1801384 (Refugee)

[2024] AATA 4102

1801384 (Refugee) [2024] AATA 4102 (27 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801384

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Amy Faram

DATE:27 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 27 August 2024 at 11:05am

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – religion – Muslim – applicant remains of adverse interest to her stepmother – extensive family violence – faces a real risk of being subjected to cruel or inhuman treatment – mental health – an unaccompanied and mentally unwell woman in Malaysia – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 46, 65, 499

Migration Regulations 1994, 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 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 Home Affairs on 28 December 2017 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The Applicant, a citizen of Malaysia, applied for the visa on 25 September 2017. The delegate refused to grant the visa on the basis that the Applicant’s fears were not for a refugee reason and, with respect to complementary protection, she could obtain protection such that there would not be a real risk she would suffer significant harm in Malaysia. The delegate also found that the some of the harm feared did not constitute significant harm.

3. The Applicant appeared before the Tribunal on 5 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s husband [Mr A].  

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An Applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criteria

5. 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.

6. 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).

7. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

   Complementary protection criteria

8. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

9. A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[1]

   [1] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

10. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

11. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

12. Sections 5(1) and 36(2A) and (2B) are extracted in the attachment to this decision.  

    Mandatory considerations

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether, on account of her religion and/or because of harm she would face from some of her family members, the Applicant is a person to whom Australia has protection obligations under s 36 of the Act and clause 866.221 of Schedule 2 to the Regulations.

15. Having reviewed the Applicant’s identity documents and heard her oral evidence, it is satisfied as to her identity as a citizen of Malaysia. For the purposes of this protection eligibility assessment Malaysia is the ‘receiving country’, and the Applicant’s protection claims are assessed as against circumstances in Malaysia as these relate to her claims.

16. The Applicant was born in [year] and arrived in Australia in mid-2017. Later that year, she applied for protection, setting out her claims for protection on account of her experiences of physical violence and severe neglect at the hands of her stepmother in Malaysia.

17. After her application was refused by the delegate, without interview, the Applicant sought review of the primary decision. She has provided further statements and evidence to the Tribunal in support of her claims, including:  

    -    An 18 page statutory declaration dated 27 September 2023;

    -    A copy of her mother’s death certificate; 

    -    A copy of the Victorian marriage certificate for the Applicant and husband [Mr A]; 

    -    A copy of a statement setting out the reasons why the Applicant could not provide a wali from her father for her Islamic marriage; 

    -    A copy of a report from psychiatrist [name], dated 26 May 2023;

    -    A copy of a referral from [a named doctor] dated 12 May 2023;

    -    A copy of the Applicant’s mental health plan, re: depression, anxiety, adhd, from May 2023;

    -    Copy photographs of her with her husband’s family and with their dog; and

    -    A letter from her husband.  

18. In response to the pre-hearing information form sent to the Applicant by the Tribunal, the Applicant noted that she had married an Australian man in February 2022, having known him since February 2020. She reiterated her fear of living in Malaysia, including because it would now also mean that she would have to live separately from her husband between two countries.

19. At the hearing of this matter, the Applicant gave credible and compelling evidence about her experiences in Malaysia and her fears of experiencing harm there were she to returned. The couples’ evidence was consistent, and the Applicant’s oral evidence was consistent with her statements and with the corroborative information provided in support of her application, including from her psychiatrist.

20. The Tribunal accepts the Applicant’s evidence about her experiences of past harm in Malaysia, and about her mental health.

    Life in Malaysia

21. The Applicant is a young Muslim woman from a Malay family in Kedah.

22. The Tribunal accepts that the Applicant came to Australia as a [age] year old woman, having endured extensive family violence including multiple instances of sexual assault as a child, neglect, physical abuse, financial abuse and extreme emotional abuse at the hands of family members in Malaysia. This treatment was primarily done by or enabled by her step-mother and her father. Other siblings, cousins and extended family members were also involved in her mistreatment. 

23. In Australia the Applicant has been diagnosed with Attention Deficit Hyper Activity Disorder, anxiety and dysthymia (also known as persistent depressive disorder). She takes controlled medications for her ADHD, and dysthymia and is reviewed regularly by a psychiatrist.

24. When the Applicant made her protection application, she had more limited English and insufficient funds to engage a representative. She set out her experiences and fears on account of her step-mother and other family members in Malaysia. Her evidence to the Tribunal expanded upon and was broadly consistent with that evidence. 

25. The following is a summarised version of the Applicant’s detailed written and oral evidence.

26. The Applicant’s parents had three daughters and separated when the Applicant was around [age] years old. Her oldest sister lived with their father in Kedah, and the Applicant (the youngest daughter) and second sister lived with their mother in Penang. They had no contact with their father for some years and heard that he had remarried. The Applicant’s mother had [a medical condition] and was in and out of hospital.

27. When the Applicant was [age], she and her second sister were sent for a two week trip to stay with her father and his new family. The house was a mess, with rubbish everywhere, and there was nowhere for the sisters to sleep. They found a blanket and slept in the living room. When their father was away at work, their stepmother would not feed them.  Their stepmother would then tell their father that they had refused to eat her food or to obey her. The Applicant was an energetic and impulsive child and got into a lot of trouble.

