2302768 (Refugee) - [2024] AATA 2618

2302768 (Refugee) [2024] AATA 2618 (8 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1824188
2302768

COUNTRY OF REFERENCE: Malaysia
MEMBER:Bryn Butler
DATE:8 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the applicants protection visas.

Statement made on 08 April 2024 at 10:28am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – women – victim of family violence – fear of former husband – physical assault – husband’s drug addiction – fear of killing – extortion – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
CAR15 v MIBP (2019) 272 FCR 131
FCS17 v MHA (2020) 276 FCR 644
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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
Background

The applicants are [an age]-year old woman, [Applicant 1], and her [age]-year old daughter, [Applicant 2]. They are both citizens of Malaysia, who are from the state of Sarawak. This is a review of decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Protection visa application
[Applicant 1] arrived in Australia as the holder of an electronic travel authority in February 2018. She applied for the protection visa on 10 May 2018. The delegate refused [Applicant 1’s] visa application on 31 July 2018.
[Applicant 2] arrived in Australia as the holder of an electronic travel authority in February 2020 and applied for the protection visa on 12 April 2020. The delegate refused [Applicant 2’s] visa application on 15 February 2023.
In [Applicant 1’s] visa application, she set out her claims for protection, and in a statement to the delegate dated 8 May 2018, which are summarised as follows:
·She was abused by her ex-husband. She suffered family violence, including emotional, financial and physical abuse. Her ex-husband beat her for not giving him money to buy drugs.
·She married her ex-husband, [who worked for Employer 1], in 2006 and divorced him in 2015. The abuse continued after her divorce from her ex-husband.
·She moved to her sister’s house in Kuala Lumpur but he found her there, and tried to harm her sister and her family for helping her.
·She lives in the same area as her ex-husband and he would ask her for money, and beat her if she doesn’t give him money. It doesn’t matter where she is.
·She said she is an ordinary woman from a typical family background with school level education.
·She has nowhere to go in Malaysia, except her sister’s house in Kuala Lumpur. At the time of making the visa application, her daughter lived in safety at her sister’s house in Kuala Lumpur.
·She said that “over the years my ex-husband has abused me verbally and physically, he has punched me, spat on me in front of our child, and threatened and abused me by text message. I feel there is nothing I can do legally to protect my child and myself from this ongoing abuse. Therefore I think wisely of my child future and mine so I took this step to get myself safe and away from my ex husband. I flew to Australia believing I will get protection.”
In [Applicant 2’s] visa application, she said she had suffered harm in Malaysia and indicated that she followed her mother to Australia. The delegate wrote to her to clarify her protection claims. She responded to the delegate stating that she is worried that she will be harassed by her father (mother’s ex-husband) and during her mother’s absence, he came to bother her. In a statement dated 21 November 2021, she provided further information which is summarised as follows:
·Her parents adopted her a few days after she was born. Her adoptive father [worked for Employer 1] and her adoptive mother was a full-time housewife at that time. Her adoptive father is a drug addict, he behaved very violent whenever he is high from the drug. They had a very unhappy marriage life, and her mother suffered a lot.
·She was [age] years old when her parents divorced. Her mother was working at a [business 1] at the time. Her mother let her stay with her paternal grandmother while she was working. Her adoptive father served three months in jail for drug use. Her paternal grandmother and other relatives stopped her from communicating with her mother. Her father behaved violently towards her, such as verbally assaulting and beating her.
·In 2017, she went to live with her maternal grandmother in West Malaysia for a year. Her maternal grandmother returned to Sarawak to live permanently. She then stayed with her maternal uncle in Selangor (near Kuala Lumpur).
·It was a tough time for her mother because the living costs were high.
·Her mother decided to go to Melbourne and work on a farm, and send money to Malaysia to support her, including her schooling. She promised her that she would cover the travel expense for her to come to Australia, and that they would live together when things were ready.
·She wants to continue her studies in Australia while her mother is working.
