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1727040 (Refugee) [2019] AATA 6867 (4 June 2019)

Last Updated: 6 July 2020

1727040 (Refugee) [2019] AATA 6867 (4 June 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1727040

COUNTRY OF REFERENCE: Malaysia

MEMBER: Dr Colin Huntly

DATE: 4 June 2019

PLACE OF DECISION: Perth

DECISION: The Tribunal affirms the decision not to grant the applicants protection visas.


Statement made on 04 June 2019 at 2:01pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – polygamous relationship – single mother – given birth without presence of child’s father – partner’s migration history – imputed ‘concubine’ status – living in a distorted and chaotic society – credibility concerns – not genuinely held subjective fear of harm – ability to adapt to Malaysian society – criminality and corruption – State protection – burden of proof – decision under review affirmed

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

CASES
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
MIAC v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211
MIMA v Khawar [2002] HCA 14; (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
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 dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 October 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

RELEVANT MIGRATION HISTORY

Principal applicant

  1. The principal applicant’s movement history is as follows:

Granted a [Student] visa on 11 August 2005.

Granted a [second] Student visa on 22 April 2006.

Granted a [third] Student visa on 17 July 2006.

Granted a [fourth] Student visa on 4 February 2008.

Granted a [second Visitor] visa on 9 October 2008.

Granted a [fifth] Student visa on 15 February 2010.

Applied for a XA-866 Protection visa on 29 December 2016.

  1. In addition, the principal applicant’s application for a [sixth] Student visa dated 6 July 2011 was refused on 28 September 2011:
  2. The principal applicant then applied for a XA-866 Protection visa on 29 December 2016.

Secondary applicant

  1. The secondary applicant was born in Malaysia on [date]. Her subsequent movement history on her Malaysian passport, is as follows:

Granted a [Visitor] visa on 9 October 2008.

Included in the principal applicant’s [fifth] Student visa (granted on 15 February 2010).

  1. In addition, the secondary applicant was included in the principal applicant’s application for a [sixth] Student visa dated 6 July 2011 which was refused on 28 September 2011:
  2. The secondary applicant was then included in the principal applicant’s application for a XA-866 Protection visa on 29 December 2016.

CRITERIA FOR A PROTECTION VISA

  1. The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act. 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.
  2. 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.
  3. 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 themself of the protection of that country.[1] 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.[2]
  4. Under s.5J(1) of the Act, 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 s.5J(2)–(6) and ss.5K–5LA of the Act, which are extracted in the attachment to this decision.
  5. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criterion for the grant of the visa at s.36(2)(aa) of the Act 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 (‘the complementary protection criterion’).
  6. 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 s.36(2A) and (2B) of the Act, which are extracted in the attachment to this decision.

Findings relating to applicant credibility

  1. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[3] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
  2. In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[4] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[5] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
  3. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[6] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[7]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
  1. The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[8] Nevertheless, as Burchett J counselled,[9] it is necessary to:
... understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
  1. The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[10] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84–86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[11] Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[12] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[13] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[14]
... the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
  1. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
  2. If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. The Tribunal notes that in Iyer[15] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[16]

Mandatory considerations

  1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

ISSUES TO BE DETERMINED

  1. The delegate refused to grant the principal applicant the visa on the basis that she did not face either a real chance of serious harm or a real risk of significant harm in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason that she is a member of any of the particular social groups; women in polygamous marriages; concubines; mothers of illegitimate children; de facto spouses.
  2. The delegate refused to grant the secondary applicant the visa on the basis that she did not hold a well-founded fear of persecution in Malaysia for the essential and significant reason that she is a member of any of the particular social groups; children born in Malaysia but with no cultural or social history or affinity with that country; children of concubines born to polygamous relationships. The applicants have applied too this Tribunal for a review of that decision.
  3. The Tribunal’s view is that the issues to be determined in this case are whether the principal applicant faces either a real chance of serious harm or a real risk of significant harm in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason (or otherwise on account) of her being, or being imputed to be in a polygamous relationship; being, or being imputed to be a single mother; familial and societal rejection on the basis of having given birth to a child in Malaysia without the presence of the child’s father; adverse life outcomes on account of her partner’s migration history; being an imputed ‘concubine’; having her children live in a distorted and chaotic society or for any other reason. Additional issues in this case are whether the secondary applicant faces either a real chance of serious harm or a real risk of significant harm in Malaysia now, or in the reasonably foreseeable future for the essential and significant reason (or otherwise on account) of her being born in Malaysia but with no cultural or social history or affinity with that country; or for any other reason.
  4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

  1. The applicants were invited to appear before the Tribunal on 16 May 2019, to give evidence and present arguments. The applicants were represented in this application by a registered migration agent. The principal applicant appeared in her own capacity and as advocate for her daughter, the secondary applicant. The applicants’ migration agent did not attend the hearing.
  2. The Tribunal was assisted in this review by the services of an interpreter fluent in both the Mandarin and English languages.

IDENTITY

  1. Both applicants claim to be Malaysian citizens and have provided copies of their Malaysian passports to the Department with their application for protection. On the basis of the information before it, the Tribunal is satisfied that both applicants are citizens of Malaysia, which is also the receiving country for the purposes of the refugee and complementary protection assessments.
  2. There is nothing before the Tribunal to suggest that either applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.

PROCEEDINGS BEFORE THE TRIBUNAL

  1. The Tribunal was assisted in its review by being provided, by the principal applicant at the time of application for review, with a copy of the decision which was made by a delegate of the Minister in the first instance. A summary of the applicant’s claims for protection appear at Part 4 of the delegate’s record of decision. This summary is as follows:
Secondary applicant
  1. At hearing on 16 May 2019, the principal applicant confirmed that each of the foregoing were a fair and accurate summary of her various claims for protection and those of the secondary applicant. The principal applicant confirmed that she did not wish to amend or add anything further to any of these claims. The Tribunal proceeded at the hearing to question the principal applicant on the basis of these articulated claims for protection.

