1831246 (Refugee)

1831246 (Refugee) [2024] AATA 4085 (24 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1831246
1831251

COUNTRY OF REFERENCE: Malaysia
MEMBER:Hollie Kerwin
DATE:24 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matters for reconsideration with directions that:
(a) the first applicant satisfies s 36(2)(a); and
(b) the second applicant satisfies s 36(2)(a).

Statement made on 24 September 2024 at 9:52am

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – divorced woman – family violence from ex-husband – financial and physical abuse – gender-based violence – mental health issues – online stalking and abuse – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of two decisions made by delegates of the Minister for Home Affairs on 24 October 2018 (in respect of the first applicant, [named]) and 23 October 2018 (in respect of the second applicant, [named]) to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of Malaysia. The first applicant applied for the visa on 28 February 2018. The second applicant applied for the visa on 15 February 2018. The delegates refused to grant the visas:
a.In relation to the first applicant on the basis that:
i.She did not meet the refugee criteria because she would be able to return to Malaysia and live with her mother away from a claimed violent ‘ex-boyfriend’ and therefore she did not face a real chance of serious harm in Malaysia now or in the reasonably foreseeable future.
ii.She did not meet the complementary protection criteria because she would be able to obtain from Malaysian authorities protection such that there would not be a real risk that the applicant will suffer significant harm as defined under the Act.
b.In relation to the second applicant, it appears that the decision was made on the basis that:
i.He did not meet the refugee criteria because he would not face a real chance of serious harm on account of his claimed interfaith relationship between himself as a Muslim man and his Christian partner.
ii.He did not meet the complementary protection criteria because he would be able to obtain from Malaysian authorities protection such that there would not be a real risk the applicant would suffer significant harm as defined under the Act.
The applicants appeared before the Tribunal on 2 September 2024 to give evidence and present arguments in a combined hearing (arranged with the agreement of the applicants). The Tribunal also received oral evidence from the first applicant’s aunt, [Aunt A]. A further witness who the applicant’s identified was to establish their good conduct in Australia in support of a ministerial request was not called, as the Tribunal considered it unnecessary. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CLAIMS AND EVIDENCE
First applicant
Before the delegate
The delegate’s decision was made on the basis of the first applicant’s protection visa application and with reference to country material and to immigration records indicating that the applicant had made two prior trips to Australia before seeking protection in Australia. The claims made in the protection visa application were that:
a.the applicant was running away from her ex-boyfriend who she had been in a relationship with for several months before she found out he was a ‘bad man’.
b.She tried to move to another place but he followed her.
c.He continues to follow her and always tries to take revenge.
d.She sought help from police but because of corruption he easily escaped.
e.He will keep searching for her and take revenge if she returns to Malaysia, leaving her life in danger.
Before the Tribunal – at hearing
Before the Tribunal the applicant confirmed that she had no idea what claims had been made in her protection visa application. She said that she had been assisted by a ‘friend of a friend’ and she had not been actively involved in its preparation. I accept this evidence.
The applicant then made claims that I accept (for reasons I explain further under ‘Consideration of Claims and Evidence’) regarding her fear of harm in Malaysia on account of her first, and now divorced, ex-husband. She gave coherent and consistent evidence regarding a pattern of abuse from this ex-husband, named [Mr A], involving financial control, physical abuse, continuing threats via her children, and social media harassment which continued through posts on her children’s accounts even after she had blocked him and had taken steps to avoid public knowledge of her life.
She said that she feared that if she returned to Malaysia her ex-husband would intensify his past conduct towards her, that she wasn’t sure exactly what he would do, though she had been through ‘the worst of it’ with him already. She told that the Tribunal that her children had told her that he would do so and that he had recently asked her children provocatively ‘Does she think she can escape me?’. The applicant said that her ex-husband would also deliberately set out to destroy any business she attempted to establish, as well as to spread misinformation about her character within her local community. I discuss this evidence in more detail below where it is relevant under ‘Consideration of Claims and Evidence’.
In addition, the applicant gave evidence to the Tribunal (referred also to in documentary material provided to the Tribunal identified further below) regarding her mental health. She explained that she sees her general practitioner, who treats her, among other things, for mental health issues arising from her trauma in Malaysia. She said she had understood this person to be a psychologist (though the documentary evidence before the Tribunal indicates that this person is a General Practitioner – see, [Dr A] letter referred to below). She also gave evidence that she has consistently seen this person at least once a month in Australia for a significant period of time, sometimes seeing her weekly. The applicant expressly claimed that if she returned to Malaysia she would experience a serious deterioration in her mental health on account of the conduct of her ex-husband, for which she would not be able to receive treatment in Malaysia.
