2011431 (Refugee)

[2021] AATA 2066

2011431 (Refugee) [2021] AATA 2066 (13 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2011431

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Senior Member Dr N Manetta

DATE:13 May 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review.

Statement made on 13 May 2021 at 4:36pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – particular social group – women – victim of domestic violence – forced marriage – limited cohabiting – divorce – new relationship with Australian resident – mixed religious relationship – safe return to marital home – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 415
Migration Regulations 1994 (Cth), Schedule 2

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 for review of a decision made by a delegate of the Minister for Immigration on 5 February 2018. The delegate refused to grant [the applicant] a Protection (Class XA) Subclass 866 visa under s 65 of the Migration Act 1958 (the Act).  [The applicant] has sought a review of this decision in the Tribunal.

2.    [The applicant] applied for the visa on 4 January 2018. The delegate refused to grant her the visa because he or she concluded that [the applicant] would receive adequate protection from state authorities in Malaysia in respect of her assertion that she would be at risk of domestic violence if she returned.  For this reason, the delegate concluded that neither s 36(2)(a) nor s 36(2)(aa) of the Act applied.

3.    I note by way of background that a merits review of [the applicant’s] application was initially refused by this Tribunal because the presiding member concluded the Tribunal had no jurisdiction to consider what he took to be an out-of-time application by [the applicant].  No decision was reached by the Tribunal in respect of the merits of her application on that occasion.  The Tribunal’s decision was set aside, however, by the Federal Circuit Court, and [the applicant’s] application was remitted to the Tribunal for hearing.

4.    [The applicant] represented herself before me.  She appeared on 30 November 2020 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages.

TRIBUNAL’S TASK

5.    My task is to decide whether to affirm the decision under review or whether to set it aside. If I set aside the decision, I may substitute a new decision: see s 415(2)(d). The Tribunal’s proceedings are known, technically, as a de novo hearing on the merits. That is, I must decide the matter afresh on the evidence adduced before me. I must reach the correct or preferable decision on that evidence. This implies that I may set aside the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding the absence of any discernible error in the decision under review; equally, I may affirm the decision under review if that is the correct or preferable decision on the evidence before me notwithstanding an error in the delegate’s reasoning.

STATEMENT OF CONCLUSION

6.    I have concluded that the decision under review should be affirmed..  I set out below [the applicant’s] evidence to me and my findings of fact.  I then apply the relevant statutory provisions (in ss 36(2)(a) and (aa)) to the facts as found.

[THE APPLICANT’S] EVIDENCE

7.    [The applicant] gave the following evidence to the Tribunal.  She was born on [date] in a small town in Malaysia called [name]. She has [specified family members]. Her mother died when she was about [age] years of age, that is in about 2005 or 2006.  Her father is still alive, however, and has since remarried. He now lives in a village called [name].  [The applicant] indicated she has not spoken to her father for some three years. She does speak with [specified family members] from time to time, she said, but has more frequent contact with [a] sister.  One of her [siblings] lives in Penang, another in Port Dixon, and [another] near the father’s home.  They are all married.  Her sister lives some 30 minutes from her father’s home.  She gets along with her sister well and knows her sister’s husband although she does not talk to him frequently.

8.    [The applicant] was happy growing up with her mother and father. She completed her schooling in [year] and achieved a [grade]. After completing her schooling, she left home and moved to a larger township, [named], some [distance] away, for work. She lived there in a shared house with some seven people, all female.

9.    Her first job was as a temporary sales assistant in a [business]; and from there she obtained a full-time position in a [Business 1] service centre.  She gave evidence that it was a good job to have. With some additional work from the [first business], she had enough to live on. She enjoyed her life. She did not have that many friends, but her housemates were “okay” she said. She socialised with them and would go to the beach, eat out at restaurants, and go out bowling or shopping.  She had no male friends at that time.

1. She was still in contact with her father at that point in her life. She had good contact with him at that time. She was happy working with the [Business 1] service centre and stayed there for three years. She then had problems and decided to move to Kuala Lumpur.  She worked in Kuala Lumpur in another [Business 1] service centre.

2. The problems that prompted [the applicant] to move to Kuala Lumpur involved her father. He had tried to arrange a marriage for her.  He became very angry when she refused to agree. She became very stressed by her interactions with her father, and she decided to move to Kuala Lumpur. As Kuala Lumpur was some five hours away, her father could not make the trip easily and continue to pester her in the way that he had been.  Nevertheless, he did make many phone calls to her.

3. [The applicant] lived in Kuala Lumpur from 2009 or 2010, once again in shared accommodation.  She enjoyed living there, she said. She was the principal tenant of the premises and sublet rooms to two female students.