CONSIDERATION OF CLAIMS AND EVIDENCE

Principal applicant

Being, or being imputed to be, in a polygamous relationship

  1. Attached to the principal applicant’s application for protection is a signed statement made by the principal applicant and dated 16 December 2016. The principal applicant states as follows:[17]
My husband couldn’t divorce his ex-wife who had disappeared out of contact for years, which prevents my family from accepting the relationship between us. I tried for many times to persuade my family into accepting us, but only my brother supports me. My father and my sister strongly oppose. During the period when I was in Malaysia I felt many families didn’t allow for the polygamy, although the government had promoted the concerning policies further. Under this situation, even if I get married with [Mr A] in Australia now, I would still be considered a single mum.
  1. The Tribunal notes that the Macquarie Dictionary defines polygamy as “the practice or condition of having more than one spouse at one time.” It is acknowledged that, while polygamy is an offence in Australia, where a polygamous marriage contract is legally entered into outside of Australia, the Family Court will deem the union to be a marriage (Family Law Act 1975 (Cth) s.6).
  2. The Tribunal notes, however, that Malaysia’s Law Reform (Marriage and Divorce) Act 1976[18] prohibits polygamy for non-Muslims in that country. Neither the principal applicant nor her partner, are Muslims. Notwithstanding this, there are basic mutual consent requirements under the Islamic marriage laws and these are equally enforceable in Islamic courts for both monogamous and polygamous traditional Islamic unions.[19] This country information was contained in the decision record provided to the Tribunal by the applicant in her application for review, and formed the basis of the Tribunal’s discussions with the principal applicant relating to this claim.[20] The Tribunal has reviewed the relevant country information surveyed in that decision record in this respect and finds that it accurately summarises the position in Malaysia relating to polygamy.
  3. The principal applicant is also the mother of another applicant seeking protection under the same subclass of visa in their own right.[21] The Tribunal as constituted is also constituted as the Tribunal to determine the application for review lodged by that other applicant. The principal applicant has also acted as an advocate on behalf of the applicant in the other matter. During the course of her advocacy on behalf of the other applicant, the principal applicant made sworn statements that are materially relevant to the principal applicant’s own claims for protection as currently before the Tribunal.
  4. Accordingly, the Tribunal wrote to the principal applicant on 3 April 2019 pursuant to s.359A of the Act in the following terms:
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.
Please note, however, that we have not made up our mind about the information.
In addition to the Country Information surveyed in the delegate’s decision record refusing your original application for protection, the Tribunal draws your attention to the following relevant country information:
...
The Tribunal also notes that at a hearing before the Tribunal on 21 March 2019, you gave sworn evidence as a witness in support of your daughter [the secondary applicant]’s application for protection to the effect that you knowingly entered into a bigamous relationship in Australia, contrary to both Australian and Malaysian law. This evidence was not consistent with your stated the claims for protection made in connection with the application for protection which is the subject of the present Tribunal review, to be party to a polygamous relationship in Malaysia. That inconsistency was put to you in person at the hearing with the Tribunal on 21 March 2019, and to date, no satisfactory explanation for the inconsistency has been received by the Tribunal.
The foregoing information is information, which if accepted, would be the reason or a part of the reason, for affirming the decision that is under review. This is because your claims for protection rely substantially on claims arising from your irregular Australian marriage to the father of [the secondary applicant]. They suggest that those claims may not have been genuinely held by you as far as they relate to being in a polygamous marriage rather than being in a bigamous marriage. In so far as the citizenship status of your daughter and, the treatment of children born out of wedlock in Malaysia, the foregoing information also suggests that those claims made by you may not be genuinely well-founded.
You are invited to give comments on or respond to the above information in writing.
  1. On 17 April 2019, the Tribunal received a written submission in response to the foregoing letter. This written response does not in any material way address the foregoing concerns, other than in the following extract:
... The fact that [Mr B] had a bigamous marriage means that his marriage in Australia with [the principal applicant] is invalid. An invalid marriage cannot be registered, even if a divorce is obtained in the relation to the first marriage. ...
  1. The foregoing extract may be regarded as accepting the proposition underlying the concerns put to the principal applicant by the Tribunal on 3 April 2019. These were, that the principal applicant had no genuine basis for asserting that she entered into a polygamous relationship with the father of the secondary applicant.
  2. At the hearing on 16 May 2019, the Tribunal raised this matter with the principal applicant directly. Initially, the principal applicant repeated her assertion that she and the secondary applicant’s father were, or would be imputed to be in a polygamous relationship if they returned to Malaysia. The Tribunal put to the applicant that, in order for any relationship to be regarded as being polygamous (either logically or for traditional purposes) within Malaysia, consent of all the parties would be required.
  3. The Tribunal asked the principal applicant if, at the time she married the secondary applicant’s father in Australia, she knew that he already had a living wife in Malaysia to whom he was still legally married. The principal applicant confirmed to the Tribunal that, at the time of her marriage to the secondary applicant’s father, she had full knowledge of his true marital status. The principal applicant also confirmed that she was aware that he had been separated from his lawful wife for many years, and that his previous relationship had resulted in a daughter.
  4. The Tribunal raised its concerns with the principal applicant about this being the first time in these proceedings that she had acknowledged her prior knowledge of the pre-existing marital relationship of the secondary applicant’s father at the time when she entered into a marriage with him in Australia. The Tribunal further expressed concern that this was the first statement by the principal applicant to the effect that she knew the secondary applicant’s father had a daughter from a previous relationship. The Tribunal pointed out that this lack of candour on her part in multiple relevant respects reflected poorly on her credibility.
  5. The Tribunal asked the applicant if, at the time of her marriage to the secondary applicant’s father in Australia his living legal wife in Malaysia had given consent to this arrangement. The principal applicant stated that the living legal wife of the secondary applicant’s father in Malaysia had not given consent to the subsequent relationship and that no communication had occurred between the parties at any time.
  6. The Tribunal pointed out to the principal applicant that, rather than support her assertion to having entered into a polygamous relationship with the father of the secondary applicant, the evidence she had given suggested that she had knowingly entered into a bigamous relationship in Australia. This discussion involved reference to country information surveyed in the delegate’s decision record regarding the concept of polygamous relationships as these are understood in Malaysia and the literal, dictionary definition of polygamy.
  7. The Tribunal reminded the principal applicant of her prior evidence, given in connection with her youngest daughter’s separate application for protection at a hearing on 21 March 2019 relating to the circumstances of her relationship with the father of her children in Australia. The Tribunal referred to its letter of 3 April 2019 extracted above. The Tribunal pointed out that the principal applicant’s evidence was materially inconsistent with her substantive claim to having entered into a polygamous relationship with the father of the secondary applicant in Australia.
  8. The Tribunal also pointed out that none of the submissions received in writing or in person from or on behalf of the principal applicant had adequately addressed the inconsistencies between the applicant’s testimony and the applicant’s written claim for protection relating to being, or being imputed to be in a polygamous relationship in Malaysia. The principal applicant made no further submissions in response to these inconsistencies after they were thus drawn to her attention.
  9. The Tribunal finds, therefore, that the principal applicant and her partner have never been in a relationship that was coterminous with the relationship between the principal applicant’s partner’s first legal spouse either in Malaysia or Australia. No consent or understanding has ever existed between the three parties that would be capable of characterisation as polygamous. No intention of any of the three parties has ever existed towards that end. As non-Muslim ethnic Chinese Malaysians, no imputation could reasonably arise in that country, based on the facts before the Tribunal that they are or ever have been in a polygamous relationship.
  10. Accordingly, the Tribunal finds that the principal applicant’s claim to be, or to be imputed to be, in a polygamous relationship in Malaysia is not credible and, therefore, is not, and never has been, the basis of a genuinely subjective fear of harm held by the principal applicant. Having found the applicant does not hold a genuinely subjective fear of harm in Malaysia for the essential and significant reason that she is, or would be imputed to be in a polygamous relationship, there is no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.

