2300506 (Refugee)
[2025] ARTA 751
•18 March 2025
2300506 (Refugee) [2025] ARTA 751 (18 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2300506
Tribunal:General Member R Hampson
Date:18 March 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 18 March 2025 at 10:42am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from father – mental and physical abuse – mother granted protection visa on similar grounds – detailed and consistent claims and evidence, and supporting evidence from mother – no recent contact with father and no harm to siblings – possibility of living independently and relocating – work experience in Australia – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559Any 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
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a national of Malaysia applied for the visa on 25 April 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
3. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
4. The applicant appeared before the Tribunal via MS teams’ video on the 12 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] (the applicant’s mother) by MS teams’ video. The Tribunal hearing was conducted with the assistance of an interpreter, who appeared by video on MS Teams, in the Malay and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND AND RECEIVING COUNTRY
5. The applicant claims to be a [Age]-year-old national of Malaysia.
6. The applicant was born in Kuala Lumpur, Malaysia, her ethnicity is Malay, and her religion is Islam.
7. The applicant arrived in Australia [in] January 2020 on an Electronic Travel Authority (Subclass 601) for 3 months. She applied for a Protection visa on 25 April 2020. On 5 December 2022 the delegate requested further information via a s 56 request to assess the application fully to which the applicant complied and provided further information. This application was refused by the Department of Home Affairs (the Department) on 11 January 2023. The applicant then made an application for review to the Tribunal on 16 January 2023.
8. The applicant provided copies of all pages of her current Malaysian passport as part of her protection visa application. The delegate accepted the applicant is a citizen of Malaysia and there is no further information before the Tribunal to the contrary. The Tribunal finds the applicant is a national of Malaysia, and that Malaysia is her receiving country for the purposes of assessing her claims for protection.
Evidence before the Department
9. In her protection visa application to the Department the applicant made the following claims as summarised below:
·She claimed to have left Malaysia because she is running away from her father who she states mentally abused, and physically tortured her.
·She claims her father treated her like a maid in their home, he cursed, slapped her face, and beat her and she did not feel safe. She claims she did not have any resources to move away as she was dependant on her father and if she were to return to Malaysia, she would have to stay with him again and she will be abused again.
·She also claims she is not able to report the abuse as she lacks proof. She claims her movements are so limited.
10. The delegate issued a request for further information letter under s 56 of the Act.
The s56 invitation advised the applicant that their statement of claims lacked substantiating details such as dates and locations, and supporting documentation, in regards to their claims, and that no further evidence to support their claims had been provided. This correspondence also advised the applicant that, in order to be satisfied that their claims for protection were genuine, they were invited to provide more information about what happened to them in Malaysia, including dates, and locations of events[1].
[1] Department of Home Affairs, Decision Record, dated 01 December 2022, page 2.
In response to this request the applicant made further claims as summarised below:
- She has had no contact with her father since arriving in Australia.
- She lives with her mother in Australia and has had many opportunities since arriving.
- She does not want to remember what happened to her because it is stressful.
- She was beaten by her father badly; however, her father prevented her from seeking medical
treatment thinking it would show the abuse. She has been beaten with a coat hanger and had
her head hit on a door when she tried to leave. This all happened whilst she was grounded for
2 weeks in November 2019. Other things happened but they are too terrible to describe.
as she was planning to bring her to Australia.
her passport and getting to the airport.
her and take revenge on her.
didn’t want to get involved. Her uncle took a big risk helping her.
on her. Her father has influential friends who could assist her father in his revenge should she
make a police report. Further, if she made a police report, she wouldn’t know what to say.- She never had the opportunity to call for help because her father always watched her.
- She called her mother to tell her what had happened, and she told the applicant to be patient
- Her uncle assisted the applicant in coming to Australia. He assisted in the applicant getting
- If she returns to Malaysia and her father finds out she is in the country, he will definitely find
- She did not relocate within Malaysia because she had nowhere to go for help as her relatives
- If she went to the police, it would make the situation worse as he would definitely take revenge
- She cannot relocate because Malaysia is a small country, she would feel insecure and with the assistance of technology, she would be found. [2]:
[2] Ibid, page 3.
