1801118 (Refugee)

1801118 (Refugee) [2023] AATA 4605 (24 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:        Unrepresented
CASE NUMBER:  1801118
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Kate Chapple
DATE:24 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.

Statement made on 24 November 2023 at 11:48am
CATCHWORDS
REFUGEE – protection visa – Malaysia – violence by brother – unable to marry without brother’s permission – first form of wedding in Australia not official – non-recognition of marriage and illegitimacy of children – children not included in any application despite attempts to add – recent Islamic and Australian weddings – visa application completed by student lawyer and contained false claims – applicant’s lack of knowledge of process – credible evidence – country information – marriage likely to be recognised but children likely to be regarded as illegitimate – no jurisdiction to decide on children’s claims – best interests of children – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 351, 423A
Migration Regulations 1994 (Cth), Schedule 2
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.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application lodged 28 August 2017.
Decision record relating to the delegate’s refusal decision dated 10 January 2018.
Departmental case file.
Internal departmental records relating to the applicants.
Application for review
Application for review lodged 15 January 2018 including statement giving reasons for why the refusal decision was wrong.
The Tribunal wrote to the applicants inviting them to attend a hearing on 22 November 2023 and to provide pre-hearing submissions.
Prior to the hearing, the applicants provided to the Tribunal confirmation that the applicants intended to participate in the hearing with the assistance of an interpreter, a joint statement by the applicants dated 15 November 2023, and articles relating to the requirements of Islamic marriage and illegitimacy in Malaysia.
The Hearing
The applicants appeared before the Tribunal at a hearing conducted in person on 22 November 2023, with the assistance of an interpreter (via video link) in the Malay and English languages. The applicants were unrepresented.
Primary applicant’s evidence
The primary applicant gave evidence, summarised by the Tribunal as follows:
9.1.The primary applicant was born in [Year] in Melaka where she grew up with her parents, older sister and brother and younger sister. Her parents had a [business]. Her father died in 2015. Her mother is aged nearly [age] and lives in Malaysia. Her sisters are involved in business and farming, and her brother is [an Occupation]; they also live in Malaysia. All are practising Muslims, not overly strict in their commitment to the faith, however they have always been strict in their treatment and expectations of the primary applicant.
9.2.The primary applicant’s parents were always busy at work when she was growing up; they were at home only for a few hours each day, and she was mostly in the care of her older siblings. Her brother, who is three years older, was often physically violent towards [her]; the violence escalated during those years after she told her parents about it.
9.3.After the primary applicant left school she moved away from home to attend matriculation college for one year and then university for three years where she completed a degree in [Subject], graduating in [Year]. Towards the end of [Year], the primary applicant got a [job] in Selangor.
9.4.Around the same time, she met her spouse at [an Event], having been introduced to a broader group via WhatsApp. He is [Number] years older, and was running a family [business].
9.5.When the primary applicant got a job in Selangor, she visited her family in Melaka once a week. She has always had issues with her family, apart from the brother’s violence. They have different opinions. She doesn’t like arguments, so she kept quiet. She introduced her spouse to her family in 2015. They didn’t like him and didn’t approve of the relationship because they thought he was too much older than her. They spoke to him rudely. She tried to tell them they liked one another, but avoided any arguments. She felt she was treated badly and differently by her family; her mother supported other family members in their relationships, but not the primary applicant.
9.6.The primary applicant was working on a shift in 2015 when she was told by her boss that her father had died. The circumstances of his death and the aftermath were very distressing for her. Following her father’s death, the primary applicant felt lonely. It was then that she and her spouse made a commitment to marry. Her family however did not help to make the marriage happen in accordance with Islamic principles. For example, it required the consent of her brother as the remaining male in the family following the father’s death, which wasn’t given. They were therefore unable to marry in Malaysia.
9.7.The primary applicant’s number one reason for leaving Malaysia and coming to Australia was to get married. The other reason was to get away from her family for a time. She thought that there were time and space between them, the relationship might improve. They came to Australia [in] April 2016 and were married in what they believed to be an Islamic ceremony in [City 1] [in] April 2016. The primary applicant only told her family about travelling to Australia and being married after the event. She thought it was a legal marriage under Australian law, but when she asked for the certificate, she was told there were no documents.
9.8.The primary applicant and her spouse came to Australia on 3 month visitor visas. She got work on a farm because they needed the money. She understood that they were in Australia illegally after their visas expired and prior to applying for the protection visa in August 2017.