Being, or being imputed to be a single mother

  1. At the hearing on 16 May 2019, the Tribunal asked the principal applicant about her actual relationship status. The principal applicant confirmed that her relationship with the secondary applicant’s father is an enduring one stretching back over 13 years in duration, having produced three well-adjusted and thriving daughters. The principal applicant stated that she and her partner, being the natural father of her children, remained mutually committed to one another and to their children’s well-being.
  2. The Tribunal asked the principal applicant why anyone would consider her to be a single mother in such circumstances. In response the principal applicant initially asserted that people may find out about her true marital status. Having entered into a relationship that was a bigamous, the principal applicant expressed concern that her Australian marriage to her children’s father is invalid. She worries that her friends and family might discover this fact.
  3. At a later stage of the hearing, however, the principal applicant stated that her immediate family was in fact aware that her partner had a living wife in Malaysia with a daughter. The Tribunal pointed out that this evidence was inconsistent with her previous evidence to the effect that the principal applicant was concerned about her family discovering her true marital status. In the course of further direct questioning, the principal applicant acknowledged that her father had attended her Australian wedding to the father of her children. She also acknowledged that she had disclosed the previous marital history of her partner to her immediate family in Malaysia, but did not give clear evidence about whether this disclosure took place before or after the wedding. Nor was the principal applicant clear, despite direct questioning, about whether her immediate family in Malaysia was aware of this disclosure when she gave birth to her eldest daughter in Malaysia or for the two subsequent holiday visits to that country.
  4. Despite questioning, the principal applicant was unable to identify any particular harm that may arise from disclosure of her legal marital status beyond her immediate family in Malaysia beyond being thought less of, and pernicious social gossip or “scolding”.
  5. The Tribunal also pointed out to the applicant that de facto relationships do exist in Malaysia according to available country information and that, while there may be a degree of societal discrimination surrounding these relationships, that discrimination did not reach the level of persecution for the purposes of the refugee criteria or significant harm for the purposes of the complementary protection assessment.
  6. In response to these concerns the applicant’s evidence was vague, lacking in detail and lacking in consistency. Accordingly, the Tribunal finds that the principal applicant’s responses to the Tribunal’s concerns about this specific claim advanced in her application for protection lack credibility.
  7. Notwithstanding the lack of credibility of the applicant’s responses to the Tribunal’s concerns as discussed above, the Tribunal accepts that the principal applicant knowingly entered into a bigamous relationship with her partner in Australia. While this may have a number of legal consequences in both Malaysia and Australia under the relevant marital laws of both countries such as fines and criminal records which are matters of general application in both countries, in terms of the status of her present relationship, the clear implication is that the principal applicant may not be lawfully married to the father of her children, one of whom is the secondary applicant in this application.
  8. Despite the apparent legal invalidity of their marriage, after building an ongoing relationship of some 13 years and raising three healthy well-adjusted children together, the principal applicant can be regarded for legal purposes as being in a long-term de facto relationship with the father of her children. The principal applicant’s own evidence supports the inference that this relationship has been mutually supportive and enduring; was knowingly entered into in all material respects; and can be regarded as being a continuing relationship into the reasonably foreseeable future. Accordingly, there appears to be no reasonable basis on which the applicant could be said to be imputed to be a single mother in Malaysia now or in the reasonably foreseeable future.
  9. Accordingly, the Tribunal finds that the principal applicant’s claim to be, or to be imputed to be, a single mother in Malaysia is not credible and, therefore, is not genuinely subjectively held by the principal applicant. Having found the applicant does not have a genuinely held subjective fear of harm in Malaysia for the essential and significant reason (or otherwise on account of the fact) that she is, or would be imputed to be a single mother there is no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.

