2013037 (Refugee)

[2022] AATA 1131

2013037 (Refugee) [2022] AATA 1131 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013037

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Damian Creedon

DATE:10 March 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 March 2022 at 1:37pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – economic hardship and fear of harm from ex-fiancé – arranged engagement – physical and mental harassment, demands for money and threats of legal action – reluctance to complain about abuse to maintain relationship between families – coherent and plausible claims and evidence – real risk of significant harm – country information – laws, government initiatives, police and judicial system – effective protection available – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 5LA, 36(2)(a), (aa), (2A)(e), (2B)(b), 65, 424(2)

Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225

Chen Shi Hai v MIMA (2000) 201 CLR 293

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIMIA v VFAY [2003] FCAFC 191

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Home Affairs on 18 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant, a [Age]-year-old citizen of Malaysia, arrived onshore [in] August 2019 holding an Electronic Travel Authority (Class UD) (Subclass 601) visa.

3. The applicant applied for a protection visa on 10 February 2020 and has been granted a bridging visa which remains in force.

   Protection visa application

4. The applicant’s claims for protection are set out in her protection visa application forms and supporting material.  They are relatively brief, and it is convenient to set them out in their entirety (uncorrected):

   I came to Australia because I needed a lucrative job so I could cover the costs of living with my parents and my siblings. I was born into a poor family. Both of my parents are old enough to earn money and bear the cost of living. in malaysia i didn't get a decent pay job. I do not have a high education certificate which enables me to work at a high rate of pay

   …

   I MIGHT END UP WITH NO SHELTER AND MY FAMILY ALSO DONT HAVE ENOUGH MONEY TO SUPPORT THE RENT BECAUSE TEH RENT IS GETTING HIGHER MONTH TO MONTH

5. In her response to the Tribunal’s request for information pursuant to s.424(2) of the Act the applicant provides the following supplementary information to her claims (uncorrected):

   I need protection here because i ran from my fiance because i‟m always under. threat. This happen almost more 3 years. Until now i still save chat/message in my phone for my future if anything happen.

6. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to her receiving country, there was a real risk she would suffer significant harm.

7. The applicant applied for a review of the delegate’s decision.

   Application for review

8. The applicant was not represented in relation to the review.

   Hearing

9. The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   Applicant’s oral evidence

10. The following is a summary of the applicant’s evidence to the Tribunal:

    a.The applicant is one of [several] siblings ([number] brothers and [number] sisters, including the applicant).  Her father is deceased, passing on [Date]; her mother lives in [Village 1] in Malaysia which is the applicant’s home village.  All of the applicant’s brothers and sisters are resident in Malaysia.  The applicant has no family in Australia, she is unmarried and has no children.  She is a Muslim and is of Malay ethnicity.

    b.The applicant completed her high schooling in Malaysia, and, upon leaving school, she worked [for] a company in Kuala Lumpur.

    c.When asked why she came to Australia, the applicant stated that she was under “a lot of pressure”; she stated that her parents house had “completely burned down”, and her engagement had failed.  She stated that she came to Australia so start a new life.

    d.When asked about the particulars of the fire at her parent’s house, the applicant stated that “after her father had passed away”, in November 2018, her mother had engaged an electrician to rewire the house.  She stated that it was believed that that rewiring “short circuited” and, as her mother was cooking rice, there was a gas explosion in the kitchen which spread to the front of the house.  The applicant stated that her mother was “badly injured” in the fire, “half of her head and body” was “effected” and that she is now so traumatised that she cannot cook.

    e.When asked what effect this event had on the applicant and her choices the applicant stated that her sisters were married and her brothers working, and she was the only child in the family “left unmarried”.  She stated that she needed to “earn some money” to get the house back for her mother.  She stated that she lost her school certificates and that, without them, she cannot apply for work; she would have to reapply to the authorities for those documents.

    f.When pressed by the Tribunal the applicant stated that she was working in “[sector]” at that time; she stated:

    I stopped working for one day and tried to think of what I had to do and decided to come to Australia.

    g.When asked what was preferrable about coming to Australia rather than staying in Malaysia she stated that “all of her life has not been well”; she stated that in addition to the incident with the fire her “former fiancé used to threaten and hit” her.