9.9.The primary applicant’s mother and sisters, and families, visited Australia for 3 months in 2017. They stayed with the primary applicant and her spouse initially, and relations were good, however over time, they deteriorated.
9.10.When the primary applicant was [pregnant] with their first child, she became worried about giving birth in Australia without a visa. Her supervisor at the farm told her that the government would take her baby away, which frightened her. Eventually she sought help from a Malaysian person in Australia who gave her the contact details of a student lawyer who would prepare a visa application for them. They paid her $1000, and asked that the baby be included in the application after the birth. At the time the primary applicant didn’t know what a protection visa was, only that it meant she couldn’t go back to Malaysia for good reason.
9.11.The Tribunal noted to the primary applicant that the protection visa application had been completed in handwriting, and asked whether it was her handwriting. The primary applicant said the student lawyer completed the form; she told her about the family issues, that they wanted to get married in Malaysia, but the family did not allow it. The primary applicant never saw the form. When she asked for a copy, the student lawyer told her that she didn’t need to know anything, it would be looked after. The last contact she had from the student lawyer was in August 2017 when she got a message that the application had been lodged. After the birth, she asked that the baby be put on the application. The Tribunal asked the primary applicant if she was aware it was stated in the protection visa application that she and her spouse were married in Malaysia [in] August 2010. She stated she wasn’t aware and she doesn’t know where that date came from; they didn’t marry in Malaysia because they couldn’t.
9.12.The primary applicant first became aware of the claims made in the protection visa application when they received the refusal decision from the Department. She realised that the claims were false and their first child had not been included in the application. She had tried at subsequent times to get her children included in the protection visa application, having had two more children since the refusal decision.
9.13.The Tribunal asked the primary applicant whether she had completed the application for review form herself, in particular the section requesting reasons for why the refusal decision was wrong, and why there was no reference in the reasons provided to the claims in the protection visa application being false. The Tribunal read aloud to the primary applicant the reasons provided. She said she didn’t really know how to explain in the form what had happened. She added, as stated in the application for review form, that when her family was visiting Australia, they had threatened to kill her spouse.
9.14.Sometime after the primary applicant received the hearing letter from the Tribunal, she had a miscarriage. When she was in the hospital, the social worker gave her the details for the community immigration legal service, [Organisation]. The primary applicant got some advice over the phone from a [Organisation] lawyer and prepared a statement, which the [Organisation] lawyer checked. This is the statement she provided to the Tribunal recently.
9.15.The primary applicant’s youngest child is on a bridging visa; the two other children do not have visas. The Tribunal recommended that the primary applicant seek advice, for example from [Organisation], regarding the children’s visa status.
9.16.The Tribunal noted to the primary applicant that in the recent statement, which is nearly 6 years after the application for review was lodged, new claims were raised regarding problems associated with the recognition of her marriage in Malaysia and the claimed illegitimacy of the children. The Tribunal explained that under Australian law, where an applicant for a protection visa raises a claim or presents evidence that was not raised or presented before the delegate made the initial decision to refuse the visa—in other words, a new claim or evidence—the member is bound to draw an unfavourable inference about the credibility of the claim or evidence if satisfied the applicant does not have a reasonable explanation as to why the claim wasn’t raised or the evidence wasn’t presented before the initial decision was made. The Tribunal invited the primary applicant to explain. She said she only had a few days to make the review application, she was very stressed with family issues, she didn’t feel strong enough, it didn’t occur to her to tell the Tribunal.
9.17.The Tribunal invited the primary applicant to explain her claims for protection in her own words. She said she doesn’t want to go back to Malaysia because she doesn’t want to feel stressed about her family relationships there as she was in the past. There, she was afraid to sleep and dream, and afraid to wake up and face anyone. In Australia, she doesn’t feel that way. Also, there is no document for their marriage, she doesn’t know if their marriage will be accepted in Malaysia; and even if they can get their marriage registered in Malaysia, their children will be regarded as illegitimate.
9.18.The Tribunal noted to the primary applicant that the claims regarding the illegitimacy of the children related to the children, and yet none of the children are on this or any protection visa application. The Tribunal invited her to explain how the illegitimate status of the children impacted her. She said she doesn’t know the legal issues or whether they can be enrolled in school, but the community regards a mother badly if her children are illegitimate.
9.19.The primary applicant isn’t working. The children are aged [Ages]; they are healthy and happy. They stay at home and she teaches them; they can’t go to day care or school because they don’t have visas. She confirmed that she and her spouse are getting married tomorrow.
