2009623 (Refugee)
[2025] ARTA 1194
•3 April 2025
2009623 (REFUGEE) [2025] ARTA 1194 (3 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2009623
Tribunal:General Member B Gogarty
Date:03 April 2025
Place:Hobart
Decision:The Tribunal affirms the decision under review.
Statement made on 03 April 2025 at 9:56am
CATCHWORDS
R REFUGEE – protection visa – Malaysia – particular social group – women – access to divorce in Sharia Court – victim of loan shark – physical assault – period of unlawful residence – family violence allegations – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182
MIAC v SZGIZ [2013] FCA 427
MIAC v SZRKT [2013] FCAFC 80
MIEA v Wu Shang Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Mohamed v MIMA (1998) 83 FCR 234
MZXRY v MIMA [2006] FCA 1475
Randhawa v MILGEA (1994) 52 FCR 437
WZAPN v Minister for Immigration and Citizenship [2012] FCAFC 74Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is found to be a national of Malysia, applied for the visa on 17 January 2018 (the “original application”). The delegate refused to grant the visa on the basis that the applicant: was not a refugee for the purposes of ss 5H and s36(2)(a) of the Act; and was not owed complementary protection for the purposes of s36(2)(aa) of the Act as they could obtain protection from an authority of the county. The applicant applied for a review of that decision to the Administrative Appeals Tribunal on 9 June 2020. That application was not finalised by 14 October 2024 when the AAT became the Administrative Review Tribunal (the Tribunal). By virtue of the operation of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), the application for review to the AAT is taken to be an application to the Tribunal.
The applicant appeared before the Tribunal on 21 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. Quotations in this decision attributed to the applicant are those made by the interpreter on her behalf.
BACKGROUND
The applicant’s evidence about her background, which the Tribunal accepts, is that she is [an age]-year-old woman who was born in Ipoh, the capital city of the state of Perak, Malaysia. She is a Muslim. Early in her life her nuclear family moved to Selangor on the west coast of Peninsular Malaysia where she attended school and university. She lived with in her family home in Selangor until she was married in 1994 and returned to live in Ipoh, Perak with her husband in his family home. She told the Tribunal that her husband now owns that family home, but she is not listed on the title. While the applicant remains legally married to her husband, their relationship is strained and she appears to have had little interaction with him since she has been in Australia – which the Tribunal takes to mean, in practice, that she has separated from him.
The applicant has two daughters, who at the time of hearing were [specified ages] years old. Neither are married and both live with their father in Perak. The applicant has [number] siblings, [details deleted], all adults, and all of whom still live in Malaysia. She has a wide extended family, who, like her siblings, predominantly live in Perak. The applicant communicates with her family, mostly her daughters – around once a month or when there are issues, and less frequently with her siblings. Both her children work, and she no longer needs to financially support them, and she said her daughters in fact “have a small income to take care of my husband”. The applicant currently does not work in Australia, and, being unlawfully onshore, is not permitted to do so.
After completing a [Qualification 1] studies, the applicant worked in various roles before moving to the financial services sector, working at a bank from [time range] to 2015. She then opened a [business 1] in Ipoh which subsequently closed in 2017 due to financial difficulties.
Movement records show that the applicant applied for a tourist visa to come to Australia in September 2017 and arrived onshore in October 2017. She told the Tribunal she did not have any family or friends here and met another Malaysian person on arrival at customs at the airport who assisted with finding employment and later with her original application for protection. Despite being entitled to work for much of her time in Australia the applicant said she has predominantly been unemployed following the unskilled work, which she said was five or six years ago. The applicant’s bridging visa ceased in July 2023, and she appears to have been living unlawfully in Australia since then, and while she stated she was seeking to resolve that issue, she remained unlawfully onshore at the time of this decision.
Original application
In her original application for protection the applicant made the following claims:
“Two years ago [from the January 2018 date of application], I opened a [business 1] in Ipoh. At first, the welcomed received was quite good. After two years operated, my [business 1] suffered a loss and I can’t afford to pay employees salary and buying sundries to continue running my business. Therefore, I borrowed money from an unregistered agency because it’s easier than borrowing from the bank. I did not expect the repayment rate to be so ridiculous high and I can’t afford to repay my total debt, even though I’ve sold my shop. Therefore, I’m always in danger, my belongings being damaged and my family member not safe.
…
If I go back to my country, I’ll be threatened and I am so afraid of my family being victimised.