·The main reason she applied for the protection visa is that she doesn’t want to live with her uncle alone in Malaysia, and she wants to stay with her adoptive mother as they only have each other.
Application for review and material received pre-hearing
[Applicant 1] applied to the AAT for review of the delegate’s decision on 20 August 2018, and included a statement outlining that she understood why her visa application was refused and that she needs to protect herself and her child, which she didn’t think she could do in Malaysia.
[Applicant 2] applied to the AAT for review of the delegate’s decision on 28 February 2023.
The applicants’ claims for protection are interrelated, given they relate to treatment by [Applicant 1’s] ex-husband, who is [Applicant 2’s] adoptive father. The applicants consented to the Tribunal running a concurrent/joint review.
[Applicant 1] returned the hearing response form, and included a statement about her claims. She said that her ex-husband is a stubborn drug addict and has threaten to burn her and her daughter. She also referred to the claim that he asks her for money to buy drugs and will harass her. She also said that she will be killed if she doesn’t give him money.
[Applicant 2] returned the hearing response form, and also included a statement about her claims. She said that she was once beaten by her father because she didn’t want to buy drugs with him, and that he once threatened to burn her and her mother alive. She said her father bothered her and her mother, and that she is scared and asks for protection.
Hearing
The applicants appeared before me on 20 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. Each applicant gave evidence separately about their claims for protection, and then I discussed issues regarding their claims with them together.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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
The issue in this case is whether any of the applicants is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion. For the following reasons, I have concluded that the decision under review should be affirmed.
[Applicant 1’s] personal background
[Applicant 1] said that grew up in the city of Sibu in Sarawak. Her mother lives in Sibu on her own and her father has passed away. She has [other family members] who both live in Kuala Lumpur.
She completed the [school grade], and then left school to help her parents on their farm. She left Sibu in her late teens to work in a [shop] and later returned to the farm to help her parents. Before she got married, she stated she worked in Kuala Lumpur in a [business 2], and that she wasn’t sure how long she worked there for before she got married. She said she quit when she got married. She later clarified that she hadn’t worked in Kuala Lumpur, and she had lived in the state of Pahang.
She said she met her ex-husband in Kuantan, Pahang in 2005. He [worked for Employer 1], and based in Kuantan but was originally from Sarawak. She said that a friend of hers gave him her number, that she and her ex-husband messaged each other, and then married in 2006. She said she stopped working because she felt that he could take care of her. She lived with him in the Kuantan [employer accommodation]. He was later [another site] near Kuching in Sarawak and she went there with him. She said that the problems in their relationship arose when they were still in Kuantan.
She and her ex-husband formally adopted their daughter, the other applicant, [Applicant 2] and have provided evidence of the adoption to the Tribunal.
She divorced her husband in 2015, and left [their accommodation] and moved into rental accommodation in Kuching, Sarawak. She worked at a [shopping centre] to support herself and her daughter (her daughter lived with relatives for periods, discussed below). [Applicant 1] came to Australia in 2018 and has lived in [Town 1] since that time. She has worked on farms near [Town 1].
[Applicant 2’s] personal background
[Applicant 2] was adopted by [Applicant 1] and her ex-husband when she was a baby. She is their adopted daughter. She grew up with her adoptive parents.
She recalls her parents fighting over money when she was growing up. After her parents’ divorce, she lived with her mother, then her father’s family and then went to live with her maternal uncle in Kuala Lumpur until she came to Australia in 2020. She travelled to Australia with her mother’s friend. I asked her whether she had lived with her grandmother for some time (as indicated in correspondence to the Department), but wasn’t sure when this was.
Since coming to Australia, she has lived with [Applicant 1], her mother, in [Town 1]. She is currently completing [studies].
[Applicant 1’s] fear of her ex-husband
[Applicant 1] said that she will never return to Malaysia and reiterated her claim that she fears being burned alive by her ex-husband. She said that she was threatened by him during their marriage, and also after the divorce.
She described a difficult and troubled home life with her ex-husband. She said that throughout their marriage, they were always fighting. She said that he also used drugs in the home, and in the presence of their daughter. When he used drugs, he would abuse her and threaten her.