Familial and societal rejection on the basis of having given birth to a child in Malaysia without the presence of the child’s father

  1. At the hearing, the principal applicant confirmed that she stayed with her immediate family in Malaysia when she delivered the secondary applicant in that country, and on two subsequent visits there to her immediate family for holidays. The principal applicant also confirmed that she enjoys regular communication with her family in Malaysia.
  2. Attached to the principal applicant’s application for protection is a signed statement made by the principal applicant and dated 16 December 2016. The principal applicant states as follows:[22]
During the period when I was in my home with my parents in Malaysia, those who always backed me didn’t approve of my decision of marriage, especially my father and sister. They felt that they had lost face, when they saw I gave birth to my child alone in the hospital. Although I had emphasised at that time again and again that I had already married, my family didn’t accept at all that I came back alone without the company of my husband. In their opinions, I am always a single mother, however hard I tried to explain to them!
...
That my family couldn’t understand me and the reproaches from my friends left me no choice other than bringing [the secondary applicant] back home to escape from the meaningless gossips.
...
In fact, both Chinese people and the locals in Malaysia are very conservative when it comes to marriage. Even for the locals who acquiesce polygamy find it hard-pressed to accept that a pregnant woman goes to hospital alone and gives birth to the child without the presence of her husband. Upon thinking of this, it is clear to me that to bring [the secondary applicant] back to Australia is my only way out.
  1. The same statement, as noted above, includes the following integer of relevance to this particular claim by the principal applicant:[23]
I tried for many times to persuade my family into accepting us, but only my brother supports me. My father and my sister strongly oppose.
  1. As discussed above, at the hearing on 16 May 2019 the principal applicant stated that her immediate family was aware of the fact that her partner had a living wife in Malaysia with a daughter.
  2. The principal applicant also acknowledged that her father had attended her Australian wedding to the father of her children. She also acknowledged that she had disclosed the previous marital history of her partner to her immediate family in Malaysia, but did not give clear evidence to the Tribunal about whether this disclosure took place before or after the wedding. Nor was the principal applicant clear, despite direct questioning by the Tribunal, about whether her immediate family in Malaysia was aware of this disclosure when she gave birth to her eldest daughter in Malaysia or for the two subsequent holiday visits to that country.
  3. The Tribunal accepts the principal applicant’s evidence that she remains in regular contact with members of her immediate family via online methodologies. The Tribunal also accepts that the administrative difficulties associated with obtaining Malaysian travel documents for her two Australian-born children, and the current protection visa applications of those children and her partner have made further travel to Malaysia impractical.
  4. The Tribunal does not accept as credible the principal applicant’s claim to fear any familial and societal rejection on the basis of having given birth to a child in Malaysia without the presence of the child’s father. Her evidence regarding disclosures to her immediate family about her relationship status was implausibly vague. Her two subsequent return visits to Malaysia on holidays to stay with the same persons from whom she now claims familial and societal rejection are not consistent with a genuinely held subjective fear of harm in that country for that reason. Accordingly, the Tribunal does not accept the principal applicant’s claims that her “father and sister strongly oppose” either her relationship or her children.
  5. Accordingly, the Tribunal finds that the principal applicant’s claim to fear any familial and societal rejection on the basis of having given birth to a child in Malaysia without the presence of the child’s father is not credible and, therefore, is not genuinely subjectively held by the principal applicant. Having found the applicant does not hold a genuinely subjective fear of harm in Malaysia for the essential and significant reason (or otherwise on account of the fact) that she faces familial and societal rejection on the basis of having given birth to a child in Malaysia without the presence of the child’s father, there is no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.

Adverse life outcomes on account of her partner’s migration history; being an imputed ‘concubine’

  1. The Tribunal notes that the principal applicant’s signed statement dated 16 December 2016 states as follows:
Besides, even if our marriage was acknowledged when I went back to Malaysia. But strictly speaking, I can only be labelled as concubine because the government had lowered the threshold for polygamy since 2006. The offspring of a concubine can’t have a high social status, or even treated as a family member. As for the legal rights, they are also at a humble position.
  1. The Tribunal has assessed the principal applicant’s claims above relating to her relationship status in Malaysia. As discussed there, the Tribunal has found those claims to lack credibility.
  2. The Tribunal notes that the principal applicant’s own evidence is that she was fully aware of her partner’s prior relationship status when she entered into her Australian marriage with him [in] March 2006. There is no evidence before the Tribunal that, at any stage relevant to these proceedings, the principal applicant has lacked capacity. As an adult of full capacity fully informed about her partner’s prior marital status, the applicant voluntarily entered into a marriage in Australia for which she has willingly and ably taken responsibility over the ensuing 13 years. The Tribunal notes that none of the relevant circumstances of her relationship have changed in the ensuing period. The Tribunal notes that despite this, it was not until [year], after giving birth to one child in Malaysia; returning to that country on two further occasions with that child; and, having given birth to two other children in Australia in the context of the same relationship, that she first claimed to fear harm amounting to persecution in Malaysia on the basis that she would be perceived to be a ‘concubine’ in that country.
  3. The Tribunal has already explained above that it accepts the principal applicant’s evidence that her family in Malaysia is aware of the actual circumstances of her relationship with her partner. The Tribunal has also found that the applicant’s claims to fear harm amounting to persecution in Malaysia for the essential and significant reason (or otherwise on account) of the actual or imputed circumstances of her relationship with her partner are not credible.
  4. When at the hearing, the Tribunal asked the applicant to explain the particular significance of her use of the term ‘concubine’ in the context of her claims for protection, the principal applicant made reference to the fact that she was the second wife of her partner. Accordingly, the Tribunal finds that this aspect of the applicant’s claims for protection is effectively a recasting of her previous assertions with respect to being in a polygamous relationship and/or being imputed to be a single mother.
  5. For the reasons articulated above the Tribunal finds that this claim of the principal applicant lacks credibility and is not genuinely held by the applicant. Having found the applicant does not have a genuinely held subjective fear of harm in Malaysia for the essential and significant reason (or otherwise on account of the fact) that she is, or would be imputed to be a ‘concubine’ there is no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.
  6. The Tribunal questioned the applicant at the hearing about the meaning of her claim to fear adverse life outcomes on account of her partner’s migration history.
  7. At the hearing the applicant gave evidence to the effect that she was concerned about how her husband would adjust to Malaysian society given an absence from that country in Australia since November 2003. The principal applicant’s evidence was to the effect that her husband no longer understands the country of his birth. The principal applicant also expressed concern about the consequences of her husband’s return to Malaysia due to outstanding issues relating to his previous relationship including his potential liability for the offence of bigamy in that country.
  8. The Tribunal once again notes that the applicant’s own evidence is that she was fully aware of her partner’s prior marital status and migration status when she entered into her Australian marriage with him on 22 March 2006. The principal applicant has also given evidence to the effect that she was fully aware of his unlawful status for a period of time in Australia.
  9. As discussed above, there is no evidence before the Tribunal that, at any stage relevant to these proceedings, the principal applicant has lacked capacity. As an adult of full capacity fully informed about her partner’s prior marital status and his prior migration status, the applicant voluntarily entered into a relationship in Australia for which she has willingly and ably taken responsibility over the ensuing 13 years. The Tribunal notes that none of the relevant circumstances of her relationship have changed in the ensuing period. The Tribunal notes that despite this, it was not until [year], after marrying her partner in Australia in 2006; giving birth to one child in Malaysia; returning to that country on two further occasions with that child; and, having given birth to two other children in Australia in the context of the same relationship, that she first claimed to fear adverse life outcomes on account of her partner’s migration history.
  10. Further, the Tribunal also notes the following provisions of s.36 of the Act (emphasis added):
(2) A criterion for a protection visa is that the applicant for the visa is:
...
(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) [refugee criterion]; 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) [complementary protection criterion]; and
(ii) holds a protection visa of the same class as that applied for by the applicant.
  1. The Tribunal notes that the principal applicant’s partner is himself, an applicant for a protection visa of the same subclass as that of both the principal applicant and the secondary applicant in this application. The Tribunal, as presently constituted, has no jurisdiction to determine that review applicant’s migration status.
  2. Should all of the members of this family unit be unsuccessful in their applications for a valid Australian visa, there is no information before the Tribunal to suggest that the necessary and foreseeable consequence of such an outcome would be that any of the applicants would be separated from the rest. Further, all members of the family unit are equally entitled to have their migration status settled in Australia according to law before there is any likelihood of them returning to Malaysia.
  3. Accordingly, while the Tribunal as presently constituted cannot determine the migration status of the principal applicant’s partner, the Tribunal is satisfied that his migration status will be resolved according to law in Australia such that he would not return to Malaysia in circumstances contrary to Australia’s non-refoulement obligations.
  4. On the basis of the foregoing considerations the Tribunal finds that the principal applicant’s claim to fear adverse life outcomes on account of her partner’s migration history is not credible and, therefore, is not subjectively held by the principal applicant. Having found the applicant does not have a subjective fear of harm in Malaysia for the essential and significant reason that she faces adverse life outcomes on account of her partner’s migration history, there is no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.