At the hearing, the first applicant also relied on evidence by a person the first applicant identifies as her aunt (who the first applicant explained is her mother’s cousin), [Aunt A]. The witness gave evidence regarding having observed the first applicant’s ex-husband speaking abusively to the first applicant while they were married, overhearing some violence, counselling the first applicant to seek a divorce and supporting her to begin the process, and counselling the first applicant ultimately to leave Malaysia in the context of intense harassment after her marriage to the second applicant.
Before the Tribunal – additional documentary material in support
The applicant also filed documentary evidence in support of her case, being:
a.A statement within the pre-hearing form completed by the applicant regarding her claims regarding her ex-husband and mental health.
b.A letter of support regarding her contribution to the community in [Suburb 1] by the Principal lawyer of a firm of solicitors dated 2 March 2024.
c.A letter from her treating practitioner of four years [Dr A] dated 2 March 2024 ([Dr A] letter).
d.Marriage certificate dated March 2017 identifying the first and second applicants as the married couple (marriage certificate).
e.A tax summary for [the first applicant] dated 1 March 2024.
f.A commercial lease schedule regarding premises in [Suburb 1] with a commencement date of 12 December 2023 and the lessee address at [a Suburb 2 address].
g.A letter in support provided in relation to the first and second applicants by the Directors of [Business 1] dated 20 June 2024.
h.A document titled ‘Written Statement submitted by [the first applicant] August 24, 2024’ in English, which the applicant explained at the Tribunal hearing she had been assisted to render in English by a Singaporean friend.
i.A copy of a commercial lease agreement in the first applicant’s name bearing the postal address for the applicant as [the Suburb 2 address].
Second applicant
Before the delegate
As identified above, the delegate determined the second applicant’s protection visa application on the basis of the written claims it contained relating to an interfaith relationship.
At the hearing, the applicant explained clearly that he had no knowledge of the claims made in his protection visa application and that these had been prepared by a friend of a friend. The applicant also expressly and repeatedly confirmed that the information it contained (in terms not just of the claims but also his residential history) were false (once the Tribunal told the applicant what the claims were). He explained that the claims raised regarding an interfaith relationship in Malaysia were untrue and he did not fear harm on this basis. I accept this evidence. I accept that the applicant was never in the claimed interfaith relationship, that he fears harm for this reason or that he is at any risk or chance of harm arising from it. I do not discuss these claims further in this decision.
Before the Tribunal
The applicant gave evidence before the Tribunal that he feared:
a.Ongoing attempts by the first applicant’s husband to destroy his shared life in Malaysia with his wife, the first applicant, by the first applicant’s ex-husband consistent with his past conduct. He explained that he expected that his wife would be the principal target of her ex-husband’s conduct but that the intention would be to harm them both and destroy their marriage.
b.That his wife’s health, especially her mental health, would be so diminished by her ex-husband’s conduct so long as they remained married, that their relationship would be undermined and that this would be the intention of the ex-husband.
The second applicant also raised concerns about stress and pressure on him from his ex-wife who he also had experienced what he called nastiness from including going to his relatives to ‘bad-mouth’ him.
He also reiterated that his greatest concern was for the first applicant because, if she returned, she would suffer significant abuse from her ex-husband, as she had in the past, and should not get access to all the treatment she had been able to access in Australia in terms of her mental health.
He also indicated to the Tribunal that he intended that the Tribunal should take into account material filed on the first applicant’s file in support of their overlapping claims in support of his. The Tribunal confirmed that it would do this.
I discuss both applicants’ evidence and claims in more detail where relevant below under ‘Consideration of Claims and Evidence’.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the refugee criteria, the complementary protection criteria, or are a member of the same family unit as a person who meets either criterion and holds a protection visa.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted with directions that:
(a) the first applicant satisfies s 36(2)(a); and
(b) the second applicant satisfies s 36(2)(a).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
No adverse inference under s 423A arises
I note at the outset that the applicants’ claims’ regarding their fears of harm from [Mr A], the first applicant’s ex-husband, were not raised before the primary decision-makers. This raises the prospect that s 423A of the Act may apply to require I draw an inference which is unfavourable to the credibility of these new claims and the supporting evidence, unless I am satisfied that there is a reasonable explanation for why the claim was not raised before the primary decision was made.
