2008494 (Refugee)

[2021] AATA 3808

2008494 (Refugee) [2021] AATA 3808 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008494

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Senior Member Dr N Manetta

DATE:31 August 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review.

Statement made on 31 August 2021 at 1:59pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – fear of harm from estranged husband – threats and attacks on applicant and child – delay in applying for protection – work despite visa condition and after visa expired – continuing interaction with husband’s mother despite claimed fear of husband – possibility of returning to family home – availability of help from police or organisations – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application by [the applicant] seeking a review of a decision made by a delegate of the Minister for Immigration on 30 May 2016 to refuse her a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (the Act).

2. [The applicant] had applied for this visa on 14 January 2016. The delegate refused to grant her a visa because she was not satisfied that [the applicant] would be unable to seek help from either an NGO or the police in respect of her claimed fear that her estranged husband would harm or kill her if she returned to Malaysia.

3. I note by way of background that [the applicant]’s application to the Tribunal was initially dismissed because she did not appear.  That decision was set aside by the Federal Circuit Court because, in effect, [the applicant]’s representative at the time was found to have misled her in connection with her obligation to attend before the Tribunal.  An unwitting breach of the rules of procedural fairness was determined to have taken place with the consequence that the Tribunal’s decision had to be set aside.  [The applicant]’s application was remitted to the Tribunal for a determination on the merits.   

4. [The applicant] was represented at the hearing before me by counsel, [Mr A].  [The applicant] gave oral evidence (and had also prepared a statutory declaration). I heard evidence from [the applicant]’s brother (who had also prepared a statutory declaration) and from her estranged husband’s mother.

   STATEMENT OF CONCLUSION

5. I have concluded that the decision under review should be affirmed.  I set out below salient features of the evidence given, my critical findings of fact, and my application of the legal regime given my critical findings of fact. 

   EVIDENCE

6. [The applicant] gave evidence before me.  She was born on [Date] in Seremban, Malaysia.  Seremban is approximately three hours from Kuala Lumpur, [the applicant] said.  She had a difficult upbringing and family background. Her mother left when she was six years of age.  Her mother and father divorced, and she and her older brother were left in their father’s care. He was [an Occupation], but the family was poor.  I accept this evidence.

7. [The applicant] gave evidence that she attended school until she was about [Age 1] years of age.  She stopped her schooling, she said, in [Year]. She had to get work because the family had insufficient money. She began work in a [shop] [doing a job task]. She said she stayed in the [shop] full-time until [Age 2]. She then got a job in a [workplace 1] run by “Auntie”, a person whom [the applicant] knew from the [shop]. The [workplace 1] was located in Kuala Lumpur, as I understand [the applicant]’s evidence.  [The applicant]’s job was to [job task].  Earning her money in this way, she assisted in the payment of rent for the family flat and also helped out her brother.  At this time her father was drinking a lot, she said. I accept this evidence.

8. After about two months in the [workplace 1], [the applicant] said she met her husband to be. His name was “[Mr B]” and he was some ten years older. She had been chosen by “Auntie” to wait on him. [Mr B] began to attend the [workplace 1] frequently, and he would always ask for [the applicant]. Finding out how old she was, he assured her he would marry her one day. She said she began a sexual relationship with [Mr B] at the age of [Age 3]. Shortly thereafter she stopped working in the [workplace 1] altogether, when she was [Age 3] or [Age 4] years of age, she said.  I accept this evidence.

9. She soon married [Mr B].  The couple first moved in with [Mr B]’s mother in a large town called Klang. I note that Klang is, according to [the applicant], some 75 to 100 km from Seremban. She said [Mr B] was earning good money making loans to other people. This was done unlawfully.  A son was born to them in [Year], that is, when [the applicant] was some [age] years of age. At this point the couple moved out of his mother’s home and rented a flat. [The applicant] said [Mr B] owned a car, but she had no idea how much he was earning, and he would become unhappy if she asked too many questions. To begin with he gave her enough money, she said. I accept this evidence.

10. She was still supporting her father and brother at this point in time. Her brother was working in a [factory], as I understand [the applicant]’s evidence.  I accept this evidence.

11. [The applicant] said she was happy with her husband at the beginning of their marriage. After the birth of her son, however, things deteriorated.  Apparently [Mr B]’s business dealings did not go well and he started to gamble and drink to excess. There came a point (when the baby was only one year old) that [Mr B] had no money to give her.  [The applicant] began to use her savings, and [Mr B] would also ask her for money. She ended up transferring all her savings to him on the understanding that he would eventually pay her back.  