    h.When pressed on this issue, the applicant stated that her engagement to this man was arranged between her parents and his parents.  She stated that he came from a rich family and was a close friend of one of her brothers – his “best friend from school”; she stated that his family was “fond” of the applicant and in 2017 they had approached her parents to inquire after her marrying this man and that the marriage was arranged “behind her back”.  The applicant was not consulted and was simply informed that the arrangement had been made.  She stated:

    I have no choice.

    i.When asked about the nature of the relationship the applicant stated:

    He used to threaten me throughout our relationship; he wanted me to pay money to him for the engagement; he was harassing me from beginning to end; pestering me.

    j.The applicant stated that she did not inform her family of this behaviour, or make any complaint about it, because the man lived in the same village as her family.

    k.When pressed about the nature of the abuse she suffered, the applicant stated that her ex-fiancé had been physically and mentally abusive towards her and that she had to be treated by a doctor in Malaysia for depression.

    l.When further pressed, the applicant stated that he was physically abusive to her on “too many times to count” from when the couple were engaged to when she travelled to Australia.  The applicant stated that she had retained photographic evidence of the assaults.

    m.When asked whether the engagement came to an end before she came to Australia, the applicant stated:

    We broke up many times, even in one year we broke up many times; every time we broke up our families had to meet up.

    n.That applicant stated that on one occasion after she was hit, she went to [Country] for one week to stay with family to rest.  She did not inform her ex-fiancé of her travel and, when he found out that she had travelled to [Country], on “day four”, he demanded that she return to Malaysia; she stated:

    He threatened [to] tell my mother; he say nonsense to my family; he comes from a rich family so he could do whatever he wants to do.

    o.The applicant stated that she broke up with him finally via WhatsApp and he demanded money from her.  When pressed, the applicant clarified that she was not referring to a dowry, but rather that he demanded repayment for monies that he had expended in the course of the engagement, including travel costs from [Village 1] (the applicant’s and the ex-fiancé’s home village) and the applicant’s then home in Kuala Lumpur, as well as for “food” and “clothes”.

    p.The applicant stated that her ex-fiancé threatened, via WhatsApp, to “take out a summons” with the Police for repayment of the moneys expended.

    q.The applicant stated that the last time she was contacted by this man was in February 2020 via WhatsApp – she stated that he continued his abuse of her via WhatsApp, even after her arrival in Australia, and that she was forced to change her mobile number. 

    r.The applicant stated that she maintained contact with her family and, when pressed, stated that the family home was in the process of being rebuilt with contributions from herself, and two of her siblings.

    s.When asked about her fears about returning to Malaysia now, the applicant stated that she is worried that her ex-fiancé will report her to the police and “they will prepare the summons”; she stated:

    He has been waiting for me to return to Malaysia; he harasses [my] family and wants [me] to return to Malaysia.

    t.When pressed as to how she knows that he is waiting for her that applicant stated:

    Because he did mention in WhatsApp that he is going to summons me.

    u.When asked whether she thought the police would act upon a complaint from her ex-fiancé and take out a “summons” on her that applicant stated

    Yes, because I know this man for a long time, and I know what he can do – he is a psycho.

    v.She stated to the effect that she believed there was a complaint that he could lay with Police in Malaysia to recover monies expended in a “failed” engagement.

    w.When asked whether, because of her ex-fiancé’s nature, and the photographic and other evidence she had preserved, she could make a complaint to the police in Malaysia about her ex-fiancé, the applicant stated:

    Yes, I can, but I would like to preserve both families’ relationship

    x.When pressed whether she was confident that if she were to make a complain to the police with the evidence she had, that they would act to protect her – the applicant stated that she was, although she was concerned that her ex-fiancé would engage lawyers to oppose the complaint.

11. The applicant concluded her oral evidence by offering to provide the photographs of her injuries that she had preserved, as well as WhatsApp messages from her ex-fiancé, although these were in Malay.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria of a protection visa

12. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

13. 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.

14. 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).

15. 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.