12. The applicant was not invited to an interview with the delegate.
13. The delegate’s findings are extracted below:
The applicant is a woman aged [Age] years old at the time of writing. As she is an adult there is no
obligation to her having to live with her father. Further, she is of working age and there is no
information to indicate the applicant is unable to work should she wish to. The applicant has
completed her schooling and in my mind would be able to live independently. The applicant
claims that she was unable to seek the protection of the authorities as she was always watched
by her father, however also during this time, she attended school and was able to make
arrangements with her uncle and mother for her to come to Australia without her father
knowledge. She stated that she would not know what to say should she go to the police, and
whilst I accept it may be awkward to make a police report, there is nothing preventing the
applicant from seeking such protection. The applicant also states that her father has influential
friends who may harm her should she make a police report but has not given their identities or
a description as to why they are influential. Additionally, the applicant has not provided any
supporting evidence of their claims and would expect the applicant to be able to provide
documentation which may indicate a past or present threat from her father. I find the applicant’s
circumstances discussed above to reduce the real risk of significant harm faced by the
applicant.
Nevertheless, while there may be instances of corruption in the police force, the
Malaysian authorities are willing and reasonably effective in combating crime. Therefore,
although I accept the applicant may not have absolute protection in Malaysia, I find the
Malaysian authorities are willing and able to provide an adequate level of protection to the
applicant.
I find the applicant could obtain, from an authority of the country, protection such that
there were not be a real risk that the applicant would suffer significant harm as provided for in
s36(2B)(b) of the Act.
Finding
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk [the applicant] will suffer significant harm as defined in s36(2A) of the Act. Therefore, I am also not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.[3]
[3] Department of Home Affairs, Decision Record, dated 01 December 2022, pages 7-8.
Evidence before the Tribunal
14. The applicant did not make any further submissions prior to the Tribunal hearing. The Tribunal has then considered the following written and oral evidence to affirm the decision under review:
·The applicant’s original Protection visa application
·The delegates decision
·Oral evidence at hearing -from the applicant
·Oral evidence at hearing – from the witness
·Consideration of relevant country information
Applicants oral evidence at hearing
Background
15. The applicant has [siblings] all residing in Malaysia ranging in age from [ages and genders]. All these siblings live with their maternal grandmother in a village, two hours drive from Kuala Lumpur. The sibling group and their maternal grandmother are supported by the applicant’s mother who sends money from Australia. The applicant keeps in contact with her siblings and grandmother as does her mother. The siblings in Malaysia, she said, do not have contact with their father and have not done so for five years.
16. The applicant completed high school in Malaysia and did not work while doing so. She left Malaysia after she completed her schooling. Since living in Australia, she has worked in Victoria [doing a job task], the Northern Territory [doing a similar job task] and now lives in [Town] with her mother where they both work [doing similar job tasks]. She resides with her mother. The applicant has a partner, and he also lives with she and her mother. They have been in a relationship for 9 months.
Delay in lodging the Protection visa application
17. Regarding the 3-month delay in the preparation of her protection visa application, the applicant stated she waited to meet the correct person to help her. She was assisted by a person in Victoria whose details she does not have. She is aware of the contents of her application and her responses to the s 56 letter requesting more information.
The applicant’s father
18. The Tribunal inquired about her father’s life, health, work and daily living and the applicant said he was [Age] years old, lived in Kuala Lumpur, previously worked as [an occupation] but now relied on a pension, he was healthy to her knowledge, and he went about daily tasks spending time with friends, shopping, worship, and other requirements.
Why the applicant left Malaysia
19. Asked why she left Malaysia the applicant stated it was after being beaten by her father and wanting to come to Australia to be with her mother. Asked if her father was violent with anyone else, the applicant said yes, he was, but mostly targeted her and believed this was because she looked most like her mother and reminded him of her.
Fear of harm on return to Malaysia
20. When asked what she feared would happen to her if she returned to Malaysia the applicant said, her father would look for her because he knows she had been with her mother. When asked how he would know she was back in Malaysia she said she was not sure but is afraid he might find out. She also said maybe her siblings might tell him and he would just ‘pop up’ if she was visiting them.
Protection from police and or local authorities
21. With regard protection for police and or local authorities, she said she could not go to the police and or the local authorities because her father constantly monitored her movements, and he would make it worse for her if she talked about him. She also stated she feared telling the police as this would mean her father could go to prison and this would bring shame on her family, and she did not want this for her siblings as it was traumatic enough for them.