…
Everyday I received threatened calls. My house was splashed with paint, my car damaged and my family members is not safe condition.
…
Because they blackmail me that once I report to the authorities they will find my family member and make them as hostages.
…
They have a lot of boys everywhere in Malaysia.” [all caps removed, mistakes in original]
The application was hand-written, and the applicant told the Tribunal at hearing that she had completed it herself, did not have assistance, and that her claims were true and correct. However, although she said she remembered completing the application form she did not retain a copy and could “not fully” recall exactly what she said. At another point in the hearing, the applicant said that a person she had met on customs in Australia on her arrival, who she referred to as her friend, had been the one who told her to make the claim for protection. The Tribunal is satisfied from the applicant’s answers that the claims made in the original application were hers.
The Department did not interview the applicant and considered only what was contained in her original application along with her Departmental file, relevant country information, case law, and procedures.
The delegate determined that the applicant:
·Was not a person who claimed fear of harm for one of the reasons set out in 5J(1)(a) of the Act; and
·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 as outlined in s36(2B)(b) of the Act; therefore,
·Was not a refugee or a person in respect of whom Australia had complementary protection obligations under the Act.
Evidence before the Tribunal
The record shows that the matter was affected by jurisdictional issues and not listed for constitution by the AAT until May 2025 when the applicant was sent a pre-hearing information form to complete. On 14 May 2025 the applicant completed that form and updated her claims as follows:
“I can’t go back to Malaysia because my life is in danger from the illegal money laundering and now from my ex husband too.”
Following the establishment of the Tribunal it assumed jurisdiction for the matter and set down a substantive hearing for 21 January 2025 (“the hearing”). Before the Tribunal were:
·The Departmental and Tribunal files for the applicant, which included her original application, the Department’s decision, pre-hearing form, movement, and migration records;
·Country Information for Malaysia prepared by the Department of Foreign Affairs and Trade (DFAT) on 24 June 2024 (DFAT Country Information) );[1] and
·DFAT ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.[2]
[1]In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[2] Ibid.
The hearing
At the hearing the applicant confirmed her background information and personal details which are set out by the Tribunal above (paragraphs 4- 9). She said that her claims were protection were:
·Fear of harm from an unlicensed creditor and his associates (a loan shark); and
·Fear of her husband.
Claim 1 : Fear of unlicensed creditor
15. With respect to the first claim the applicant set out a narrative of events that largely mirrored and expanded upon what she had put in her original application. Specifically, the applicant claimed that:
·She started a [business 1] in Ipoh at some time around 2015 which required credit to cover costs;
·The landlord for the [business 1] premises offered her a line of credit as an unlicensed money lender for RM[amount] (approximately AUD$[amount] at the time of this decision), and as this was easier and faster than obtaining a loan from a licensed financial institution the applicant accepted the offer;
·She was asked to sign some papers, agreed to pay 10% of the overall loan every month and was provided the full loan amount in cash;
·Initially she paid the loan amount for about four months;
·Due to economic factors the business “came into a slump” around mid-2016 and started losing money;
·At some time around the end of 2016 or the beginning of 2017 the applicant found herself unable to repay the loan repayments;
·She asked for a postponement of the repayments, but the creditor then informed her that her principal had doubled (to RM[amount] given the repayments to date);
·She disputed the creditor demands as fraudulent, but he became violent, shoving and pushing her physically, threatened her and her family and insisted she pay off the debt;
·Her business ultimately closed in March 2017, but the unlicensed creditor continued to demand money from her and threaten her and her family;
·After the business closed the creditor continued to come to the applicant’s house and verbally threaten her and her family demanding the RM[amount] be paid in full, when she didn’t, he or his associates damaged the family car and splashed paint on their house;
·She did not report the fraud, violence, or threats by the creditor to police because of the threats the creditor made towards her and her family;
·Her husband did nothing to assist or intervene because she was the primary household supporter;
·She and her family fled to a sibling’s house in Selangor and later to the applicant’s in-laws house in Ipoh;
·The family managed to avoid the creditor and his associates, but she received a telephone call in which they told her that they had “contacts wherever, whichever place I move to”.
·The family has never subsequently been harmed or threatened by the creditor or his associates but they “live in fear”.
·A friend mentioned the possibility she could go to Australia to relieve her tension.
·Initially she did not intend to stay in Australia but needed space to consider what she should do next to deal with the problems she faced.