12. After this, matters deteriorated further. There was a lot of arguing, [the applicant] said. Of particular importance is an episode described by [the applicant] in her oral evidence where [Mr B] tried to attack their baby son. She sought to defend the boy and [Mr B] hit her.  [The applicant]’s statutory declaration refers to [Mr B] beating their son (at [17]) and also refers (at [21]) to a very disturbing scene when [Mr B] tried to kill [the applicant] with a [knife].  This took place when her boy was only three years of age and in the next room.  Her statutory declaration also refers to regular beatings.  [The applicant] gave evidence that [Mr B] would also slap their boy when he was aged only two or three. 

13. [The applicant] did not seek to leave her husband, however.  She did give evidence that she would seek help from her mother-in-law and stayed with her from time to time as she lived only a short distance away.  

14. [The applicant] also gave evidence that when her boy turned [age], her mother-in-law began to look after him as she wanted to find a job.

15. [The applicant] said that she reported the attacks upon her at the local police station on a number of occasions but they told her it was a family problem and would not intervene. She was also concerned that the police officers knew her husband personally.  She said they would drink coffee with him.

16. In answer to a question from me about going to Seremban to live with her father and brother, [the applicant] said that she did so on one occasion when her son was about two years of age. [Mr B] tracked her down there and created a great deal of commotion, she said. She eventually returned to [Mr B] because she felt at that time she still loved him. The violence did not cease, however.

17. [The applicant] said she did not speak to her brother about what was happening as she did not wish to burden him with her problems. She said that he was about six or seven years of age, her son indicated to her that it would be “okay” if she looked for a different life and that he felt safer with his mother-in-law.

18. [The applicant] said people she knew suggested that she should try to go to work in Australia.  She decided to leave but did not tell [Mr B] about her plans.  She did speak, however, to her mother-in-law and told her of her intention to leave for Australia. She used a migration agent in Malaysia to arrange her trip.

19. [The applicant] gave evidence that in 2012 she came to Australia (at the age of about [Age 1]) and when her son was still only [Age 2] years of age.  In answer to my question as to why she did not return to Seremban and speak to the police there, she responded that she thought all police were bad. She decided instead to come to Australia and leave her son behind in the care of her mother-in-law. 

20. [The applicant] said she did not understand that she held a non-working tourist visa, but understood, rather, that her visa permitted her to work in Australia.  She said she did not plan initially to stay here permanently, but she has now been here since 2012. Her application for a protection visa was filed in 2016.

21. When she first arrived, [the applicant] was taken to work in [City]. She would send money back home to her brother. She is still supporting her father. Her brother now has a good job in a [company]. [The applicant]’s present occupation involves work at a [workplace 2].

22. [The applicant] told me that when she arrived here, she did not ask about her visa or her work rights. She indicated to me that if she could, she would return to Malaysia, but she thinks that [Mr B] will attack her. She says that [Mr B] is a member of a gang and that this gang has contacts all around Malaysia. She does not know, however, what his exact position in the gang is, but she believes he is involved in illegal loan-shark activities. 

23. [The applicant] gave evidence that some three years ago, that is, in 2018, she was on the phone with her son when [Mr B] grabbed her son’s phone and threatened her. This stressed her immensely. She was staying with housemates at the time and she cut herself deliberately and seriously. Her friends brought her to the Emergency Department of a hospital. She said to me that she had used an [implement] to inflict a wound upon her arm. On that occasion she took pictures, she said, of her injured arm with her phone.  She intended, she said, to send the pictures to [Mr B] to show him what psychological harm he had inflicted on her, but she said she did not send them.  The pictures were in evidence before me.

24. [Mr C], [the applicant]’s elder brother by two years, also gave evidence.  He had earlier completed a statutory declaration to support his sister’s claim.  He confirmed that he now works with [Company] and had done so since 2015 approximately. He confirmed that before that, he had been working in a factory in Malaysia. He indicated that the family flat where he lives with his father has three bedrooms one of which is not occupied but is being used as a very small storeroom. He has seen [Mr B] assault his sister.  He saw this in Klang where the couple were living after their child was born.  He also witnessed [Mr B] punching his sister, and after he sought to intervene he, too, was threatened. He also gave evidence that he has seen his sister with multiple bruises. He gave evidence that their father is an alcoholic who always pesters them for money.