Protection form anyone else
22. The applicant stated her maternal uncle and her mother had assisted her in leaving Malaysia. Her mother sent money from Australia to her uncle who took the applicant to get her passport under the guise of buying medicine and then took her to the airport to leave Malaysia. Her uncle assisted her after she had confided in him of her father’s abuse of her. She said he could not help her again if she were to return to Malaysia as he lives two hours drive away from where her family live.
23. When asked at hearing why her siblings now live with their maternal grandmother and what her father’s reaction to this was, she explained her father did not have a choice because all the siblings wanted to live with their grandmother and have no contact with him and he could not stop this. She explained her siblings could not protect her from their father as he is a very angry man, and she did not want to put them in further danger.
24. When asked did the applicant tell anyone what was happening to her at home, she said she did not tell anyone but covered the marks up as best she could. When asked did, she spends time with her friends and going out she said no, and she told her friends it was because she had to look after her siblings.
Relocation in Malaysia
25. When asked at hearing if the applicant, who is now an adult could live independently and away from her father, she said yes, I am an adult, but I do not want this (the violence) to happen to me or my family members again. When asked if she could live with her siblings and grandmother if she were to return to Malaysia, she said, she was not sure of this but did not want to put them at risk of her father. When asked if she could relocate to somewhere else in Malaysia far away from her father, she said, she was not sure of this but was worried then if she were to visit her siblings her father may ‘pop up’. When asked again if she could then go to the police or local authorities, she said she could not because she did not want to get the police involved because of the shame on her father and her family. When asked if she could obtain work in Malaysia the applicant said she was ‘not sure’ as she had not worked in Malaysia prior to leaving.
26. When asked if she had anything further to discuss at the Tribunal hearing she said she just wanted to be able to stay with her mother as much as possible.
Oral evidence of the witness [Ms A] at hearing
27. The applicants mother left Malaysia in 2016 and came to Australia where she applied for and was granted a protection visa on the grounds of being a survivor of domestic violence at the hands of her ex-husband, the applicants father. The applicant said her mother borrowed money from an illegal money lender to pay for her plane ticket to Australia. The applicant does not know any further details of her mother’s claim.
28. At the hearing the Tribunal asked why she had not listed her mother as a witness. She stated her mother was at home and she called her to the video call where she agreed to give evidence, took an affirmation, and spoke with the Tribunal member. She told the Tribunal she had left Malaysia in 2016 because her ex-husband would watch ‘blue movies’ and then demand she had sex with him, this happened often and against her will and she could not stand up to him because she had many children and she feared for her life with him. She stated she now suffers from depression and insomnia because of the trauma and relies on her daughter, the applicant, to assist her as she often feels suicidal.
Post hearing submissions
29. The applicant was not requested by the Tribunal, nor did she make any post-hearing submissions of her own volition.
CONSIDERATION OF CLAIMS AND EVIDENCE
CRITERIA FOR A PROTECTION VISA
30. 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.
31. 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.
32. 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).
33. 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.
34. 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
35. 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.
36. Given the above information the issue is now whether the applicant faces a real chance of serious harm on return to Malaysia, and if not, whether she faces a real risk of significant harm. For the following reasons the Tribunal has concluded that the decision under review is affirmed.
REASONS AND FINDINGS
Third country protection
37. The applicant provided her Malaysian passport in support of her application for a protection visa. The applicant has consistently stated she is a Malaysian citizen and does not hold citizenship of any other country. Given the supporting documentation, the Tribunal accepts the applicant is a citizen of Malaysia. The Tribunal has assessed the applicant’s claims against Malaysia as her country of nationality and the receiving country.
Delay in lodging protection visa application
38. The Tribunal accepts the applicant’s explanation for the delay in lodging her protection visa application which was within three months of her arrival. She stated she needed to find someone appropriate to assist her with this and this took time. An applicant cannot be penalised for their inability to speak the language of Australia and as such complete necessary documentation without assistance of someone who can translate this in an intelligible manner for its truthful and reliable account. As such the Tribunal has given no weight to the delay in lodging the protection visa application.