I asked [Applicant 1] how her ex-husband was able to participate effectively in [work with Employer 1] if he was a drug user. She said that he did drugs in their home ([in the employer’s accommodation]) and others did not know. She said she tried to defend their marriage, but it did cross her mind to run away.
In 2015, she filed a report against him with [Employer 1], as she could not stand being abused. She reported that he was using drugs (which she described as ‘crystal’), which prompted his superiors to ask him to do a drug test, which returned a positive result. He was sent to [prison] for three months. He was [dismissed from Employer 1] after being in prison for three months.
She said that the last time her ex-husband said he would burn her was before the divorce and just after he came out from prison. He said that that he will look for her and their daughter and burn them alive.
She confirmed that she did not file a police report against him in relation to the abuse during her marriage as she thought that she would die if she did this.
I asked the applicant whether she initiated the divorce, or her ex-husband did. She confirmed that she had initiated the divorce because she could no longer stand the relationship. She said that she lost her patience as he was taking drugs and he could not put food on the table, and the electricity was disconnected. She said that he ignored her and her daughter, and sometimes locked them in a room when he had friends over. She said that her lawyer urged her and her ex-husband to reconcile and that they waited the three-month period before finalising the divorce, but that this did not happen, and a divorce certificate was issued in 2015.
She said that she made the report about his drug use to his [Employer 1 managers] during the three-month period she had to wait before the divorce would be finalised. She said that there was no understanding between them. When he was released, he looked for her at the shopping centre where she was working. She said that he asked her for money and that he would wait outside her place of work and also at her rental accommodation.
She said that she was afraid that, if she didn’t give him money, he would stab her. She confirmed that he has never stabbed her, but he has threatened to do so. She said that he has said he would find her in a wormhole (meaning he will be able to find her anywhere). She said that he would approach her about three times a week and she gave him money, but if she didn’t give him money, he would keep coming. She thought he was using the money for drugs. I asked her whether he had harmed her after the divorce, and she said that he would slap her, and kick her outside her workplace and sometimes at her home. She didn’t file a police report in relation to this conduct because she thought he would kill her if she did.
I asked her if anything changed in 2018 which prompted her to come to Australia. She said that she couldn’t stand being threatened anymore. She has had no contact with her ex-husband since coming to Australia.
She said that she has no other fears, or reasons, she could not return to Malaysia, but that thinks if she returns, she will be killed, and this is because her village is close to her ex-husband’s village (so he will find her). She thinks he holds a grudge against her because of what happened [with Employer 1] to him, that is he was [dismissed] because she reported him.
I asked [Applicant 1] about where her daughter had lived during the time they were both in Malaysia following the divorce and after she had come to Australia. She said that her ex-husband took her daughter away and that she and her daughter did not meet for one year. She said that her daughter then ran away to live with her brother in Kuala Lumpur in 2018 (after [Applicant 1] had come to Australia) and that her daughter remained in Kuala Lumpur safely with her brother ([Applicant 2’s] maternal uncle) and his family until 2020 when she came to Australia to join [Applicant 1].
I asked [Applicant 1] why she had referred in her protection visa application to leaving her daughter with her sister in Kuala Lumpur, as she had told me she has two brothers. She said that she had meant her sister-in-law. In her protection visa application, she also said that her ex-husband had gone to her sister’s house and threatened her, and her family, for helping [Applicant 1]. When I put this to [Applicant 1] at the hearing, she initially said that it means whoever gives her protection will be threatened. I asked her again to explain and she then said her ex-husband had gone to her brother’s house in her past, and many things have happened to her in her life. I asked her when it happened, and then clarified that it was an example and that her ex-husband had not gone to Kuala Lumpur to harass her sister-in-law or brother and family, but she was suggesting that it was a possibility and he could go there as he knows where her brother lives as they had all celebrated festivals there together.