28. If her father bought her anything, like a lolly at the store, his wife would become very angry. The stepmother and older sister would tease and belittle the Applicant and she was made to scour pans before being given her preferred foods, she ate only limited items. On the last day of the trip, her father gave her a plastic bag with a colouring book, pencils and a chocolate bar inside, and told her to hide it.

29. In 2005, when the Applicant was [age], her father and stepmother took the sisters from their home in Penang. Their mother was working night shift at the time. They did not know what was happening, but were told that their mother did, and that it was just for the school holidays. They were taken to their paternal aunt’s home in Kedah. They were later told that their mother did not look after them properly and that she had abandoned them.

30. In Kedah, the sisters were treated terribly. The Applicant was labelled naughty and lazy and often scolded. After school and religious school, she was required to do chores until late. She was not allowed a fan, though it was often too hot to sleep. She was not allowed to talk about her mother. Once her mother called the house, and the Applicant picked it up and upon hearing her voice started crying. The phone was ripped from her hands and her mother was told to stop calling. 

31. The Applicant’s father and stepmother, and their baby son, lived two hours away and only visited occasionally.

32. Their mother worked out what school her two younger daughters were being sent to and came to see them. The Applicant told her mother how miserable things were. Her mother was upset but told her she could not bring her home. She bought them snacks and drinks and gave the second sister a phone so that they could contact her. The Applicant was extremely upset when she had to say goodbye to her mother. At home they hid the snacks and the phone. The school called the family and told them their mother had come to the school. The sisters were interrogated and scolded. 

33. The sisters lived near another paternal aunt and her husband, a police officer. They had two sons and a daughter. The Applicant was often sent to their house to stay. She would wake in the night to find the older of the brothers, a [age] year old, next to her in bed. He would ask her if she needed more pillows and she, confused, would say no. Early one morning, when she was on her stomach, he sexually assaulted her from behind. She froze and did not what to do. She knew who it was and prayed someone would help her. Someone came out of the bathroom and he got up. She was speechless and shaking and went to shower. She was [age] years of age, and ashamed and didn’t have anyone she could talk to. She felt it was her fault and did not think anyone would believe her about what had happened.

34. On another occasion, the same cousin groped her while she and other children were standing and watching someone play a computer game. She pushed his hand away and went to sit on the couch. He approached her after this, offering her the equivalent of AUD.70 cents which she refused. She has never told anyone about these events.

35. Her cousin was not the only person that targeted her. The Applicant was an energetic child who liked to play rough and wrestle. The uncle, with whom the sisters lived, would play roughly with her. He was the only adult that occasionally stood up for her and her sister. Once her aunt told her to wake him from a nap, and she jumped on him to do so. He pulled up her shirt and rubbed himself against her chest. She was uncomfortable and pulled her shirt down, and he continued to ‘fight’ her. She thought it was play, but when incidents like this kept happening, she stopped going to his room.

36. Once when only the Applicant and her sister were at home with him, their uncle put on a pornographic film. They asked what he was watching, and he said it was a secret. Her sister asked him to turn it off, but he insisted on watching it. Her sister took her hand, and they left the house and went to sit on the neighbour’s bench. Her sister told the neighbour (in fact the uncle’s brother) what had happened, and he said not to tell anyone, or they would get in a lot of trouble. Her sister was very upset. They left and were afraid to go back to the house until their aunt came back some hours later.

37. They told their father what had happened and asked them to keep quiet about it. They then told their mother. She was very upset but could do little to help them.

38. The Applicant was terrified after this, but decided the best thing was to pretend nothing had happened. They tried to manage the risk by going to the neighbour’s house if only the uncle was home. The Applicant was living on alert the whole time. She was afraid to shower because there were holes in the door, and she was afraid of the changes that were happening to her body and that they would make matters worse.

39. Their oldest sister identified with her father’s family and those cousins, rather than with their mother and her younger sisters, whom she appeared to dislike, and she would frequently scold them at the behest of the stepmother.

40. The Applicant described beginning to feel numb. She did very well at school, but the family simply said they were surprised given how lazy and irresponsible she was. Because of her marks, she was offered a scholarship to a boarding school. She was able to go, despite her aunt trying to convince her father not to let her.

41. She thought she would finally be free of the difficulties she had faced, but boarding school pressure was immense. It was very strict and rules based, and she struggled to make friends and fit in because she spoke her mind and hurt other students feelings. Her prayers and her lack of tidiness were relentlessly criticised, and she found herself without any confidence and with no one to talk to. She just wanted to sleep a lot, and her grades dropped. She was bullied and isolated at school. And when her father took her home from breaks, her stepmother hid food from her and spoke badly of her.

42. Her father and stepmother had two sons by this time, and the older of the two, would tell her she should leave and that he was the oldest son. They would often pinch and punch her, with no consequences. The stepmother threw things at her if she was angry with her.

43. After one incident, the Applicant left the house and called her mother from a pay phone. Her mother was very angry and demanded a meeting with the Applicant’s stepmother which was refused. The stepmother said she would never accept the Applicant and the second sister. After this, the Applicant stayed at her mother’s during school breaks.    

