1906671 (Refugee)
[2024] ARTA 902
•19 December 2024
1906671 (REFUGEE) [2024] ARTA 902 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Ms Kedrin Li
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1906671
Tribunal:Senior Member Chelsea Lyford
Date:19 December 2024
Place:Perth
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies the refugee protection criterion in s 36(2)(a) of the Migration Act.
Statement made by Senior Member Chelsea Lyford on 19 December 2024 at 9:43am
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – re-conversion to Christianity – particular social group – people living with HIV/AIDS – single mother – access to HIV medical treatment – employment – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
DZADC v Minister for Immigration and Citizenship (No 2) [2012] FMCA 778
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
MIMAC v SZRHU (2013) 215 FCR 35
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
MZXKX v Minister for Immigration [2008] FMCA 567
MZZJO v Minister for Immigration and Border Protection, [2014] FCAFC 80
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125
SZSKC v Minister for Immigration and Border Protection [2014] FCCA 938
SZQZN v Minister for Immigration and Citizenship [2012] FMCA 939
SZRKY v Minister for Immigration and Citizenship [2013] FCA 352SZSTZ v Minister for Immigration and Border Protection [2015] FCAA 92
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
INTRODUCTION
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (Minister) on 22 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Migration Act).
2. For the following reasons, the Tribunal sets aside the decision under review and remits the matter for reconsideration, in accordance with the order that the applicant meets the refugee protection criteria in s 36(2)(a) of the Migration Act.
BACKGROUND
Procedural background
3. The applicant is [an age]-year-old female Malaysian national who was born in [specified year] in Sarawak, Malaysian Borneo.
4. [In] April 2018, the applicant (then [age] years old) arrived in Australia with a friend by plane using her Malaysian passport and as the holder of a UD-601 Electronic Travel Authority (visitor/holiday) visa.
5. On 26 June 2018, the applicant applied for a protection visa. The application was refused, and the applicant notified of the delegate’s decision, on 22 February 2019 (Refusal Decision).
6. The applicant holds a bridging visa, granted on 17 July 2018, resulting from her protection visa application (PVA).
7. On 20 March 2019, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the Refusal Decision.
8. The AAT was abolished on 14 October 2024 and replaced with the Administrative Review Tribunal (ART), established by the Administrative Review Tribunal Act 2024 (ART Act). The Refusal Decision automatically transferred from the AAT to the ART, for review, at the commencement of ART: Part 5 of Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
Protection visa application
9. A summary of the claims made by the applicant in her PVA, which was before the delegate, is as follows:
· She left Malaysia because she was unable to convert back to Christianity, her original religion. She was born a Christian and, [in] October 2012, made a “big mistake” by changing her religion from Christian to Muslim. She wants to return to her old religion, Christianity, but Malaysia won’t allow her;
· She attempted to change back to Christianity, but this was not allowed in Malaysia so she became stressed and depressed; and
· If she returns to Malaysia, she will be unable to change back to Christianity as Malaysia is a Muslim country: PVA at pp 29-31.
Delegate’s decision
10. The Department of Home Affairs did not invite the Applicant to attend an interview to provide further information about her PVA but, instead, proceeded to make the Refusal Decision on the PVA and other documents before the Department of Home Affairs.
11. On 22 February 2019, the delegate refused to grant the applicant a protection visa on the basis that there was no real chance the applicant would suffer serious harm (would be persecuted) if she returned to Malaysia and converted from Sunni Muslim back to Christianity.
12. A summary of the delegate’s findings in the Refusal Decision is as follows:
· The delegate was satisfied that the applicant fears persecution for reasons of her religion;
· The country information indicates that an individual wishing to convert from Sunni Islam must first obtain permission from a state Sharia court and permission is rarely granted. However, people who converted to Islam as minors or who can prove they were not originally Muslim may be able to revert to their initial religion;
· The applicant was not originally a Muslim. Based on the country information, the delegate was not satisfied that there was a real chance the applicant would be persecuted on return to Malaysia for converting from Sunni Islam to Christianity;
· The delegate was not satisfied that the applicant is a “refugee”, as defined in s 5H(1) of the Migration Act and was, it follows, not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act; and
· There is no real risk of the applicant will suffer significant harm as a necessary and foreseeable consequence of removal from Australia to Malaysia for any of the reasons claimed and for all the circumstances before the delegate relating to the applicant. Therefore, the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Migration Act.
Hearing on the papers
13. The applicant was invited to attend a hearing on Friday 22 November 2024.
14. On 15 November 2024, the applicant’s representative provided the Tribunal with Pre-hearing Submissions (39 pages) (Pre-hearing Submissions), with the following six Attachments:
(i) Statutory Declaration from the applicant, dated 15 November 2024 (Attachment 1);
(ii)Letter of Support from [Doctor A], Consultant Immunologist [at Hospital 1], dated 31 October 2024 (Attachment 2);
(iii)Letter of Support from specialist General Practitioner, [Doctor B], [Medical Centre 1], dated 4 November 2024 (Attachment 3);
(iv)Birth certificate of the applicant’s [daughter] (born in [year]) (Attachment 4);
(v)Birth certificate of the applicant’s [daughter] (born in [year]) (Attachment 5); and
(vi) Certificate of Conversion to Islam, dated [in] October 2012 (Attachment 6).
15. On 21 November 2024, the Tribunal advised the applicant’s representative that the hearing had been cancelled as it appeared to the Tribunal that the issues for determination in the proceeding could be “adequately determined” in the absence of the parties to the proceeding and that the other conditions in s 106(3) of the ART Act were satisfied (i.e. that the application could be heard “on the papers”): EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 at 59, 60, 66, 69 and 70.
16. On 21 November 2024 and on 26 November 2024, the Tribunal provided the applicant’s representative with a Request for Information, asking for a response to those requests on or before 29 November 2024. Following the grant of an extension of time in which to respond to the requests, on 3 December 2024, the applicant’s representative provided the Tribunal with a:
(i)Response to Request for Information, dated 3 December 2024 (Response to RFI); and
(ii)A Statutory Declaration from the applicant, dated 28 November 2024 (November 2024 Statutory Declaration).
Evidence
17. In making its decision “on the papers”, the Tribunal has considered the following evidence:
(i)the PVA and relevant supporting documents on the Department’s file that was before the delegate in making the Refusal Decision; and
(ii)the Pre-hearing Submissions, Attachments 1 to 6, the Response to RFI and the November 2024 Statutory Declaration.
18. Where relevant, the above evidence is referred to in the Tribunal’s analysis below.
ISSUES
19. The issues to be decided by the Tribunal are whether the applicant is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because:
(i)the applicant is a “refugee”, as defined in s 5H(1) of the Migration Act: s 36(2)(a) of the Migration Act; or, if not,
(ii)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 the non-citizen will suffer significant harm: s 36(2)(aa) of the Migration Act.
RELEVANT LAW
20. All relevant sections of the Migration Act are extracted in the Attachment to this decision.
Criteria for a protection visa
21. The criteria for a protection visa are set out in s 36 of the Migration Act. An applicant for a protection visa must meet one of the alternative criteria in s 36(2)(a), s 32(2)(aa), s 32(2)(b) or s 32(2)(c) of the Migration Act.
Receiving country
22. For both refugee protection claims (under s 36(2)(a) of the Migration Act) and complementary protection claims (under s 36(2)(aa) of the Migration Act), the first issue to be determined by the Tribunal is the applicant’s “receiving country”, as defined in s 5(1) of the Migration Act: Refugee Law Guidelines, reissued 27 November 2022 (RL Guidelines), at 3.3.
23. “Receiving country” is defined, in relation to a non-citizen to mean:
(i)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(ii)if the non-citizen has no country of nationality (i.e. is stateless), a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country: s 5(1) of the Migration Act.
Refugee criterion – s 36(2)(a) of the Migration Act
24. As stated above, the refugee criterion for protection in s 36(2)(a) of the Migration Act is that that the applicant for the protection visa is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the person is a “refugee”, as defined in s 5H(1) of the Migration Act.
Meaning of “refugee”
25. A person is a “refugee” (as defined in s 5H(1) of the Migration Act and for the purpose of the refugee protection criterion in s 36(2)(a) of the Migration Act) if:
(i)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) of the Migration Act; and
(ii)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) of the Migration Act.