Spouse’s evidence
The spouse gave evidence, summarised by the Tribunal as follows:
10.1.He was involved in a [company] in Malaysia. He met the primary applicant at a [Venue] in Malaysia.
10.2.He doesn’t like the primary applicant’s family because they caused lots of stress for her, they bullied her and treated her badly. He finds it very stressful to recall what they have done.
10.3.He and the primary applicant left Malaysia because they wanted to get married. They came to Australia because people who he knew through [Activity] told him life in Australia is good. He’d never been overseas before; he was afraid to go to any other country.
10.4.When he and the primary applicant arrived in Australia, they met someone who could give them a Muslim marriage them in [City 1]. This happened [in] April 2016. He thought if they married, it would improve things with her family.
10.5.He didn’t know what visa to apply for to stay in Australia. They paid someone $1000 to apply for a visa for them; he doesn’t know what they said in the application. It was only when the visa was refused that they found out about the false claims.
10.6.When the primary applicant had a miscarriage, he became panicked, he didn’t have any money, his wife was admitted to hospital, then the social worker gave them the email for the lawyer.
10.7.The primary applicant is depressed because of the family issues. He’s a family man here, he works on a [farm], he stays only in [City 2] with his family, he doesn’t send money back to Malaysia. If he returns to Malaysia, it is not easy to get a job, the marriage issue is too difficult, he’s afraid the religious principles. He can be caned for marrying a person who is not recognised under Sharia law.
10.8.He and the primary applicant were supposed to get married yesterday, but the ceremony has been changed to tomorrow.
Post-hearing submissions
On 23 November 2023, the primary applicant provided copies of the following via email to the Tribunal:
11.1.Islamic Marriage Contract between the applicants dated [November] 2023.
11.2.Certificate of Marriage (with the blessing of Allah) between the applicants dated [November] 2023.
11.3.Certificate of Marriage (under the Commonwealth of Australia Marriage Act 1961) between the applicants dated [November] 2023.
Country information
Muslim marriages are known as ‘nikah’. A valid ‘nikah’ is one contracted under the Syariah law as prescribed by the State Enactment where the parties are resident. Both parties to a ‘nikah’ must be Muslim.¹
According to the Islamic Family Laws enforced in all states in Malaysia, a marriage application must be submitted through the office of Marriage, Divorce and Ruju’ Registrar where the bride resides.² However, there are certain circumstances whereby the Registrar of Marriage shall refer the matters to the Syariah Judge in order to obtain permission to marry.³
After a Muslim marriage is solemnised, it will need to be registered in accordance with the sharia enactments where the marriage has taken place. Such marriage is recognised as valid and enforceable marriage in the Syariah Court. Where a marriage is not registered in accordance with the relevant enactment, the couple will not be able to seek any remedy or recourse in the Syariah court.⁴
Married Muslims must carry a photo identification of themselves with their spouses as proof of marriage. This requirement has reportedly been enforced in practice, particularly in the northern states.⁵
1 Dr M. S. Subramaniam, 'Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia', Center for Asian Legal Exchange (Nagoya University), 1 March 2018, p.14
2 ‘Applying for a Marriage / Registration of Marriage (Muslim)’, Malaysian Government, undated, available at
3 ‘Marriage Application through the Court’, Department of Syariah Judiciary Malaysia, undated, available at F.Y. Ngo & K. Dhaliwal, ‘Family law in Malaysia: overview’, Thomas Reuters: Practical Law, 1 October 2020, available at 7827?transitionType=Default&contextData=(sc.Default)&firstPage=true
5 DFAT, ‘DFAT Country Information Report Malaysia’, 29 June 2021, p.25
Pursuant to s.104 of the LRA, a civil marriage contracted outside Malaysia is recognised as valid if all the following apply:
• It is contracted in a form required or permitted by the law of the country where it is contracted.
• Each of the parties had, at the time of the marriage, capacity to marry under the law of the country of his or her domicile.