·She has been unable to repay the debt in Malaysia because she does not have any money.
·She is scared to return to Malaysia because of the threats the creditors and his associates made and the risk of them finding her;
·She could not move away from the threats because she doesn’t know anyone in other parts of Malaysia and accepts that the creditors could find her anywhere there.
The Tribunal asked why the applicant borrowed from an unlicensed money lender having worked for a licensed bank which suggested she should have known the dangers. The applicant acknowledged that she had made a mistake but was under financial pressure and didn’t have sufficient collateral or documents to provide to a licensed bank at the time.
Asked why she did not report the unlawful creditor to the police for his fraud, intimidation, and violence the applicant said that she was afraid of retaliation given the threats she and her family had received.
The Tribunal raised its concern that the applicant appeared to have abandoned her daughters to seek reprieve elsewhere, namely Australia, when her family had been threatened if she was not to pay. Given her evidence is that the applicant had not serviced her debt at all that would indicate she left her daughters in harms way. The applicant replied that the money lender was looking for her at the time, which is why she left, but did not directly respond to why that did not put her family, especially her daughters, in harms way based on the other evidence she gave.
Country information relating to the professionalism of the state protections against illegal money lending and debt consolidation options for Malaysian citizens was put to the applicant. The applicant said that the information was “maybe” new to her, and she wasn’t sure about it.
It was put to the applicant that she had not been pursued by the creditor in any material way after she moved houses in Malaysia and that she had not been harassed since coming to Australia. The Tribunal indicated this might suggest the creditor was no longer pursuing her for any debt she owed him. The applicant did not provide any evidence of further contact or pursuit from the creditor or his associates but said they had contacts everywhere.
The Tribunal highlighted that the features of the applicant’s relationship with the man she co-habits a house with appear to indicate that she is in a significant relationship which is the real reason she does not want to return to Malaysia. The applicant denied being in a significant relationship with the person she referred to as her housemate.
It was put to the applicant that it seemed unlikely that she would meet a Malaysian citizen at customs on arrival in Australia who advised her to apply for protection and the evidence made it seem more likely that she had been advised from Malaysia before she left. The applicant stated that “I just came here to run away from my problems and rest my mind when I disclosed my issues to my friend that I met here, she explained about the protection”.
Claim 2 : Fear of Husband
The applicant had some difficulty explaining to the Tribunal exactly what the fear – as opposed to say, dislike or disdain of him – is and when exactly this became a reason to fear returning to Malaysia. That being the case the Tribunal considers it important to note that the applicant became, at times quite upset and distressed while discussing her husband, which the Tribunal considers reflected her honest feelings about him and his longstanding effect on her life. The Tribunal summarises the discussion about her husband as follows:
·She was always the primary bread winner, and her husband has infrequent, unreliable employment and long periods of unemployment during their relationship;
·She and her husband were unhappy from very early on in their relationship but persisted for the sake of their children;
·Her husband has relied upon her income to sustain the family and has never co-contributed to family support;
·Her husband refuses to divorce because he wants her to take care of him and the family; and she does not want to do that, or is incapable of doing that, anymore;
·The Sharia Court will not grant her a divorce without her husband’s agreement.
The Tribunal made some effort to encourage the applicant to consider whether she could live in Malaysia separated from her husband as she is now separated from him in Australia – and has been for almost seven and a half years – but she appeared to have difficulty accepting that was possible for reasons that the Tribunal had equal difficulty understanding. She agreed that she wants to live separately to her husband but that “he is still expecting to be together with him”, and that “because [of] the children, he still has some connection to me” and “since we have children, we cannot be fully separated.” The Tribunal acknowledged that the connection via her children (now both employed adults) may mean that her husband would be able to contact her if she chose to live in another part of the country with, say her siblings. She reiterated that he would be able to communicate with her children, asking where she is, and this will be a “bother” for her.
For the avoidance of doubt, the applicant did not allege physical, emotional, or other forms of family violence from her husband in the past, nor a fear of these things occurring in the future. The height of her claims appeared to be that she would have to live with him in Malaysia, he would expect her to work to support the family, and if she did not do that, he would bother her.
The Tribunal asked why the applicant had not listed the fear of her husband in her original application. She said that she didn’t include the claim because at the time she was only worried about the threat from the loan-shark, and that she thought that, after being away from her husband for significant time he would ignore her, “but he's still trying to contact me via my children” and she has realised the problem won’t go away.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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.