44. In 2008, during one of those breaks, her mother was hospitalised, and died. Her death was painful, and poorly managed and it was only Applicant who was with her when she died. The Applicant was [age]. She had tried to advocate for better care for her mother, and she watched them attempt to resuscitate her. The Applicant fell apart after this. The only person that had ever shown her love and tried to protect her was dead.

45. After her mother’s death, the Applicant had to live at her father’s house during school breaks. Her second sister was not living there, having been falsely accused by the stepmother of stealing a necklace.

46. Their mother’s super had been left to them, but because they were underage it was paid to their father and they never saw that money.

47. The Applicant would buy her own food, only for the stepmother to steal it. She also used the Applicant’s bedroom as her own wardrobe and would come in and out as she pleased. The house was a mess, and she would yell at the Applicant demanding that she they constantly tidy it.

48. The stepmother would also hit the Applicant and would let her sons also hit her. If she tried to defend herself, she would be accused on hurting them. Her father always took his sons’ side. The Applicant thought this was because of his cultural beliefs and because he had always wanted sons. The sons slept in air-conditioned rooms, while she sweltered with an old fan.

49. In 2010, she reconnected with her second sister. She had lost a lot of weight. She had been particularly close to their mother, and their father had been particularly disinterested in her. She said that the stepmother and the sons had been abusing her mentally and physically and so she ran away from home. Their maternal grandmother had initially helped her financially. She went to school in the day, and worked at a factory at night, and had done so since 2009 when she was [age]. Her sister was renting a room, working and studying for [an exam]. She gave the Applicant some money and told her take care.

1. After she had met with her sister, she returned to her father’s house. Her stepmother and the sons’ came home with pieces of bamboo that they were going to use to make something. The stepmother started poking the bamboo into the Applicant’s room and when the Applicant closed her room door, her stepmother smashed the door open. She nagged at her about the messy house and the Applicant lost her patience and spoke back to her. The stepmother was shocked and started yelling that the Applicant was rude. She then threw a rice cooker at her. It struck the Applicant’s shoulder. She ran from the room, but the stepmother then hit her hard with a piece of the bamboo. The Applicant grabbed the bamboo and managed to throw it away.

2. The stepmother started to cry and said the Applicant was disrespectful and that respecting her was the Applicant’s only path to heaven. One of the sons started yelling that the Applicant shouldn’t hurt his mother and that the Applicant’s place was in the ground with her mother.

3. That night the stepmother took the Applicant’s phone away. The Applicant packed her belongs and sneaked out of the house in the morning. Her dad was away working. She couldn’t remember her second sister’s contact details. She took a bus to her grandmother’s house and stayed there for two weeks.

4. Her father turned up and asked her to go home. She told him what had happened, but he did not believe her and told her not to make things up. He then said that he would make sure it did not happen again, and that he would also convince the second sister to come back because he didn’t want people to talk badly about him. He insisted and both sisters returned to live in his house.

5. Their stepmother behaved differently towards them and started to cook for them. The sisters thought she might have reflected on her behaviour but then saw messages on her phone from a ‘bomoh’ or shaman. The messages talked about her mixing things that he had prepared into their food and making sure they ate it.

6. Her sister took photos of the messages, and showed their father, but he remained on his wife’s side. Once the stepmother knew that they had seen the messages, her behaviour reverted to being outwardly cruel.  

7. When the Applicant was [age], she went to a different state to study. She and her sister had been left an inheritance from their mother and this initially allowed her to buy a motorbike and helped with rent and her studies. But it did not last. Her father provided her with no financial support and would instead ask the Applicant for money.

8. She got a scholarship, and worked whenever she was not studying, but between her expenses, and having to give her dad money monthly for his bills, she barely had enough to survive. There were times when she did not eat for a few days and would just drink water. She was very depressed and had no friends and one to talk to. Mental health is not something people talk about in Malaysia and if they do it is to mock people that suffer from it. She thought a lot about suicide but kept reminding herself that it would be against her religion to take this course. 

9. Her stepmother would bad mouth her to anyone that lived nearby, saying the Applicant was going out in the city and being promiscuous. Sex before marriage is a huge sin in their community. She was working and studying and giving her dad money – but her stepmother told people they should expect an out of wedlock child from her soon.

10. After her diploma, the Applicant worked in Kuala Lumpur for 12 months but her stepmother and father kept contacting her and asking for money. They would get the oldest sister to call her also. If her stepmother called, she would say that she would put rat poison their father’s food if she did not give them money. The Applicant gave most of her earnings to her father, and to her second sister because he was not supporting her.

11. When the Applicant attended the family’s home on a national holiday, her stepmother would throw things at the Applicant and have her sons hit her. If she had injuries, she should say the Applicant self-harmed or had hit the sons prompting them to retaliate. She would also tell the Applicant’s father that the Applicant was crazy. The Applicant told her father, and he did nothing. Her stepmother repeated the poisoning threat, saying that if the Applicant continued to say anything to her father about her experiences, she would put poison in his food. Even though he had let her down, she did not want anything bad to happen to him.

12. The Applicant felt she had nowhere she could go, and no evidence of how awful stepmother was. Because of this, she decided to go to Australia in 2017. She was scared to go but was scared to remain in Malaysia. In their culture, daughters have no money and no power. They should listen and be obedient and do things to support their parents. Her experiences with her family took away her trust, and she never felt safe, even at home; she would be constantly scared and worried and thinking about the worst possible things happening every minute of her life.