• Where either of the parties is a citizen of or is domiciled in Malaysia, both parties had capacity to marry according to the LRA.⁶
The couple need to re-register their marriage pursuant to s.31 of the LRA either at the nearest National Registration Department (NRD) office or at a Malaysian consulate. The re-registration of marriage must be made within six months after the date of marriage or within six months of arrival in Malaysia (before the expiry of 6 months and the couple return to Malaysia). A fine will be imposed for late registration.⁷
A Muslim Malaysian couple who have had their marriage solemnised abroad in accordance with Islamic principles must register their marriage in the Syariah court for their marriage to be validly recognised.⁸ For first time Muslim overseas marriages or for marriages of widows/widowers, in order to register the marriage and obtain a marriage certificate, the applicant is required to be present in-person to pick up the Letter of Acceptance from the District Islamic Religious Department Office as well as the Registration of Marriage (required for non-Malaysian spouses of a female Malaysian citizen) from the Syariah Lower Court.⁹ If the couple fail to register their marriage but the solemnisation of their marriage is performed in accordance with the Islamic principles, they may still be considered as being married from the Islamic point of view. They however may be penalised for not registering their marriage and will be precluded from availing themselves of the rights and remedies under the respective state sharia enactments.¹⁰
The marriage registration procedure for couples in Australia can be found on the website of the Consulate General of Malaysia (Melbourne).
6 F.Y. Ngo & K. Dhaliwal, ‘Family law in Malaysia: overview’, Thomas Reuters: Practical Law, 1 October 2020
7 ‘Marriage and Divorce: What action should be taken if either one or both the couple are citizens of Malaysia who were married abroad under the civil law of that country?’, National Registration Department (Malaysia), last updated 22 June 2022, available at
8 F.Y. Ngo & K. Dhaliwal, ‘Family law in Malaysia: overview’, Thomas Reuters: Practical Law, 1 October 2020
9 'Marriage Abroad', Government of Malaysia, 17 January 2022, available at 20220119105129
10 F.Y. Ngo & K. Dhaliwal, ‘Family law in Malaysia: overview’, Thomas Reuters: Practical Law, 1 October 2020

Under Islamic Law, a child is considered legitimate if the parents are legally married to each other when the child was conceived and born. Legitimacy is an important issue for Muslims as it involves the issue of nasab (lineage) which is pertinent to legitimacy matters. If a child is legitimate, his nasab is of his father and if illegitimate, of his/her mother only. An illegitimate child has no relationship whatsoever with his/her biological father. The Islamic view is that a child is legitimate if it is born 6 months after solemnisation of marriage or 2 or 4 years after the husband’s death or divorce.¹¹
On 10 June 2003, the 57th National Council for Malaysian Islamic Affairs Fatwa Committee Muzakarah on 10 June 2003 decided that an ‘illegitimate’ child is:
• A child born out of the wedlock due to adultery or rape and he or she is not from the syubhah intercourse and not out of slavery.
• A child born less than six months and two lahzah seconds from the qamariah calendar from the date of the tamkin (intercourse).
• An illegitimate child cannot be placed under the lineage of the man, causing his or her birth, or anyone admitting to being the father of the child. Thus, the man cannot inherit, cannot be the mahram, or become the guardian to the child in question.
Section 17, Schedule 2, Part III of the Federal Constitution says that one of the criteria to acquire Malaysian citizenship is that the person must be born to a married couple. If the child was illegitimate, he or she would take on the citizenship of the birth mother.¹²
Several other sources confirm that the status of the mother would determine the status of the child where there is no marriage certificate.
For illegitimate Muslim children, the NRD inserts ‘bin/binti Abdullah’ (son/daughter of servant of God) in place of the father’s name when registering their birth. This can have far reaching consequences as these children are publicly labelled as ‘illegitimate’ by virtue of their surname.¹³
11 M. D. R. Gopal, ‘Does Illegitimacy Status of Children Matter? A Review on Malaysian Perspectives’, International Journal of Applied Psychology, 2015, 5(4), 109-114, p.110, available at C. J. Ying, ‘Citizenship to Illegitimate Child – Denied’, Halim Hong Quek Advocates and Solicitors, 24 August 2021, available at M. D. R. Gopal, ‘Does Illegitimacy Status of Children Matter? A Review on Malaysian Perspectives’, International Journal of Applied Psychology, 2015, 5(4), pp.111-112, available at >
The 2021 journal article, ‘Discrimination against an Illegitimate Child According to Law and Society’ authored by Ainur Nadhrah Roslan, Nik Sarah Adilah Abdul Aziz, and Fathin Izzati Mohd Shaharudin states (inter alia) that:
It is common for any illegitimate child to be questioned on their social status whether a child born out of wedlock can claim his rights towards family name, inheritance and religion given that our community is very diverse in culture and religion.
The most obvious impact is according to the common law, an illegitimate child is related only to its mother and has no relationship with its biological father. Hence, rights to claim family name and inheritance is one of the biggest issues (Meera Deiwi Raja Gopal 2020).