I do not consider the inference under s 423A arises. In circumstances where the applicants were not invited to an interview by the delegate, I am satisfied there is a reasonable explanation for why the claim and the evidence in support of it were not raised before the primary decisions were made. This is, in summary, that the applicants were both assisted to complete their protection visa applications by a friend of a friend who did not set out their claims in the application.
Findings of fact relevant to both applicants’ claims
I am satisfied of the following facts based on the applicants’ oral evidence and the documentary material before me:
Findings regarding the applicants and their relationship
The applicants were married in March 2017 in Malaysia. They are both Muslims. They remain in a committed relationship, run their business together in [Suburb 1], and share a home at [the Suburb 2 address], Victoria. Prior to this they lived together at an address in [Suburb 1].
Their evidence on these points was consistent and coherent and is supported by the marriage certificate. Further, the commercial lease agreement identifies the first applicant’s postal address as the [Suburb 2] address and the second applicant’s driver’s licence with an updated address sticker lists the same [Suburb 2] address.
The first applicant’s marriage and divorce involving [Mr A]
The first applicant was earlier married to [Mr A] in 1997.
Supported by her aunt (whose evidence the Tribunal accepts) the first applicant sought divorce in 2014, which led to a protracted period where she was required to attempt counselling and reconciliation because the first applicant’s ex-husband would not consent to the divorce. The first applicant attempted the counselling, but her ex-husband did not attend.
Ultimately a divorce was ordered in or about 2016 to 2017 (prior to her marriage to the second applicant). I accept the applicant’s oral evidence about this even though she was not certain of the exact date, and note that it was also corroborated by her witness who explained (consistently with the first applicant’s evidence) that she had supported the first applicant to seek to be ‘released from’ the marriage.
I also note that country information supports that this form of divorce is an option for women in Malaysia under Syariah law despite it being a course that is often prohibitively difficult and drawn out and preceded by a compulsory counselling process (which is again consistent with the applicant’s chronology).[1]
Past harm towards the first applicant from [Mr A]
[1] See, Nora Abdul Hak, Roslina Che Soh, Norliha Ibrahim and Manawee Niringjuerae, ‘Right of Women to Obtain Divorce under Shari’ah and Islamic Family Law of Malaysia: With special reference to Ta’liq and Khulu’, Australian Journal of Basic and Applied Sciences (2012) 6(11) 286-293, 289-292 (Right of Women to Obtain Divorce).
The first applicant initially lived for about a year in [Country 1] with her first husband [Mr A] (now her ex-husband) after their marriage. In this time, she did not work. Her husband was not a Malaysian citizen at this time.
After about a year and following the birth of their first child, they returned to Malaysia and resided with the first applicant’s mother in Melaka. The first applicant listed her first husband as a co-owner of a business she established, despite it being only her who ran it. This was to assist the first husband to obtain Malaysian citizenship, which he sought. The business was successful. The first husband also then obtained Malaysian citizenship.
From about the time that the first applicant returned to Malaysia from [Country 1] her first husband became increasingly abusive and controlling, including financially controlling, verbally abusive, physically abusive and then persistently stalking the applicant online once they were separated including after she had blocked him and taken steps available to her to avoid his contact. This included:
a.Not working in Malaysia for large periods of time and requiring the first applicant to earn income to support the household.
b.Requiring the first applicant to provide him with money at any time and punching her in the face if she refused.
c.Frequently becoming violent and hitting her in the face with sufficient force that she was visibly bruised in the aftermath if she did or said something he did not like. This was particularly the case when the applicant did something that her husband did not agree with or that irritated him.
d.Punching her in the face while the first applicant was driving a car (the husband did not drive), after which the applicant screamed (in the context of not being able to handle the abuse any longer) that she would drive the car into a tree (though the applicant said she did not do this because she thought of her children).
e.Beating her after she clicked open a screen on his computer and witnessed information that indicated that he was likely having sex outside the marriage.
f.Repeatedly berating her and belittling her by repeatedly denigrating her appearance with reference to her weight. This included references to nobody else wanting the applicant and her being worthless.
g.Belittling her and berating her especially in relation to her appearance online through Facebook after she was divorced from him and had re-partnered with the second applicant. This included, after she had blocked him and taken steps available to her to restrict his access to her online, posting pictures of hotdogs onto the pages of their children (to whom the applicant remained Facebook friends) and tagging the first applicant in these images (so that she and everyone else would see them and understand them to be insulting references to her weight).
h.Continuing to keep track of the applicants’ whereabouts and business in Australia.
i.In the context of learning that the applicants were happy and had established a business, telling the first applicant’s children that he would find the applicants and destroy the applicants’ life and business if they returned to Malaysia. In this context, the applicant’s first husband said to his children ‘Does she think she can escape me?’.