4. In 2012, when she was approximately [age] years of age, she met the man who was to become her husband. He was some five years older.  Like her, he was working at the [Business 1] service centre in Kuala Lumpur. They were just friends to begin with. She would see him at [Business 1] functions, she said, but otherwise she did not socialise with him. She once visited his house and was introduced to his mother. The mother liked her, and he eventually came to propose marriage to her.

5. In her evidence to me, [the applicant] indicated that she had never fallen in love with this man.  At some point, he came to visit her father’s village, ostensibly to do some fishing there.  He met her father on that occasion. She indicated to me in her evidence that she came to accept that if her father approved the marriage, she would acquiesce. Her father convinced her that a suitable partner was a matter for a daughter’s parents to decide. She indicated to her father that she did not love the man, but her father said they should marry anyway.

6. [In] August 2014, [the applicant] married after an engagement lasting one year.  In answer to my question as to why she did not say “no” to the marriage, she answered that she had simply run out of energy. She said her father had given her an ultimatum and she decided to marry.

7. The couple did not live together after getting married. [The applicant] said that she did not want to live with her husband.  In fact, it was only because her mother-in-law was planning to visit that [the applicant] moved into her husband’s house so as to give the impression they were cohabiting. She had not moved there earlier, she said, because she needed to give herself time.  When she moved in to her husband’s house, the couple occupied separate bedrooms. Ultimately, the marriage was consummated, but she said their intimate relations were infrequent. He certainly desired a sexual relationship with her and wanted to start a family; but she saw physical intimacy with him as an obligation.  He complained and reported her to the religious authorities. He also complained to her father.  Arguments ensued. His complaint, she said, was that she was not fulfilling her obligations as a wife.

8. In the course of their first year of marriage, there were many arguments, she said . She found it very difficult to live in the house and, at different points in that year, as I understood her evidence, [the applicant] and her husband occupied separate bedrooms. In the second year, she said, she tried to get along with him, but he had become very angry with her. They took a couple of holidays together in order to improve their relationship, but at home things would become difficult again. He began to scold her over minor things.  Arguments continued to take place.

9. There was also a degree of physical violence. [The applicant] was clear to me that she did not suffer injuries as a result of the violence. He would pull her hair and push her away. There was no punching.  In answer to my question as to how frequently this violence occurred, [the applicant] replied that it occurred only when an argument had got out of hand.

10. She discussed her marital problems with her father and one of her brothers as well as with her sister. The father and brother advised her to try to get along in her marriage, in effect, and to listen to her husband. [The applicant’s] sister told her to try to remain calm: her sister tried to appease her, she said.

11. After two years of marriage, [the applicant] decided to visit Australia to take a break. She came here as a backpacker. She hoped that being away from her husband would give her enough distance to find out whether her feelings towards him could change.

12. [The applicant] did not discuss her plans with her husband. She took leave from her job at very short notice. She had her own bank account, and she bought the ticket to come to Australia using funds from that account. She felt her family and her husband’s family were all against her. Everyone was advising her to persevere in her marriage despite her own feelings to the contrary in the matter.

13. She said to me that she felt she had to get away from the stress.  In March 2017, she landed in Melbourne. She left home for the airport in Kuala Lumpur without telling her husband, who was not at home at the time of her departure.

14. After one week in Australia, she contacted her husband by phone. She had left no message for him before her departure and she did not think it was necessary to leave a note or letter behind. Naturally enough, family members, as well as her husband, soon began looking for her once her absence became apparent. No one in Malaysia apparently knew in advance of her plans to leave for Australia. She informed her sister of her whereabouts after she had arrived in Australia.  She asked her sister not to tell anyone, but the sister apparently informed the family.  As I have indicated, [the applicant] informed her husband of her whereabouts after a week.

15. Her plans were to have a holiday in Australia. She lived in a backpackers’ hostel for some two weeks, she said. She then obtained casual work in [name] (a township just outside Adelaide) on her last stop. She worked there as [an occupation].

16. [The applicant] gave evidence that when she spoke with her husband from Australia,  she indicated to him that she would come back if he changed. She said that he did not promise anything, and, for his part, he told her that he was waiting to see if she would change.  He indicated he wanted her to accept him as a “real husband”.

17. [The applicant’s] evidence to me was that when she got back to her marital home in Malaysia, her husband simply ignored her.  There was no violence or anger: he simply ignored her. She then made the decision to go back to her father’s house in his village.