    Since coming to Australia

13. Since she has been in Australia, the Applicant has maintained contact with her sisters. She does not actively seek contact with her first sister but responds if that sister contacts her.  The Applicant has regular contact with her second sister, and sometimes sends her money for her niece.

14. Her second sister has married since the Applicant left, and she told the Applicant that their father demanded a steep bride price for her, and then attended the wedding for only 10 minutes. After this, the second sister received a message saying he did not wish to have contact with either her or the Applicant and considered that they were no longer his daughters. Despite this, he and his wife still attempt to contact the second sister, and her sister heard that they have spread rumours about them in the neighbourhood, saying they are dishonourable daughters and women. This sister lives in Kedah with her husband and their young daughter.

15. After the Applicant came to Australia, her father texted her, asking that return to Malaysia to study, and that she send him money to help with their bills. She initially sent money, but then stopped. When it was clear she was staying in Australia, he stopped contacting her. The Applicant gave evidence that her father wants her to return and finish her [training] so that she will have a career in Malaysia and be able to support him.

16. The Applicant met her husband in around early 2020. They were married in February 2022. Like her, her husband had a very difficult childhood. He moved between foster care and his grandmother’s care. He has tried to commit suicide a few times and before they met had received treatment in a mental health facility. His mental health has improved but remains a live issue, and he has recently had to reduce his workload due to [medical conditions].   

17. Her husband is an atheist. He converted to Islam on paper so they could have a Muslim wedding ceremony because it was important to the Applicant. The Applicant did not contact her father seeking his permission and she provided the Imam with a statement setting out why. He agreed to marry them without the permission of her father.

18. The Applicant’s husband does not practice Islam. She respects his decision, but her family would not. While she is close to her second sister, this sister is very religious. She has asked the Applicant about what of their faith she has taught her husband and expressed the view to the Applicant that she should not have a dog. The religious questions about her husband are very difficult because she does not know how to lie. She has managed to skirt them from Australia but face to face that would be much more difficult.

19. At the end of 2022, the Applicant sought support for her mental health and was diagnosed with ADHD, anxiety and dysthymia in April 2023. She has recently commenced taking dexamphetamine for her ADHD which is to be reviewed every 2 months. She has also been prescribed medication for her depression and once she is stabilised on the ADHD medications and will be reviewed every year by a psychiatrist.

20. Sometimes things seem ok, and sometimes she has a low mood. She is still anxious, does not sleep well and often forgets to eat. She continues to see a psychologist every fortnight to a month to help manage this. She takes the ADHD medication three times a day: two in the morning, two at midday and one in the afternoon. She is not sure she will be able to continue to access the medications she takes in Malaysia. 

21. The Applicant feels the medicine helps to make her less sensitive so that she does not take things as personally, and so she can finish tasks. She has been told by the psychiatrist that there is no cure for the dysthymia, even with treatment. It is constant low mood and is why the psychiatrist said that she must see the psychologist regularly to manage it.

22. She was gifted a puppy [by] her husband and his grandmother and this has played an important role in supporting he mental health. Having a dog is unacceptable for Muslim people. The couple also rescue cats and at the time of the hearing had seven. 

23. In Australia, the Applicant stopped wearing a hijab and was heavily criticised by Malaysian friends on social media when they saw this. They said her hair was not nice, and that she would go to hell. She made another account for only people that support her new life. It has very strict privacy settings.

24. The Applicant is now working [as an occupation]. She also sometimes works as [an occupation] and has previously worked in [a field].

25. The Applicant gave evidence that after 6 years in Australia, and with support from her husband, she finally sees some value in her life, and has dreams for the future. She is grateful to have been living in a society that takes mental health seriously and is understanding – in Malaysia, they are not aware of ADHD and people with depression and anxiety are mocked as attention seekers and do not get the support they need.

26. She is afraid about what it would mean to be returned to Malaysia. She thinks that, at best, she will not be able to rely on her family and without the supports that she has in Australia her mental health will deteriorate and she will suffer harm. When she had bad days previously in Malaysia, she would take pills to help her sleep the day away. She was initially reluctant to have a dog because of her religion, but her husband convinced her that it would assist with her ADHD, and he has. He makes her feel contained and helps her not to think negative thoughts. The Applicant explained that she has also had disordered eating because of her childhood, which saw her denied food and having to eat secretly, and she is afraid of this re-emerging in Malaysia.

27. At worst, the Applicant fears that her family members will actively seek to mistreat and harm her. She is afraid that her stepmother would seek to extort her as she has in the past, and she is afraid that the developments in her personal life will leave her exposed to harm from the state because her stepmother may accuse her of being an apostate and she could be sent to a religious rehabilitation camp.

28. The Applicant gave evidence that her stepmother remains focused on and angry at her and her sister. She put 18 rubbish bags of their belongings at parents’ in law of the second sister and she is still trying to make contact with the second sister to get money from her.

29. She has not been able to make contact with the Applicant since the Applicant changed her contact details in Australia and restricted her social media account. She is still telling people that they are bad children, who had abandoned their father. And she is still trying to get him to ask them for money. This is hard for her sister as they know where she is.