In terms of inheritance, the law provides for limited circumstances in which an illegitimate child can inherit from his parents’ estate. An “illegitimate child” is entitled to inherit from his/her mother’s estate only if she dies without leaving a will and does not have any legitimate children.
In terms of inheritance, the law provides for limited circumstances in which an illegitimate child can inherit from his parents’ estate. An “illegitimate child” is entitled to inherit from his/her mother’s estate only if she dies without leaving a will and does not have any legitimate children.
The impact of illegitimacy on a child born out of wedlock does not only concern the rights to inherit paternal wealth but in some cases it might affect the child’s right to a name, identity and nationality. This can happen when the children’s names were not registered immediately after birth because the mother of the children fear that her child will be discriminated against or stigmatized by society. Fear of shame and judgments would jeopardise the future of the poor child. Illegitimate children are claimed to always be bastardized and labelled with ill names and some are not accepted into the family.
In conclusion, illegitimate child are discriminated in terms of their rights, society’s view on them and their relationship with their biological father. Their discrimination against their biological father based on the facts that their biological father has no ties with them unless they are married to the mother of the child. An illegitimate child is also not allowed to claim family name and inherit from their biological father which means they are usually maintained by their mother only. Other than that, most of the time when an illegitimate child is born, they are not registered straight away by their mother because of the fear of being judged by society or stigmatized when the child holds a birth certificate without the father’s name. The stigma against an illegitimate child is too strong especially in Malaysia that some of the parents agree to give their child up for adoption to avoid being stigmatized and belittled by society. All in all, even though Malaysia has come a long way in terms of providing the rights for an illegitimate child, it still has a long way to go in order to educate the society regarding an illegitimate child and their rights.
Women’s news website, Ova, published an opinion piece, ‘Pre-Marital Children in Malaysia’, on 17 January 2023, in part set out below:
The Child Rights Coalition Malaysia reported in 2013 that there were over 234,000 children whose birth certificates don’t mention a father’s name – of which around 85,000 are Muslims.
A child’s legitimacy is of supreme importance amongst Muslims, including in Malaysia. “Illegitimate” children don’t have the legal right to lineage or the right to inherit their father’s wealth.
Socially, “illegitimate” children are subject to discrimination and stigma from society and even ostracisation by family members (“Curbing Child Marriage Amongst Muslims in Malaysia: Towards Legal Reform”, Samuri, et al., UUM Journal of Legal Studies, Vol. 13, Issue 1, 2022).
Furthermore, the National Registration Department (NRD) puts “bin/binti Abdullah” in place of the father’s name. This publicly labels the children as “illegitimate” by virtue of their surname.
Although people are more accepting nowadays of “illegitimate” children, basic educational access and healthcare rights, among others, can still be denied or taken away (“Discrimination against an Illegitimate Child According to Law and Society”, Roslan et al., Current Legal Issues, Vol. 3, 2021).
Overall, such continued stigma and discrimination is likely to severely impact these children mentally, psychologically, and emotionally.
Furthermore, if the child is legitimate, the husband (as the biological father) is also responsible for the child. However, if the child is “illegitimate”, the custody of the child solely belongs to the biological mother. This can be extremely taxing, financially speaking, to the mother.
In addition, although Malaysia is a signatory to the United Nations Convention on the Rights of the Child (UNCRC), we continue to reserve the right not to ratify Article 7 which concerns a child’s right to birth registration, right to a name and nationality (as well to know and be cared for by their parents).
Often the “illegitimate” child is not registered immediately after birth to avoid stigma and discrimination.
The stigma associated with having an “illegitimate” child leads to many parents putting their baby up for adoption or to baby dumping. Between 2018 to 2021, 443 baby dumping cases were recorded – of which only 149 were found alive while 294 died (“Baby dumping still rampant”, Sinar Daily, February 17, 2022).
The DFAT Country Information Report for Malaysia dated 29 June 2021 provides (inter alia) that:
17.1.[2.13] In February 2021, the Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent. Prior to the pandemic, Malaysia’s unemployment rate was 3.3 percent in 2019. In November 2018, media reported the average unemployment rate for Indian Malaysians was 4.7 per cent, compared to 4 per cent for Bumiputera, and 2.4 per cent for Chinese Malaysians. In 2018, 28.6 per cent of the Malaysian labour force had tertiary level education, 55.6 per cent had secondary level education, 13.1 per cent had primary level education and 2.7 per cent had no formal education.