Having her children live in a distorted and chaotic society

  1. Attached to the principal applicant’s application for protection is a signed statement made by the principal applicant and dated 16 December 2016. The principal applicant states as follows:[24]
... And most of my worries come from my children. First of all, I want to touch upon my daughter [the secondary applicant]. She was merely [age] when she came to Australia for the first time. During the last eight years, she spent altogether three months in Australia [sic]. Although we had prepared for a long time for staying in Malaysia, [the secondary applicant] was ill and afraid every time we try to go back. At the same time, other people always pointed us and spoke badly of us when we went out. I am afraid that if [the secondary applicant] was expatriated, her life would end.
...
Further speaking, apart from the worries that the society will scold at me and discriminate my children, I am also afraid that the suspending result of my husband’s protection visa, plus my experiences in Malaysia, would be the underlying threats to our future. We might have more and more problems which can also be more and more complicated. I can’t believe I will have a life of an ordinary person.
...
Our second daughter [Child C] can’t apply for a Malaysian passport yet, which I have already reported to your department.
...
Finally, I want to emphasise my reasons to apply for a protection visa. The security of my children is taken into consideration, because I don’t want them to be marginalised or discriminated against when they grow up in Malaysia. I don’t want them to become the target receiving hatred from people. I don’t want my children to live in a distorted and chaotic society.
  1. The principal applicant is also the mother of another applicant seeking protection under the same subclass of visa in their own right.[25] The Tribunal as constituted is also constituted as the Tribunal to determine the application for review lodged by that other applicant. The principal applicant has also acted as an advocate on behalf of the applicant in the other matter. As discussed above, during the course of her advocacy on behalf of the other applicant, the principal applicant made sworn statements that are materially relevant to the secondary applicant’s claims for protection as currently before the Tribunal.
  2. The Tribunal notes that the principal applicant’s partner and two other daughters are also applicants for protection visas of the same subclass as that of both the principal applicant and the secondary applicant in this application. The Tribunal, as presently constituted, has no jurisdiction to determine the migration status of the principal applicant’s partner and middle child. The Tribunal as presently constituted is separately constituted to determine the migration status of the principal applicant’s youngest child.
  3. Should all of the members of this family unit be unsuccessful in their applications for a valid Australian visa, there is no information before the Tribunal to suggest that the necessary and foreseeable consequence of such an outcome would be that any of the applicants would be separated from the rest. Further, all members of the family unit are equally entitled to have their migration status settled in Australia according to law before there is any likelihood of them returning to Malaysia.
  4. Accordingly, the Tribunal is satisfied that the migration status of all members of this family unit will be resolved according to law in Australia such that they would not return to Malaysia in circumstances contrary to Australia’s non-refoulement obligations.
  5. To the extent that this claim made by the principal applicant is relevant to the present application, the Tribunal will address it directly when considering the separate claims of the secondary applicant below. As discussed there, the Tribunal finds that there is no objective basis for this aspect of the principal applicant’s claims for the purposes of s.36(2) of the Act.

Summary finding

  1. Accordingly, the Tribunal has considered each of the claims for protection made by the principal applicant in her own right individually and then cumulatively. The Tribunal finds that none of the principal applicant’s personal claims are credible and, therefore, are not genuinely subjectively held by the principal applicant. Having found the applicant does not have a genuinely held subjective fear of harm in Malaysia for the essential and significant reasons articulated by the principal applicant, there is no need to consider whether there is an objective basis for those claimed fears or, indeed, whether aspects of those claims are satisfied.