30. The Applicant does not know if they know she has married in Australia. She does not think they would be happy about it as he is not a Malay man. She considers that they would question them about his religious practice and if they perceived he was not actually Muslim they would not accept her decision to have married him. She can’t comply with their expectations and would feel heartbroken, downgraded and without dignity having to. Her family is very big on sin.  

31. She is afraid that the stepmother and half-brothers would try to find her, and she is not sure what they would do. Asked if she thought they would still pursue or harass her in Kuala Lumpur, the Applicant said they had previously got to her there.   

32. The Applicant explained that her stepmother believes in black magic. This has negatively impacted their lives. For example, her stepmother concluded that the second sister had stolen her necklace because after it went missing, she consulted the Bomoh who told her the second sister took it. She also put water that had had a spell put on it in their food. One of the more alarming things the Applicant had heard about her practice, was that her stepmother steamed water through her private parts and put that in their father’s food. The stepmother drives an hour or two to see the Bomoh in rural Kedah and gets messages from them directing her as to what to do. These beliefs and her past conduct make the Applicant even more anxious about what she is capable of.

33. Their father would sometimes complain about his wife but would never say anything to her or in front of her. She is not sure if she has ever hurt him directly, but he has become quite skinny. 

34. She is very afraid of her stepmother because of the abuse she has received from her. She is a bully, and the Applicant wouldn’t be surprised if she wasn’t currently trying to find her to harass her in Australia. The mistreatment from her over many years was verbal and physical and relentless.

35. The Applicant gave evidence that she has nowhere to go in Malaysia and that she could not stay with family. It would be difficult for her to survive alone without her husband and the treatment and supports in place that she has in Australia.

36. The Applicant’s husband gave evidence that he could not live in Malaysia because of his mental health and the couple’s responsibilities in Australia. He added that if he could travel to Malaysia, it would be a big problem for them because their marriage is not registered and he would be placed in an impossible position of being asked about his religion and how he practices. Those of her family members that know about their marriage have already asked him these things over [social media]. He felt like he was being interviewed. They are very focused on their traditions and on making sure he would follow them. He ignored some questions and blocked others after they went too far. Asked who he blocked, he said the husband of the oldest sister. He has seen how strict they are and were he there it would quickly become clear he is not Islamic. He is in fact fiercely atheist and only converted on paper because he loves her and knew being married by an Imam was important to the Applicant.  

    Protection findings  

    Fear of harm from her stepmother and others – refugee criteria   

37. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).

38. The Tribunal considers that the harm feared by the Applicant from her stepmother and other family members is not for one of the reasons mentioned in s 5J(1)(a). While the Tribunal appreciates that gender may play a role and that her profile as a member of their family group may also be a factor, and that in the past these aspects of the Applicant’s profile may have been central to the harm she experienced, the Tribunal does not consider that either of these elements would be the essential and significant reasons for any harm faced by the Applicant in the reasonably foreseeable future.

39. The Tribunal finds that the primary reason for the harm feared by the Applicant in Malaysia would be because her stepmother is vindictive and has an irrational and personal vendetta against the Applicant.  

40. For the above reasons, the Tribunal finds that the Applicant does not satisfy s 5J(1)(a) with respect to her principal fear of facing harm at the hands of stepmother or her associates, and that she therefore does not have a well-founded fear of persecution from her in Malaysia.  

    Complementary protection criteria   

41. As noted above, an applicant that does not meet the refugee criterion in s 36(2)(a) may still meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the receiving country, there is a real risk that they will suffer significant harm. A real risk is one that is not remote or insubstantial or a far-fetched possibility.[2]

    [2] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

42. The Tribunal accepts that the Applicant was in the past targeted by Kedah based family members and has experienced multiple incidents of significant harm. Despite the passage of some seven years since the Applicant’s departure from Malaysia, the Tribunal accepts that the Applicant remains of adverse interest to her stepmother and that she continues to wish the Applicant harm.

43. The Tribunal accepts that were the Applicant required to return to Malaysia, her Australian husband would not accompany her there. The Applicant would be returning as an unaccompanied woman with limited financial means and in poor mental health. The Tribunal finds it is almost certain that, in Malaysia, where she has experienced significant past traumas, will be without her current support structures and likely unable to access treatment (as discussed further below), the Applicant’s mental health would further deteriorate.

44. In this scenario, the Tribunal considers it will be necessary for the Applicant to reach out to Malaysian based supports and, in particular, to her second sister in Kedah. The Tribunal finds that she will find it necessary to have ongoing contact with her second sister, and others, while she is in Malaysia. The Tribunal considers that the Applicant will do this in Kedah or from elsewhere in Malaysia that she may try to base herself, such as Kuala Lumpur. While the Tribunal does not consider it would necessarily happen quickly, it finds that within the reasonably foreseeable future, because of this contact with her Kedah-based sister and others, and because of the enduring interconnectedness of family and social bonds, her stepmother and father would both come to know that the Applicant was in Malaysia and would be able to locate her.