[Applicant 2’s] fear of her father
I asked [Applicant 2] whether she had a fear of returning to Malaysia. She referred to her father and said that if she refused to go with him when he bought drugs, he would abuse her (by punching her and slapping her). She explained that her father could more easily move around the city if he travelled with her, as people would not question a man with a young girl, or suspect that he was buying drugs. She referred to not being treated well by her father when she lived with him, and that’s why she went to Kuala Lumpur to live with her uncle.
She said that when she was in Kuala Lumpur, she had a peaceful life and there was no violence. She said that her father knew she was living in Kuala Lumpur and that he called her while she was there, telling her to return to him. She thought that he wanted her to return so that he could more easily buy drugs again.

She said that she doesn’t want to return to Malaysia as she wouldn’t have the same life she has in Australia, and wouldn’t achieve the same grades at school. This was because her father didn’t want her to go to school so at school in Malaysia she didn’t pay attention. She said that if she returns, her father would come and pick her up, and abuse her.
Findings - Refugee
I had some concerns about parts of [Applicant 1’s] testimony given she was unclear about how her daughter travelled to Kuala Lumpur to live with her brother ([Applicant 2’s] maternal uncle), and was uncertain about some details of her past (such as initially saying she had worked in a [business 2] in Kuala Lumpur but then said it was in Kuantan, and said she had older brothers but changed this to be younger brothers). I accept that [Applicant 1] may have forgotten some details and misspoke in relation to some details. However, in relation to her core claim about her ex-husband, [Applicant 1] spoke openly about her relationship with him and the abuse she had faced, and while she was unable to provide details about some aspects of the relationship, I accept that she was married to her ex-husband, and that during the marriage she endured physical and emotional abuse from him when he was under the influence of drugs.
I accept that she initiated the divorce, which was finalised in 2015, and that she reported him to his superiors for drug use. While it is not clear why she reported her ex-husband to his superiors [at Employer 1] but was too afraid to report him to the police, I accept that her ex-husband said he would burn her and her daughter, and that this was because he was angry with her for reporting him to [Employer 1] which resulted in him serving time in [prison] and being [dismissed from Employer 1]. I also accept that she was threatened by her ex-husband after the divorce and that she gave him money which meant that he would leave her alone for a period.
Given [Applicant 1’s] statement at hearing that she does not have a sister, and her ex-husband had not visited her sister-in-law/brother’s house in Kuala Lumpur, I find that her ex-husband has not threatened or harmed [Applicant 1’s] family in Kuala Lumpur.
I accept that [Applicant 1’s] husband has been violent towards her and that this amounts to serious harm for the purpose of s 5J(4) as it is significant physical harassment of the applicant. Further, I accept that it amounts to significant harm on the basis that it is ‘cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d). ‘Cruel or inhuman treatment’ is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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.
I accept that, if [Applicant 1’s] ex-husband is under the influence of drugs, that he may try to harm her if she refuses to give him money, and that he has threatened to harm her (such as threatening to burn her), and I accept that there is a real chance and real risk that he would again threaten her, and harm her, if she returned to live near her ex-husband in Sarawak and he was aware that she had returned to live near him.
I have considered whether the real chance and real risk of harm to [Applicant 1] is localised to Sarawak, to the area near Kuching where her ex-husband lives. According to [Applicant 1’s] evidence, her ex-husband threatened her in front of her workplace and accommodation in Sarawak. There is no indication that her ex-husband has been motivated to harm or threaten her beyond these locations since they got divorced. I have had regard to [Applicant 2’s] time (of at least a year) in Kuala Lumpur when she was there without her mother. [Applicant 2] said that her father contacted her when she was in Kuala Lumpur and asked her to return to him, however, he did not come to visit her, and he didn’t harm her. [Applicant 2] was in Kuala Lumpur for at least a year before coming to Australia. If [Applicant 1’s] ex-husband was motivated to harm either applicant in Kuala Lumpur, I consider he would have gone to Kuala Lumpur then and asked for his daughter to be returned to him (as he is her legal father). I have considered that [Applicant 1] was not in Kuala Lumpur and her ex-husband may not have been motivated to travel there because she was not there. However, I find that if he was motivated to cause harm to [Applicant 1], he could have travelled to Kuala Lumpur to threaten their daughter, and he could have also directly threatened his daughter, but he did not do so. [Applicant 1] considered that her daughter would be safe in Kuala Lumpur with her brother. [Applicant 2] described her time in Kuala Lumpur as peaceful. I find that if [Applicant 1’s] ex-husband wanted to harm either applicant beyond his immediate vicinity, in Kuching, Sarawak, he would have travelled to Kuala Lumpur during the period his daughter was residing there. The fact that he didn’t do so indicates [Applicant 1’s] ex-husband’s does not have an interest in harming them when they are not residing near him, that is when they are living outside Kuching, Sarawak. I do not accept that the real chance or real risk of [Applicant 1’s] ex-husband harming her extends beyond Sarawak. There is no indication that her ex-husband’s behaviour has occurred outside Sarawak, or would occur outside Sarawak in the future.
