act 1976 (Malaysia) (incorporating all amendments up to 1 January 2006), Act 164, Attorney-General’s Chambers of Malaysia accessed at Law Reform (Marriage & Divorce) - Attorney General's Chambers (yumpu.com)
Having made the above findings, the Tribunal does not consider that real chance that the applicant will face persecution from her husband. Nevertheless, in the event of a remote chance that the applicant comes to the attention of her husband if she for example takes steps to recover her house, then in these circumstances, the Tribunal has considered that, as discussed with the applicant at the hearing, Malaysia was one of the first ASEAN countries to provide laws in relation to domestic violence[2]. Furthermore, it has provided enhanced legal protection for victims of domestic violence, conviction rates have increased over the last decade and the RMP Criminal Investigation Division includes a Sexual Investigation Division,[3] and the government undertakes targeted recruitment of women.[4] As discussed with the applicant at the hearing, amendments to the Malaysian Domestic Violence Act 1994, passed in August 2017[5], strengthen protections for victims of domestic violence through enhanced procedures such as Emergency Protection Orders (EPO) that can be applied for immediately, which prevent a perpetrator from entering a safe location for a period of seven days. An applicant can then apply for further protection orders such as Interim Protection Orders and Standard Protection Orders. DFAT further reports that violations of any of the protection orders can result in a prison sentence of up to six months and/or a fine of MYR2,000 (AUD630), while multiple violations can result in the offender being jailed for between 72 hours and up to two years and fined up to MYR5,000 (AUD1,600). If a perpetrator of domestic violence commits acts of violence when violating a protection order they can be fined up to MYR4,000 (AUD 1,260) and/or receive a prison sentence of up to one year.[6]
[2] Domestic Violence Legislation and its Implementation, An Analysis for ASEAN Countries based on International Standards of Good Practice, accessed at ED_020311DVpaper.indd (unwomen.org)
[3] DFAT Country Information Report – Malaysia, 29 July 2021 at 3.128
[4] As above at 5.5
[5] 'Domestic Violence Act 1994: An Overview', Mondaq, 03 February 2021
[6] DFAT Country Information Report – Malaysia, 29 July 2021 at 3.125

Of additional assistance to the applicant, the new amendments expand the interpretation of ‘domestic violence’ in the Act by providing three new definitions[7] as follows:
i.Dishonestly misappropriating the victim’s property which causes the victim to suffer distress due to financial loss;
ii.Threatening the victim with intent to cause the victim to fear for their safety or the safety of their property, to fear for the safety of a third person, or to suffer distress;
iii.Communicating with the victim, or communicating about the victim to a third person, with intent to insult the modesty of the victim through any means, electronic or otherwise.
[7] Domestic Violence Act 1994 (Malaysia) s.2, as discussed at (PDF) Domestic Violence Against Women: Legal Protection Under The Domestic Violence Act 1994 (researchgate.net)
Also relevant for the applicant in the future, the Malaysia domestic violence laws not only cover matrimonial relationships but also include former spouses and children.[8]
[8] DFAT Country Information Report – Malaysia, 29 July 2021 at 3.125
Additionally, while acknowledging low wages and corruption issues, the Tribunal is satisfied that the police in Malaysia will act, as they have acted in the past, on any complaint initiated by the applicant. As discussed with the applicant at the hearing, DFAT has continued to report that credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force[9]. The Tribunal also notes that at the conclusion of its section on Domestic Violence in the 2021 Country Information Report for Malaysia, DFAT concludes that it assesses that, while the situation is improving, a range of factors do create difficulties for women. In the applicant’s circumstances, she has been separated from her husband for several years, her family is aware of her circumstances and it is not considered that she would be constrained by familial shame; further the applicant is not of the Muslim religion and the Tribunal is satisfied that she has the ability to inform herself of her rights. Additionally, DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.[10]
[9] As aboveat 5.5
[10] As above at 5.18
Having regard to the country information and the individual circumstances of the applicant, the Tribunal finds that the authorities in Malaysia would not withhold protection from the applicant for one of the reasons contained in s.5J(1)(a) of the Act in the remote circumstances if she was threatened or an attempt was made to harass or assault her by her husband.
The Tribunal finds that effective state protection is available to the applicant, which she can access if necessary, and that the Malaysian authorities are willing and able to provide protection. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution as a consequence of being a member of a particular social group, being a woman who is the subject of domestic violence.
Having made the above findings it is not necessary for the Tribunal to consider the application of s.5(1)(c) of the Act, however, for completeness the Tribunal finds that the harm the applicant fears is located to the area in which her husband resides and not all areas of Malaysia. The Tribunal considers that it is open to the applicant to relocate to another part of Malaysia on her return to avoid any contact with her husband and any harm she claims to fear. The applicant has demonstrated, through her travel to [Country 1] and Australia and her finding work and accommodation in these countries, that she is adaptable and resourceful. Although it is accepted that she would prefer to remain in Australia, as she is comfortable here, the Tribunal considers that she would be able to relocate to another area of Malaysia outside her home area of Negeri Sembilan to avoid the harm she claims to fear. Although the applicant has her children in her home area, they are now mostly adults and the applicant has not physically cared for her children since 2017, and the Tribunal considers in the circumstances it would be reasonable for her to continue to live apart from them.
The applicant told the Tribunal at the hearing that her original claims to the Department regarding a fear of harm from a moneylender were not correct. The Tribunal further finds that she does not have a well founded fear of harm on return to Malaysia for this reason or any other reason on the information before it.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has found that the applicant’s relationship with her husband ended several years ago, that she has not suffered harm since the relationship ended and that she has no intention of reconciling with him. The Tribunal also does not accept that the applicant’s children or family are at risk of harm, or that he will use the children or her family to harm the applicant. The Tribunal is further satisfied that the applicant can take steps to divorce her husband if she requires and finds that the applicant could obtained from the authorities in her country, protection such that there is not a real risk that she would suffer significant harm. Furthermore, the applicant’s fear of harm is located to the area in which her husband is located, and it would be reasonable for the applicant to relocate to an area of Malaysia, away from Negeri Sembilan, where there would not be a real risk that she would suffer significant harm.
Considering the applicant's circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from her husband, or any moneylenders, or anyone else.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Penelope Hunter
Member

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

[2021] AATA 4055

23 July 2021

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