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

17. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Assessment of Claims and evidence, and findings:

18. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

19. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

20. The Tribunal also accepts that ‘if the applicant's account appears credible, she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

21. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

22. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Findings

23. In giving her oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully; the applicant appeared to be sincere in her motives and her evidence was coherent and plausible.  Overall, the Tribunal is persuaded as to the general truth of the matters she attests to; in particular the Tribunal accepts that:

    a.The applicant is one of nine siblings; her father is deceased and her mother lives in her home village of [Village 1] in Malaysia.  The applicant has no family in Australia, she is unmarried and has no children.  She is of the Muslim faith and is of Malay ethnicity.

    b.In 2017 the applicant’s parents arranged her marriage to a man known to her family and she became engaged to that man (her ex-fiancé).

    c.The applicant’s ex-fiancé was physically and mentally abusive towards her.  The applicant has retained evidence of her fiancé’s physical and mental abuse in the form of photographs and WhatsApp messages.

    d.Although the couple broke up “many times” the applicant did not inform her family of the abuse she suffered, nor did she inform any authorities in Malaysia, for fear of upsetting relations between her family and the family of her ex-fiancé.

    e.In November 2018 the applicant’s mother’s home was badly burned in a gas fire which, it is presumed, was started by faulty electrical work.  The applicant’s mother was severely hurt during the fire.[1]

    f.The applicant travelled to Australia after the fire and the breakdown of her relationship to “start a new life”.

    g.The applicant broke up with her ex-fiancé, finally, via WhatsApp.

    h.The applicant’s fiancé has demanded that the applicant pay money to him to compensate him for monies he claims to have spent during the course of their relationship.  He has threatened to lay a complaint against her with police in Malaysia in respect of the payment of this money.

    [1] The Tribunal has noted the photographs of the fire provided by the applicant.

24. The Tribunal also accepts that the applicant felt alone and without support in Malaysia, and that she wishes to stay in Australia to build a future for herself. 

    Analysis of claims: domestic violence

    Refugee criterion

25. The Department of Foreign Affairs and Trade’s[2] latest country information report on Malaysia reports:

    3.125 Amendments to the Domestic Violence (Amendment) Act (2017) strengthened protections for victims of domestic violence. The Act expanded the definition of domestic violence, and protects spouses, former spouses, children, family members, ‘incapacitated adults’ who are living as members of the family, and de facto spouses (couples who have gone through a religious or customary marriage ceremony, but have not registered their marriage). The Act still does not cover non-married couples, however, and does not include marital rape in the definition of domestic violence. The amendments also introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week and prevent a perpetrator from entering a safe location. In addition to EPOs, victims of domestic violence can obtain interim protection orders (IPOs) and standard protection orders (POs). Violations of any of the protection orders can result in a prison sentence of up to six months and/or a fine of MYR2,000 (AUD630), while multiple violations can result in the offender being jailed for between 72 hours and up to two years and fined up to MYR5,000 (AUD1,600). If a perpetrator of domestic violence commits acts of violence when violating a protection order they can be fined up to MYR 4,000 (AUD 1,260) and/or receive a prison sentence of up to one year.

    3.127 Despite the enhanced legal protections available to victims, NGOs report violence against women in the form of rape, domestic violence, and family sexual abuse remains a significant problem. According to RMP statistics, there were almost 5,000 cases of domestic violence against women reported in 2018, and 5,513 cases of domestic violence and 1,582 cases of rape reported in 2017. A study conducted in 2020 which compared five domestic violence surveys found that the prevalence of intimate partner violence against women ranged between 5 and 36 per cent, with the wide range partly attributed to the difficulty in measuring this form of violence. Local sources believe that domestic violence, rape and family sexual abuse remain under-reported because of traditional beliefs in the sanctity and privacy of marriage, the level of shame involved, and reluctance to expose a perpetrator within the family. While there was reportedly a significant increase in reports of cases of domestic violence immediately following the passing of the amendments, reporting rates subsequently tapered off due to a perceived lack of support and resources for victims. The government does not separate domestic violence deaths from other forms of unlawful killing, so it is difficult to ascertain accurate statistics. No statistics or government reports identify whether so-called ‘honour killings’ (murders committed to punish individuals perceived to have brought shame upon their family or community) occur.