I have considered whether [Applicant 2] faces a real chance of serious harm, or a real risk of significant harm. [Applicant 2] lived with her father for a period of time following her parents’ divorce, and then lived with her maternal uncle in Kuala Lumpur for at least a year until coming to Australia. She has claimed that her father has abused her (including the time after her parents’ divorce), and she also fears being burned by him. I accept that if [Applicant 2] was in the same location as her father and her father wanted her to go with him to buy drugs, and she refused, that she would face a real chance and real risk of being threatened by him, and harmed, for refusing. While [Applicant 2] is now older and her presence may not mean he would avoid suspicion from the police when purchasing drugs, her father may still consider her presence useful and become annoyed if she refused.
I have also considered whether the real chance and risk of harm to [Applicant 2] is localised to Sarawak, particularly the area where her father lives around Kuching. As noted above, [Applicant 2] lived in Kuala Lumpur when her mother was not in Malaysia, and her father did not come to Kuala Lumpur during that time and did not harm her. If he was motivated to harm her beyond his area in Sarawak, I consider that he would have taken steps to locate her while she was in Kuala Lumpur. [Applicant 2] described her time in Kuala Lumpur as peaceful. The fact that her father didn’t take steps to come to Kuala Lumpur and take her back to live with him indicates he does not have an interest in harming her outside of Sarawak. I do not accept that the real chance or real risk of her father harming her extends beyond Kuching, Sarawak.
In terms of the refugee assessment, under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
Given that the real chance of harm from [Applicant 1’s] ex-husband ([Applicant 2’s] father) exists in Kuching, Sarawak where he lives, it does not relate to all areas of the receiving country for the purposes of s 5J(1)(c). Accordingly, the requirements of s 5J(1) are not satisfied in relation to both applicants.
Findings – Complementary protection and relocation
In terms of the complementary protection assessment, there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicants to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; where they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicants personally: s 36(2B) of the Act.
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. I have drawn guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
As I have found that the real risk of significant harm is localised to an area in Kuching, Sarawak, I have considered whether the applicants could relocate to an area where there is not a real risk of significant harm, such as Kuala Lumpur, and whether it would be reasonable for them to do so.
I asked the applicants to comment on whether it would be reasonable for them to relocate to Kuala Lumpur, considering [Applicant 1] has two brothers living there and they may be able to assist them with accommodation until they can support themselves. Further, [Applicant 2] also lived with her maternal uncle in Kuala Lumpur for over a year.
[Applicant 1] said that her ex-husband’s [relative] is married to Airforce personnel and that he also has a brother living in Kuala Lumpur. I asked her to clarify how this was relevant to whether she and her daughter could relocate to Kuala Lumpur. She said that it may be that she cannot live in Kuala Lumpur because one of her brothers living in Kuala Lumpur has his own family, and [another] brother works in Kuala Lumpur but his family live in Sibu in Sarawak. She also said that she may find it difficult to find employment as she is [age range], and the cost of living is high. She gave an example of when she got her job in the shopping mall, and that she was asked about her age, she thought they didn’t want her, but a month later the manager of the shop asked her to come back and she got the job.