25. In his oral evidence, [Mr C] appeared to contradict [the applicant]’s evidence that she had returned to stay with them during her marriage with [the applicant], although he confirmed that she did visit them. He said he could not remember his sister ever coming back to stay; but I note that his statutory declaration does refer to that fact.  He said that he never suggested to [the applicant] that she should come back to the flat notwithstanding the violence he said he witnessed.  He said that he was not aware of her decision to travel to Australia and was shocked when she informed him of her whereabouts after arriving here.  He said that in his opinion the police did not help much in domestic violence cases.

26. He gave evidence that he does see his nephew from time to time (once or twice a year) but he tries to avoid [Mr B] because of difficulties with him. He gave evidence that the modest family flat that he occupies in Seremban is superior to the flat [Mr B] and his sister occupied in Klang.  He described the flat in Klang as very small, in a bad condition, and located in an unsafe area.  He confirmed that she would visit them from time to time and give them money while she was living in Klang and that he and the father depended on the money. He gave evidence that he last saw his nephew in February 2019.  

27. [Ms D], [Mr B]’s mother, also gave evidence. She said that [Mr B] was involved in a [business] but had a sideline business of lending money and engaging in what she called “black matters”.  She confirmed that her grandson, [the applicant]’s son, lives with her. She said the child’s father, [Mr B], was often out and about drinking with other people, and that there was no-one to take care of the child. She said she supported her daughter-in-law’s trip to Australia and said there were often heated arguments between [the applicant] and [Mr B].  She confirmed that [Mr B] would hit [the applicant].  She said her daughter-in-law had been injured in the fighting. She confirmed that her grandson came to live with her because her daughter-in-law was unable to provide care while she was working and her son was often out drinking. She encouraged her daughter-in-law to go elsewhere to live safely and securely. She said that she helped her daughter-in-law with the money to get to Australia. She confirmed that her daughter-in-law was at the risk of serious violence from her son.

    CRITICAL FINDINGS OF FACT

28. One critical question I must decide involves [the applicant]’s relationship with [Mr B] and her reasons for coming to Australia. 

29. In making my findings, I believe I should give [the applicant] the benefit of any reasonable doubt and I have done so.  I accept on the evidence before me that [the applicant], when she was a girl, used to work in [a workplace 1], met a man there called [Mr B], eventually married him, and had a son by him.  I accept that [Mr B] is violent and a drunkard.  

30. I do not accept, however, [the applicant]’s evidence that [Mr B] beat their baby son or threatened her with a knife and that she lived in fear of her life.  I think that if there had been a serious threat to her son’s safety, she would not have left her son with her mother-in-law as she did when the boy was only [Number] years of age.  I also think she would have left the flat much earlier and moved back to the family flat in Seremban.  I bear in mind that the mother-in-law lives in the vicinity and the father had access to the boy and could have attacked him at any time in a drunken rage. 

31. Having said that, I accept that [the applicant] was a victim of domestic violence.  I also accept that she found herself without money in the marriage because her husband was drinking and apparently unsuccessful in his business dealings.  I am prepared also to accept that he is involved in criminal activity involving the unlawful lending of money. 

32. I bear in mind that [the applicant] chose not to return to the family flat in Seremban or to explore that option with her brother. Whilst I accept that her own father was an alcoholic and was constantly pestering her and her brother for money, I believe that if there had been an extreme threat to her safety or to her son’s, she would have taken the opportunity to return to the flat and seek protection there. I accept fully that a person who is the victim of domestic violence may not think through matters clearly and may persist for far too long in a relationship that is dangerous.  People can also become conditioned to a partner’s violent behaviour.  But, on [the applicant]’s evidence, the violence included very grave threats to her son’s safety and to her own.  A knife was wielded whilst her husband was drunk on one occasion and while the child was in the house.  I cannot reconcile this description of her domestic situation with her decision not to seek protection from her family nor with her decision suddenly to depart for Australia in 2012 while leaving her son in the care of her husband’s mother nearby when the boy was still only [Number] years of age.  I do not accept [the applicant]’s evidence in this regard.

33. I doubt that [the applicant] returned to Seremban during her marriage with [Mr B] as she said (and as attested to in her brother’s statutory declaration).  But I am prepared to give her the benefit of the doubt in that regard.  Even if I accept that [the applicant] moved there on one occasion and that [Mr B] tracked her down and created a commotion, I believe she would have returned there again once the violence resumed in Klang.  She had a brother living in the flat and would not, therefore, have been alone and defenceless, and she could have approached the police there.  This was an obvious alternative to departing for Australia without her son.