The Tribunal’s fact finding role
In assessing the credibility of an applicant's claims, the Tribunal must make findings of fact in relation to each claim and its integers. This process necessarily takes places within a statutory framework that places the onus on the applicant to establish that they are a person in respect of whom Australia has protection obligations.[3] At the same time, the Tribunal must remain alert to the inherent difficulties faced by applicants who may have fled their country of origin, or who are required to recount experiences of harm, including the effects of trauma, cultural differences, language barriers and the passage of time.[4] Given these factors may affect the applicant's ability to produce documentary or other evidence to substantiate their claims there is no legal requirement that those claims must be corroborated to be accepted by the Tribunal.[5] However, that does not mean that the Tribunal must uncritically accept claims or evidence that it considers implausible, manufactured or otherwise unreliable.[6] Rather it is the role of the Tribunal to assess the veracity of each claim in light of the material facts before it.[7] A reasonable approach to credibility must be adopted, taking into account the totality of the evidence, the particular circumstances of the applicant, and the country information available applicable to it.[8]
[3] Migration Act 1958 (Cth) s 5AAA; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 570
[4] MIAC v SZRKT [2013] FCAFC 80, [79]; MIEA v Wu Shang Liang (1996) 185 CLR 259, 291; UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1992, [196].
[5] MZXRY v MIMA [2006] FCA 1475, [11]; Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J)
[6] Randhawa v MILGEA (1994) 52 FCR 437,451.
[7] Mohamed v MIMA (1998) 83 FCR 234, 246 (Hill J).
[8] MIAC v SZGIZ [2013] FCA 427, [42]; MIMA v Rajalingam (1999) 93 FCR 220, 224.
REASONS AND FINDINGS
The Tribunal has considered each claim made by the applicant separately, other than in respect of where it considers the evidence raised by one relates to the other.
Claim 1: Fear of unlicensed creditor
The Tribunal accepts that prior to her departure from Malaysia, the applicant operated a [business 1] in Ipoh which ultimately failed in early 2017. It accepts her evidence that she borrowed [amount] ringgits from an unlicensed moneylender—whom she identified as her landlord—in order to support her business operations, and that she initially repaid a portion of the debt before falling into financial difficulty. The Tribunal also accepts that she was subjected to verbal threats and demands for inflated repayment amounts, and that the creditor engaged in acts of intimidation, including one occasion of physical assault, property damage, and verbal abuse. It further accepts that she did not report the matter to the police due to fear of retaliation, and that her husband did not intervene. While there are questions as to why an educated person with a background in banking would enter into such an arrangement, the Tribunal accepts her explanation that she made a "mistake" as a new business owner who did not fully consider the risks of an unexpected economic downturn. However, the Tribunal does not accept the more serious elements of the claim, particularly those concerning an ongoing threat posed by the creditor.
In her oral evidence, the applicant stated, "I never planned to ... apply for a protection [visa]. I just came here to run away from my problems and rest my mind." The Tribunal considers this statement to connote a departure motivated by a sense of personal entrapment and dissatisfaction with her life circumstances—including financial strain and marital difficulties—rather than a genuine and contemporaneous fear of serious or significant harm. While fear need not be the sole reason for departure, the Tribunal is not satisfied that fear of harm played a decisive or motivating role at the time the applicant left Malaysia.
The Tribunal finds it especially difficult to reconcile the applicant’s stated fear of harm with her decision to leave Malaysia without her daughters, for whom she expressed concern and affection. If there were genuine threats to their safety, the Tribunal does not consider it plausible that she would leave them behind. That is particularly so given she claimed that the creditor could track her and her family anywhere in Malaysia. The Tribunal does not find that assertion to be supported by the evidence, particularly considering the applicant’s own account that neither she nor her family were harmed after relocating. Her daughters and husband, despite remaining in the same region, have not been harmed or reported any further issues since 2017. This undermines her claim that the creditor posed a serious or sustained threat to her or her family.
Despite claiming to fear violent consequences for non-payment, the applicant did not secure stable employment in Australia nor remit any funds to repay the debt. Her conduct since arrival does not reflect the urgency or behaviour one might expect from someone who believed she or her family were at ongoing risk. Rather, she appears to have relied on informal support from acquaintances without making meaningful efforts to re-establish financial independence. While the Tribunal does not draw adverse conclusions from her lifestyle or employment choices, her stated fear of financial harm is not supported by her post-arrival conduct.