Secondary applicant

Lived in Australia since she was [age] and would not be able to survive in Malaysian society if she were to return to Malaysia

  1. As discussed above, attached to the principal applicant’s application for protection is a signed statement made by the principal applicant and dated 16 December 2016. The principal applicant states as follows:[26]
... And most of my worries come from my children. First of all, I want to touch upon my daughter [the secondary applicant]. She was merely [age] when she came to Australia for the first time. During the last eight years, she spent altogether three months in Australia [sic]. Although we had prepared for a long time for staying in Malaysia, [the secondary applicant] was ill and afraid every time we try to go back. At the same time, other people always pointed us and spoke badly of us when we went out. I am afraid that if [the secondary applicant] was expatriated, her life would end.
...
Further speaking, apart from the worries that the society will scold at me and discriminate my children, I am also afraid that the suspending result of my husband’s protection visa, plus my experiences in Malaysia, would be the underlying threats to our future. We might have more and more problems which can also be more and more complicated. I can’t believe I will have a life of an ordinary person.
  1. The Tribunal acknowledges that the principal applicant has here expressed many of the same fears that any parent in the same circumstances would express.
  2. The Tribunal asked the principal applicant to expand on these representative claims made on behalf of the secondary applicant during the course of the hearing with the Tribunal on 16 May 2019. In this context the principal applicant expressed concern about the fact that the secondary applicant did not speak Malay; that during her visits to Malaysia in the past she found the weather to be disagreeable; and that she experienced periods of illness. In short, the principal applicant stated that her daughter did not like it in Malaysia. In addition, the principal applicant expressed concerns that the secondary applicant may not be able to adapt to Malaysian society, and that she saw herself as being Australian.
  3. The Tribunal notes that none of the integers of this claim on behalf of the secondary applicant disclose a well-founded fear of persecution for any of the reasons articulated in the refugee criterion at s.5H of the Act, as defined at s.5J(1)(a) of the Act.
  4. At the hearing the Tribunal drew the principal applicant’s attention to the poor quality of the written submission made on behalf of both the principal applicant and secondary applicant by the representative in response to the Tribunal’s letter referred to above and dated 3 April 2019.
  5. The Tribunal in particular notes that the secondary applicant’s representative wrote to the Tribunal on 17 April 2019 as follows:
I have been instructed by our client to provide her comments on information as follows.
Essentially, if [the secondary applicant] is not stateless, and if she is Malaysian, the Malaysia authorities refuse to recognise her, and this would engage Australia’s protection obligations, in any event. She could not enter Malaysia if the Malaysian authorities refused to recognise her. The fact that [Mr B] had a bigamous marriage means that his marriage in Australia with [the principal applicant] is invalid. An invalid marriage cannot be registered, even if a divorce is obtained in the relation to the first marriage. [Child C] should therefore be recognised as a person to whom Australia has protection obligations under complementary protection.
The client presumes the same applies to her other children.
Her opinion is that even if [the secondary applicant] is Malaysian, she is being denied recognition of it, and that there are serious consequences that flow from that.
  1. The Tribunal has concerns about numerous aspects of the foregoing submission by a registered migration agent to the Tribunal regarding a protection visa. Firstly, none of the stated facts relate to the relevant named child of the principal applicant in question. As discussed above, [the secondary applicant] (the secondary applicant) has never claimed to be stateless. Her birth was registered in Malaysia in which country it took place. She also possesses a Malaysian passport, which clearly indicates that she is a Malaysian citizen.
  2. The Tribunal also notes the apparent confusion in the foregoing submission as to whose behalf the representative is speaking. The use of the name “[Child C]” – while it is a given name of one of the applicant’s three daughters – appears unconnected to either the written submission, or the facts described, or to the application before the Tribunal. Indeed, rather than merely being plagued by typographical errors, which would itself have been unfortunate, the foregoing submission – prepared by a registered migration agent in Australia – appears to lack an appropriate degree of professional skill, care and diligence.
  3. It must be of some concern to the relevant registration authorities that representation such as this occurs at all (with or without a fee being paid by the client for whom the services have been provided). It must be of even greater concern when such lack of professional skill, care and diligence is evident with respect to a matter as potentially significant as a protection visa.
  4. At the hearing on 16 May 2019 the Tribunal put its concerns to the principal applicant about the confusing nature of the foregoing submission. As discussed with the principal applicant at that time, the Tribunal has proceeded on the basis that this submission is not relevant to the claims made by the secondary applicant.
  5. As discussed above (by reference to the provisions of s.36(2) of the Act), there is no suggestion that the secondary applicant faces the prospect of being returned to Malaysia in the absence of her parents, now or in the reasonably foreseeable future.
  6. In this respect, the Tribunal notes that the secondary applicant was born in Malaysia and has subsequently travelled to Malaysia with her mother on two occasions. This conduct of the principal applicant is not consistent with her proposition that “society will scold at me and discriminate my children” to a level that amounts to significant harm in that country.
  7. The Tribunal acknowledges that any child who travels with their family to live in a country with which they are relatively unfamiliar will necessarily face adjustment challenges. However, there is nothing to suggest that such challenges (in and of themselves), either individually or cumulatively, represent substantial grounds for believing that as a necessary and foreseeable consequence of returning to Malaysia as part of her family unit would rise to the level of a real risk of significant harm (as contemplated by s.36(2)(aa) of the Act), by reference to the types of harm amounting to significant harm exhaustively defined in s.36(2A) of the Act.
  8. The Tribunal finds, therefore, that there is no objective basis for this aspect of the secondary applicant’s claims for the purposes of s.36(2) of the Act.