34. I firmly reject [the applicant]’s evidence to me that she did not understand what sort of visa she held when entering Australia.  I accept her evidence that she engaged an agent in Malaysia; but I believe she understood fully that she was entering Australia on a temporary, tourist visa only.  

35. I note that she must have known that she could not remain in Australia indefinitely without formally applying to migrate.  I note also that despite fleeing to Australia, she did not raise with any authorities here her concerns about her safety despite knowing that she had a temporary visa only.  Rather, she chose to begin to work here unlawfully and continued to do so after her visa expired without raising her dire situation with the authorities.  She applied for her protection visa only after some years.

36. The evidence concerning the self-inflicted wound in 2018 is difficult. I accept- or at least I shall give [the applicant] the benefit of the doubt in this regard- that [the applicant] did in fact inflict a wound upon herself.  As I have said I had before me in evidence pictures of a wound and of bruised legs. A medical report consisting of the analysis of the 2018 photographs was prepared (under form of a statutory declaration) by a medical practitioner and pathologist, [Mr E], in February 2021. He records in his declaration that the wound is neat and consistent with an incision that would be made by a very sharp-bladed instrument.  I accept that this could be the [implement] to which [the applicant] referred in her oral evidence before me.  [Mr E] refers to the wound being deep enough to have cut through the external layers of skin to expose the underlying fatty tissue.  He further reports that there was no indication that any major blood vessels had been severed. He notes that the wound was not life-threatening and there would have been no major blood loss.

37. What has caused me particular concern about evaluating the circumstances around the infliction of this wound is [the applicant]’s evidence that she took a photo of this wound, or at least arranged for a photo to be taken of the wound, while it was being attended to in hospital.  Her intention, she said, was to send the photo to her estranged husband, [Mr B]. I do not accept this version of events.  I do not believe that [the applicant] who had been in Australia for some six years at the time of the injury, would have been prompted to send a photo to her estranged husband of her injury even if, as she said, she was angry and depressed and wanted to demonstrate to him how difficult he had made her life.  Opening up any connection with him would have been self-evidently unwise given that [the applicant] says she was living in fear of her husband and had been threatened once again by him over the phone.

1. On the evidence before me, I cannot conclude why [the applicant] inflicted the injury upon herself and why she decided to take a photo of it.  But I can say that I did not find her evidence in respect of this matter persuasive.  I bear in mind that there may well be other mental or psychological problems that prompted [the applicant] to inflict this wound upon herself. [The applicant]’s statutory declaration refers (at [41]) to other attempts at self-harm.  I can say clearly, however, that the evidence [the applicant] gave about the wound and the photograph she took or had taken did not corroborate in my mind the version of events she gave of facing an extreme threat to her safety in Malaysia from her husband.

2. Furthermore, I do not accept as a matter of fact that [the applicant] genuinely believes that the Malaysian police would take no action in her case if [Mr B] threatened her. I am prepared to find that [Mr B] was, on the face of matters, a criminal, but the evidence suggests a petty criminal only with a drinking problem whose slim earnings were insufficient to support his small family.  Living as he did in a poor flat with his family and with his wife also having to work, [Mr B] was not, I believe, an influential member of any gang, loan-shark or otherwise, with tentacles of influence, so to speak, extending from Klang to Seremban and throughout Malaysia. I find this scenario quite implausible.  I note in this regard that [the applicant] was unsure in her evidence to me what position [Mr B] held in the gang she thought he was associated with.

3. Moreover, [the applicant] did not seek help, as I understood her evidence, from any police officers other than those at the local police station she contacted in Klang.  She had no solid evidence to present to me of having been rebuffed by a number of police stations, for example. 

4. I bear in mind, as I have said, that [the applicant] might have turned to her brother in Seremban, gone to live there with her son, and reported matters to the police there.  The flat had a third bedroom, although I accept the third bedroom was very small.  Genuine threats to her safety and threats to the safety of her son would have excited in her such concern, I believe, that she would have at least tried this as an avenue (whatever her belief about the honest of police officials) rather than taking the more extreme step of emigrating to Australia whilst leaving her son behind. 

5. All in all, therefore, I am prepared to accept that [the applicant] did have a violent marriage in which she persisted for too long, but I find that that she did not have an extreme fear for her son’s safety or for her own.  I in no way wish underestimate the effect of any domestic violence, but I found [the applicant]’s evidence about extreme threats to her safety unsatisfactory for the reasons I have given.