17.2.[5.37] Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return because of their absence. Authorities generally pay little attention to Malaysians who over-stay their work or tourist visas or breach visa conditions in other countries upon their return to Malaysia. Likewise, failed asylum seekers would be unlikely to face adverse attention, as the Malaysian government would not typically know the individual was a failed asylum seeker, although it is possible that some individuals might be questioned upon entry or have their entry delayed, particularly if their passport had expired while abroad. There is widespread media reporting on the issue of Malaysian nationals travelling to other countries and applying for asylum for the purpose of obtaining work rights. The International Organization for Migration (IOM) assists voluntary returnees, and Malaysian authorities cooperate with the IOM in these arrangements.
17.3.[5.41] If a child is born overseas to an unwed Malaysian mother, the child receives Malaysian citizenship after registration at a Malaysian consulate, or at the National Registration Department in Malaysia.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of their protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
In particular, the Tribunal notes the following guidelines:
21.1.[8] The process of determining whether an applicant meets a visa criterion, including whether an applicant is a person who meets the definition of a refugee, often requires the tribunal to decide whether it accepts certain evidence and how much weight to give to that evidence. This process may involve assessing the credibility of an applicant or other persons and documentary evidence.
21.2.[12] The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims.
The Tribunal considers the primary applicant’s account of her experiences in Malaysia and Australia credible overall.
The Tribunal observed a dissonance between the interpreter and the spouse throughout the spouse’s evidence. As a result, the Tribunal considers that parts of the spouse’s evidence were confused and unclear.
The Tribunal does not draw any adverse conclusions based on the spouse’s evidence and affords it neutral weight.
The Tribunal considers that the primary applicant was likely to have been traumatised by the violence she experienced in Malaysia at the hands of her brother during her adolescent and teenage years. The Tribunal notes the primary applicant’s evidence that the violence stopped when she left home.
The Tribunal considers that the primary applicant has for many years felt, and continues to feel, poorly treated emotionally by her mother and siblings, and this is in part due to her relationship with her spouse and their feelings of animus towards him.
The Tribunal notes the country information regarding the requirements for Islamic marriage in Malaysia.
The Tribunal accepts that the primary applicant’s family acted in such a way as to prevent the primary applicant and her spouse from being married in Malaysia in accordance with Islamic principles.
The Tribunal accepts that the primary applicant and her spouse did not marry in Malaysia, in accordance with Islamic principles or state law or under any other authority.
The Tribunal notes the primary applicant’s evidence that the central reason for leaving Malaysia and coming to Australia was so she and her spouse could marry.
The Tribunal accepts that the applicants participated in what they believed to be an Islamic marriage ceremony in [City 1] soon after they arrived in Australia, with the genuine intention of marrying, however there is no documentation to prove that this occurred, or that it was legal according to Australian law.
The Tribunal considers that the purported marriage ceremony conducted in [City 1] is likely not to have resulted in a marriage having any effect under Islamic principles or Australian law.
The Tribunal accepts that the primary applicant:
33.1.had little or no understanding of the nature or effect of a protection visa;
33.2.paid a person to prepare the protection visa application on her behalf;
33.3.did not see the application and wasn’t aware of the claims made in the application until she received the refusal decision from the Department in January 2018;
33.4.did not instruct the person to state in the application that she and her spouse were married in Malaysia [in] August 2010;
33.5.instructed the person to include her first child in the application, and had assumed that the child had been included in the application;
33.6.attempted subsequently to have her other children included in the application and was unsuccessful.
The Tribunal notes the reasons the primary applicant provided in the January 2018 application for review for why the refusal decision was wrong, summarised as follows:
34.1.It is very hard for the primary applicant and her spouse to get a job in Malaysia because she is a degree holder and because of his age.
34.2.It is very costly to live in Malaysia.
34.3.They cannot survive in Malaysia.
34.4.The primary applicant and her spouse married without the family’s blessing.
34.5.The primary applicant’s family hate her spouse, they are always verbally threatening them, and if they see the spouse again, they might kill him.
34.6.Malaysian police will not take any action because it is a family matter.
34.7.Malaysian society cannot accept them because of their marriage status, and this makes it worse for their baby.
34.8.The baby was born in [City 2] and the primary applicant doesn’t think she can survive in a different culture.
The Tribunal notes the comprehensive statement dated 15 November 2023 provided to the Tribunal after the primary applicant sought advice and assistance from the [Organisation] lawyer.
The Tribunal notes the key aspects of the statement as follows:
36.1.The false claims made in the protection visa application.
36.2.The poor emotional treatment of the applicants by the primary applicant’s family.