In relation to [Applicant 1’s] example about finding a job, I explained that this showed it was possible to find employment and her age was not a barrier in this example as she got the job. The example also referred to a situation in Sarawak, not in Kuala Lumpur. She said that she is [age range] and Malaysians won’t accept her.
I put to the applicant country information about the Malaysian economy which indicates that the Malaysian economy is generally stable, is an upper-middle income economy, with employment opportunities and a low unemployment rate of 4.8 per cent in 2021.[1] I said to the applicant that this information may indicate that she would be able to find employment if she had to return to Malaysia, and while her income would be lower than in Australia, she would be able to subsist. There is also no indication that she would be prevented from obtaining work because of her age.
[1] Department of Foreign Affairs and Trade, Country Information Report – Malaysia (29 June 2021), paras 2.9, 2.11 - 2.13.
In relation to her brothers in Kuala Lumpur, I noted that while the applicants may not be able to reside with them permanently, they could assist them while they re-establish themselves in Malaysia, in Kuala Lumpur. She said that her brother has a lot of kids, and it may be difficult for him to financially support everyone.
[Applicant 1] – reasonableness of relocation
I have considered whether it would be reasonable for [Applicant 1] to relocate to Kuala Lumpur. [Applicant 1] has experience working in [business 2s] and in retail in Malaysia, and on farms in Australia. The applicant’s history indicates she is a diligent worker. She has skills developed over her working life which would enable her to find employment in Kuala Lumpur. While I accept that her income would be lower than what she has been earning in Australia, I find that, given the country information about the unemployment rate in Malaysia and the overall state of the Malaysian economy, combined with her previous employment experience, she would be able to find employment, and that the income she would receive would be sufficient to allow her to live a modest life in Malaysia, and subsist.
In relation to accommodation, one of [Applicant 1’s] brothers has previously assisted them by taking in [Applicant 2] for at least a year when [Applicant 1] was in Australia and [Applicant 2] remained in Malaysia. I have considered whether her brothers would be able to assist, noting [Applicant 1’s] concern about cost and his children, and I find that one of her brothers in Kuala Lumpur would be able to assist [Applicant 1] (as one brother has done previously in relation to [Applicant 2]) until she is able to secure her own accommodation and [Applicant 1] finds employment which would allow her to then find her own accommodation. [Applicant 1] has previously secured rental accommodation herself, when she lived in Kuching, Sarawak, and worked in the shopping centre, and I find that she would be able to do this again if she returned to Malaysia and relocated to Kuala Lumpur.
I have considered whether [Applicant 1’s] ex-husband’s family connections to Kuala Lumpur would affect whether it is reasonable for the applicants to relocate there. [Applicant 1] did not expand upon this point, but I have considered whether it means her ex-husband would come to Kuala Lumpur or that he would somehow be able to harm her there. [Applicant 1’s] ex-husband did not travel to Kuala Lumpur to see his daughter, [Applicant 2], when she lived in Kuala Lumpur, despite knowing where she was located. As discussed above, I have found that the real risk of harm to the applicants is confined to the area where [Applicant 1’s] ex-husband lives, as there is no indication that he has sought to travel, or would seek to travel, to be near them and then harm them. I accept that [Applicant 1’s] ex-husband has family in Kuala Lumpur, but there is no indication that he travels to Kuala Lumpur to see them and there is no indication that he would use his family in Kuala Lumpur to harm her.
I do not accept that [Applicant 1’s] ex-husband would travel to Kuala Lumpur, and that [Applicant 1’s] brothers live there who can assist [Applicant 1] to re-establish herself, including a brother who has assisted [Applicant 2] in the past for a significant period and I find that [Applicant 1] would be able to find employment there. Given these findings, I find it would be reasonable for [Applicant 1] to relocate to Kuala Lumpur, which is an area of Malaysia where there would not be a real risk of significant harm.