    3.128 Women’s groups report the need for increased training, enforcement, and resources for state protection bodies engaged in preventing violence against women, along with further legislative improvements. Although the RMP’s Criminal Investigation Division includes a Sexual Investigation Division, overall police training on issues related to violence against women is reportedly limited. For example, sources report that police commonly return victims of domestic violence to the perpetrator, as they perceive the issues as private family matters. The judiciary also reportedly receives little or no training on the application of relevant laws. The Ministry of Home Affairs reported in 2016 that only 16 per cent of reported rape cases in the preceding decade had gone to court, and that just 2.7 per cent of all reported cases had resulted in guilty verdicts.

    3.129 Several government and non-government bodies provide shelters and assistance to victims, but contacts report that these services are inadequate for demand. The government introduced One Stop Crisis Centres (OSCCs) in the emergency departments of Malaysian hospitals in 1996, which aim to provide a centralised one-stop facility to victims. The Women’s Aid Organisation reported in 2019 that there are OSCC services in 102 government hospitals nationwide, with the number of clients who access each OSCC varying from fewer than 10 to over 500 a year. The OSCC in Kuala Lumpur includes examination by female doctors, evidence management, referrals and crisis intervention, counselling, temporary shelter and legal assistance. According to the Women’s Aid Organisation, the quality of OSCC services differs among hospitals in Malaysia, and significant barriers keep OSCCs from functioning as intended. These barriers include: a lack of routinely available emergency contraception; referral for abortion for unwanted pregnancies being dependent on the views of the Head of the Obstetrics and Gynaecology Department; low levels (or lack) of follow up to identify and treat HIV and other infections; and low levels (or lack) of support for the emotional well-being of the women who access the centres. The Women’s Aid Organisation also reported that many survivors of domestic violence and rape living in rural areas did not have access to a coordinated service.

    3.130 Malaysia saw a significant spike in violence against women in 2020 during the COVID-19 pandemic lockdown. The Women’s Aid Organisation reported a 150 per cent increase in calls to its hotline and an 80 per cent increase in messages to its WhatsApp distress channel compared to the same period in the previous year. The situation was particularly bad for domestic workers, who are predominantly migrant women. Due to the travel and mobility restrictions, live-in domestic workers were reportedly faced with increased workloads while having to stay indoors throughout the day with their employers, some of whom were already abusive before the lockdown. Malaysia's Ministry for Women, Family and Community Development issued a series of online posters on Facebook and Instagram with the hashtag #WomenPreventCOVID19, and advised the nation's women to help with the country's partial lockdown by not ‘nagging’ their husbands. The ministry also advised women to refrain from being ’sarcastic’ if they asked for help with household chores. The Malaysian government later apologised for its advice.

    3.133 DFAT assesses that, while the situation is generally improving, a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely. These factors include: ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, lack of awareness of rights, and, in 2020-21, the economic and social impacts of the COVID-19 lockdown…

    [2] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’ (29 June 2021)

1. From the course of the applicant’s evidence the Tribunal is persuaded that her reluctance to address the issue of the domestic violence she was suffering in Malaysia was for fear of upsetting the relations between her family and her fiancé’s family.  This in turn appears to have led to her feeling alienated and lacking support.  The Tribunal is entirely sympathetic to the applicant’s situation in this regard.

2. The Tribunal notes, however:

   a.that the country information extracted above indicates that there are appropriate laws in place in Malaysia in relation to domestic violence which have been strengthened recently, including the availability of counselling and access to shelters and assistance to victims; and

   b.that there is a reasonably effective police force in Malaysia, notwithstanding some concerns about engagement in corruption; and there is an impartial judicial system there.[3]

   [3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’ (29 June 2021) paras [5.5]-[5.9], [5.14]-[5.18].

3. In view of this country information the Tribunal is satisfied that if the applicant returns to Malaysia now or in the reasonably foreseeable future, she could obtain effective protection, as defined in s.5LA of the Act, from the Malaysian authorities.  In her oral evidence the applicant agreed that such protection was available to her, but stated that she had not sought it in an effort to preserve her and her ex-fiancé’s families’ relationship.  Accordingly, the Tribunal concludes that the applicant does not have a well-founded fear of persecution for this reason and does not meet the refugee criterion in s.36(2)(a) of the Act.