36.3.The Islamic marriage requirements in Malaysia.
36.4.The primary applicant’s family’s failure to approve/facilitate the applicants’ marriage in Malaysia.
36.5.The main reason for the applicants coming to Australia, being to marry.
36.6.The applicants’ belief held for some time that they had married in Australia.
36.7.The applicants’ belief that their marriage cannot be accepted in Malaysia, and the associated stigma from community and family.
36.8.The circumstances surrounding the protection visa application, the primary applicant’s various unsuccessful attempts to have the children included on the application, and not giving strong reasons in the application for review.
36.9.The primary applicant’s distress at the prospect of returning to Malaysia and facing family and employment issues.
36.10.The applicants’ intention to marry in Australia [in] November 2023.
36.11.The applicants’ concern that even if they were able to register their marriage in Malaysia, their children would be considered illegitimate because they were not born in a legal Islamic marriage, and as a result, they would be discriminated against and suffer adverse psychological problems.
The Tribunal notes the requirements of s 423A of the Act.
The Tribunal considers the primary applicant’s failure to disclose the falsity of the claims in the protection visa application and her new claims regarding the status of the marriage and the illegitimacy of the children until after the delegate’s refusal decision and nearly 6 years after the application for review engaged the Tribunal’s obligation under s 423A of the Act to seek an explanation from the primary applicant, and to assess the reasonableness of the explanation.
The Tribunal considers that the primary applicant did not understand what was required of her in the protection visa application and application for review process until she sought the initial advice and assistance of the [Organisation] lawyer, resulting in the statement dated 15 November 2023. In the circumstances, the Tribunal considers this a reasonable explanation for the primary applicant’s delay in raising her claims, and as a result, is not bound to draw an inference unfavourable to the credibility of her late claims.
The following paragraphs address the Tribunal’s consideration of the primary applicant’s claims for protection.
The Tribunal notes the post-hearing submissions and accepts that the applicants were married in Brisbane, Australia [in] November 2023 according to Islamic principles and Australian law.
Based on the country information, the Tribunal considers that:
42.1.It is likely the applicants’ marriage would be recognised as a valid civil marriage in Malaysia.
42.2.If the applicants return to Malaysia, they would need to re-register the marriage under Malaysian law within 6 months of the date of the marriage or of their arrival, or be liable for a fine for late registration.
42.3.Given the marriage was solemnised in Australia in accordance with Islamic principles, if the applicants return to Malaysia, they would need to register the marriage in the Syariah court for the marriage to be validly recognised. In order to register the marriage and obtain a marriage certificate, the applicant (for registration) must be present in-person to pick up the Letter of Acceptance from the District Islamic Religious Department Office.
42.4.If the applicants fail to register their marriage but the solemnisation of their marriage is performed in accordance with the Islamic principles, they may still be considered as being married from the Islamic point of view. They may however be precluded from availing themselves of the rights and remedies under the respective state sharia enactments.
42.5.It is likely the applicants are able to register their Islamic marriage while in Australia by following the registration procedure set out on the website of the Consulate General of Malaysia (Melbourne): Birth/Marriage Registration - Consulate General of Malaysia, Melbourne (kln.gov.my)

The Tribunal considers that, if the applicants return to Malaysia, it is likely they would ensure their marriage is registered under Malaysian law and in the Syariah court.
The Tribunal considers that, if the applicants return to Malaysia, it is unlikely either or both of them would face any form of targeted serious harm or otherwise significant harm by reason of their marriage status such as to engage Australia’s protection obligations.
The Tribunal considers there is no credible evidence before it to conclude that any of the primary applicant’s family members threatened to kill the spouse during their visit to Australia or at any other time, or are likely to kill the spouse in the future.
The Tribunal considers that, if the applicants return to Malaysia, it is unlikely either or both of them would face any form of targeted serious harm or otherwise significant harm by the primary applicant’s family such as to engage Australia’s protection obligations.
The Tribunal notes that the primary applicant is tertiary educated, both applicants were gainfully employed when they lived in Malaysia, and both applicants have demonstrated their capacity to work in Australia.
The Tribunal considers there is no evidence before it, including the country information, to conclude that the applicants could not be gainfully employed if they return to Malaysia.
Based on the country information, the applicants are unlikely to face adverse interest from the Malaysian authorities for returning to Malaysia after several years’ absence and/or due to being failed asylum seekers.