45. The Tribunal considers that the stepmother is motivated to seek out and to harm the Applicant because of a deep and irrational hatred for her. The Tribunal makes these findings on account of the Applicant’s evidence about her conduct, which the Tribunal has accepted, and in light of evidence and country information about the stepmother’s use of a Bomoh or shaman. The Tribunal also considers the stepmother and father may be financially motivated to find and to pressure the Applicant. Financial pressure, and on the stepmother’s part extortion, was a constant feature of the Applicant’s adult life in Malaysia and the Tribunal considers her parents are likely to continue to seek financial support from the Applicant if she is there. Further, they may be aware that she has married, without the approval of her father and without their having received a bride price for her, or they may become aware of his, and seek a sort of restitution from her and her Australian based husband.

46. Section 36(2A), sets out that 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.

1. Cruel or inhuman treatment or punishment is relevantly defined at s 5(1) as being ‘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’.

2. The stepmother has taken direct adverse action, in the form of physical, emotional and financial abuse, against the Applicant in the past. She has also attempted to use black magic. The practice of magic remains common in Malaysia,[3] especially in regional areas and among ‘traditionally conservative people’.[4] Shamans, also known as bomohs or witch doctors are consulted for many things such as to cure disease, improve farming and trade, or to help in personal matters, such as by improving attractiveness or harming others:[5] It has been reported that shamans use black magic to cause harm when they ‘need something evil done or when they have their own interests in mind’:[6]

   Many shamans use their supernatural knowledge to inflict pain and to cause disease, and even to cause the victim to die. They use mixtures of poison and lethal mixtures of glass powder, the hairs of hairy caterpillars, or find bamboo hairs and they recite a specific mantra over them.[7] 

   [3] Winzeler, R., ‘The Study of Malay Magic’, Bijdragen tot de Taal, Land en Volkenkunde, 1983; Skeat, W.W., ‘Malay Magic: Being an introduction to the Folklore and Popular Religion of the Malay Peninsula’, 2005; ‘#BBCtrending: Malaysia’s ‘Bomoh’ and the superstitious search for MH370’, 13 March 2014;

   [4] Phang CK, Marhani M, Salina AA. Help-seeking pathways for inpatients with first-episode psychosis in hospital Kuala Lumpur. Malays J Med Health Sci 2011; 7: 37–44, as cited in Raaj, S., et al, ‘Mental disorders in Malaysia: an increase in lifetime prevalence’, BJPsych International, November 2021.

   [5] Duad, H., ‘Oral traditions in Malaysia; a discussion of shamanism’, Wacana, Journal of the Humanities of Indonesia, Vol.12, 30 April 2010 pp184, 186, 190, 192.

   [6] Duad, H., ‘Oral traditions in Malaysia; a discussion of shamanism’, Wacana, Journal of the Humanities of Indonesia, Vol.12, 30 April 2010.

   [7] Duad, H., ‘Oral traditions in Malaysia; a discussion of shamanism’, Wacana, Journal of the Humanities of Indonesia, Vol.12, 30 April 2010, p190.

3. The Applicant fears that in Malaysia her stepmother will again emotionally abuse her and physically harm her, and that she will threaten to harm the Applicant’s father if the Applicant does not give them money or does not behave in a manner acceptable to the stepmother. The Tribunal accepts that the stepmother has intentionally behaved in this way in the past because of her deep dislike of the Applicant and that there is a real risk that she and others acting at her behest will do so again in the future.  

4. The Tribunal considers, also, that the changes in the Applicant’s life since she has been in Australia, such as her marrying a non-Malay person and not registering the marriage, her being diagnosed with ADHD and other mental health conditions, her having a dog, and not wearing a hijab – some of which have already been criticised by family members in Malaysia - may further motivate the stepmother to cause the Applicant harm and pain.

100.   DFAT report that there is a growing Islamic conservatism in Malaysia, especially among young people.[8] It has also been reported that ‘[t]he impact of sharia courts and use of the re-education camps could expand as strict Islam gains traction in the country’.[9] In Kedah, vigilantes have patrolled the streets looking for people in the act of khalwat, being in close proximity with an unrelated member of the opposite sex.[10] Persons thought to have sought to leave Islam have been subjected to religious rehabilitation camps. Country information indicates that some such centres, known as Faith Purification or Restoration Centres, are run with little oversight. One former detainees account describes the following experience:    

[8] DFAT, Country Information Report – Malaysia, (2024 DFAT report), 24 June 2024 at [3.49], [3.51]. 

[9] Morning Star News, ‘Converts from Islam in Malaysia Detained in ‘Faith Purification Centers’, 14 July 2016; Malaymail, ‘Malaysia can’t enforce, but penalty for leaving Islam is death, mufti reminds apostates, 9 August 2017. 

[10] Malaysia Today, ‘Vigilantes patrol Kedah town to check for ‘sin’’, 18 November 2018.

she was taken from her workplace, interrogated, and then placed in one of the religious rehabilitation centers – all on the same day, and without legal representation or court proceedings. The young woman reported that when she asked for a lawyer, authorities told her she didn’t need one.[11]

[11] Morning Star News, ‘Converts from Islam in Malaysia Detained in ‘Faith Purification Centers’, 14 July 2016; See also, Syarif, M., et al, ‘Malaysian Government Police to Eradicate the Islamic Heretical Sects’, Journal of Namibian Studies, 34 (2023).   