As I have found it would be reasonable for [Applicant 1] to relocate to an area of the country where there would not be a real risk that she will suffer significant harm (that is, outside [Applicant 1’s] ex-husband home area in Sarawak), there is taken to not be a real risk that [Applicant 1] will suffer significant harm in Malaysia in relation to her claim to fear harm from her ex-husband: s 36(2B) of the Act.
[Applicant 2] – reasonableness of relocation
I have considered whether it would be reasonable for [Applicant 2] to relocate to Kuala Lumpur, and have considered whether she has independent agency to relocate there.[2] [Applicant 2], is [an age]-year old, who has previously lived in Kuala Lumpur with her uncle and his family, without her mother, and moved to live with her uncle independently so that she no longer had to live with her father. I consider that she has displayed agency in the past to move to live with different relatives, which allowed her to avoid her father, and has been able to travel to Australia with her mother’s friend. Having regard to her past conduct, I find that as [an age]-year old who has previously lived away from her mother, she has independent agency to relocate to Kuala Lumpur.
[2] CAR15 v MIBP (2019) 272 FCR 131 at [34]–[40]. In CAR15, the Tribunal erred by conflating the reasonableness of the appellant’s relocation with that of her parents, and considered that an infant child had no independent agency of their own, and there were no areas within the home country to which the appellant could reasonably relocate themselves. In the present case, [Applicant 2] is [an age]-year old and I consider that the reasoning in CAR15 is distinguishable to the present case for the reasons outlined.
In relation to accommodation, her maternal uncle has assisted her by accommodating her for over a year when [Applicant 1] was in Australia. I have considered whether her uncles would be able to assist, noting the concern about cost and her uncle’s kids, and I find that one of her uncles in Kuala Lumpur would be able to assist her, as has occurred previously, until she is able to secure her own accommodation (most likely with her mother).
I have found above that [Applicant 1] would find employment which would allow both applicants to then find accommodation, which [Applicant 2] would be able to share. As noted above, [Applicant 1] has previously secured rental accommodation herself, when she lived in Kuching, Sarawak, and worked in the shopping centre, and I find that she would be able to do this again if she returned to Malaysia and relocated to Kuala Lumpur. I find that it would be reasonable for [Applicant 2] to live with [Applicant 1], given she is her daughter and [Applicant 2] came to Australia so that she could reside with [Applicant 1]. Alternatively, it would also be open to [Applicant 2] to remain with her uncle as she did previously, even when [Applicant 1] secures her own accommodation. She would then be able to continue her studies in Malaysia. She did not claim that she would be prevented from continuing her studies in Malaysia.
I have considered whether [Applicant 2’s] family connections to Kuala Lumpur would affect whether it is reasonable for her to relocate there. Her father did not travel to Kuala Lumpur to see her when she lived in Kuala Lumpur, despite knowing where she was located. As discussed above, I have found that the real risk of harm to the applicants is confined to the area where [Applicant 2’s] father lives, as there is no indication that he has sought to travel, or would seek to travel, to be near them and harm them. I accept that [Applicant 2’s] father has family in Kuala Lumpur, but there is no indication that he travels to Kuala Lumpur to see them and there is no indication that he would use his family in Kuala Lumpur to harm her.
Given that I do not accept that [Applicant 2’s] father would travel to Kuala Lumpur, and that [Applicant 2’s] uncles live there who can assist both [Applicant 2] and [Applicant 1] to re-establish themselves, including an uncle who has assisted [Applicant 2] in the past for at least a year. I find it would be reasonable for [Applicant 2] to relocate to Kuala Lumpur, which is an area of Malaysia where there would not be a real risk of significant harm.
As I have found it would be reasonable for [Applicant 2] to relocate to an area of the country where there would not be a real risk that she will suffer significant harm (that is, outside [Applicant 2’s] father’s home area in Sarawak), there is taken to not be a real risk that [Applicant 2] will suffer significant harm in Malaysia in relation to her claim to fear harm from her ex-husband: s 36(2B) of the Act.
Other matters

[Applicant 1’s] response to my queries about the possibility of relocation indicated that she has a fear of economic harm, including difficulty finding work as a woman. I have considered her situation.