Based on the country information, the Tribunal considers it is likely the applicants’ children would be regarded under Malaysian law and Islamic principles as illegitimate on the basis that they were all born out of wedlock, that is prior to the date on which Malaysian law and the Syariah court would be likely to deem the applicants to have entered into a valid marriage.
The Tribunal notes the country information and the primary applicant’s claims regarding the status of illegitimate children in Malaysia, and the impact of illegitimacy on a child’s social status and psychological and emotional wellbeing.
The Tribunal notes that no child of the applicants is listed as an applicant in the protection visa application relating to the case under review.
In considering the case under review, the Tribunal considers it has no jurisdiction to assess and/or make a decision about the illegitimacy claims made on behalf of the applicants’ children.
In considering the case under review, the Tribunal considers it has jurisdiction only to assess and make a decision about the illegitimacy claims to the extent that the claims relate to the applicants if they return to Malaysia.
The Tribunal notes the following country information:
55.1.Most of the time when an illegitimate child is born, they are not registered straight away by their mother because of the fear of being judged by society or stigmatized when the child holds a birth certificate without the father’s name.
55.2.The stigma against an illegitimate child is too strong especially in Malaysia that some of the parents agree to give their child up for adoption to avoid being stigmatized and belittled by society.
The Tribunal considers that, if the applicants return to Malaysia, it is likely they would do so with their children, and it is likely the applicants would re-register their births notwithstanding the fear of being judged or stigmatized by society.
The Tribunal considers that, if the applicants return to Malaysia, it is unlikely the applicants would give their children up for adoption to avoid being stigmatized and belittled by society.
The Tribunal considers that, if the applicants return to Malaysia, it is likely the primary applicant and/or her spouse would experience some form of societal stigmatization by reason of the illegitimate status of their children, however there is no credible evidence before the Tribunal to conclude that this treatment would amount to targeted serious harm or otherwise significant harm such as to engage Australia’s protection obligations.
Application of law
The issue in this case is whether the primary applicant or her spouse meets the refugee criterion, and if not, whether they are entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
60.1.The primary applicant is a citizen of Malaysia.
60.2.The spouse is a citizen of Malaysia.
60.3.The primary applicant and her spouse do not satisfy the refugee or complementary protection criteria set out in the applicable law.
60.4.If the primary applicant is returned to Malaysia, there is no real chance that she would be persecuted, and accordingly the primary applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
60.5.If the spouse is returned to Malaysia, there is no real chance that he would be persecuted, and accordingly the spouse does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
60.6.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the primary applicant being removed from Australia to Malaysia there is a real risk she will suffer significant harm.
60.7.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the spouse being removed from Australia to Malaysia there is a real risk he will suffer significant harm.
CONSIDERATION OF REFERRAL FOR MINISTERIAL INTERVENTION
The Tribunal considers that the circumstances of this case are sufficiently unique or exceptional to warrant a referral to the Minister for possible consideration of the use of the Minister’s intervention powers, according the criteria set out in the ‘Minister’s guidelines on ministerial powers (ss 351, 417 and 501J of the Act)’.
The Tribunal notes that the applicants’ children aged [Ages] were born in Australia and have never left Australia.
The Tribunal considers there are circumstances that bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the three children.
The Tribunal considers that the primary applicant had little or no understanding of the protection visa application and application for review processes, and was misled and misrepresented to by a third party despite her best endeavours to make truthful claims for protection and to have her children included in the protection visa application.
The Tribunal considers it is likely, following the recommendation by the Tribunal at hearing, the primary applicant will seek further legal advice regarding her children’s visa status and the family’s overall circumstances.
The Tribunal considers the facts and country information set out in this decision record provide a sound basis for believing there is a significant threat to the children’s human rights and dignity if they return with their parents, the applicants, to live in Malaysia, and further, the threat to the children is such that it may, if properly assessed, engage Australia’s protection obligations to the children, and therefore to their parents, as members of the same family unit.
CONCLUSIONS
The Tribunal is not satisfied the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
The Tribunal is not satisfied the spouse is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Having concluded the spouse does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied the spouse is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests the primary applicant or the spouse satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the primary applicant and the spouse do not satisfy the criterion in s 36(2)(b) or (c) of the Act.
Having regard to the Minister’s guidelines, the Tribunal considers there are valid unique or exceptional circumstances warranting referral of the applicants’ case to the Department for consideration by the Minister pursuant to s 417 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
The Tribunal refers the case to the Department to be brought to the Minister’s attention.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts from Migration Act 1958
5 (1) Interpretation
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
36     Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

[2023] AATA 4605

24 November 2023

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