In relation to the continued threats to the applicants and online harassment since the divorce and the applicants’ marriage, I also accept, as the applicants told the Tribunal, that the first applicant’s husband’s motivations for this continued abuse (and threats of future harm) is to harm the first applicant and the second applicant by ‘destroying’ the first applicant’s life and their marriage (and in doing so, to cause both applicants harm). It is also consistent with the evidence of the witness who told the Tribunal she encouraged the applicants to leave Malaysia to avoid harm from [Mr A].
The first applicant’s mental health history
I also accept that the first applicant continues to experience, as her long-term treating clinician confirmed in the [Dr A] letter, mental health issues arising from the trauma of her past relationship with her first husband, and the uncertainty around being removed back to Malaysia where she expects she will encounter the same harm again. The Tribunal treated this evidence as relevant to the substantive issues in the review, but also to the conduct of the review.
I note that the [Dr A] letter was also broadly consistent with the first applicant’s own evidence before the Tribunal about her emotional reactions and fear responses when small moments trigger her; and the way she has successfully embraced her work and her many community endeavours in Australia (including working with victim/survivors of family violence) as a way of ‘keeping busy’ and on working on recovering.
The second applicant also gave consistent evidence of the continued imprint that the first applicant’s past trauma and fear of harm in the future has on her life. It is also consistent with earlier responses by the first applicant to in the Tribunal pre-hearing form, and the August 2024 statement.
Conduct of [Mr A] if the applicants returned to Malaysia now or in the reasonably foreseeable future
In relation to future harm arising from the first applicant’s first husband, I make the following findings:
a.If the applicants returned to Malaysia now or in the reasonably foreseeable future, the first applicant’s husband would become aware of it. This is highly likely given the continued contact between the first applicant’s [children] and the applicant’s first husband, and the persistent, continuing, and successful attempts by the applicant’s first husband to monitor the first applicant’s life including online. This is already evidenced, for example by the first applicant’s first husband telling the first applicant’s children that he knew that the applicants had a successful life and business in Australia now but that if they returned to Malaysia he would destroy any business they set up and their lives.
b.If the applicants returned to Malaysia, the conduct of the first applicant’s first husband would intensify from its current level. I consider this to be the case because of the increased potential proximity of the applicants with [Mr A], combined with the reality that the first applicant has recently taken the advice of her treating Doctor and begun posting happy photos of her and husband online to share with her community as part of her recovery from the symptoms of the previous abuse. Even if this posting ceased on return to Malaysia (as I find it would, consistent with the applicants’ previous behaviour), I consider the past posts would have had this effect.
c.Regardless of where the applicants were to reside in Malaysia, the first applicant’s first husband would harass the first applicant online despite the applicants taking steps to block these approaches.
d.The first applicant’s husband would also seek to threaten and harm the applicants by setting out to fundamentally damage any business reputation the applicants sought to rebuild in Malaysia, which (as the first applicant explained) she considered (and I also consider) will be identifiable to [Mr A] because of the necessity of an online business presence for any of the work she is trained to complete ([in specified occupations or businesses]).
e.In the context of the conduct referred to above and the very limited mental health treatments available to the applicant in Malaysia, the first applicant would suffer a serious deterioration in her mental health, significantly escalating her pre-existing trauma-related symptoms and causing her escalating mental distress. This is generally supported by the evidence of her treating health practitioner. I accept that that there is a real risk that her previous suicidal thoughts, which she raised with the Tribunal at hearing, would also return.
f.There is a significant risk (greater than a real chance) that the applicant would not be able get mental health treatment that she required to manage her mental health issues in Malaysia. Country information makes clear that as the first applicant’s condition deteriorates, she would encounter what DFAT reports is a ‘notable gap in Malaysia’s otherwise strong healthcare system’.[2] Relevantly:
i.In-country sources reported that mental healthcare was hard to access, expensive and ‘only for the privileged’[3], which I do not consider either applicant to be in the context of their return to Malaysia and past employment and life history in Malaysia and Australia.
ii.There is significant stigma attached to mental health issues in Malaysia,[4] including use of the term ‘gila monster’ often to describe people with mental illness. I accept, as the first applicant raised with the Tribunal, that as her condition deteriorated her first husband would capitalise on this stigma as a further method to belittle her and diminish her reputation in her own community, and any employment.
iii.The majority of the Malay and Indian populations in Malaysia believe that mental health problems derive from spirit possession or social punishment’.[5]
[2] DFAT Country Information Report – Malaysia, 24 June 2024, [2.14].
[3] Ibid.
[4] Ibid. See also, Munawar, K., et al, Mental health literacy: a systemic review of knowledge and beliefs about mental disorders in Malaysia, March 2022, Asia Pacific Psychiatry, which reports that ‘most Malaysians have stigmatizing attitudes towards mental health problems’. See further, Lin, L., ‘Bridging Barriers: a report on improving Access to Mental Healthcare in Malaysia, Penang Institute, 2 January 2018.
[5] 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.
I also cannot discount the real chance that given the persistent efforts of her first husband and ongoing threats to ‘destroy’ her life in Malaysia if she returned, that [Mr A] may physically locate the applicants (through the first applicant’s children or by persistent online searches, consistent with his past behaviour) with the intention of being physically violent to the applicants. And, that there is a real chance that the applicants would face serious physical harm on account of violence from [Mr A] when they were located.
In making this finding regarding the real chance of serious physical harm to the applicants from [Mr A], I have reflected on the fact that after the applicant re-married, the applicants did not experience further physical violence (though the online abuse continued and prior to this there was a very consistent pattern of violence and control by [Mr A] toward the first applicant).
I have also taken into account that [Mr A]: has now remained aggressive towards the applicants for over 6 years since the applicants’ marriage including through the first applicant’s adult children and online; and that the harassment has continued despite the physical distance between them and the passage of many years since the first applicant re-married, and even since the time of the divorce. Further, I am cognisant that the applicants (on advice of the first applicant’s doctor) have taken a recent, new, approach of posting positive updates about their recent lives in contrast to their past approach in Malaysia which attempted to minimise their exposure to harm from [Mr A].[6] I am also aware that the applicants did not reside in Malaysia for a long period of time after they were married before leaving for Australia and that since the applicants have been in Australia [Mr A] has threatened the first applicant including by provocatively asking their shared children, ‘Does she think she can escape me?’.
[6] As already discussed above, even if this new approach and increased public posts ceased when the applicants returned to Malaysia I consider this past conduct is important in itself to the applicants’ risk profiles and chance of harm from [Mr A] in Malaysia.
In all of the circumstances, I am satisfied there is (at least) a real chance that that [Mr A] will seek to be, and will be, physically violent to the applicants causing them serious physical injury and harm. I discuss the presentation of this further in relation to each applicant below.
Refugee Criteria analysis – first applicant
I accept that the first applicant meets the refugee criteria.
Real chance of serious harm
In assessing the applicant’s claims to fear harm in Malaysia, the Tribunal must consider the risk of harm to the applicant now or in the reasonably foreseeable future. This assessment is a forward-looking test.
I accept that there is a real chance of serious harm to the applicant in the form of serious physical violence from [Mr A] in Malaysia now or in the reasonably foreseeable future. As discussed above, I have formed this view after considering the totality of the first applicant’s experiences in Australia and Malaysia, the persistent and I expect intensified aggression [Mr A] will have towards the applicants when they become more proximate to him again in Malaysia, and in light of the recent proactive steps the applicants have made to share their lives online.
Given the enduring connection between the applicants and [Mr A] through the first applicant’s children, as well as the established pattern by [Mr A] of pursuing information about the first applicant online, I consider that the real chance of serious harm arises for the applicant across the whole of Malaysia. I consider that if the applicants returned to Malaysia there is a real chance that they would be found by [Mr A] wherever they lived in Malaysia, giving rise to the real chance of serious harm.
For the avoidance of doubt, I confirm I do not:
a.Consider the first applicant could reasonably modify her behaviour to avoid the harm, such that s 5J(3) may apply to mean the applicant does not have a well-founded fear of persecution. While it may sufficiently quell the long-standing aggression from [Mr A] for the applicants’ marriage to end entirely, the applicants cannot be required to do this. Such modifications to avoid the feared persecution would, in this case, I consider conflict with a characteristic that is fundamental to the applicants’ identity as married spouses who have re-built their lives together and are committed to each other. [7] Such a modification would also be unreasonable, in my view.
b.Consider that the applicants’ conduct in posting information about their successful lives and relationship in Australia triggers any issue under s 5J(6) of the Migration Act. I consider that these steps were taken, as the first applicant explained, on advice from her Doctor as part of her recovery from the effects of trauma from the abuse by [Mr A] towards her in Malaysia and online in both Malaysia and Australia.
[7] See s 5J(3) of the Act.
I also accept that there is a real chance the first applicant would experience very significant psychological distress affecting core aspects of her life, as well as provoking a return of the suicidal thoughts which the abuse and her illness had previously led to as a result of the likely conduct of her first husband towards her. Given my findings above that the first applicant faces a real chance of harm in the form of serious physical harm from [Mr A] across Malaysia it is not necessary in this case for me to determine whether the mental distress she will experience would also reach the level of serious harm.
Effective protection measures are not available to the first applicant in Malaysia
I do not consider that the first applicant could seek effective protection from State authorities in Malaysia. The country information before me supports the conclusion that effective protection measures would not be available to her.
As the 2024 DFAT Country Information report explains:[8]
[8] DFAT Country Information Report – Malaysia, 24 June 2023, 30-31.
a.Violence against women and girls is a significant, albeit underreported, problem. While surveys have indicated that the prevalence of reported intimate partner violence in Malaysia is relatively low (affecting 8 per cent of ever-partnered women, according to one 2013 study), experts believe the actual incidence is likely much higher, and that it is underreported due to it being a ‘sensitive topic’.
b.State protection for women and girls experiencing gender-based violence (GBV) is mixed. There are special police units that deal with child abuse and GBV; however, in-country sources told DFAT that these services were inadequate to meet demand. Women who approach police for help may not have access to a female officer. According to in-country sources, the families of women who have experienced GBV often placed pressure on them to drop the matter, either directly or through police officers dealing with the case.
c.According to in-country sources, police often failed to follow up on reports of GBV. It was not uncommon for a woman who has experienced GBV to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process. In-country sources said specialist GBV investigative units (Branch D11 of the RMP’s Criminal Investigation Department) tended to respond to GBV more sensitively and effectively than regular front-line police officers.
d.A requirement to deal with the closest police station to the incident can make it difficult for women who experience GBV to relocate.
e.Amendments to the Domestic Violence (Amendment) Act (2017) strengthened protections for individuals who experience domestic violence and expanded the definition of domestic violence to protect: spouses, former spouses, children, family members, ‘incapacitated adults’ who are living as members of the family, and de facto spouses (couples without a registered marriage who have gone through a religious or customary marriage ceremony). Nevertheless, the Domestic Violence (Amendment) Act does not cover domestic violence between unmarried couples, nor does it include rape within marriage in its definition of domestic violence.
f.The amendments to the Domestic Violence (Amendment) Act also introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week to prevent a perpetrator from entering a safe location. An EPO can also be used to remove an offender from the house where the victim lives. In-country sources told DFAT that EPOs were difficult to obtain and required strong evidence of violence or damage to property. Police reportedly do not always enforce EPOs.
g.In 1996, the government introduced One Stop Crisis Centres (OSCCs) in the emergency departments of Malaysian hospitals, which aim to provide a centralised one-stop facility to women who experience GBV. The Women’s Aid Organisation reported in 2019 that there were OSCC services in 102 government hospitals nationwide, with the number of clients who access each OSCC varying from fewer than 10 to over 500 a year. In-country sources told DFAT that OSCCs were primarily used in city centres.
h.A few dozen government women’s shelters operate throughout Malaysia, as well as several operated by NGOs. Shelter conditions vary. Some are also used to house other vulnerable groups, such as the elderly. Shelters may restrict access to movement and employment of inhabitants. Women can sometimes access protection in hospitals without speaking to a police officer, for example by making a report while receiving treatment for injuries.
i.DFAT assesses that women and girls in Malaysia face a moderate risk of GBV in the form of domestic violence, and in the case of Muslim girls, also face a high risk of GBV in the form of FGM/C. State protection is available but often inadequate or ineffective in practice. Family, economic, and societal pressures often act as barriers to leaving abusive relationships.
The picture in the DFAT report is confirmed by other State assessments as well as NGO’s working with women in Malaysia. In 2022, the US Department of State stated 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.’[9] In a December 2021 report, the Malaysian Women’s Aid Organisation (WAO) reported in this context that ‘[b]arriers in accessing justice often arise because the police fail to take serious action or conduct a proper investigation.’[10]
[9] US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia (20 March 2023).
[10] Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 104.
I am cognisant that reasonable effectiveness does not require a guarantee of safety. However, the material before me indicates a pattern of state unresponsiveness to gender-based violence despite the existence of a legislative framework designed to punish such offending including recognising that this violence can and does continue to arise between former spouses (as in this case). Malaysian authorities turn away victim-survivors of domestic violence and/or take no action on their complaints and as such are unable to effectively respond to domestic violence complaints.[11]
[11] ‘Reasonable effectiveness’ in relation to the police in this context requires that the police respond to a complaint within a reasonable time: Department of Home Affairs, Policy: Refugee and Humanitarian – Refugee Law Guidelines (re-issued 27 November 2022), 3.14.4.3.
Considering this country information and the first applicant’s own long-running experiences of being subject to violence from her first husband, I find that there will not be available to the applicant effective protection measures in Malaysia.
The serious harm is for one of the reasons under s 5J(1)(a)
I have already accepted that the first applicant would be and has been a victim survivor of family violence.[12] Domestic and family violence is rooted in beliefs that men are entitled to use violence to enforce gender roles and to prevent or punish behaviour which does not conform to societal gender norms.[13] These social norms and the context of gender inequality in the relevant society as well as the dynamics of family violence are relevant to assessments of both the forward-looking risk of suffering domestic and family violence in the future and the reasons for that violence.
[12] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[13] CEDAW Committee, General Recommendation No 35 on Gender-Based Violence against Women, Updating General Recommendation No 19, UN Doc CEDAW/C/GC/35 (26 July 2017) 7 [19].
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).

In this case, I consider that the reason the first applicant fears harm from her first husband ([Mr A]) is for the reason of her gender. At the individual level, it underwrites and compels, relevantly, the violence that was inflicted when she questioned or resisted her first husband’s assertions that he should control the proceeds of the business, access and spend as he wished the money earned by the first applicant, as well as the past and threatened violent and retributive conduct towards the first applicant following her attempts to raise issues about fidelity in their marriage, his conduct towards her, and her eventual choices to divorce him and remarry contrary to his wishes and perceived right.
Stepping back, domestic and family violence is widely acknowledged to disproportionately affect women and girls.[14] High rates of gender-based violence are found where women are accorded less value and access to power than men. Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independence in public and private life and social attitudes condoning violence against women.[15]
[14] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[15] Our Watch, Change the Story: A Shared Framework for the Primary Prevention of Violence against Women in Australia (2^nd ed, 2021), 36.
Country information, already referred to above, indicates that ‘violence against women and girls is a significant…problem’ in Malaysia.[16] The Malaysian legal framework has been assessed last of 18 countries in the East Asia and Pacific Region, ‘in terms of the number of differences in the law’s treatment of men and women’.[17] Entrenched patriarchal attitudes and roles for women and men contribute to the disadvantaged position of women in Malaysia.[18] Child bearing and care remain principal reasons for the low participation rate of women in the workforce[19] and where women work outside the home they earn 77 per cent of what men earn for similar work.[20] In 2023, it was reported that only around 13 per cent of parliamentarians were women.[21]
[16] DFAT Country Information Report – Malaysia, 24 June 2024, 30; See also US Department of State, 2022 Country Reports on Human Rights Practices: Malaysia (20 March 2023).
[17] World Bank Group, Breaking Barriers: Toward Better Economic Opportunities for Women in Malaysia, September 2019, 63-64.
[18] CEDAW Committee, Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia, UN Doc CEDAW/C/MYS/CP/3-5 (14 March 2018) [19]; United Nations, Malaysia: UN experts denounce gender-discriminatory citizenship law, 5 September 2022.
[19] Ibid, [3.121].
[20] Ibid, [3.120].
[21] CSIS, Malaysia’s Backwaters: Women and children’s rights, 28 April 2023.
Views about the role and place of women in the home and the justifiable use of violence against women appear at times to be sanctioned. Malaysian government rhetoric and policies such as dress codes and other modesty policies[22] reinforce traditional roles and make women vulnerable to gender-based violence. For example, in response to increasing rates of divorce, a government official stated publicly that women ‘should fulfil their “true functions as wife and mother”’.[23] During the height of the COVID-19 pandemic the government responded to increasing rates of domestic violence with advice that women should refrain from nagging their husbands, ‘giggle coyly’ and wear make-up at home.[24]
[22] Women’s Aid Organisation and Joint Action Group for Gender Equality, The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia (2019) 147-148.
[23] Ibid, 160.
[24] 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)
A recent survey of societal attitudes to violence against women in Malaysia demonstrated a high level of social condonation of domestic and family violence.[25] Half the survey respondents endorsed beliefs that domestic violence was a normal outcome of stress, anger or jealousy.[26] Significantly, over a third of those surveyed endorsed the view that men should control familial relationships and be the head of the family.[27] A third of respondents also believed men to be more capable and trustworthy leaders in the political sphere.[28]
[25] Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence against Women (2021) 37.
[26] Ibid, 39-40.
[27] Ibid, 52.
[28] Ibid, 51.
For these reasons the Tribunal accepts that the essential and significant reason for the harm the first applicant fears from her first husband is her gender and membership of the particular social group of ‘women’. This group is defined by a shared innate or immutable characteristic[29]– gender – which is not a shared fear of persecution.[30] As such, the Tribunal finds that the first applicant fears harm for a s 5J(1)(a) reason.
Systemic and discriminatory conduct
[29] Section 5L(c)(i) of the Act. Gender has long been recognised as an innate characteristic, see UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2002), [30]. For recent acknowledgement in Australia, see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 178 at [1220].
[30] Section 5L(d) of the Act.
In light of the nature of the family violence and its context in Malaysia (already discussed above), I find that the harm in question here arises from systematic and discriminatory conduct.
For the above reasons, the Tribunal therefore finds that the first applicant meets the refugee criteria.
Refugee Criteria analysis – second applicant
I have considered to the second applicant’s claims to fear harm from the conduct of the first applicant’s husband.
Real chance of serious harm
I accept that there is a real chance of serious physical violence from [Mr A] towards the second applicant. For reasons already explained above, I consider there is a real chance that [Mr A] will successfully seek out the applicants in Malaysia.
I consider there is a real chance that [Mr A] will be physically violent to the applicants if he locates them. While it may be that the first applicant is the greater subject of [Mr A’s] animosity and would be the primary target for future harm and have a greater chance of serious harm, the applicants’ evidence was that [Mr A] seeks to destroy both their joint lives and is activated in his ongoing threats by their marriage. I accept this is the case. I further consider that there is at least a real chance that if [Mr A] located the first applicant the second applicant would be there and would also be subject to serious physical violence himself by [Mr A].
As discussed above, I have formed this view after considering the totality of the applicants’ experiences, the persistent and I expect intensified aggression [Mr A] will have towards the applicants when they become more proximate to him again, and in light of the recent proactive steps the applicants have made to share their lives more publicly, as well as the recent threats made by [Mr A] about the first applicant ‘not escaping him’.
For the avoidance of doubt, I confirm I do not:
a.Consider the second applicant could reasonably modify his behaviour to avoid the harm, such that s 5J(3) may apply to mean the applicant does not have a well-founded fear of persecution. While it may sufficiently quell the long-standing aggression from [Mr A] for the applicants’ marriage to end entirely, the applicants cannot be required to do this. Such modifications to avoid the feared persecution would, in this case, I consider conflict with a characteristic that is fundamental to the applicants’ identity as married spouses who have re-built their lives together and are committed to each other.[31] Such a modification would also be unreasonable, in my view.
b.Consider that the applicants’ conduct in posting information about their successful lives and relationship in Australia triggers any issue under s 5J(6) of the Migration Act. I consider that these steps were taken, as the first applicant explained, on advice from her Doctor as part of her recovery from the effects of trauma from the abuse by [Mr A] towards her in Malaysia and online in both Malaysia and Australia.
The serious harm is for one of the reasons under s 5J(1)(a)
[31] See s 5J(3) of the Act.
In the case of the second applicant, I accept that the real chance of serious harm is for the essential and significant reason of his membership of a particular social group, specifically as a member of the family of the first applicant. Given the first applicant fears harm for a s 5J(1)(a) reason, as set out above, the qualification in s 5K of the Act does not apply here.[32]
Effective protection measures are not available to the second applicant in Malaysia
For the reasons already set out above, I do not consider that effective protection measures are available to the second applicant in Malaysia in relation to the aggression of the first applicant’s ex-husband. The events which give rise to the real chance of serious harm to the second applicant have already been analysed above in relation to the first applicant and I consider the same analysis applies here.
Systemic and discriminatory conduct
[32] Section 5K provides that in assessing whether membership in a family constitutes a particular social group the Tribunal must disregard any fear of persecution or any persecution that any other member of the family has experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a).
In light of the nature of the family violence and its context in Malaysia (already discussed above), I find that the harm in question here arises from systematic and discriminatory conduct.
For the above reasons, the Tribunal therefore finds that the second applicant meets the refugee criteria.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with directions that the applicants satisfy s 36(2)(a) of the Migration Act.
Hollie Kerwin
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.
…

[2024] AATA 4085

24 September 2024

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