6. I believe that the preferable conclusion on the evidence before me is that eventually it became clear that there was simply insufficient money with which to support the family (given her husband’s poor earnings and drunkenness).  [The applicant] initially decided to resume work, leaving her child with her mother-in-law nearby.  [The applicant] then decided that she would improve her prospects and those of her son by coming to Australia and working here for at least an extended period of time, lawfully or unlawfully. I believe this explains her presence in Australia and her decision to entrust the care of her son to her mother-in-law.  

7. I do not believe that [the applicant] believes that she would face a threat to her safety on return to Malaysia that could not be effectively addressed by her living with her family in Seremban or living elsewhere in Malaysia.

8. In reaching these conclusions of fact, I repeat that I bear in mind that I should give [the applicant] the benefit of every reasonable doubt.  I have done so.  Even so, my conclusions of fact are as I have described them.

   APPLICATON OF THE LEGAL REGIME

9. These findings of fact require, in my opinion, the rejection of [the applicant]’s application for a protection visa.  The legal regime governing the grant of protection visas appears in s 36(2)(a) and (aa) of the Act.  

10. Under section 36(2)(a), a person must have a well-founded fear of persecution for one or more of the reasons specified in section 5J(1)(a) that relates to all areas of a country before a protection visa may be granted.

11. Given my findings, I do not believe that there is a real chance that [the applicant] would be persecuted wherever she might live in Malaysia.  She is not obliged, legally or as a matter of practicality, to return to the flat she occupied with [Mr B] many years ago or to resume her life with him.  She has the option of living with her brother and father in the family flat in Seremban.  She also has the option of moving elsewhere in Malaysia. I reject the suggestion that her husband is so influential that he would ensure there was no police intervention should he seek to approach her: see s 5J(2).  I also believe that she is capable of supporting herself in Malaysia, as she has done so in Australia for some years. 

12. To make matters clear, I accept that if [the applicant] made the surprising choice to return to her marriage in Klang, there would be a real risk of domestic violence; but I am not satisfied that [the applicant] genuinely believes that her husband is an influential member of a loan-shark gang who would track her down and harm her with impunity wherever she chose to live in Malaysia.  Nor do I believe that [the applicant] genuinely holds the view that all police in Malaysia are corrupt and will not intervene to protect her in Malaysia.  This assertion is not based on her personal experience.  She has contacted the police at the local station in Klang only, but also gave evidence that her husband knew these officers personally.  I also reject the submission that [the applicant] believes she would not receive police help because she is Chinese and a Buddhist as set out in her declaration.  That is an unsubstantiated assertion.  It is not based on her personal experience.

13. In any event, these views, supposing them to be held genuinely, would not be reasonably held in my opinion.  I accept that Malaysia’s police force and judiciary may have a poor record so far as the handling of domestic violence claims is concerned: see DFAT Report Malaysia, 13 December 2019, at [3.125], and DFAT Report Malaysia, 29 June 2021, at [3.128].  But [the applicant] has not raised her situation with the police in Seremban and there is no reason to believe the police throughout Malaysia (apart from officers in Klang) would not assist her or provide protection.  To conclude otherwise is merely to speculate in an unwarranted way.

14. I do not accept, therefore, that [the applicant] is eligible to be granted a protection visa under s 36(2)(a).

15. I reject also [the applicant] s claim for complementary protection under section 36(2)(aa) of the Act.  I believe that it would be reasonable for [the applicant] to relocate to her family’s flat in Seremban or, indeed, choose a different place in Malaysia in which to live: see s 36(2B)(a).  She is not, in my opinion, at real risk of suffering significant harm from her estranged husband throughout Malaysia. 

16. I am also satisfied that, whatever the close connection between [Mr B] and the local police station in Klang, the police in Seremban or elsewhere would not deny her assistance because of her husband’s putative influence with law enforcement authorities in general (a supposition I have rejected) or because of her ethnicity or religion: see s 36(2b)(b).

17. All in all, and giving her the benefit of all reasonable doubt, I have found that that [the applicant] came to Australia with the intention of improving her economic circumstances, and is presently supporting both herself and family back home in Malaysia.  I can well understand that motivation for coming to Australia, and her desire to support her family is admirable.  This circumstance is not, however, a sufficient basis for the grant of a protection visa, and my jurisdiction does not extend to permitting [the applicant] to stay in Australia when she does not meet the eligibility criteria for a protection visa under the Act.

    FORMAL DECISION

18. My formal decision will be to affirm the decision under review.

    Dr N Manetta
    

    Senior Member