Credibility and findings of fact
39. The applicant’s initial protection visa application is somewhat lacking in detail and as such the Department sent her a s 56 letter requesting further information on a list of questions to which she responded and provided further, more detailed, and consistent written responses. The Tribunal has given weight to the applicant’s oral evidence given at hearing and is satisfied she is recalling events from her own experience. Her evidence was generally consistent with regard the harm perpetrated upon her by her father.
40. In combination with her evidence presented at hearing and that of her mother as a witness regarding her claims of violence at the hands of her ex-husband, the applicant’s father, the Tribunal accepts the applicants account of violence perpetrated against her at the hands of her father in Malaysia as truthful and credible as is fully detailed below.
41. In summary the Tribunal accepts the following claims in her initial protection visa application as credible:
a. The applicant was physically and mentally abused by her father
b. The applicant was treated like a maid by her father and that she could not move away from him as she was dependant on him and did not seek to report the abuse at the time as she felt she lacked proof.
c. The applicant fled Malaysia from Australia with the assistance of her uncle and mother after a beating from her father.
d. The applicant did not seek assistance as she feared her father’s reaction and did not want to bring shame and trauma to her already traumatised siblings.
e. She saw the brunt of her father’s abuse as she looked in appearance like her mother who left her father because of his abuse of her.
42. The Tribunal, however, does not accept the following claims when having regard to the possibility of the applicant returning to Malaysia now or in the reasonably foreseeable future, and for the reasons provided:
a. The applicant states she cannot relocate within Malaysia because it is a small country.
b. The applicant states her father, therefore, may find her.
c. She stated he may find her through her siblings telling him she is back in the country and or via ‘technology’. She could not expand on this point.
d. She admitted at hearing these reasons were fragile but reiterated her fear of the possibility.
e. Her siblings live approximately 1.5-2 hours’ drive away from their father and he has not bothered them over the last 5 years. In fact, they have not had any contact to her knowledge. She however fears her father may just ‘pop up’.
f. At different times during the hearing, the applicant stated her siblings had no contact with their father and then later she stated they ‘may’ have contact with him, but she is ‘not sure’.
g. The applicant would have to live with her father if she were to return to Malaysia. The applicant is now a [Age]-year-old woman and as such is not required or necessary to live with her father or any other family members if she does not wish to. The Tribunal, therefore, does not accept this claim in any part.
h. The applicant is now a [Age]-year-old woman who has been working in Australia for 4 years and as such has work experience to bolster her to seek further employment. She would not need to live with her father as she is now an independent adult and could choose to live with her siblings and their grandmother who live away from their father or live completely independently from her father and her siblings and grandmother close by or in another part of the country. Therefore, it is the Tribunals view the applicant would be able to seek employment and as such does not accept this claim.
Real chance
43. When considering if there is a ‘real chance’ of the applicant being persecuted if she were to return to Malaysia the Tribunal has considered the meaning of this term as it relates to the concept of ‘well-founded fear’. The Tribunal accepts the role of past events in establishing ‘well-founded fear’ as examined by the High Court in Guo’s case:
Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low- of their recurrence.[4]
[4] MIEA v Guo (1997) 191 CLR 559 at 574.
44. Usually, therefore, in the process of determining the chance of something occurring in the future, conclusions will need to be formed concerning past events:
In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[5]
[5] MIEA v Guo (1997) 191 CLR 559 at 574.
45. Assessing what is likely to happen in the future on the basis of past events involves questions of degree. The Court in Guo explained:
The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.[6]
[6] MIEA v Guo (1997) 191 CLR 559 at 574-5.
46. In considering whether there is a ‘real chance’ or a ‘real risk ‘the applicant will suffer harm, as a necessary and foreseeable consequence of being removed from Australia to Malaysia the Tribunal has considered MIAC v SZQRB, where the Full Federal Court found that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of well-founded fear in relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Family violence and fear of harm from her father
47. The applicant has consistently stated she was physically and verbally abused by her father as was her mother and her siblings, to a lesser degree. The Tribunal has also considered Department of Foreign Affairs and Trade (DFAT) country information (from 2021 which is considered more relevant when considering the time at which the applicant left Malaysia in 2020), which indicates family violence remains a ‘significant problem’ in Malaysia[8].
[8] DFAT, Country Information Report: Malaysia, 29 June 2021, at [3.124].