The applicant is relatively well-educated, having completed a [Qualification 1] and previously worked in the financial sector. While she has not worked in recent years, there is no evidence of any impediment to her resuming employment. She also has a broad support network in Malaysia, including siblings who previously provided her shelter and daughters who are now financially independent. These factors weigh against a finding that the applicant would be unable to support herself or live independently if returned.
While DFAT Country Information notes that Malaysian authorities may be less inclined to act in relation to victims of illegal moneylending than in other criminal matters, it also confirms the existence of relevant laws, policies, and enforcement actions.[9] The applicant did not provide evidence that she sought police protection or that any such request was refused. Nor is there evidence that she explored formal debt consolidation or mediation services, which are available in Malaysia through both government and private channels.[10] While generalised concerns may exist, there is no evidence to suggest that institutional failings would result in a real risk of harm in the applicant’s specific circumstances.
[9] DFAT Country Report – Malaysia (24 June 2024), [3.153]; Department of Home Affairs, Common Claims – Malaysia, (Country of Information Service, 14 August 2024), 19-20.
[10] Department of Home Affairs, Common Claims – Malaysia, (Country of Information Service, 14 August 2024), 20.
Taken together, the Tribunal finds that the applicant has not established that she faces a real chance of persecution or a real risk of significant harm if returned to Malaysia. The incidents she described occurred more than seven years ago, were not repeated, and did not evolve into an ongoing or repeated threat. The Tribunal has found that her departure was not motivated by a genuine fear of harm, and that her subsequent conduct in Australia is inconsistent with her asserted fear. While DFAT Country Information acknowledges some limitations in police responsiveness to unlicensed lending practices, there is no evidence that the applicant sought protection or that such protection would not have been provided. Her family, who remain in Malaysia, have not been targeted, and she has not been contacted by the creditor or his associates since her departure.
Considering the time elapsed, the applicant’s continued safety and that of her family, the availability of legal remedies and social support, and the absence of any persuasive basis to conclude that harm is reasonably foreseeable, the Tribunal is not satisfied there is a real chance of serious or significant harm from unlicensed creditors as a foreseeable consequence of her being returned to Malaysia.
Claim 2 : Fear of Husband
The applicant’s claim to fear her husband was not raised in her original application, although she did flag her concern as one which arose (“now”) when she completed her pre-hearing information form. However, at another point of the hearing the applicant stated that her fear of her husband was in fact a reason she came to Australia. Given the applicant’s concerns about her husband arise from his conduct over the course of their marriage, and, on her evidence were most acutely experienced while she lived with him, and were a reason for her to leave Malaysia, the Tribunal is not satisfied that the purported fear she had of him only arose after the primary decision was made. Section 367A of the Act requires that the Tribunal draw an inference unfavourable to the credibility of the credibility of a claim or evidence raised after the primary decision if satisfied the applicant does not have a reasonable explanation for the late disclosure.
When asked why she had not raised the claim to fear her husband before the primary decision was made the applicant said she had only been concerned about the loan shark threat. She separately stated that she had not included the claim because she considered that after she left for Australia her husband would leave her alone but that has not happened.
The Tribunal has considered the applicant’s explanations for her late claim about her husband and is satisfied they are not reasonable in the context of the object and purposes of s 367A – avoid the risk of ‘unreliability and invention or manufacture’ from delayed claims and evidence.[11] Here the claim relates to asserted facts that were in existence at the time of the original application, which she asserted were the basis for fleeing her country of origin; namely her asserted inability to exit a religious marriage and her fear of being compelled to resume cohabitation with her husband. If it is to be accepted that the asserted facts were a driver for the applicant to flee Malaysia and fear returning it is not reasonable that she would have not raised them when she made her claim for protection. In the Tribunal’s view the applicant could not objectively have known that she would remain here for several years such that she might expect her husband’s behaviour to change. The Tribunal does not consider that it is reasonable to expect the applicant would not list that fear if she considered it to present a real risk and real chance of harm to her at the time. Nor have the circumstances described by the applicant, in the Tribunal’s view, changed in any degree since the primary decision to suggest they are more prevalent or generate different concerns for the applicant, and in fact have probably diminished in risk by virtue of her living apart from her husband for so long. That is especially the case given the applicant retained her initial claim which was rejected by the delegate but added a further claim that the delegate had not considered but might have if she had put it before the Department. Given that is the case the Tribunal does not consider it reasonable that the applicant delayed raising them until her review application was constituted for hearing.