18. [The applicant] returned to her father’s. After a couple of days, her husband came to the village. There was no argument or violence on this occasion either. There were discussions, and her father, who had become involved in the matter, asked them both whether they wanted to go on with the marriage. [The applicant] said to her father that she had never loved her husband and that she wanted a divorce. [The applicant’s] husband told him that he would agree to her coming back if she wished to come back, but if she wanted a divorce, then he would agree to that too.

19. [The applicant] told me that she knew she did not want to come back.  [The applicant’s] husband gave her a month in which to think matters over. After that month, [the applicant] made the decision to go before what she described to me as a religious council to initiate divorce proceedings.  Her husband consented to this course of action. She lived thereafter in her grandmother’s house in her father’s village some 15 minutes from her father’s house.  She got along very well with her grandmother, she said.  [The applicant] said to me that the divorce procedure took about three months. She is of the Muslim faith, and there is a three-month interval after the initiation of the proceedings during which the parties might reconcile; but in the absence of reconciliation, the court proceeds to finalise the divorce. As I understand matters, the three-month interval in [the applicant’s] divorce proceedings commenced [in] June 2017. After the three months expired, the divorce was, indeed, made final with her husband’s consent.

20. After the initiation of the divorce, [the applicant’s] father indicated his shame to her: he now had a daughter who was a divorcee according to [the applicant].  This made her feel “very bad”. [The applicant] said her father ignored her and had nothing to do with her when she was living with her grandmother.

21. As I understood [the applicant’s] evidence, in that three-month interval between the initiation of the divorce proceedings and their finalisation, there were some arguments between the couple.  [The applicant’s] husband once attended her grandmother’s house seeking to persuade her to return.  He would also message her on her phone. He threatened that he would ruin her name in the village and in her workplace.  There was, however, no violence or attempted violence against her.

22. After finalisation of the divorce, [the applicant] came to Australia. She said she had not planned to return to Australia, but ended up deciding to come.   She said that during the three-month interval she experienced a great deal of pressure from a number of people who were suggesting to her that she should return to live with her husband. This pressure continued right up to the expiry of the three-month interval.  She said that she decided to return to Australia because for the first time she felt she had found happiness and peace.  She used her savings, and pawned her jewellery to pay for the airfare.  Her visa to enter Australia was still valid, she said.

23. She landed in Perth on this occasion. She found accommodation live and tried to get information about work.  I pointed out to her that her visa gave her no work rights, which she acknowledged, but she said she had planned to do odd jobs only to make ends meet.

24. It is clear [the applicant] came to Australia to escape the stress of her divorce. I asked [the applicant] why she did not return to Malaysia when her visa expired.  She said it was because she had met someone special in Australia: she had found a boyfriend.  As I understand her evidence, he is a Malaysian Christian living in Australia with a right to reside here permanently.  She met him in [town] some four months after returning to Australia.

25. She indicated to me that she is very much in love with her new partner.  In answer to my question as to what she would fear, if anything, if she had to return to Malaysia, [the applicant] responded that she feared the termination of her relationship with her new partner: they might not be able to return to Malaysia together because of their differing faiths.  She feared also that if she were to go back now, she would be ostracised by her family and friends. She also said to me that she could not go back to live with her father because he had not spoken to her for some years now and will not accept her back. Her desires are to remain in Australia to get married here and to start a family with her new partner.  She put to me that there is a law in Malaysia preventing intermarriage between members of different religious faiths.

26. In January 2018 [the applicant] applied for a protection visa. She indicated in her evidence to me that she applied for this visa because she no longer had a valid visa and she wanted to regularise her situation.  She said a friend suggested a protection visa to her.

27. In answer to my question as to what people she needed protection from, she indicated that no-one posed a danger to her, and she wishes to stay in Australia to start her life afresh. Her partner is, as I have said, a Malaysian Christian, who, according to [the applicant], has been granted a protection visa and has a right to remain here on an ongoing basis.  She indicated to me that she does not know whether her former husband is still waiting for her in Malaysia. She is not sure whether, if she returned to Malaysia, she could live with her sister. As I understood her evidence, she would not wish to live with her grandmother again because her father’s house is close by, although she did concede on closer questioning that she might be able to live with her grandmother. She indicated that the difficulties her partner might face were her main concern.

FACTUAL FINDINGS

1. I accept the substance of the evidence given by [the applicant].

2. It is clear to me that [the applicant] was not happy when she married her husband in Malaysia. The marriage was most unlikely to be happy as the couple had mismatched expectations of their future life together.   [The applicant] did not feel any attraction to her husband and found sexual intimacy with him an obligation.  For his part, he wished to have sexual relations with her and to start a family.

3. I do not judge the marriage or [the applicant’s] decision to marry her husband.  From her evidence, however, it is clear that the marriage caused her dissatisfaction from the outset. The unhappiness in the marriage was a foreseeable consequence of the unfortunate decision the couple took to marry when one of them did not love the other. 