48. The Tribunal has considered, while not binding, the guidance of the UN Refugee Agency (UNHCR) regarding the documentary evidence in gender base violence claims which notes …it is important to recognise that in relation to gender related claims, the usual types of evidence used in other refugee claims may not be as readily available’.[9]
[9] UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution, 7 May 2002, at [37], available at: As such the Tribunal accepts, based on the consistency of the documentary and oral evidence provided as well as the country information about the pervasiveness of family violence in Malaysia that her father committed family violence against her, her mother and her siblings and her mother fled Malaysia for these reasons in 2016. The Tribunal accepts her mother’s leaving Malaysia meant that she then became more of a focus of her fathers’ violence.
50. The Tribunal accepts the probability that these events have occurred over a period before the applicant left Malaysia for Australia in 2020 when she was a [Age]-year-old school student living in her father’s home.
51. However, when considering the ‘real chance’ and the likelihood of these or similar events of harm occurring again if she were to return to her home area of her receiving country, Malaysia are deemed low. The reasons for this are as follows:
· The applicant is now a [Age]-year-old adult and can therefore live independently of her father whether this be in her home area of Kuala Lumpur or a 2-hour drive away in the community in which her siblings and maternal grandmother now live. Although she has not worked in Malaysia before as she was a school student when she left, she has been working in Australia over the past four years and now has some work experience. When asked to comment on this information the applicant said she was ‘not sure ‘if she could live with her siblings and her grandmother. At hearing when asked to comment on her ability to live independently she said, ‘yes it’s true I am an adult’ and she could possibly find work in Malaysia but was ‘not sure’. DFAT country information states Malysia is now an upper middle-income economy with a strong and growing economic performance. The unemployment rates as of April 2023 at 3.4 percent and there are labour shortages in many sectors.[10] When asked about this information and that’s she now had a record of employment in Australia the applicant again replied ‘I’m not sure on this’. The Tribunal finds if the applicant were to return to Malaysia there is a high likelihood, she would be able to obtain employment.
· The applicant has not spoken or had any contact with her father since her departure from Malaysia in 2020. Although the applicant claims her father may find out she has returned to Malaysia because it is a small country and technology would assist. The Tribunal gives this claim little weight as there is no explanation for how the likelihood of this may occur.
· She states her siblings are not in contact with their father either and live safely in Malaysia in a community 2 hours’ drive from Kuala Lumpur, her father’s last known address. The Tribunal gives significant weight to this point that there has been no family contact for the past 5 years.
· Her mother who lives in Australia (since 2016) has not had any contact with her ex-husband since she left Malaysia. The Tribunal also gives significant weight to this lack of contact from her father to her mother in the last 9 years.
[10] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, Sections 2.7-2.10 at Page 9.
52. The Tribunal informed the applicant that for these reasons, the Tribunal may not accept the applicant faces a real chance of serious harm at the hands of her father if she were to return to Malaysia.
53. The Tribunal finds the applicant could return to Malaysia without her father’s knowledge or knowing her whereabouts. The applicant resided in Kuala Lumpur prior to travelling to Australia and the applicant could return here or further afield to where her siblings and grandmother live some 2 hours’ drive away from Kuala Lumpur or anywhere else, she chose in Malaysia. The tribunal does not accept there is a real chance, for the reasons stated above, that her father would have any interest or motivation to harm her if he could in fact know of her return to Malaysia and her location.
Does the applicant satisfy the refugee criterion for protection?
54. After considering all the evidence as outlined above and the country information, the Tribunal does not consider there is a real chance of the applicant being persecuted if she were returned to her home area, Kuala Lumpur, of the receiving country, Malaysia in the reasonably foreseeable future.
55. The Tribunal makes these findings based on the applicant’s ability to live away from her father with her siblings and grandmother or to relocate entirely to another part of Malaysia, to obtain employment and support herself independently without the need of her father. Her siblings and grandmother have not reported any contact with the applicant’s father in the last five years and certainly no harm.
56. Therefore, the Tribunal finds the applicant does not satisfy the refugee criterion for protection set out in s 36(2)(a) of the Act and as such finds that this applicant is not owed protection obligations by the Australian government.
Does the applicant satisfy the complementary protection criterion for protection?
57. 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).
58. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSIONS
59. For the reasons outlined above the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(a).
60. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
61. 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).
DECISION
The tribunal affirms the decision not to grant the applicant a Protection visa.
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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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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