101.   Country information suggests that religious authorities investigate complaints made by individuals and organisations within the community and that there may be financial remuneration for this ‘service to the community’.[12]

[12] Nurul Hoda Mohd Razif, ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’ (2020) 18(2-3) Hawwa, 325-356; Malaymail, ‘Malaysia can’t enforce, but penalty for leaving Islam is death, mufti reminds apostates, 9 August 2017.

102.   The Tribunal considers that given the stepmother’s irrational and deep animosity towards the Applicant, her willingness to attempt to use magic to target her, and her previous slandering of the Applicant’s moral reputation in the community, there is a real risk that in addition to the other forms of harm the Tribunal considers she would carry out, she might attempt to harm the Applicant by bringing her to the adverse attention of the religious authorities, or extreme community members.   

103.   The Tribunal is satisfied that if the Applicant was returned to Malaysia, she faces a real risk of being subjected to cruel or inhuman treatment, including severe mental pain and suffering through acts of verbal abuse, slander and extortion, and severe physical pain and suffering through acts of violence and, potentially, poison. The Tribunal considers that the conduct of the stepmother and others acting at her behest would be performed in order to intentionally bring about severe pain and/or suffering to the Applicant or in order to cause the Applicant pain and suffering and that their actions in doing so could reasonably be regarded as cruel or inhuman in nature.  

104.   In making this assessment the Tribunal has considered the personal circumstances of the Applicant. The Applicant has experienced numerous traumatic events and remains under the active care of both a psychologist and a psychiatrist. She takes an amphetamine derived drug[13] to assist her to manage her ADHD symptoms, and she is on anti-depressants. Even in Australia, where she has been able to work and form a relationship, information before the Tribunal indicates that she continues to experience dips in her mental health such that she is anxious, does not sleep and forgets to eat and needs to increase the frequency with which she sees her psychologist.  

[13] Alcohol and Drug Foundation, Dexamphetamine, adf.org.au

105.   The Tribunal considers that in Malaysia, where the Applicant will be without the psychological supports on which she currently relies, including her mental health support dog and her husband and her medical team, her mental health condition is likely to further deteriorate. Consistent with the Applicant’s concerns about how her difficulties with respect to her poor mental health will be regarded on return to Malaysia, country information indicates ‘that most Malaysians have stigmatizing attitudes towards mental health problems’.[14] Problems were commonly attributed to supernatural and religious causes.[15] Indeed, ‘[t]he majority of the Malay and Indian populations in Malaysia believe that mental health problems derive from spirit possession or social punishment’.[16]

[14] Munawar, K., et al,  Mental health literacy: a systemic review of knowledge and beliefs about mental disorders in Malaysia, March 2022, Asia Pacific Psychiatry. See also, Lin, L., ‘Bridging Barriers: a report on improving Access to Mental Healthcare in Malaysia, Penan Institute, 2 January 2018.

[15] Ibid.

[16] Phang CK, Marhani M, Salina AA. Help-seeking pathways for inpatients with first-episode psychosis in hospital Kuala Lumpur. Malays J Med Health Sci 2011; 7: 37–44, as cited in Raaj, S., et al, ‘Mental disorders in Malaysia: an increase in lifetime prevalence’, BJPsych International, November 2021.

106.   Country information indicates that in Malaysia there is a significant risk the Applicant will not be able to get the medication or the mental health treatment that she requires.[17]  A 2018 report set out that Malaysia had a significant deficit of psychiatrists and psychologists, with a ratio of 1.27 psychiatrists per 100 000 population.[18] In Kedah, this rate reduces to 0.55 per 100 000 people.[19] Malaysia needs ‘at least 3000 registered psychiatrists to meet the World Health Organization (WHO) recommendation of 10 psychiatrists per 100 000 population’.[20]

[17] Relate Malaysia, Stimulants medication,

[18] Guan NC, Lee TC, Francis B, et al. Psychiatrists in Malaysia: the ratio and distribution. Malays J Psychiatry 2018; 27(1): 4–12; as cited in Raaj, S., et al, ‘Mental disorders in Malaysia: an increase in lifetime prevalence’, BJPsych International, November 2021.

[19] Guan NC, Lee TC, Francis B, et al. Psychiatrists in Malaysia: the ratio and distribution. Malays J Psychiatry 2018; 27(1): 4–12; as cited in Raaj, S., et al, ‘Mental disorders in Malaysia: an increase in lifetime prevalence’, BJPsych International, November 2021.

[20]  Guan NC, Lee TC, Francis B, et al. Psychiatrists in Malaysia: the ratio and distribution. Malays J Psychiatry 2018; 27(1): 4–12; as cited in Raaj, S., et al, ‘Mental disorders in Malaysia: an increase in lifetime prevalence’, BJPsych International, November 2021.

107.   The Applicant is experiencing poor mental health and the Tribunal considers that in Malaysia she will not get the support and treatment she needs, making her even more vulnerable to acts of harm from her stepmother and others.

108.   As set out above, there are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. For the following reasons, the Tribunal is not satisfied that the circumstances in s 36(2B) apply to the Applicant.