4. I have carefully considered the instances of physical violence in the marriage. I do not believe that if [the applicant] returned to Malaysia, her husband would pose any threat to her. I do not underestimate the impact or wrongfulness of the physical violence in this relationship. It is important, however, to bear in mind that [the applicant] said the violence only occurred when a verbal argument had got out of hand in the marital home before her first trip to Australia.

5. When she first came to Australia and then returned to the marital home, there was no violence or even an argument. As [the applicant] said to me, her husband simply ignored her.

6. I bear in mind that [the applicant’s] husband, although he tried to persuade her to return to him once the divorce proceedings commenced, did not threaten [the applicant] with violence when he came to her grandmother’s home.  Although he said he would blacken her reputation, he did not threaten her physically.  I note that he acquiesced in the divorce in the end: the divorce was finalised without violence.

7. Furthermore, [the applicant] did not state to me that she would have a fear of her husband if she returned to Malaysia.

CONSIDERATION OF CLAIMS

1. Given these facts, I am able to deal with [the applicant’s] claim for a protection visa under section 36 in brief terms. There are two bases: that appearing in s 36(2)(a) and an alternative basis in s 36(2)(aa).

2. For the purposes of s 36(2)(a), I must be satisfied that [the applicant] is a refugee to whom Australia owes protection obligations.  This in turns requires me to form the view that [the applicant] has a “well-founded fear of persecution” in Malaysia: see definition in s 5H.  I do not believe any such fear arises in connection with her former marriage. [The applicant] need not have any contact with her former husband, and on the evidence before me I do not find that her former husband, from whom she has now been divorced for a number of years, would have any interest in approaching her.  In my opinion, [the applicant] is not at risk of any violence in Malaysia from him.  And I note, in particular, that [the applicant] did not suggest to the contrary.

3. I accept that [the applicant] has a difficult relationship with her father.  There is no suggestion that there has been violence in the past, however. The relationship, on her evidence, has ended in the sense that they have not spoken to one another for some years.  She is not obliged to resume contact with her father. She did mention a fear of being ostracised by her family, but that fear presupposes that she chooses to resume contact with them.  She is not obliged to resume contact.  Again violence within the family is not an issue.  If the family declines to have contact with [the applicant], that does not give rise to any issue under section 36(2)(a).

4. All in all, I am quite clearly of the view that [the applicant] has no genuine fear of violence from anyone in Malaysia.

5. This finding also means that the alternative basis in s 36(2)(aa) does not apply: there is no “significant harm” to which [the applicant] would be exposed on her return.  This is an essential element of the claim.

6. I note that the delegate decided [the applicant’s] application against her on the basis that adequate state-based protection against domestic violence existed in Malaysia; but in my opinion, the application fails at an earlier stage. That earlier stage is, as I have said, that [the applicant] has not established any threat to her personal safety arising from a return to Malaysia.

7. I have considered also whether [the applicant’s] new relationship in Australia might found a claim under s 36(2)(a) or 36(2)(aa).  [The applicant] did raise in her evidence before me her belief that she and her partner would be discriminated against if they returned to Malaysia as a couple. 

8. I have decided that this fear cannot be the basis of a protection visa application in the circumstances of this case.  I accept that [the applicant] said to me that she loves her partner very much and would wish to marry him. But there is no evidence before me that the relationship between [the applicant] and her partner will proceed to marriage.  [The applicant] did not give evidence to me that she is presently engaged to her partner or that they have agreed to marry.  

9. At the present time, I am unable to conclude that [the applicant’s] partner would most likely follow her if she left for Malaysia.  It might be that her partner would not wish to go with her. That would be, of course, a very unhappy circumstance for [the applicant] given her love for her new partner; but I reiterate that they are not an engaged couple and there are no marriage plans. I do not believe I should assess [the applicant’s] application to this Tribunal for a protection visa on the basis of a speculative hypothesis; namely, that [the applicant’s] partner would move to Malaysia with her if she had to leave Australia.  

10. I appreciate that [the applicant] wishes to stay in Australia.  She wishes genuinely to continue with her new life here and has taken steps to build a future for herself.  She was profoundly unhappy in Malaysia.  My task, however, is not to judge the suitability of [the applicant] as an immigrant to Australia, but to assess her application for a specific form of visa (namely, a protection visa) against the prescribed statutory criteria.  [The applicant’s] circumstances do not meet the statutory criteria, and I have decided to affirm the decision under review.

DECISION

1. The Tribunal affirms the decision under review.

Dr N Manetta
Senior Member