Living in a distorted and chaotic society

  1. As discussed above, attached to the principal applicant’s application for protection is a signed statement made by the principal applicant and dated 16 December 2016. The principal applicant states as follows:[27]
... And most of my worries come from my children. First of all, I want to touch upon my daughter [the secondary applicant]. ...
Finally, I want to emphasise my reasons to apply for a protection visa. The security of my children is taken into consideration, because I don’t want them to be marginalised or discriminated against when they grow up in Malaysia. I don’t want them to become the target receiving hatred from people. I don’t want my children to live in a distorted and chaotic society.
  1. The Tribunal asked the principal applicant to expand on these claims as they relate to the secondary applicant during the hearing on 16 May 2019. The principal applicant gave evidence to the effect that Malaysian society was more prone to criminality and corruption than Australia.
  2. The Tribunal pointed out to the applicant that available country information (including that surveyed in the delegate’s record of decision provided to the Tribunal by the applicant in her application for protection under the heading “State Protection”[28] and the more current country information available to the Tribunal)[29] did not support her claim to face a real risk of significant harm in Malaysia now or in the reasonably foreseeable future.
  3. The Tribunal notes that available state protection within Malaysia may not be to the standard one experiences on a daily basis in Australia. However this is not the standard which applies with respect to applications for protection.
  4. It is uncontroversial that the availability of protection in the country of nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for refugee criteria claims rests.[30]
  5. It appears clear that a decision-maker cannot be satisfied that there is a failure of state protection in the relevant sense in the absence of evidence to that effect.[31] Although in the context of administrative decision making in Australia for the purposes of the refugee criteria there is no legal presumption of state protection,[32] there is some authority for the proposition that an asylum seeker will bear a practical burden of establishing that protection is lacking.[33] The Supreme Court of Canada stated in Canada (Attorney-General) v Ward (Ward) that in the absence of a state admission as to its inability to protect its nationals, clear and convincing evidence of a state’s inability to protect must be provided.[34] The Court continued:
Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus ... it should be assumed that the State is capable of protecting a claimant.[35]
  1. In MIMA v Khawar, Kirby J referred to Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision-makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant.[36] In this respect, the Tribunal notes that there is no suggestion in any of the available country information that circumstances in Malaysia, described by the principal applicant as “living in a distorted and chaotic society”, approach this level of degradation in the rule of law.
  2. In the context of s.5H(1) of the Act, the Tribunal notes that the protection available to an applicant within their receiving country is directly relevant to a determination of whether the applicant has a well-founded fear of persecution. Section 5J(2) of the Act provides that an applicant to whom effective protection measures are available does not have a well-founded fear of persecution.
  3. Further, s.5LA of the Act sets out circumstances where ‘effective protection measures’ are available for the purpose of s.5J(2), in effect providing a presumption of protection in certain circumstances. Section 5LA(1) of the Act provides that effective protection measures are available to a 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.
  1. This provision is complemented by s.5LA(2) of the Act, which provides that a relevant state, party or organisation is taken to be able to offer protection against persecution where:
(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.
  1. The Tribunal notes that the ‘deeming’ operation of ss.5J(2) and 5LA of the Act may have the effect that, in some cases, an applicant may be taken not to have a well-founded fear of persecution despite there being a real chance that he or she will, in fact, be subjected to harm. This is similar to the refugee criterion standard whereby the state is not required to guarantee the safety of its citizens,[37] and the existence of the appropriate level of state protection may lead to the conclusion that there is not a justifiable unwillingness to seek the (external) protection of the country of nationality, even if the fear of harm, in this case “living in a distorted and chaotic society”, remains well-founded.[38]
  2. Further, under s.36(2B)(b) of the Act, there is taken not to be a real risk of significant harm if 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’.
  3. Section 36(2B)(b) of the Act refers to an applicant obtaining, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm. In MIAC v MZYYL the Full Federal Court held that, to satisfy s.36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[39] In that sense, there is some overlap between this qualification and the assessment of ‘real risk’ under s.36(2)(aa), which necessarily involves consideration of a range of matters, including the availability of protection from the authorities.[40]
  4. Although the qualification in s.36(2B)(b) of the Act bears some similarity to the consideration of ‘state protection’ for the purpose of determining whether an applicant’s fear of persecution is well-founded in the refugee sense, it is to be contrasted with that test. The test in s.36(2B)(b) is differently expressed to the state protection test as understood in Australian refugee law, where the relevant standard is an adequate or effective, rather than perfect, level of protection.[41] In emphasising that the express terms of s.36(2B)(b) of the Act require the Minister to be satisfied that the protection available would remove the real risk of significant harm, the Court in MZYYL expressly rejected that s.36(2B)(b) requires only that the receiving country have an effective legal system for detection, prosecution and punishment, or a system that meets ‘international standards’.[42]
  5. After considering the evidence and claims presented by the principal applicant on behalf of the secondary applicant about fears of “living in a distorted and chaotic society”, on the basis of the available country information, the Tribunal is satisfied that the Malaysian state has an appropriate criminal law, a reasonably effective police force and an impartial judicial system. The Tribunal further finds that the secondary applicant would be able to access the protection afforded by the Malaysian state, that the state would be willing to offer such protection and that the protection afforded would be durable, if the secondary applicant was to return to Malaysia now or in the reasonably foreseeable future for the purposes of ss.36(2)(a) and 5LA of the Act.
  6. On the basis of the available country information, including that contained within the decision record and that produced by both the Department and DFAT,[43] the Tribunal accepts that the Malaysian state does not offer perfect protection for its citizens. The Tribunal is nevertheless satisfied that the available protection in that country would reduce the risk of significant harm from “living in a distorted and chaotic society”, as claimed by the secondary applicant, below that of a real risk for the purposes of s.36(2)(aa) and 36(2B)(b) of the Act.
  7. On the basis of the foregoing findings, evidence and considerations, the Tribunal is satisfied that the secondary applicant does not face a real chance of serious harm in Malaysia now or in the reasonably foreseeable future, for the essential and significant reason of “living in a distorted and chaotic society” for the purposes of s.36(2)(a) of the Act. The Tribunal is also satisfied, as provided at s.36(2B)(b), that the secondary applicant is taken not to face a real risk of significant harm in Malaysia now or in the reasonably foreseeable future, on account of “living in a distorted and chaotic society” for the purposes of s.36(2)(aa) of the Act.

Conclusion

  1. For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

DECISION

  1. The Tribunal affirms the decision not to grant the applicants protection visas.




Dr Colin Huntly
Member

ATTACHMENT – Extract from Migration Act 1958

5 (1) Interpretation

...

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

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

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

but does not include an act or omission:

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

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
...
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

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

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

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 them practice of his or her faith;

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

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

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

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

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

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

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

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

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

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

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

(b) significant physical harassment of the person;

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

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

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

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

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

5K Membership of a particular social group consisting of family

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

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

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

(i) the first person has ever experienced; or

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

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

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

5L Membership of a particular social group other than family

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

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

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

(c) any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i) the relevant State; or

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

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

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

(a) the person can access the protection; and

(b) the protection is durable; and

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

..

36 Protection visas – criteria provided for by this Act

...

(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.

...


[1] Section 5H(1)(a) of the Act.

[2] Section 5H(1)(b) of the Act.

[3] Eg: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437, Selvadurai v MIEA & Anor [1994] FCA 1105; (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.

[4] (1996) 40 ALD 445.

[5] At 482.

[6] (1996) 185 CLR 259.

[7] At [25].

[8] [1997] FCA 1198 (http://www.austlii.edu.au/au/cases/cth/FCA/1997/1198.html accessed 15 February 2017).

[9] In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

[10] In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 (http://www.austlii.edu.au/au/cases/cth/FCA/1998/1167.html accessed 15 February 2017).

[11] Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558-9.

[12] Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

[13] MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.

[14] [1999] HCA 14; (1999) 197 CLR 510 at [191].

[15] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

[16] Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA [2003] FCAFC 120; (2003) 129 FCR 137 at [19] per Cooper J.

[17] At 6.

[18] At s.3.

[19] Islamic Family Law (Federal Territories) Act 1984 s.13.

[20] At 5-7.

[21] Applicant Ref: [case number].

[22] At 4.

[23] At 6.

[24] At 7.

[25] Applicant Ref: [case number].

[26] At 7.

[27] At 7.

[28] At 11.

[29] Department of Home Affairs Common Claims Malaysia, COISS, 3 July 2018 at p17; and, DFAT Country Information Report: Malaysia, 19 April 2018 at p35.

[30] MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 per Gleeson CJ, Hayne and Heydon JJ at [21]-[22], per McHugh J at [65], [76]. See also, eg, MIMA v Khawar [2002] HCA 14; (2002) 210 CLR 1 at [29] and UNHCR, Interpreting Article 1, above n Error! Bookmark not defined. at [15], [37].

[31] See MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [28], Applicant A99 of 2003 v MIMIA [2004] FCA 773 (Mansfield J, 9 July 2004) at [41]; SHKB v MIMIA [2004] FCA 545 (Selway J, 5 May 2004) at [32] and on appeal, [2005] FCAFC 11 (Cooper, Marshall and Mansfield JJ, 18 February 2005) at [13]; NASJ v MIMIA [2005] FMCA 124 (Barnes FM, 25 February 2005) at [8]; and SZBBE v MIMIA [2005] FCA 264 (Jacobson J, 24 March 2005) at [45]. In SZBBE, Jacobson J at [46] suggested further that it is for the applicant to put forward international standards of protection with which the state failed to comply.

[32] A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999). This issue had been the subject of continuing debate, but now appears settled after A. For prior discussion see e.g. Koe v MIMA [1997] FCA 306; (1997) 74 FCR 508, Thiyagarajah v MIMA (1997) 80 FCR 543 at 567, MIMA v Prathapan (1998) 86 FCR 95, MIMA v A (1998) 156 ALR 489 (Nicholson J, 9 April 1998) and MIMA v Kobayashi (unreported, Federal Court of Australia, Foster J, 29 May 1998).

[33] See for example SZBJH v MIAC [2007] FMCA 1395 (Scarlett FM, 3 August 2007) at [43] and SZIRA v MIAC [2007] FMCA 1082 (Nicholls FM, 7 June 2007) at [32].

[34] [1993] 103 DLR (4th) 1 at 23.

[35] Canada (Attorney-General) v Ward [1993] 103 DLR (4th) 1 at 23.

[36] [2002] HCA 14; (2002) 210 CLR 1 at [115]. In A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward. The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.

[37] MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7, MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah was not disturbed by the High Court decision in NAGV & NAGW v MIMIA [2005] HCA 6; (2005) 222 CLR 161.

[38] Applicant A99 of 2003 v MIMIA [2004] FCA 773 (Mansfield J, 9 July 2004) at [38] referring to MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1.

[39] MIAC v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [40]. In that case, the Minister had appealed against a decision of the Tribunal which had found that the applicant could not obtain from an authority of the receiving country protection such that there would not be a real risk that he would suffer significant harm if returned to that country. The Court, upholding the Tribunal’s decision, rejected the Minister’s argument that the level of protection required by s.36(2B)(b) was that of ‘reasonable’ protection and that the Tribunal had erred in holding that a higher standard was required than that under s.36(2)(a) of the Act.

[40] In MIAC v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 the Court stated at [36] that the section must be read as a whole, and that the enquiry provided for in s.36(2)(aa) necessarily involves consideration of the matters referred to in s.36(2B).

[41] Under the Convention, the standard is an adequate or reasonable standard, rather than a perfect one, which standard does not require the state to guarantee the safety of its citizens from harm caused by non-state agents: MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [26] and [117]. Similarly, for the codified definition in s.5H, s.5J(2) requires an ‘effective’ (as defined in s.5LA) level of protection, rather than a guarantee. See Chapter 8 of this Guide for further discussion.

[42] MIAC v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [36]- [37].

[43] Department of Home Affairs Common Claims Malaysia, COISS, 3 July 2018 at pp11-12 and 17-23; and, DFAT Country Information Report: Malaysia, 19 April 2018 pp25-27 and 35-37.

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