   Complementary protection

4. Having concluded that the applicant does not meet the refugee criterion, the Tribunal has also considered the alternative criterion in s.36(2)(aa).

5. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Malaysia and it therefore finds that Malaysia is the ‘receiving country’ for the purposes of s.5(1).

6. The Tribunal considers it likely that the applicant’s ex-fiancé will continue to demand money from the applicant and threaten her with a criminal complaint should she return to Malaysia.  When pressed at the hearing this was the applicant’s primary concern at returning to Malaysia.

7. Overall the Tribunal accepts that there is a real risk the applicant will suffer significant harm from her ex-fiancé, due to past accepted domestic violence and current threats of criminal process to threaten her, and that this constitutes degrading treatment or punishment as per s.36(2A)(e) of the Act.

8. However, under s.2B(b) there is taken not to be a real risk that the applicant will suffer significant harm if they 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.  The Tribunal finds this to be the case as the country information indicates that there is effective protection available to the applicant in Malaysia, consisting of an appropriate criminal law addressing harassment in the context of domestic violence and that the police are a reasonably effective police force; and there is an impartial judicial system.  The Tribunal considers that the protection available to the applicant is accessible and durable.  

9. While the Tribunal notes that no state can guarantee absolute protection to its citizens, and that the requirement in the context of the complementary protection criterion is a different and higher order requirement to the effective protection test under the refugee criterion set out in s.5LA of the Act, it considers that the applicant could obtain from an authority of Malaysia on her return to Malaysia, if necessary, protection such that there would not be a real risk that she would suffer significant harm from her ex-fiancé or anyone else.

   Threats to complain to police

10. Finally, although it appears that the civil cause of action known as “breach of promise to marry” persists as part of the inherited corpus of Malaysian law,[4] its effects appear to be being subsumed into Malaysian common and sharia law,[5] being law of general application.[6]

    [4] All Answers ltd, 'Breach of Promise to Marry' (Lawteacher.net, March 2022) < accessed 9 March 2022.

    [5] Anbalagan, V, Free Malaysia Today, ‘Civil court cannot hear breach of promise to marry involving Muslims, says judge’ see: < accessed 9 March 2022;

    [6] Applicant A v MIEA (1997) 190 CLR 225 at 258 referring to Yang v Carroll (1994) 852 F Supp 460 at 467; Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20]; see also Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at 16.

11. A review of the available country information reveals no offence or police complaint which enshrines the essence of that civil cause of action as part of the criminal law of Malaysia.  Accordingly, the Tribunal considers the applicant’s ex-fiancé’s specific threats to lay complaints against the applicant with the police to be groundless.  

12. Any concerns that the applicant has on this basis are subjective only, and do not therefore amount to a well-founded fear.[7]  For the reasons set out above, the Tribunal is satisfied that effective protection is available to the applicant against such threats and that she is not at risk of significant harm on this basis.

    Analysis of claims: economic hardship

    Refugee criterion

    [7] In making this finding the Tribunal casts no aspersions upon the applicant in holding this subjective belief, nor does it seek to impugn her credibility or her character.

13. Noting the applicant’s written claims for protection the Tribunal accepts that the applicant does not wish to return to Malaysia because she would be unable to earn a wage there sufficient to support her and her mother’s living expenses, particularly in view of the fire of November 2018.  However, the applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group. 

14. Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established.  Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion.  None of these reasons apply to the applicant’s claim.  Even where an applicant may have a particular vulnerability, harsh conditions of general application in a receiving country in, and of, themselves do not give rise to a well-founded fear of persecution for the purposes of the refugee criteria.[8]

    [8]MIMIA v VFAY [2003] FCAFC 191 at [60].

15. In its most recent overview of Malaysia’s economy,[9] DFAT reports that:

    2.11 Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line (MYR2,208 (AUD700) per month in 2020) falling from over 50 per cent in the 1960s to less than 1 per cent in 2021. However, persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population, the so-called ‘B40’ who are the recipients of government assistance. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. Furthermore, the UN Special Rapporteur on Extreme Poverty gave the view in 2019 that Malaysia’s official poverty line is artificially low and that a more accurate measurement results in a poverty rate of around 16-20 per cent. The UNDP’s Human Development Index ranked Malaysia 62 of 189 countries in 2020, placing it in the ‘very high human development’ category.