[11] EQU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1182 (5 October 2023) [51].
The Tribunal is satisfied that the applicant has not provided a reasonable explanation for failing to raise this claim prior to the primary decision. In accordance with s 367A of the Act, the Tribunal therefore draws an inference unfavourable to the credibility of the late claim. In applying that inference, the Tribunal considers that the applicant’s failure to raise the marriage-related claim at the time of her initial application undermines the weight that can be given to her stated fear of returning to her husband or being unable to exit the marriage. While the Tribunal does not exclude the claim from consideration, it gives diminished weight to the applicant’s later statements in support of the claim when evaluating whether she has established a well-founded fear of persecution or a real risk of significant harm. The Tribunal proceeds to assess the claim but does so against the background of that adverse credibility inference.
Refugee criterion
The Tribunal finds that the applicant is a member of a particular social group for the purposes of s 5J(1)(a) and 5L: Muslim women in Malaysia who are unable or unwilling to remain in religious marriages. This group shares immutable characteristics (gender and legal marital status under Syariah law), is socially distinguishable in Malaysia. The Tribunal also accepts that Malaysian Islamic family law, applied through state-based Syariah courts, confers greater procedural control on husbands. Women seeking divorce must either obtain consent (talaq) or satisfy prescribed conditions for judicial annulment (fasakh), although it notes that a relevant basis for fasakh is that a woman’s husband is unable to maintain her.[12]
[12] Mohd. Ibrahim, Ahmad bin. “The Status Of Women In Family Law In Malaysia” 6:1 (1964) Malaya Law Review
Turning to whether the applicant has a well-founded fear of persecution for the purposes of 5J of the Act, the Tribunal acknowledges that the applicant's marriage was financially asymmetric. She was the sole breadwinner and supported her husband, who was mostly unemployed. However, the Tribunal notes that the applicant has not worked for several years during which time she has not been supporting her husband at all. The applicant told the Tribunal her husband has continued to try to contact her via her daughters or at least that they have passed on the message that he expects financial support from her. The Tribunal does not consider it necessary to make a finding of fact on that assertion, other than to accept it does indicate a continuing expectation on his part that the applicant remain bound by certain marital obligations, including financial support – even if the country information suggests such an expectation may not reflect gender norms amongst married Malaysian Muslims. Regardless, the applicant’s evidence is that she has not acquiesced to these requests, and he has found alternative sources of support without resorting to threats or intimidation. Nor did the applicant put to the Tribunal that her husband’s demand would be enforced by a law or practice of the state if she were returned to Malaysia. Considered together these facts and wider evidence reduces the weight that can be placed on the indirect contact as evidence of serious coercion that presents a real chance of serious or significant risk of harm to the applicant now or in the future, regardless of where she lives. The Tribunal considers that any financial dependency dynamics that once existed have diminished in degree and severity, such that there is a reduced practical likelihood of the applicant being expected to resume what she says her husband believes are her marital duties.
The applicant appeared, in the Tribunal’s view, to hold an unwavering view that she would not be able to live separately from her husband in Malaysia because of her marriage to him, his refusal to grant her a divorce and his expectations of her as his wife. Even acknowledging the discrimination against women in Malaysian divorce proceedings the country information does not indicate that they are precluded from seeking one without the consent of their husband, but rather that they must meet certain criteria that men do not. Directly citing religious scripture, Suleiman and Farid explain:[13]
“[If] the husband, who is seen as the family’s provider, shirks his obligations and the wife decides she cannot tolerate his shirking any longer, the latter can seek for a divorce.
In Islam [that] can be considered a valid ground for ṭalāq. If, in a legitimate case warranting a divorce, a husband refuses to divorce his wife, then she is certainly justified by Sharia law to approach the proper legal authority to get a divorce (khulu’) or fasakh.”
[13] Hassan Suleiman and Nurul Afifah bt Mohamad Farid, ‘The Rate of Divorce among Muslims Couples in Malaysia: A Legal Analysis of the Causes & Consequences’ (2023) 6(1) IIUM Journal of Religion and Civilisational Studies 25, 29.
The applicant acknowledged that she has not sought a divorce from her husband through legal means, much less that the state has refused that request. The Tribunal is not satisfied that the applicant has shown that she has been directly or constructively deprived a legal mechanism to exit her marriage by Malaysian authorities.