I acknowledge that [Applicant 1] may prefer employment with a higher income in Australia. I put to the applicant country information about the Malaysian economy which indicates that the Malaysian economy is generally stable, is an upper-middle income economy, with employment opportunities and a low unemployment rate of 4.8 per cent in 2021.[3] I said to the applicant that this information may indicate that she would be able to find employment if she had to return to Malaysia, and while her income would be lower than in Australia, she would be able to subsist. In relation to her claim that it would be difficult to find employment as a woman, DFAT notes that women participate in all aspects of Malaysian society, including government, business and civil society, and that women’s participation rates in the labour force have risen considerably over the past decades (but are still below that of men), but that the lower rate is because of child bearing and care.[4] [Applicant 1’s] daughter is [an age]-year old and is in [studies], does not require her care during the workday, such that her daughter is not a barrier to her being able to work.
[3] Department of Foreign Affairs and Trade, Country Information Report – Malaysia (29 June 2021), paras 2.9, 2.11 - 2.13.
[4] Department of Foreign Affairs and Trade, Country Information Report – Malaysia (29 June 2021), para 3.119 – 3.121.
I find that she would find employment upon return to Malaysia, given her previous work experience, which would enable her to live a modest life in Kuala Lumpur with [Applicant 2]. I do not accept that any difficulties she may face upon return to Malaysia in relation to her economic situation would amount to serious or significant harm.
Further, there is no indication that she has been denied employment for any reason or discriminated against in the job market in Malaysia. I accept she is in her [age range], however, there is no indication that she would not be able to find employment in Malaysia for this reason. I do not accept that the applicant’s economic situation in Malaysia would be for reasons of race, religion, nationality, political opinion or membership of a particular social group (as required by s 5J(1)(a)).
In relation to the complementary protection criterion, ‘significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. The requirement for ‘an act or omission’ is linked to the fact that torture, cruel or inhuman treatment or punishment and degrading treatment or punishment all require an element of intention. There is no intention on the part of another person to harm her in relation to her economic situation. I have found that [Applicant 1] would be able to find employment in Malaysia. Accordingly, I do not accept that the applicant’s economic situation in Malaysia, which I accept includes earning a lower income than what she has been earning in Australia, amounts to significant harm as defined in s 36(2A).
I do not accept that [Applicant 1] faces a real chance of serious harm, or a real risk of significant harm in relation to her economic situation, now or in the reasonably foreseeable future, if she returns to Malaysia.
[Applicant 2] also referred to wanting to stay in Australia because she can be educated here. She said that when she was in Malaysia, she was distracted by her father’s situation and so didn’t pay attention at school. I find that if she was in Kuala Lumpur, living with her mother and/or her uncle’s family, she would not be distracted and would be able to build on her education she has received in Australia. There is no indication that she would be denied an education for any reason, or entry to further education. I am not satisfied that [Applicant 2] faces a real chance of serious harm or a real risk of significant harm, now or in the reasonably foreseeable future if she was to return to Malaysia in relation to her education.
Conclusion
I have found that the real chance of harm from [Applicant 1’s] husband/[Applicant 2’s] father does not extend to all areas of Malaysia, and have found that the real risk of harm is localised to Kuching in Sarawak, the area where he lives. I have considered each applicant as an individual and found that it would be reasonable for each of them to relocate to an area where there is not a real risk of significant harm, such as Kuala Lumpur where they have family who can assist them re-establish themselves in Malaysia. I have considered [Applicant 1’s] concern about finding employment and have found that she would not face a real chance of serious harm, or a real risk of significant harm in relation to her economic situation, and I have considered [Applicant 2’s] claim in relation to her education and have found that she does not face a real chance of serious harm or a real risk of significant harm in relation to her education.
For the reasons given above, I am not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that either 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 applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Bryn Butler
Member

ATTACHMENT - EXTRACT FROM MIGRATION ACT 1958
5 (1) Interpretation
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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.
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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.
…