109.   An applicant is taken not to face a real risk of significant harm where it would be reasonable for them to relocate to an area of the country where there would not be a real risk of significant harm, per s 36(2B)(a). As set out above, the Tribunal considers that as an unaccompanied and mentally unwell woman in Malaysia, it would be extremely difficult for the Applicant to live completely independently from people she knows in Malaysia, including her family members, and in particular from her Kedah-based second sister. The Tribunal considers that because of this, wherever she was in the country her location would become known to family members, including her stepmother and that she would seek her out and harm her. As such, the Tribunal does not consider that the Applicant would be able to move to an area of the country where there would not be a real risk of significant harm to her.     

110.   As noted above, an applicant is also taken not to be at a real risk of harm where they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm: s 36(2B)(b).

111.   The Tribunal acknowledges that local and international sources generally consider Malaysia’s police force to be a professional and effective police force, while noting that the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption.[21] Country information indicates that responses also vary depending on the nature of the police complaint. Malaysia’s domestic violence framework was sought to be strengthened with the Domestic Violence (Amendment) Act 2017 expanding the definition of domestic violence to include violence experienced by a broader range of family members and by the introduction of Emergency Protection Orders (EPOs) which can apply immediately for up to a week and prevent a perpetrator from accessing a specific location.[22] However, ‘in country sources told DFAT that EPOs were difficult to obtain and required strong evidence of violence or property damage’ and were not always enforced.[23] DFAT assesses that state protection is available but often inadequate or ineffective in practice.[24]  

[21] DFAT, Country Information Report – Malaysia, (2024 DFAT report), 24 June 2024 at [5.5].

[22] 2024 DFAT report at [3.120].

[23] 2024 DFAT report at [3.121].

[24] 2024 DFAT report at [3.125].

112.   The US Department of State similarly states that ‘NGOs reported that the government did not take action in cases of domestic violence: victims must keep evidence, gather witness testimony and ensure their own safety’.[25] According to the Malaysian Women’s Aid Organisation (WAO) ‘[b]arriers in accessing justice often arise because the police fail to take serious action or conduct a proper investigation’.[26] There were examples of the state denying its services to women based on attitudes minimising or justifying violence against women.[27] Attitudes of mistrust towards women’s reports of violence was also said to inhibit police responsiveness.[28]

[25] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia (20 March 2023).

[26] Women’s Aid Organisation, A study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 104.

[27] Women’s minister says aware some cops refuse to accept domestic violence reports, will bring this up with Home Ministry, Malay Mail (28 March 2022). 

[28] Women’s Aid Organisation, A study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 103.

113.   Core values considered important by the state include conventional gender relations, filial piety, and respect for authority[29] and discriminatory attitudes towards women are reflected in many Muslim family laws, including those:

[29] Azza Basrudin, Humanizing the Sacred: Sisters in Islam and the Struggle for Gender Justice in Malaysia (University of Washington Press, 2016) 64-65, references omitted; Yiswarey Palansamy, Ministry’s MCO advice to women: Wear make-up while working at home, speak to spouse in Doraemon voice and giggle coyly’, Malay Mail (31 March 2020).

stipulating a lower minimum age of marriage for women (sixteen years) compared to men (eighteen years); requiring women to obtain a guardian’s consent for marriage irrespective of age while men are not required to do so; permitting Muslim men to marry non-Muslim women but prohibiting Muslim women from marrying non- Muslim men; allowing polygamy for men; letting men divorce their wives outside of court while women have to seek divorce only in court based on certain conditions and requiring them to present extensive evidence to support their case; and differentiating between women’s and men’s abilities to parent by awarding women only custody of minor children while granting guardianship to men.[30]   

[30] Azza Basrudin, Humanizing the Sacred: Sisters in Islam and the Struggle for Gender Justice in Malaysia (University of Washington Press, 2016) 49. 

114.   The Tribunal is not satisfied that the Applicant could obtain protection from the authorities in Malaysia, such that there would not be a real risk she would suffer significant harm there.[31] This is because, first, the Tribunal considers the Applicant would be considered by the authorities to be a contrary daughter, and that they would decline to protect her from harm that emanated from her father’s household. Second, the Tribunal considers that some of the treatment that would significantly harm this Applicant would either not be considered a policing matter or would not be considered a policing matter until the Applicant had already been subjected to it. The Tribunal makes this finding, noting the Applicant’s particular vulnerability to harm and given observations set out in the DFAT report that strong evidence of violence or property damage was necessary to get an EPO in Malaysia. 

[31] MIAC v MZYYL (2012) 207 FCR 211 at [36].

115.   Finally, under s 36(2B)(c) there is taken not to be a real risk that an applicant will suffer significant harm if the risk is one faced by the population of Malaysia generally, and is not faced by the applicant personally. The Tribunal is satisfied the risk of harm from the Applicant’s family members, her stepmother in particular, is not one faced by the population of Malaysia generally, and that it is faced by the Applicant personally.  

116. The Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm; Australia therefore has protection obligations, per s 36(2)(aa).

CONCLUSION

117.   For the reasons given above, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

118. For the reasons given above the Tribunal is satisfied that the Applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).

119.   Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the Applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.

DECISION

120. The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(aa) of the Migration Act.

Amy Faram
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.

…

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.

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