The applicant also did not provide any credible evidence the Tribunal that the Malaysian legal system would enforce cohabitation or penalise her for continuing to live separately. While country information does suggest social expectations may favour the preservation of marriage, there is no objective evidence before the Tribunal that a wife may not live separately to her husband, much less that a wife is required to financially support him. Rather, country information indicates that the opposite is the case for Muslim marriages, specifically that:[14]
“Even if the wife works and earns a monthly income, she is not accountable for household bills or the children’s food and housing because it is not wājib (mandate) in Islam that the wife shares in her husband’s financial responsibilities.”
[14] Ibid, 30.
The Tribunal is not satisfied that the applicant’s conviction she would be obliged to co-habit and support her husband, nor that her worry that he would bother her if she did not act on that conviction amount to level of “serious harm” as defined in s 5J(5) of the Act or the grave nature of physical or psychological risk that definition evokes.[15]
[15] WZAPN v Minister for Immigration and Citizenship [2012] FCAFC 74.
The Tribunal is satisfied that the applicant may experience discomfort or social disapproval upon return, particularly from her husband or potentially her family. However, the Tribunal is not satisfied that this would amount to serious harm. Social stigma, moral censure, and familial pressure, while potentially distressing, do not constitute a violation of a fundamental human right protected by the Act unless coupled with systematic, discriminatory denial of basic entitlements, such as access to housing, employment, or personal security.[16]
[16] Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.
In summary, the Tribunal is not satisfied that the applicant identified any serious threats of harm from her husband in the past, or as a foreseeable consequence of her returning to Malysia in the future. The Tribunal notes, in applying the inference drawn under s 367A, that her failure to raise this aspect of her claim at the earliest opportunity undermines the weight that can be given to her stated fear of being compelled to resume cohabitation or being unable to leave the marriage. Her late disclosure of this claim raises doubts about its significance to her at the time of departure and at the point of applying for protection and diminishes the overall plausibility of her asserted fears. While her separation from her husband and stated inability to unilaterally obtain a divorce may be factually accurate, the Tribunal gives less weight to the suggestion that these circumstances, absent any form of coercion or formal intervention, create a real risk of serious harm. Accordingly, while the applicant’s situation reflects difficult personal and cultural circumstances, the Tribunal is not satisfied that there is a real chance she would suffer serious harm in Malaysia for reason of her membership of a particular social group.
Complementary Protection
The Tribunal next considers whether the applicant faces a real risk of significant harm in Malaysia for the purposes of s 36(2)(aa) of the Act due to a fear of her husband. The Tribunal relies on its findings above, namely that it is not satisfied that:
· The applicant has shown that she is incapable of legally exiting her marriage under Malaysian Syariah law;
· There is a legal or practical barrier to her continuing to live separately from her husband in Malaysia;
· That her husband’s requests for financial support have involved threats or coercion, or she has been forced by Malaysian authorities to comply with his demands; nor
· That there is any evidence of enforcement action, surveillance, or pressure from state or religious authorities in respect of her marriage or desire to divorce.
None of this is to deny the applicant’s warranted feelings towards her husband and desire to separate herself from him in legal and practical terms. The Tribunal also accepts that the applicant may experience emotional strain, discomfort, or cultural pressure in returning to Malaysia while still legally married to a man she no longer considers her partner. However, these matters do not reach the high threshold required for significant harm under s 36(2A). In particular, the Tribunal is not satisfied that her circumstances meet the criteria for degrading treatment, which would seem closest to the sort of significant harm the applicant was alleging she feared from her husband. The Tribunal reiterates its finding that legal and procedural mechanisms exist for her to seek an annulment if she chooses, and that her current circumstances do not demonstrate she is unable to exercise autonomy, or act freely and with agency. There is no objective evidence that satisfies the Tribunal that the applicant would be subject to unreasonable and extreme humiliation or debasement emanating from the state or as a consequence of its acquiescence. Nor is there objective evidence that the applicant would be subject to cruel or inhuman treatment, or any other form of significant harm described by the Act.
Accordingly, the Tribunal finds that while the applicant’s circumstances may involve personal hardship and social disapproval, they do not amount to significant harm as defined in s 36(2A) of the Act.
DECISION
Based on the findings, and for the reasons set out above, the Tribunal is not satisfied on all of the objective materials and evidence before it that the applicant is a person in respect of whom Australia has protection obligations under either and both ss 36(2)(a) and s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 21 January 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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