    2.12 In 2020, Malaysia’s economy was hit with the dual shock of COVID-19 and a decline in oil prices. According to the Malaysian government, the Malaysian economy contracted by 5.6 per cent in 2020 due to COVID-19. The economy is expected to rebound in 2021, with Malaysia’s central bank forecasting growth between 6 and 7.5 per cent. The Malaysian government undertook robust measures to limit the impact of the pandemic on the economy, both through the 2021 Budget and through multiple economic stimulus packages. Measures included wage subsidies for lower-paid employees, a moratorium on loans by financial institutions, special grants of MYR3,000 (AUD 950) to qualifying SMEs and direct cash grants to the poorest Malaysians, as well as investment incentives and measures to protect Malaysia’s role in global supply chains.

    [9] Department of Foreign Affairs and Trade DFAT Country Information Report Malaysia, 29 June 2021.

16. The Tribunal notes the applicant’s evidence that it will be difficult for her to find work without the qualifications she lost in the fire; however, she also stated in evidence that she would be required to “reapply” for these documents from which the Tribunal infers that a process exists to replace them.

17. The Tribunal is not persuaded on the applicant’s evidence, or the country information, that the applicant would be subjected to significant economic hardship in Malaysia that threatens her capacity to subsist there.  The Tribunal notes in this regard DFAT’s expectation that the Malaysian economy will “rebound” in 2021, with Malaysia’s central bank forecasting growth of between 6 and 7.5 per cent.

18. The Tribunal finds, therefore, that the applicant does not have a well-founded fear of persecution in Malaysia based upon a claim of economic hardship.

    Complementary protection

19. The Tribunal accepts the applicant has concerns about being able to find work if she returns to Malaysia and the general economic situation there.  The Tribunal also accepts that she may face some difficulty in doing so at least initially, and in light of the ongoing COVID-19 pandemic.  However, the applicant did not suggest that any person or group will seek to harm her for any reason relating to her economic situation.  She gave no evidence that she has ever been discriminated against or otherwise prevented from obtaining work. 

20. Accordingly, the Tribunal finds that any economic hardship the applicant might experience, if removed to Malaysia, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing her to suffer significant harm.

    Cumulative claims

21. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in her application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution from her ex-fiancé or for reasons of economic hardship on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if she returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Malaysia.  Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act. 

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm

22. The Tribunal has considered the applicant’s claims under complementary protection. 

23. The Tribunal has considered whether any actions from her ex-fiancé, or any economic or financial hardship she might encounter as a necessary and foreseeable consequence of being returned to Malaysia would amount to “significant harm” as exclusively defined in s.36(2A) of the Act.  

24. On the information and evidence before it, the Tribunal finds that any harm faced by the applicant due to the actions of her ex-fiancé or the economic situation in Malaysia would not involve the applicant being arbitrarily deprived of her life or being subjected to the death penalty.  The Tribunal finds that experiencing some economic hardship does not involve the applicant being subjected to torture, or to cruel or inhuman treatment or punishment.  It does not involve her being subjected to degrading treatment or punishment.  The Tribunal finds that the economic hardship the applicant may encounter if she is returned to Malaysia due to the general economic and living conditions there would not be “significant harm” as that term is defined in the Act, and that there would therefore not be a real risk that she would suffer significant harm for this reason as a necessary and foreseeable consequence of her being returned to Malaysia.  The Tribunal finds that effective, accessible and durable protection against her ex-fiancé is available to the applicant in Malaysia.

25. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment.  It is also not satisfied that there is a real risk she will suffer arbitrary deprivation of her life or the death penalty.  The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if she returns to Malaysia.  Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

    Conclusion: Refugee Criterion

26. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group).  Her fear of persecution is not well-founded as required by the Act and therefore she is not a refugee.

    Conclusion: Complementary Protection

27. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that she will suffer significant harm.

    Overall conclusion:

28. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

29. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

30. There is no suggestion that the applicant satisfies the Act 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).

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Damian Creedon
    Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …