Tribunal: Member Rosa Gagliardi

The applicant was refused a Protection visa by a delegate of the Minister for Immigration and Border Protection. On 31 January 2018, the Administrative Appeals Tribunal affirmed the decision.

Section 36 of the Migration Act 1958 (the Act) sets out the criteria to be satisfied for a Protection visa. Broadly, it requires the applicant to be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds. In basic terms, this arises when a person is found to have a ‘well-founded fear of persecution’ or there is a ‘real risk of significant harm,’ respectively.

The applicant fled Malaysia to escape her estranged husband who she claimed was abusive and attempting to win sole custody of their only child. The child in question remained in Malaysia with the applicant’s parents. The applicant claimed her husband was mentally abusive towards her, gambled during their relationship and relied solely on her income. The applicant sought a divorce in the Sharia Court but she claimed it was too difficult due to the power of the male in such situations and the significant cost. She claimed the shame that would come from talking about such matters publicly was also a factor.

The decision largely concerned the credibility of the applicant. The Tribunal noted that when assessing the credibility of the applicant it was important to bear in mind the difficulties often faced by asylum seekers and the benefit of the doubt should be given to those who are generally credible but unable to substantiate all of their claims.[1]

The Tribunal considered all the evidence presented by the applicant and additional information in order to make a finding of fact. The Tribunal was prepared to give the applicant the benefit of the doubt in accepting that she was abused during her marriage; she was estranged from her husband; her parents were looking after her child; she had sole responsibility for her child; and that she began proceedings in the Sharia courts to dissolve the marriage but had not continued it through to finality.

The Tribunal was not satisfied that the applicant could not obtain a divorce from her husband under Sharia law. The Tribunal noted that while the Department of Foreign Affairs and Trade (DFAT) country information report does not suggest that the criminal law in Malaysia is flawless, it does show that the country’s protection system consists of an appropriate criminal law and an impartial judicial system. The Tribunal also analysed the rules and regulations that exist in Malaysia concerning the break-up of families under Sharia law as well as in the civil courts. After reviewing these rules, the Tribunal concluded that while it may be easier for a man to divorce a woman than it is for a woman to divorce a man, Sharia law does make provisions for divorce by a woman of a man in cases where, as is her case, she has endured financial neglect, cruelty and adultery. The Tribunal also found  the applicant was of no interest to her estranged husband and would not be so on return to Malaysia given she is providing care to her child financially when he should also be contributing, and given he appeared not to have any interest in the child previously.

Based on these findings the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds.

To read more about the operation and application of section 36, in particular the application of the ‘complementary protection’ grounds for granting a Protection visa, please view a summary of the decision 1419288 (Refugee) [2018] AATA 282.

Read the full written decision on Austlii.

 

[1] This approach was based on The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196 and Foster J’s comments in (1996) 40 ALD 445 at 482.