26. It follows that the definition of “refugee”, in s 5H(1) of the Migration Act, requires that a person has a “well-founded fear of persecution”, as defined in s 5J of the Migration Act.
“Well-founded fear of persecution”
27. A person has a “well-founded fear of persecution” if:
(i)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion: s 5J(1)(a) of the Migration Act; and
(ii)there is a “real chance” that, if the person is returned to the receiving country, the person would be persecuted for one or more of the refugee protection reasons in s 5J(1)(a) of the Migration Act: s 5J(1)(b) of the Migration Act; and
(iii)the “real chance” of persecution relates to all areas of a receiving country: s 5J(1)(c) of the Migration Act.
28. “Well-founded fear of persecution”, as defined in s 5J of the Migration Act, comprises both a subjective (emotional) and objective basis: RL Guidelines at 3.4 and 3.10
29. In assessing whether an applicant has a “well-founded fear of persecution”, the Tribunal should assess whether the applicant, themselves, fears the persecution. This is because of the words in s 5J(1)(a) of the Migration Act, “the person fears being persecuted”, and in s 5J(4) of the Migration Act, “if a person fears persecution”, which implies that there is a subjective element to the “well-founded fear of persecution”: RL Guidelines at 3.10.1.
30. Whilst an applicant must hold a subjective fear of being persecuted, that subjective fear of persecution must be objectively “well-founded”: RL Guidelines at 3.10.
Meaning of “Real chance”
31. As stated above, under s 5J(1)(b) of the Migration Act the Tribunal must be satisfied that there is a “real chance” that, if returned to the receiving country, the applicant would be persecuted for one or more of the refugee protection reasons in s 5J(1)(a) of the Migration Act.
32. Section 5J(1)(b) of the Migration Act requires the Tribunal to first consider whether there is a “real chance” of persecution in the applicant’s “home region”, being where the applicant previously lived or other area to which the applicant had similar or substantial ties, before considering anywhere else in their receiving country: SZRKY v Minister for Immigration and Citizenship [2013] FCA 352 at [24], SZQZN v Minister for Immigration and Citizenship [2012] FMCA 939 at [49] and RL Guidelines at 3.12.
33. The notion of “real chance” of persecution involves a threshold of the likelihood of an event occurring in the future and that likelihood is one that is considered in relation to the applicant returning to the “receiving country”, as defined in s 5(1) of the Migration Act: RL Guidelines at 3.12.1.
34. “Real chance” is not defined in the Migration Act. However, in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (Chan) the High Court, in considering the phrase “real chance”, stated:
· A real chance discounts what is remote and insubstantial: Chan at [407];
· A real chance is one that is not remote, regardless of whether it is less or more than 50%: Chan at [397] - [398]; and
· An applicant may have a “well-founded fear” of persecution even though there is only a 10% chance that they will be persecuted, however a far-fetched possibility of persecution must be excluded: Chan at [429] and RL Guidelines at 3.12.1.
35. A “real chance” is, therefore, not a possibility that is far-fetched and is not measured by a set percentage. A superficial statistical analysis without regard to the circumstances of the applicant or circumstances of the case will be insufficient to draw a conclusion that there is no real chance of persecution: DZADQ v Minister for Immigration and Border Protection [2014] FCA 754 at [65] and RL Guidelines at 3.12.1.
36. That is, the “real chance” test is a forward-looking test which requires consideration of what may take place in the future, rather than what occurred in the past: DZADC v Minister for Immigration and Citizenship (No 2) [2012] FMCA 778 at [16]; SZSTZ v Minister for Immigration and Border Protection [2015] FCAA 92 and RL Guidelines at 3.12.2. This involves a “degree of speculation and weighing of reasonable possibilities”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at [18] and RL Guidelines at 3.12.2.
37. The High Court has said that while the future is not predictable, the degree of probability that an event will occur is often assessable: Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and RL Guidelines at 3.12.2. The assessment could be based on:
· past events and analysis of the conditions in which those events occurred;
· the likelihood of the introduction of new events that may decrease the likelihood of the past event occurring again; and
· an estimation of what event will give rise to the likelihood or not of an event recurring (this can be achieved through country information analysis): Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and RL Guidelines at 3.12.2.
38. If a person fears persecution for one or more of the five refugee protection reasons, in s 5J(1)(a) of the Migration Act;
(i)that reasons or those reasons must be the essential and significant reason for the persecution: s 5J(4)(a) of the Migration Act: see RL Guidelines at 3.10.2; and
(ii)the persecution must involve “serious harm” (within the meaning of s 5J(5) of the Migration Act) to the person: s 5J(4)(b) of the Migration Act; and
(iii)the persecution must involve systematic and discriminatory conduct: s 5J(4)(c) of the Migration Act.
Examples of “serious harm”
39. Examples of what constitute “serious harm” are set out in s 5J(5) of the Migration Act as follows:
· a threat to the person’s life or liberty;
· significant physical harassment of the person;
· significant physical ill-treatment of the person;
· significant economic hardship that threatens the person’s capacity to subsist
· denial of access to basic services, where denial threatens the persons’ capacity to subsist; or
· denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist: see RL Guidelines at 3.11.
Qualifications to “well-founded fear of persecution”
40. If the Tribunal determines that an applicant has a “well-founded fear of persecution”, it must nevertheless consider the following three qualifications before concluding they are a “refugee” under s 5H(1) of the Migration Act:
(i)whether the “real chance” of persecution relates to all areas of the receiving country: s 5J(1)(c) of the Migration Act (If “no”, the person does not have a “well-founded fear of persecution”);
(ii)whether “effective protection measures” (as defined in s 5LA of the Migrations Act) are available to the applicant in the receiving country: s 5J(2) of the Migration Act (If “yes”, the person does not have a “well-founded fear of persecution”); and
(iii)whether the applicant could take reasonable steps to modify their behaviour to avoid a real chance of persecution in the receiving country, other than certain modifications: s 5J(3) of the Migration Act (If “yes”, the person does not have a “well-founded fear of persecution”).
Complementary protection criterion – s 36(2)(aa) of the Migration Act
41. If an applicant is found not to meet the refugee protection criterion in s 36(2)(a) of the Migration Act, they may nevertheless meet the criteria for the grant of the visa on complementary protection grounds, in s 36(2)(aa) of the Migration Act, if they are a non-citizen in Australia in respect of whom the Tribunal is satisfied that Australia has protection obligations because the Tribunal has 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 the non-citizen will suffer “significant harm”.
42. Once the “receiving country” (as defined in s 5(1) of the Migration Act) of a non-citizen is determined, the following three elements, in s 36(2)(aa) of the Migration Act, must be met for an applicant to be entitled to complementary protection:
(i) the Tribunal has substantial grounds for believing that;
(ii)as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country; and
(iii)there is a “real risk” the non-citizen will suffer “significant harm”: s 36(2)(aa) of the Migration Act.
Substantial grounds for believing
43. “Substantial grounds for believing” is not defined in the Migration Act. Factors relevant to determining whether there are substantial grounds for believing an applicant would be at a real risk (as a necessary and foreseeable consequence of removal) of suffering significant harm, if removed from Australia to the receiving country, may include:
· any evidence of past significant harm, or past activities giving rise to significant harm, including activities in Australia or third countries (i.e. countries other than the receiving country);
· any evidence of intention to target the applicant by the receiving country (for example, the issuing of arrent warrants);
· the laws and practices of the receiving country; or
· the pattern and conduct shown by the receiving country in similar cases: Department of Home Affair’s Complementary Protection Guidelines (CP Guidelines) at 3.5.5.
44. Also relevant to the determination of whether there are substantial grounds for believing that an applicant faces significant harm on return to the receiving country will be the assessment of the applicant’s credibility: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [31] and CP Guidelines at 3.5.5.
Necessary and foreseeable consequence
45. “Necessary and foreseeable consequence” is not defined in the Migration Act. However it has been held that this phrase requires the Tribunal to be satisfied of a “real”, as opposed to speculative, casual, or temporal link between the applicant’s removal from Australia and the likelihood or possibility of their facing a “real risk” of being subjected to significant harm. Significantly, the “necessary and foreseeable consequence” attaches to the “risk” of harm on return (rather than to harm itself): SZSKC v Minister for Immigration and Border Protection [2014] FCCA 938 at [71], CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60] and Minister for Immigration and Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and CP Guidelines at 3.5.6.
“Real risk”
46. The “real risk” test for complementary protection applies the same standard as the “real chance” test applicable to the assessment of “well-founded fear” for the purposes of “refugee” claims: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 (SZQRB) [246] (Lander and Gordon JJ) [296] (Besanko and Jagot JJ) and [342] (Flick J). Where claims overlap, the Tribunal may refer to and rely on its relevant findings on the refugee criterion (in s 36(2)(a) of the Migration Act) when assessing the complementary protection criterion (in s 36(2)(aa) of the Migration Act): DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities cited therein.
“Significant harm”
47. An applicant will suffer “significant harm” in the circumstances set out in s 36(2A) of the Migration Act. An applicant will only meet the complementary protection criteria if there are substantial grounds for believing they face a “real risk” (i.e. “real chance”) of one or more of the following types of “significant harm” if returned to the receiving country:
(i) they will be arbitrarily deprived of their life: s 36(2A)(a) of the Migration Act;
(ii) the death penalty will be carried out on them: s 36(2A)(b) of the Migration Act;
(iii) they will be subjected to torture: s 36(2A)(c) of the Migration Act;
(iv)they will be subjected to cruel or inhuman treatment or punishment: s 36(2A)(d) of the Migration Act; or
(v)they will be subjected to degrading treatment or punishment: s 36(2A)(e) of the Migration Act.
48. However, there is taken not to be a “real risk” (i.e. “real chance”) that an applicant will suffer significant harm in a country in the following circumstances set out in s 36(2B) of the Migration Act:
(i)where it would be reasonable for the applicant to relocate to an area where there would not be a real risk of significant harm: s 36(2B)(a) of the Migration Act;
(ii)where the applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm: s 36(2B)(b) of the Migration Act; and
(iii)where the risk is faced by population of the country generally and not by the applicant personally: s 36(2B)(c) of the Migration Act.
Mandatory considerations
49. In accordance with Ministerial Direction No.84, made under s 499 of the Migration Act, the Tribunal has taken account:
(i) the RL Guidelines and CP Guidelines prepared by the Department; and
(ii)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 this decision.
Applicant’s responsibility in relation to protection claims
50. It is the responsibility of the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations (however arising) and to provide sufficient evidence to establish the claim: s 5AAA(1) and (2) of the Migration Act.
51. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicant’s claim or establish, or assist in establishing, the claim: s 5AAA(4) of the Migration Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Personal background
Childhood in Malaysia
52. The applicant is [an age]-year-old Malaysian citizen who was born in [Town 1], Sarawak, Malaysian Borneo in [year]. She was born into a Christian, Iban Malaysian family. Her parents divorced when she was young. When she was 5 years old, the applicant’s mother moved to the city for work which led the applicant to live with her grandparents. When the applicant was about 12, she moved to live with her mother and her partner, who the applicant calls her “stepfather”, although they never formally married. She has [specified siblings]. The applicant claims that her stepfather was physically and emotionally abusive towards her and that she was occasionally beaten up badly by her stepfather. Her mother was not around much and placed most of her attention on her stepfather and [a sibling]. To avoid this situation, she would run away to visit her aunties. However, her mother would always find her. The longest time she had run away was for 14 days. She has limited contact with her family due to this prolonged mistreatment: Attachment 1and November 2024 Statutory Declaration.
53. The applicant left school at the age of [age]. She did not complete any further studies. She moved to Penang after school to work as neither her mother nor her biological father were willing to support her. Her parents had effectively abandoned her. She had faced significant trauma but did not have a support system. This led her to [self-harming]. She also thought about committing suicide. At one point, she was admitted to hospital after she had cut [herself] deeply. She was not provided any help even after this incident. As she became older, she began relying on drugs to help her cope with depression and thoughts of self-harm: Attachment 1 and November 2024 Statutory Declaration.
Conversion from Christianity to Islam in Malaysia and birth of first daughter in Malaysia
54. The applicant met her ex-partner, a Muslim man, in Penang and subsequently became pregnant. After the applicant told her ex-partner she was pregnant, he initially said he would marry her. On this basis, [in] October 2012, the applicant converted from Christianity to Islam and was given a new Islamic name. It was not her choice to convert from Christianity to Islam but to marry her ex-partner, a Muslim man, she was required by Malaysian law, which prohibits Muslim interfaith marriages, to convert from Christianity to Islam. Later, the applicant’s first ex-partner told her he would not marry her as he was not ready to be a father and asked her to abort the baby. The applicant went to hospital to have an abortion but was advised that it was very dangerous for her. When she told her ex-partner this, he yelled at and hit the applicant. She filed a police report about the incident. Later, the applicant’s ex-partner told her they were breaking up and changed his phone number and she was unable to contact him even through his friends. The applicant asked her ex-partner’s family for support but was physically abused by his father when she had approached him. Her ex-partner’s father hit her stomach when she was heavily pregnant. She feared for her life. She was depressed and tried to kill herself several times: Attachment 1 and November 2024 Statutory Declaration.
55. The applicant gave birth to her first daughter in Malaysia in [year]. She subsequently tried to contact her first daughter’s father (her ex-partner) but was unable to. To financially support herself and her first daughter, the applicant started working as [an occupation 1] and left her daughter in the care of a friend’s mother. She would stay in the provided [accommodation] when she was working and visit her first daughter whenever she had time- off. The applicant’s first daughter (now [age] years old) remains living in Malaysia with her friend’s family: Attachment 1 and November 2024 Statutory Declaration.
Arrival in Australia
56. As stated above, the applicant arrived in Australia as a tourist [in] April 2018 on a UD-601 Electronic Travel Authority with a friend. She decided to stay in Australia due to the mistreatment she suffered at the hands of her community in Malaysia as well as her family in Malaysia. On 26 June 2018, she logged her PVA. Before doing so, she communicated her intentions of staying in Australia to her first daughter in Malaysia and that she wanted eventually to bring her to Australia. The Refusal Decision was made on 22 February 2019 and the applicant applied to the AAT for review of the Refusal Decision on 20 March 2019: Attachment 1.
HIV Diagnosis in Australia
57. The applicant was diagnosed with HIV in June 2019 at [Hospital 1] when she fell sick with pneumonia and suffered further complications. The entire incident left her feeling even more hopeless and depressed. It was in this recovery period that she came to appreciate that if this occurred in Malaysia, she would likely have died. During her hospitalisation, she received no financial or emotional support from her Malaysian family or friends. The only emotional support provided to her was by Perth hospital staff and social workers. To this day, she has not disclosed her HIV status to her family or friends in Malaysia. In the five years since her initial HIV diagnosis, she has been on a regular regimen of Biktarvy, and regular monitoring by the Immunology Department at [Hospital 1] and [Doctor B] at the [Medical Centre 1]. This has successfully managed and stabilised her HIV condition: Attachment 1.
Birth of second daughter in Australia
58. The applicant had her second daughter in Australia in [year]. The father of the applicant’s second daughter is an Australian citizen so that her second daughter is also an Australian citizen. The applicant was never in a serious relationship with the father of her second daughter and has since lost contact with him. She has tried to call and email him, but he does not reply. However, the applicant has been receiving child support payments from him through Centrelink, which is the applicant’s main source of income: Attachment 1.
Past claims
59. As stated above, in the PVA which was before the delegate in making the Refusal Decision, the applicant claimed that she left Malaysia because she was unable to convert back from Islam to Christianity, her religion at birth. According to the applicant, she was born a Christian and, [in] October 2012, made a “big mistake” by changing her religion from Christian to Muslim. She attempted to change back to Christianity, whilst in Malaysia, but this was not allowed in Malaysia, because Malaysia is a Muslim country, so she became stressed and depressed and left Malaysia: PVA at pp 29-31.
60. The Tribunal accepts, based on the evidence before it, that the applicant was born a Christian and converted to Islam [in] October 2012: Attachment 1, November 2024 Statutory Declaration and Attachment 6.
61. The Department of Foreign Affairs and Trade “DFAT Country Information Report Malaysia”, dated 24 June 2024 (2024 DFAT Report), provides that formally leaving or converting from Islam (apostacy) is generally extremely difficult in Malaysia. Despite the guarantee of freedom of religion, under Article 11 of the Constitution, civil courts have ruled they have no power to intervene in apostacy cases under the jurisdiction of Malaysia’s syariah courts. Apostasy is a criminal offence punishable by a fine or prison term in certain states, but not in Sarawak where the applicant was born: 2024 DFAT Report at 3.55. However, there are two categories of Malaysians that “may” be able to convert from Islam, the second category being those who seek to convert to their original faith following a divorce or following conversion to Islam for marriage (legally required when a non-Muslim marries a Muslim). The right to revert was confirmed by the high court in 2016: 2024 DFAT Report at 3.59.
62. Further country information confirms that a non-Muslim who wishes to marry a Muslim person must convert to Islam before marriage can be recognised as legally valid. Muslims who wish to convert from Islam face severe obstacles. The legal process of conversion is unclear and, in practice, it is very difficult for Muslims to change their religion legally. In 1999 the High Court ruled that secular courts have no jurisdiction to hear application by Muslims to change religions. According to the ruling, the religious conversion of Muslims lies solely within the jurisdiction of Islamic courts. A Muslim who wants to convert to another religion must obtain an explicit permission from the syariah court. The syariah courts rarely grant such requests, except in cases where a person has lived his or her whole adult life as a person of a different religion, and only wants to change the official documents to reflect this fact. The Islamic interpretation of the situation is that only the Syariah courts can decide who is a Muslim and who is not. A person does not have such freedom, and so cannot have a say in the judgement given is a Syariah court. Government figures claim that sharia courts of Malaysia received 863 applications to leave Islam between 2000 and 2012 and only 168 people were granted permission to do so. As Malaysia is a federation, certain matters, such as religion, are handle by state governments. There is accordingly some divergence between different states in the treatment of converts from Islam. In Sarawak, where the applicant was born, there is currently no legal process by which to change one’s status from Muslim to another religion.[1]
[1] “Freedom of religion in Malaysia” ( Wikipedia. Retrieved 16 December 2024.
63. There is no evidence before the Tribunal of what steps (if any), legal or otherwise, were taken by the applicant, when she was living in Malaysia (before she came to Australia) to convert back to Christianity from Islam. Specifically, there is no evidence that the applicant applied to the syariah courts to convert back to Christianity (her religion at birth) from Islam while she was in Malaysia which, based on country information, is what she needed to do to officially make this conversion. Based on this lack of evidence, I do not accept the applicant’s claim that she attempted to change back to Christianity from Islam, whilst still living in Malaysia, and that “she was not allowed because Malaysia is a Muslim country”, as claimed. Indeed, in the November 2024 Statutory Declaration, the applicant essentially confirms this with the following statement:
19.At one point I decided to try to convert back to Christianity. I spoke to some people in the community who had converted to Islam for the purpose of getting married. I asked them if I could convert back to Christianity, but they told me it was impossible. They told me I need to learn the rules and follow them. They told me that if not, I would need to keep what I thought to myself and pretend to follow everything.
64. However, I do accept, based on her evidence, that the applicant felt she had “made a mistake” converting from Christianity to Islam and that this conversion to Islam made her stressed and depressed. I also accept, based on the evidence before the Tribunal, that the applicant converted from Christianity because she fell pregnant with a Muslim man’s child and thought that she must convert so that she could marry him (which marriage ultimately never occurred).
Future claims
65. The applicant claims that, if returned to Malaysia, there is a “real chance” she will suffer “serious harm” because of her membership of one of more of the following five “particular social groups” (as defined in s 5L of the Migration Act):
(i) People living with HIV in Malaysia;
(ii) Women living with HIV in Malaysia;
(iii) Single mothers in Malaysia;
(iv) Single mothers in Malaysia who have children out of wedlock; and/or
(v)Apostates in Malaysia: Pre-Hearing Submissions at pp 6 and 15, Attachment 1 and November 2024 Statutory Declaration.
66. As stated above (at [9]), in her PVA, which was before the delegate in making the Refusal Decision, the applicant claimed that if she returned to Australia, she would be unable to convert back to Christianity from Islam as Malaysia is a Muslim Country.
67. By email, dated 12 December 2024, the applicant’s representative confirmed, at the Tribunal’s request, that claim 65(v) above represents a further particularisation of the applicant’s original claim regarding religion in the PVA before the delegate in making the Refusal Decision) and that claims 65(i) to 65(iv) above represent new claims by the applicant.
68. Section 423A of the Migration Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made (i.e. the Refusal Decision), unless the Tribunal is satisfied that there is a “reasonable explanation” why that occurred.
69. In the PVA, which was before the delegate in making the Refusal Decision, the applicant did not raise her fear of being a person living with HIV in Malaysia or a woman living with HIV in Malaysia. The Tribunal accepts, based on the evidence before it, that the applicant did not raise these fears in the PVA before the delegate because the applicant was not diagnosed with HIV until June 2019, after the Refusal Decision was made on 22 February 2019 (i.e. that her HIV diagnosis occurred after the primary decision was made). Accordingly, the Tribunal accepts that there is a “reasonable explanation” why this occurred for the purpose of s 423A of the Migration Act.
70. Further, in the PVA which was before the delegate in making the Refusal Decision, the applicant did not raise her fear of being a single mother in Malaysia or a single mother in Malaysia who had children out of wedlock. As stated above, the applicant had two daughters out of wedlock. The applicant ‘s first daughter was born out of wedlock in Malaysia (to a Malaysian Muslim man) in [year]. The second daughter was born out of wedlock in Australia (to an Australian man) in [year]. The Tribunal accepts that the applicant did not raise these fears in relation to her second daughter in the PVA before the delegate because the applicant’s second daughter was not born until [year], being after the Refusal Decision was made on 22 February 2019 (i.e. the birth of the applicant’s second daughter occurred after the primary decision was made). Accordingly, the Tribunal accepts that there is a “reasonable explanation” why the applicant did not raise this fear before the Refusal Decision: s 423A of the Migration Act. However, there is no “reasonable explanation” why the applicant failed to raise her fears concerning her first daughter in the PVA before the delegate. Therefore, it is open to draw an inference unfavourable to the credibility of this claim. However, in circumstances where there is clear evidence before the Tribunal that the applicant’s first daughter was born out of wedlock in Malaysia in [year], before the Refusal Decision was made by the delegate on 22 February 2019 (i.e. before the primary decision was made), the Tribunal draws no such inference and accepts the applicant’s claim concerning her fears in relation to her first daughter.
71. Based on the evidence before it, the Tribunal, and the Tribunal accepts the following with respect to her claimed profile:
· she converted from Christianity (her religion at birth) to Islam in Penang, Malaysia [in] October 2012: Attachment 6;
· she had her first daughter with a Muslim man in Malaysia in [year] (before arriving in Australia): Attachment 4;
· her first daughter is a Malaysian citizen who was born Muslim: Attachments 1 and 4;
· she did not marry the father of her first daughter and, accordingly, her first daughter was born out of wedlock in Malaysia: Attachment 1 and November 2024 Statutory Declaration;
· she has had no relationship with, and has received no support from, the father of her first daughter since her first daughter’s birth in [year]: Attachment 1 and November 2024 Statutory Declaration;
· she was diagnosed with HIV at [Hospital 1], Australia in June 2019 (after arriving in Australia in April 2018): Attachments 1, 2 and 3;
· she had her second daughter with an Australian man in Australia in [year]: Attachment 5;
· her second daughter is an Australian citizen: Attachment 5;
· she has had no relationship with, and has received no support from, the father of her second daughter since her second daughter’s birth in [year]: Attachment 5; and
· she has renounced Islam and resumed practising Christianity since arriving in Australia in April 2018: Attachment 1 and November 2024 Statutory Declaration.
Membership of a “particular social group”
72. As stated above, the applicant claims that, if returned to Malaysia, there is a “real chance” suffer “serious harm” because of her membership of one of more of the following five “particular social groups” (as defined in s 5L of the Migration Act):
(i) People living with HIV in Malaysia;
(ii) Women living with HIV in Malaysia;
(iii) Single mothers in Malaysia;
(iv) Single mothers in Malaysia who have children out of wedlock; and/or
(v)Apostates in Malaysia: Pre-Hearing Submissions at pp 6 and 15, Attachment 1 and November 2024 Statutory Declaration.
73. A person is treated as a member of a “particular social group” (other than the person’s family) if:
(i)a characteristic is shared by each member of the group: s 5L(a) of the Migration Act; and
(ii)the person shares, or is perceived as sharing, the characteristic: s 5L(b) of the Migration Act; and
(iii) any of the following apply;
·the characteristic is an innate or immutable characteristic;
·the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
·the characteristic distinguishes the group from society: s 5L(c) of the Migration Act; and
(iv) The characteristic is not a fear of persecution: s 5L(d) of the Migration Act.[2]
[2] Department of Home Affairs, Refugee Law Guidelines, at 3.8 “Membership of a Particular Social Group”.
74. Based on the evidence before the Tribunal and relevant case law, I accept that if the applicant were returned to Malaysia (the “receiving country”) she would be a member of the following “particular social groups” (as defined in s 5L of the Migration Act) for the purpose of s 36(2)(a) of the Migration Act:
(i)People living with HIV in Malaysia: see MZXKX v Minister for Immigration [2008] FMCA 567, wherein the Federal Court held that being HIV positive constituted being a member of a “particular social group” (as defined in s 5L of the Migration Act and for the purpose of s 36(2)(a) of the Migration Act);
(ii)Women living with HIV in Malaysia: see 2024 decision of AAT case 2013219[3], wherein the AAT accepted (at [26]) that “women living with HIV in Malaysia” constitutes being a member of a “particular social group” (as defined in s 5L of the Migration Act and for the purpose of s 36(2)(a) of the Migration Act);
(iii)Single mothers in Malaysia: see 2023 decision of 1713767 (Refugee) [2023] AATA 1290 (18 March 2023), wherein the AAT accepted (at [72]) that single mothers in a particular country can constitute a member of a “particular social group” (as defined in s 5L of the Migration Act and for the purpose of s 36(2)(a) of the Migration Act);
(iv)Single mothers in Malaysia who have children out of wedlock: see 2022 decision of 1715817 (Refugee) [2022] AATA 965 (24 March 2022), wherein the AAT accepted (at [49] and [51]) that “single mothers who have children out of wedlock” is a “particular social group” (as defined in s 5L of the Migration Act and for the purpose of s 36(2)(a) of the Migration Act); and
(v)Apostates in Malaysia: see MZZJO v Minister for Immigration and Border Protection, [2014] FCAFC 80, wherein the Federal Court found that an apostate in Malaysia constitutes a member of a “particular social group” for refugee protection purposes.
[3] An unpublished AAT decision dated 22 July 2024.
People and/or woman living with HIV in Malaysia
75. As stated above, the applicant claims that, if returned to Malaysia, as a person and/or woman living with HIV, she will be unable to:
(i)access appropriate HIV medical treatment in Malaysia due to the discrimination against and stigma associated with people and/or woman living with HIV in Malaysia; and
(ii)find and maintain employment in Malaysia as a person and/or woman living with HIV in Malaysia: Pre-Hearing Submissions at pp 6 and 15, Attachment 1 and November 2024 Statutory Declaration.
76. The persecution (i.e. the “serios harm”) that the applicant fears, if returned to Malaysia as a person and/or woman with HIV, includes:
· significant physical harassment and ill-treatment;
· significant economic hardship which threatens her capacity to subsist;
· denial of access to basic service which threatens her capacity to subsist; and
· denial of capacity to earn a livelihood which threatens her capacity to subsist: Pre-Hearing Submissions at 15, Attachment 1 and November 2024 Statutory Declaration.
(i)Inability to access appropriate HIV medical treatment in Malaysia due to the discrimination against and stigma associated with people and/or women living with HIV in Malaysia
77. When the applicant was diagnosed with HIV in June 2019, she was severely ill with pneumonia and needed to be hospitalised. The applicant recounts (in Attachment 1) the circumstances of her HIV diagnosis, as follows:
59.When I was working on a [farm] as a picker and grower in June 2019, I felt very unwell, and I went to [Hospital 1] and was admitted into emergency.
60.I was in [Hospital 1] in ICU for one week and was diagnosed with Pneumonia. Once the hospital thought I was well enough and gave me medication to treat my Pneumonia, they discharged me.
61.When I was released, I still felt very unwell, like something else was wrong with me. I felt like my body was shutting down.
62.After two weeks of taking the medication, I became increasingly worse. My temperature went up. I felt very sick and I was rushed back to [Hospital 2]. When they ran other tests and treatments, the hospital diagnosed me with HIV.
63. I was diagnosed with HIV in 2019, at [Hospital 1].
64.When I was diagnosed with HIV, I was at the [[Hospital 1]] for one month. I thought I was going to die there as I couldn’t walk; I was vomiting all the time and could never keep my food down. I was very sick.
78. However, following consistent treatment, monitoring and support, the applicant’s HIV has been stabilised.
79. In his medical report (Attachment 2), [Doctor A] states:
[The applicant] was diagnosed with HIV in June 2019, during an 8-day hospital admission for pneumonia. This pneumonia was successfully treated in hospital and [the applicant] was commenced on Biktarvy, one tablet once daily, which is an appropriate standard of care treatment. [The applicant] has been consistent with her treatment throughout and remains in excellent health. Her most recent bloods show that she remains virally supressed and has normal immune function, with a CD4 count of 492 cells/μL. [The applicant] takes no other medications, has no other health conditions, does not drink alcohol, and does not smoke.
…
HIV-associated stigma and discrimination remains pervasive in Malaysia, even within healthcare settings. Without ongoing access to antiretroviral treatment, HIV infection leads to progressive immune deficiency, serious opportunistic infections and death. [The applicant] has expressed significant concern about her health and safety if she returns to Malaysia, stating she fears persecution due to her religion, her single motherhood and her HIV status. We therefore strongly support her application for a protection visa.
(emphasis added)
80. The applicant fears she will be unable to access sufficient HIV treatment if returned to Malaysia due to high levels of stigma and discrimination against people and/or women living with HIV in Malaysia. More specifically, the applicant fears that, if returned to Malaysia, she will be unable to discretely and safely access HIV treatment due to discrimination against people and/or women living with HIV in Malaysia. She also fears that healthcare staff will not keep her HIV status confidential, as it is common for the community to spread such information about people. She fears that when people find out about her HIV status, she will be further ostracised from a community in which she has already been shunned and isolated from due to her status as a single mother.
Country Information – Discrimination against and stigma associated with people living with HIV in Malaysia
81. UNAIDS estimated in 2023 that there are between 78,000-95,000 people living with HIV in Malaysia.[4] Of these, an estimated 15,000-19,000 are women (15 years and over) and an estimated 62,000-76,000 men (15 years and over).[5]
[4] UNAIDS UNAIDS data 2023 (aidsdatahub.org)
[5] Ibid.
82. UNAIDS estimated that there were 2,500 AIDS-related deaths in Malaysia in 2022.[6]
[6] Ibid.
83. Realistically, the current number of people with HIV in Malaysia is likely higher than the reported estimates. The Ministry of Health Global AIDS Monitoring Report 2022 stated that people are diagnosed in the later stages of HIV infection. The Malay Mail reported that:
In 2021, 68 per cent of infected patients with HIV were only diagnosed in the later stages due to lack of awareness and concomitantly screenings/testings.
Beyond issues with late-stage diagnosis, PLHIV-related concerns in Malaysia also include:
• Stigmatisation and discrimination – household, workplace and society
Lack of political will to stem disinformation and fear-mongering have resulted in PLHIV being discriminated and ostracised by family, the workplace and wider society. The welfare of the PLHIV community is also overlooked and neglected by politicians as policymakers.[7]
[7] HIV treatment in Malaysia ― are we there yet? ― Jason Loh and Jachintha Joyce | Malay Mail
84. The National Strategic Plan for Ending AIDS (2016-2030) shows the Malaysian Government intention to ‘halt and reverse the AIDS epidemic by 2030’ with targets including having 95% of people with HIV diagnosed, on ART and then 95% of the group of people on ART to have suppressed viral load.[8]
[8] HIV treatment in Malaysia ― are we there yet? ― Jason Loh and Jachintha Joyce | Malay Mail
85. These goals are far from the current situation. UNAIDS estimates that in 2023 only 55% of people with HIV in Malaysia are on treatment and only 48% of people with HIV in Malaysia have suppressed viral loads.[9]
[9] Ibid.
86. As reported in the Malay Mail,
….according to Deputy Director-General of Health (Public Health) Datuk Dr Norhayati Rusli, “[t]he decline in HIV cases and the increase in treatment coverage is still insufficient for the country to eliminate AIDS ... by 2030. Inequalities are the obstacle to this effort. Therefore, ... the availability, quality and suitability of services for HIV treatment, testing and prevention must be improved.’[10]
[10] HIV treatment in Malaysia ― are we there yet? ― Jason Loh and Jachintha Joyce | Malay Mail
Country Information – Barriers to accessing HIV medical treatment in Malaysia
87. As stated above (in [85]), UNAIDS estimates that only 55% of people diagnosed as HIV positive in Malaysia are receiving treatment.[11] AIDS Map reports that this number could be as low as 28% of people with HIV in Malaysia taking treatment.[12] There are many barriers for PLHIV to access HIV medical treatment in Malaysia. These barriers can relate to availability and standard of care provided and the willingness of health care professions to provide the required care. Other barriers include lack of awareness, fear of stigma and financial constraints.[13]
[11] UNAIDS UNAIDS data 2023 (aidsdatahub.org)
[12] AIDS Map, Half of Malaysian doctors admit to some discrimination against patients with HIV, 16 January 2019, available at:[13] HIV treatment in Malaysia ― are we there yet? ― Jason Loh and Jachintha Joyce | Malay Mail.
88. An AIDS map article on the low uptake of people with HIV in Malaysia taking HIV treatment concluded that stigma is ‘seen as a barrier to further uptake.’[14] The article reports that over half of physicians have intention to discriminate against patients with HIV.[15]
[14] Half of Malaysian doctors admit to some discrimination against patients with HIV | aidsmap.
[15] Ibid.
89. A 2021 study into stigmatizing attitudes expressed by health care providers and the effect on at-risk populations accessing HV screening and care highlights the lack of HIV experience and training and found a correlation knowledge and experience of HIV care and stigmatizing attitudes towards HIV (2021 Study). The 2021 Study found that:
…over half (54.1%) of the respondents had never provided care to HIV/AIDS patients…This study demonstrates that only 29.9% of respondents had undergone training in terms of courses or workshops on HIV/AIDS… Health care providers who have provided care to PLWHA demonstrated lower stigma scores compared to those who have never cared for this group of patients. Other studies have also demonstrated that health care providers who have had direct physical contact with PLWHA display lesser stigmatizing attitudes.
90. The 2021 Study highlights the lack of education and experience that health care providers have in dealing with HIV-related patients. This lack of education and experience is directly correlated to higher rates of stigmatisation amongst medical professionals. The 2021 Study concluded by stating that:
This study illustrates that lower levels of HIV/AIDS knowledge are associated with greater levels of stigmatizing attitudes toward PLWHA…The issue of stigmatizing attitudes toward PLWHA among primary health care providers must be addressed. This study finds that knowledge, profession, experiences with care of PLWHA, gender, and having relatives with HIV are significant predictors of stigmatizing attitudes toward PLWHA among primary health care providers.[16]
[16] Muhammad Munzir Sidi Omar et al, ‘Human immunodeficiency virus (HIV)/ acquired immunodeficiency syndrome (AIDS): knowledge, perception, and attitude among pharmacists in Kelantan, Malaysia’ (2021) 1(1) Journal of Pharmacy
91. A further study in 2021 study into the attitudes of pharmacists (Further 2021 Study) found:
Two-thirds of the respondents had negative (61.8%) and very negative attitudes (5.3%) towards PLWHA… Half of the respondents revealed that they were not willing to live with HIV/AIDS positive people in the same house (51.8%). Almost two-fifths of the respondents were not willing to take care of HIV/AIDS-positive patients (41.2%). About one-third of the respondents confessed that they did not feel comfortable working together with a colleague who is HIV-positive (31.2%).
(emphasis added)
92. The Further 2021 Study went on to conclude the following:
As majority of our respondents were Malays, and up to 68.2% of the Malays had negative attitude towards PLWHA, these negative attitudes may be associated with cultural-related conception.[17]
(emphasis added)
[17] Ibid.
93. A 2022 report into HIV related discrimination and stigmatising attitudes from primary care level trainee physicians found that even with HIV knowledge, they displayed stigmatising attitudes and discrimination against people living with HIV and the most common form of discrimination was breach of confidentiality (being 54.9%).[18]
Country Information – Cost of HIV medical treatment in Malaysia
[18] Chan et all, ‘Assessing knowledge, acts of discrimination, stigmatizing attitudes and its associated factors towards people living with HIV (PLHIV) among Family Medicine trainees in Malaysia’ (2022) 17 (3), Malays Fam Physician.
94. Country information indicates that the cost of obtaining medical treatment and medication for HIV in Malaysia is a further barrier to access. The Malaysian health care system is “two-tiered” with a public national health care scheme administered by the Ministry of Health and a private health sector.[19] Patients are still required to pay a fee to access the public health system.[20]
[19] 2024 DFAT Report
[20] 2024 DFAT Report
95. The Ministry of Health reported that most of the financing for the HIV response in Malaysia comes from domestic public funding and not international financing.[21]
[21] 20211130_MYS_country_report_2021.pdf (moh.gov.my).
96. The MySalam national health care scheme does not cover people in the first two stages of treatment of HIV, and only covers people with an AIDS defining illness or people who have an HIV infection due to a blood transfusion.[22]
[22] Malay Mail, 14 Feb 2023, HIV treatment in Malaysia ― are we there yet? ― Jason Loh and Jachintha Joyce | Malay Mail.
97. People living with HIV cannot be insured with health insurance coverage in Malaysia due to the discriminatory policies of insurance companies.[23]
[23] Malay Mail, 14 Feb 2023, HIV treatment in Malaysia ― are we there yet? ― Jason Loh and Jachintha Joyce | Malay Mail.
98. The Malaysian Consensus Guidelines on Antiretroviral Therapy 2022 published by the Ministry of Health Malaysia lists the ARV medications available in Malaysia.[24]
[24] (PDF) Malaysian Consensus Guidelines on Antiretrviral Therapy 2022 (researchgate.net).
99. Furthermore, there are very limited mental health services and a lack of mental health specialists in Malaysia.[25]
[25] 2024 DFAT Report
100. According to the 2024 DFAT Report:
The Ministry of Health’s 2018 National Health and Morbidity Survey found that just under one in three Malaysians aged 16 years and above were living with a mental health issue, but public mental health services remain limited. Due to a lack of mental health professionals, public services are generally provided by general practitioners and non-mental health specialists. Private mental health services can cost upwards of MYR300 (AUD95) per consultation. Because most private health insurance does not cover mental health services in Malaysia (as of July 2019, Malaysia AIA became the only such company to provide coverage), access can be cost prohibitive. There is also significant stigma attached to mental health issues in Malaysia. The word gila (crazy), or the term ‘gila monster’ is often used in society to describe people with a mental illness. A belief in supernatural spirituality can also compound mental health issues, and misdiagnosis of mental health issues reportedly occurs due to widespread reliance on spiritual healers and exorcisms.”[26]
(emphasis added)
[26] Ibid.
101. The Tribunal found in unpublished AAT decision 1823076 that “people living with HIV in Malaysia face discrimination and a lack of access of medication and treatment” and that the persecution involves systematic and discriminatory conduct:[27]
(ii)Inability to find and maintain employment in Malaysia as a person and/or woman living with HIV in Malaysia
[27] An unpublished AAT decision dated 26 March 2024.
102. The applicant also fears that she will be unable to find and maintain employment in Malaysia. The applicant fears that because she left school when she was [age] years old, and did not obtain further education or qualifications, she will be restricted in the job opportunities available to her is she is returned to Malaysia. Even for those jobs she may be able to obtain with her limited skillset, the applicant fears that most jobs in Malaysia require mandatory medical checks, including HIV tests, which the country information (below) confirms.
103. More particularly, the applicant fears that, if returned to Malaysia, she will fail mandatory health checks for jobs due to her HIV status and so will be unable to obtain employment. Her HIV status, revealed through mandatory health checks, would also then be shared within the community, even if healthcare providers keep her HIV status confidential. In the case that she can obtain a job, she will be unable to maintain her employment without access to the correct HIV medical treatment. Without this treatment, she will become increasingly ill, likely resulting in her employer finding out about her HIV status. Due to discrimination against people living with HIV, and the degradation in her health which she will face without the correct HIV medical treatment, the applicant eventually be unable to work. Without consistent employment, she will be unable to pay for healthcare or access basic services.
104. The applicant has expressed (in Attachment 1) the following fears about employment as a person living with HIV:[28]
[28] Attachment 1: Statutory Declaration from the Applicant.
109.With my health condition, I don’t just fear not having access to the medication I need; I would face employment problems if anyone found out about my health condition, as I would be seen as dirty.
…
112.I do not have any qualifications. Hotels now ask for more experience and qualifications.
113.I did not have medical examinations when I worked in hotels in Malaysia but that is only because I was offered the jobs through contacts, people I knew. I no longer have any contacts to arrange a job for me. I would need to go through the normal recruitment process which often includes a mandatory health exam.
114.I fear that some employers put a question about if you have any health conditions such as HIV in the recruitment process or send you for a medical check before starting the job. I would not be able to get a job as people are refused if they are found to be HIV positive. Not only that, if they find out about my HIV status from the medical check, I believe they will spread it amongst the community.
115.I also fear that even if I managed to find work then at anytime I could lose my job if I had to go back to hospital or if they discriminated against me due to my HIV status. I don’t want to be treated as a special case; I only wish to be treated the same as everyone else as I am human.
Country Information – Barriers to employment for women in Malaysia
105. The 2024 DFAT Report provides that although discrimination against women is banned under the Malaysia constitution, discrimination based on sex and inequality persist for women and girls in Malaysia. Although women participate widely across various aspects of Malaysian society, some conservative cultural and religious practices continue to lime their choices. According to the World Bank, female labour force participation rate 53% in 2022, up from 43% in 2008. In-country sources told DFAT that despite legal protections, women sometimes received less pay than men for equal work.: 2024 DFAT Report at 3.1.11.
106. Further, the Department’s “Common Claims Malaysia”, effective August 2024, reports (at p 11):
Women encounter some forms of discrimination in the workplace…Women are active in all areas of society, but cultural and religious barriers limit their levels of participation [footnote omitted]. World Bank data from 2023 indicates that female workforce participation in Malaysia is nearly 52 percent [footnote omitted]. The law requires the employers to pay male and female workers equal pay for equal work [footnote omitted]. However, according to sources sometimes women are paid less than men for equal work [footnote omitted]. Furthermore, there have been reports of discrimination in terms of promotion [footnote omitted].
ISSUE 1 – Refugee – s 36(2)(a) of the Migration Act
Is the applicant a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations, under s 36(2)(a) of the Migration Act, because she is a “refugee”, as defined in s 5H(1) of the Migration Act?
107. For the reasons provided below, the answer to this question is “yes”.
Is the applicant a person with a nationality who is outside her country of nationality, as required by the definition of “refugee” in s 5H(1)(a) of the Migration Act?
108. The answer to this question is “yes”. Based on the evidence before the Department and the Tribunal (see paragraph [17] above), the Tribunal is satisfied that Malaysia is the applicant’s country of nationality and the “receiving country” for both refugee and complementary protection purposes: s 5(1) of the Migration Act.
109. The applicant is currently living in Australia, outside her country of nationality and “receiving country” (as defined in s 5(1) of the Migration Act), and, therefore, satisfies the first limb of the definition of “refugee” in s 5H(1)(a) of the Migration Act.
Is the applicant a person who, owing to a “well-founded fear of persecution”, is unable or unwilling to avail herself of the protection of her country of nationality?
110. For the following reasons, the answer to this question is “yes”.
Does the applicant have a “well-founded fear of persecution”, within the meaning of s 5J(1) of the Migration Act?
111. For the following reasons, the answer to this question is “yes”.
Does the applicant fear persecution for one or more of the five refugee protection reasons in s 5J(1)(a) of the Migration Act?
112. The answer to this question is “yes”. As stated above (at [65]), the applicant fears being persecuted for reasons of her membership of five “particular social groups” (other than family), as defined in s 5L of the Migration Act. As stated above (at [74]), the Tribunal accepts that the applicant is a member of the five “particular social groups” (for the purpose of s 5J(1)(a) of the Migration Act), as claimed.
Is there a “real chance” that, if the applicant is returned to the receiving country, she would be persecuted for on or more of the refugee protection reasons (in s 5J(1)(a) of the Migration Act), as required by s 5J(1)(b) of the Migration Act?
113. Based on the evidence before the Tribunal (see [17] above) and the country information (see [80] – [100] above), the Tribunal finds that that there is a “real chance”, as that expression is understood to mean (see [31] – [37] above) that, if returned to Malaysia (the “receiving country”), the applicant will be persecuted by reason of her being a member of the following “particular social groups” (as defined in s 5L of the Migration Act):
· “Person living with HIV in Malaysia”; see [74(i)] above; and/or
· “Woman living with HIV in Malaysia”: see [74(ii)] above.
Does the “real chance” of persecution relate to all areas of the receiving country, as required by s 5J(1)(c) of the Migration Act?
114. Based on the country information (see [80] – [100]), the applicant’s “real chance” of persecution relates to all areas of Malaysia, the “receiving country”.
Is the refugee protection reason/s the essential and significant reason/s for the persecution, as required by 5J(4)(a) of the Migration Act: see RL Guidelines at 3.10.2?
Will the persecution involve “serious harm” (as defined in s 5J(5) of the Migration Act), as required by s 5J(4)(b) of the Migration Act?
Is the harm systematic and discriminatory, as required by s 5J(4)(c) of the Migration Act: Is that/those reason/s the essential and significant reason/s for the persecution, as required by 5J(4)(c) of the Migration Act: see RL Guidelines at 3.10.3?
115. Based on the evidence before the Tribunal, the country information (see [80] – [100] above) and relevant case law (see [101] above), the Tribunal is satisfied that the answer to the above three questions is “yes”. That is, the Tribunal is satisfied that the applicant satisfies each of the three requirements in s 5J(4) of the Migration Act.
116. Based on the evidence before the Tribunal and the country information, if returned to Malaysia, there is a “real chance” (as that expression is understood to mean: see [31] – [37] above) that the applicant will be unable to access HIV medication discretely and consistently which is likely to cause “serious harm” (within the meaning of s 5J(5) of the Migration Act: see [39] above) to the applicant as this would risk their HIV progressing to non-stable, life-threatening AIDS defining illnesses and would leave her vulnerable to opportunistic infections, eventually resulting in premature death.
117. Further, based on the evidence before the Tribunal and the country information, the medications available are limited and medication prescribed in Australia to the applicant is not available in Malaysia.
118. The applicant’s subjective fears concerning being a person and/or woman living with HIV in Malaysia are based on the widely reported stigma and discrimination against people living with HIV in Malaysia. However, country information objectively confirms that stigma and discrimination towards people and/or women living with HIV in Malaysia are very common among healthcare professionals in Malaysia, and that patient privacy and confidentiality are not well respected within healthcare providers. As submitted by the applicant’s representative (in the Pre-hearing Submissions), such stigma and discrimination would become a barrier to the applicant’s access to medical treatment for HIV and other healthcare, resulting in a severe deterioration in her physical and mental health, leaving her vulnerable to opportunistic infections and premature death.
119. The country information indicates that stigmatisation and fear of discrimination is a major barrier for people living with HIV from accessing critical medical treatment. Evidence of discriminatory attitudes held by doctors, pharmacists and trainee physicians in Malaysia highlights the extent to which people and/or women living with HIV in Malaysia are stigmatized, even when seeking medical treatment in Malaysia. Due to the strong social stigma and discrimination towards people and/or women living with HIV in Malaysia, making a choice to access treatment in Malaysia comes with a risk of HIV status disclosure, which will result in a person with HIV being subjected to a life of isolation, rejection, and ostracism.
120. Based on the evidence before the Tribunal and the country information, being a person and/or woman living with HIV in Malaysia (i.e. if returned to Malaysia), will be the essential and significant reason/s for the applicant’s persecution, as required by s 5J(4)(a) of the Migration Act: see RL Guidelines at 3.10.2.
121. Further, based on the evidence before the Tribunal and the country information, the persecution of the applicant for being a person and/or woman living with HIV in Malaysia (i.e. if returned to Malaysia), will involve systematic and discriminatory conduct, as required by s 5J(4)(c) of the Migration Act: see RL Guidelines at 3.10.3.
122. Based on the evidence before the Tribunal and the country information, there is a “real chance” (as that expression is understood to mean: see [31] – [37] above) that, if returned to Malaysia, the applicant, like many others in a similar position, will forgo treatment because of the stigma, humiliation, harassment and isolation she is likely to face and, further, that there is a “real chance that, if the applicant seeks HIV treatment, her HIV status will be disclosed to the community, putting her at further risk of harassment and violence, which she is already vulnerable to due to her membership of the particular social group “single mothers of illegitimate children in Malaysia”. This constitutes “serious harm” to the applicant of the kind listed in s 5J(4)(b) of the Migration Act.
123. As submitted by the applicant’s representative, if the applicant seeks the necessary HIV medical treatment in Malaysia, if she is returned there, and her HIV status is disclosed to the community, she will also face escalated discrimination in employment and denial of access to basic services. This represents “serious harm” to the applicant of the kind identified in s 5J(4)(b) of the Migration Act.
124. Due to the inaccessibility of HIV treatment as well as the frequent ill-treatment and stigmatisation of people and/or women living with HIV in Malaysia, if returned to Malaysia there is a “real chance” the persecution the applicant will face will result in a denial of her ability to survive (i.e. “serious harm”). Further, there is a “real chance” that the discrimination the applicant will face in employment, if returned to Malaysia, as a person and/or woman living with HIV will result in her experiencing significant economic hardship, which would threaten her capacity to subsist (i.e. “serious harm”).
125. As set above, the applicant does not have any family support in Malaysia. She left home at [age] years of age to support herself after facing abuse from her stepfather. She fears that if her family members find out about her HIV status, they will further ostracise, reject, and harass her due to the stigma around people and/or women living with HIV in Malaysia: Attachment 1.
126. In MZXKX v Minister for Immigration [2008] FMCA 567 (MZXKX), a Cambodian applicant was granted a protection visa on the basis that he feared persecution in his home country as because of his HIV status. In MZXKX, the Federal Magistrates Court refers to the factors that may lead a protection visa applicant to be unable to subsist in Cambodia (the receiving country in that case) as follows:
21. In this case there is a combination of factors that may lead to the applicant being unable to subsist in Cambodia. The first is the general level of discrimination in Cambodian society, the second is his potential inability to work as a result of his HIV, the third is his poor prognosis due to a lack of medical care, and the final the denial of familial support as a result of his family's discrimination against him due to his membership of a particular social group.
22. If the only form of support available in a society is being denied as a result of discrimination (which appears to be the likely scenario in this case), then the claim that the threat to the applicant’s capacity to subsist is for a convention reason must be addressed by the Tribunal.
23.It appears to me that the real question in this case is whether the applicant holds a well-founded fear that his capacity to subsist would be threatened if he were to return to Cambodia as a result of his inability to rely upon family support once he is no longer able to work. In order to determine whether this view is well-founded the Tribunal must consider the likelihood that he will be unable to work in the foreseeable future, the likelihood that his family would refuse to provide him with any support, and whether this is as a result of his membership of the particular social group identified by the tribunal. This must be undertaken in the context of Cambodian society and resources.”[29]
[29] Ibid [21]-[23].
127. As submitted the applicant’s representative, the applicant’s circumstances fall squarely within MZXKX. The evidence before the Tribunal and the country information confirms a significant level of discrimination against people living with HIV in Malaysia. As stated above, if returned to Malaysia there is a “real chance” that the applicant will be unable to obtain or maintain employment due to her HIV status and, accordingly suffer “serious harm” (of the kind listed in s 5J(5) of the Migration Act). The applicant also has no family or community support in Malaysia, having left home at the age of [age], and having been stigmatised as a single mother and cannot rely on any support from other family members: Attachment 1. Without employment or family support, due to discrimination against people and/or women living with HIV in Malaysia, the applicant will have no means to support herself or her two daughters. There is a “real chance” (see [31] – [37] above) that, if returned to Malaysia, as a person and/or woman living with HIV in Malaysia the applicant will become homeless and her capacity to subsist will be severely threatened (i.e. suffer “serious harm”: s 5J(5) of the Migration Act). Further, without access to proper HIV medical treatment in Malaysia, there is a “real chance” (see [31] – [37] above) the applicant will suffer a premature death (i.e. suffer “serious harm”: s 5J(5) of the Migration Act.
128. In her letter of support (Attachment 3), the applicant’s GP, [Doctor B], explains:
[The applicant] is a vulnerable person who requires multidisciplinary support to keep her engaged with health care. Adherence to medication regime and regular medical review is vital in the maintenance of an undetectable viral load and prevention of progression of her HIV. She also has a high risk gynaecological condition that requires close monitoring. I am concerned that she would not be able to access this degree of support in Malaysia.
(emphasis added)
Does the “real chance” of persecution relate to all areas of the receiving country, as required by s 5J(1)(c) of the Migration Act?
129. Based on the evidence before the Tribunal and the country information, the answer to this question is “yes”.
Are there “effective protection measures” (as defined in s 5LA of the Migration Act) available to the person in the receiving country: ss 5J(2) of the Migration Act?
130. Based on the evidence before the Tribunal and the country information, the answer to this question is “no”.
Could the person take reasonable steps to modify their behaviour so as to avoid a real chance of persecution (other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, conceal an innate or immutable characteristic or require the applicant to do any of the things specified in s 5J(3)(c) of the Migration Act: s 5J(3) of the Migration Act?
131. Based on the evidence before the Tribunal and the country information, the answer to this question is “no”. Being a person and/or woman living with HIV in Malaysia is not something which can be modified to avoid a “real chance” of persecution in Malaysia for s 5J(3) purposes.
Applicant’s membership of other “particular social groups”
132. As stated above (at [65]), the applicant claims that, if returned to Malaysia, there is a “real chance” she will suffer persecution involving “serious harm” because of her membership of one of more of the following five “particular social groups” (as defined in s 5L of the Migration Act):
(i) “People living with HIV in Malaysia”;
(ii) “Women living with HIV in Malaysia”;
(iii) “Single mothers in Malaysia”;
(iv) “Single mothers in Malaysia who have children out of wedlock”; and/or
(v) “Apostates in Malaysia”.
133. Since the Tribunal finds, for the above reasons, that if returned to Malaysia, there is a “real chance” (see [31] – [37] above) the applicant will suffer persecution involving “serious harm” (see [39] above) because of her membership of the two “particular social groups”, “People living with HIV in Malaysia” and/or “Women living with HIV in Malaysia”, it is unnecessary for the Tribunal to consider whether there is a “real chance” the applicant will suffer persecution involving “serious harm” because of her membership of any of the other “particular social groups”, listed in 132(iii) to the (v) above.
ISSUE 2 – Complementary protection – s 36(2)(aa) of the Migration Act
Is the applicant a non-citizen (other than a “refugee”) in respect of whom the Tribunal is satisfied Australia has protection obligations, under s 36(2)(aa) of the Migration Act, because the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm?
134. Since the Tribunal finds, for the above reasons, that the applicant satisfies the refugee protection criteria in s 36(2)(a) of the Migration Act, it is unnecessary for the Tribunal to consider whether the applicant also satisfies the complementary protection criteria in s 36(2)(aa) of the Migration Act.
Protection Obligations – s 36(3) of the Migration Act
135. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. Under s 36(3) of the Migration Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national, unless the conditions prescribed in either s 36(4), (5) or (5A) of the Migration Act are satisfied, in which case the s 36(3) preclusion will not apply.
136. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term “right” in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any correlative duty upon the state in question.
137. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) of the Migration Act does not apply because of the operation of s 36(4), (5) or (5A) of the Migration Act.
138. The Tribunal is satisfied that s 36(2) of the Migration Act does not apply to the applicant as the applicant does not have a right to enter and reside in any country, apart from Australia.
CONCLUSION
139. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations, under s 36(2)(a) of the Migration Act, because the applicant is a “refugee”, as defined in s 5H(1)(a) of the Migration Act, and that s 36(3) of the Migration Act does not apply to the applicant.
DECISION
140. For the above reasons, the Tribunal sets aside the Refusal Decision and remits the applicant’s application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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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