1907347 (Refugee) - [2025] ARTA 2265

1907347 (REFUGEE) [2025] ARTA 2265 (18 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 1907347
Tribunal:General Member D Hughes
Date:18 August 2025

Place:Melbourne
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 meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Statement made on 18 August 2025 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – beaten by gang after refusing to act as drug courier – collusion between gang and police – detained and beaten by police – scars and tattoos – ongoing threats and violence to family members – criminal history and previous travel not disclosed to department – ETA and protection visa applications completed by other people – jobs for gang to pay off debt, convictions and imprisonment – attacked and threatened – multiple relocations – procedural history and rescheduled and adjourned hearings – permanent and declining cognitive impairment and physical and mental health – country information – credible and corroborated claims and evidence despite concerns – imperfect interpretation in another dialect of same language not necessarily denial of procedural fairness – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), 36(2)(aa), (2A), (2B)(b), 65, 425(2)(a)
Migration Review Tribunal Act 2024 (Cth), ss 55(1), 68, 106(3)(b)
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
Appellant P119/2002 v MIMIA [2003] FCAFC 230
FCS17 v MHA (2020) 276 FCR 644
LLR24 v MIAC (No 2) [2025] FedCFamC2G 1227
MIAC v MZYYL (2012) 207 FCR 211
NAOV v MIMIA [2003] FMCA 70
Perera v MIMA (1999) 92 FCR 6
SZATV v MIAC (2007) 233 CLR 18
SZBEL v MIAC (2006) 228 CLR 152
SZEWB v MIAC [2005] FMCA 1145
SZFDV v MIAC (2007) 233 CLR 51
SZGWN v MIAC [2008] FCA 23
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
WACO v MIMIA (2003) 131 FCR 511
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
APPLICATION FOR REVIEW

This is an application for review of a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
The applicant, who claims to be a national of Malaysia, applied for the visa on 18 October 2018. On 14 March 2019, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy the criteria for grant of a protection visa.
The applicant appeared before the Tribunal on 28 January 2025 and 25 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages. In consultation with the Tribunal, the applicant declined to attend a third hearing scheduled for 17 June 2025 and requested that the matter be determined on the papers through written submissions.
At the hearings, the Tribunal also received oral evidence from [Ms A], [Ms B], and [Mr C].
The applicant was represented in relation to the review.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
BACKGROUND
The applicant arrived in Australia [in] September 2018 on a Subclass 601 Electronic Travel Authority. He applied for a protection visa on 18 October 2018.
Evidence before the Department
The applicant’s protection visa application included information about his background and claims for protection.
On the form, he indicates the following:
·He was born in Alor Setar in Kedah, Malaysia in [Year].
·He speaks, reads and writes the Tamil, Malay and English languages.
·From January [year] to September 2018, he lived at an address in Kelang (Klang) in Malaysia.
·From [Year] to September 2018, he was self-employed in various jobs at various locations in peninsular Malaysia.
·At Question 73 (of Part C) of the form, the applicant indicates ‘no’ as to whether he has been found guilty or convicted of a crime or any offence in any country. The applicant also indicates ‘no’ to the question of whether he has committed a serious crime but has not been charged.
·At Question 3 (of part B) of the form, the applicant indicates ‘no’ as to whether he has ever been convicted of an offence in any country (including any conviction which is now removed from official records). He also indicates ‘no’ as to whether he has been subject of an arrest warrant or Interpol notice’. The applicant also indicates ‘no’ to the question of whether he has ever been associated with a person, group, organisation that has been/is involved in criminal conduct.
On the form, the applicant indicates that he is seeking protection with respect to Malaysia. At the question, why did you leave that country, the applicant’s answers were as follows:
I left school when I was [age] years old due to financial problems of my family. I did various jobs and any work avail to me. I tried to be hardworking to support my parents and myself. My parents passed away when I was a teenager.
It was sometime in 1999 that while I was working as a contract deliver driver that I first encountered my worst nightmare. I was making delivery of goods when I was approached by a group of people to do delivery for them. After finding out that they intended to deliver drugs, I refused them. They were not happy and felt that I would be a problem for them as I knew their illegal dealings. I was severely beaten by them and almost lost my life. From then on my life was a living hell. I was harassed and constantly threatened with harm and death by unknown persons who were trying to silence me. I tried to report to the police but during the early 2000's the police were just as bad as the underworld figures. A lot of the police were in the pockets of the mafias and underworld organizations. I was constantly detained and beaten by the police for no apparent reasons. I have had to constantly hide from everyday social activities for fear of being found and suffer beatings.
Things turned for the worse recently as there were more Indian criminal gangs being established and they are more violent and aggressive. They somehow still wanted to make me suffer even after all these years and began to harass and find fault with me in order to beat me. I had no choice but to flee the country in order to ensure that my life will not be lost.
If he returns to Malaysia, the applicant contends that if he is found out, he will suffer significant harm and even death.
In terms of the harm he experienced in the past, he states:
I was severely beaten by them and almost lost my life. From then on my life was a living hell. I was harassed and constantly threatened with harm and death by unknown persons who were trying to silence me. These are the henchmen of the drug syndicates.
As to whether he sought help within the country, the applicant states as follows:
I tried to report to the police but during the early 2000's the police were just as bad as the underworld figures. A lot of the police were in the pockets of the mafias and underworld organizations.
Asked whether he moved within the country, he states:
I tried to move to other parts of the country but to no avail as the criminal drug syndicates will always find me as they are in cahoots with a number of police force personnel including higher ranking officers.
The applicant also indicates concerns as to whether he could obtain protection in Malaysia from the police due to corruption and connection to criminal syndicates.
The applicant included the following documents:
·A copy of his Malaysian passport, issued in [2016] in Pel Kelang (Port Klang).
·A copy of a 1999 medical certificate, from [Hospital 1], Johor Bahru referring to a February 1999 appointment for an EEG/EMG/NCT/EP Test.
·A 6 January 1999 referral letter from [Dr D]. It states ‘Thanks for seeing this [Age] yr. Indian man who is prison involve. He c/o Inability to move both L/L following a fall on 23/11/1998. A/w Numbness’.
The application also included a photo of a hand with a prominent scar on the [hand], and what appears to be a significant patch of scarring on a [leg].
The applicant was not interviewed by the Department.
In refusing the application on 14 March 2019, the delegate was not satisfied there was a real chance that if the applicant was returned to Malaysia, he would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Migration Act. The delegate also considered that the applicant could obtain from an authority of the country, protection such that there would not be a real risk that he would suffer significant harm under s 36(2B)(b) of the Migration Act.
Evidence before the Tribunal
The applicant applied for review to the former Administrative Appeals Tribunal (AAT) on 27 March 2019. The application for review included a copy of the delegate’s decision dated 14 March 2019.
On 23 March 2022, the applicant contacted the AAT to update his email address.
On 3 March 2024, the applicant completed the AAT’s pre-hearing information form. In that form he confirmed his contact details. He indicates ‘no’ to the question of whether there are any issues that may affect his ability to take part in the hearing (e.g. a health problem or disability or difficulty travelling).
The applicant indicates he requires a Tamil (Malaysia) interpreter.
The pre-hearing information form also includes a free field in which an applicant can provide more information about their claims for protection, or if there are any other reasons why they are afraid to return to their home country. The applicant relevantly answered:
Yes, I would like to give more information to support my claims to help my case in order for the court to provide me refuge in Australia.

Yes, I am afraid to return to Malaysia, as there are gangsters from [Gang] organisation that still looking for me all over Malaysia no matter where I move. They have pictures of me and my identification card and my family. The organisation runs deep, therefore they have members all over the country and police in their pockets. So I am not able to even go to the authorities.
The applicant appointed his current representative on 7 October 2024. The representative provided country information and substantive legal submissions dated 1 December 2024, 21 January 2025, and 9 May 2025.
Hearing history
On 11 September 2024, the applicant was invited to a hearing before the Tribunal to take place on 25 October 2024.
On 16 September 2024, the applicant contacted the AAT to request access to his Tribunal and Department file. He also indicated he had difficulties contacting his previous lawyer/agent. On the same date, the applicant contacted the AAT to request that the hearing be rescheduled or postponed to a later date.
On 18 September 2024, the AAT wrote to the applicant to advise him that it had agreed to his request, and that the hearing had been rescheduled for 4 November 2024.
On 25 September 2024, the applicant wrote to the AAT to advise that he would attend the hearing.
On 7 October 2024, the applicant appointed his current representative. She indicated that she was unavailable up to 8 November 2024 (encompassing the rescheduled hearing date) and requested that the hearing date be vacated and rescheduled.
On 9 October 2024, the AAT wrote to the applicant and advised that it had agreed to a further postponement of the hearing, and that the hearing had been rescheduled to 26 November 2024.
On 14 October 2024, the representative wrote to the AAT to confirm the applicant would attend the rescheduled hearing for 26 November 2024.
On 14 November 2024, the representative wrote to the Tribunal providing further evidence in support of the review application, requesting that the Tribunal defer hearing in the matter until the end of February 2025.
On 19 November 2024, the Tribunal wrote to the applicant and his representative advising that it had considered his request, but did not agreed to a further adjournment until February 2025, however it was prepared to provide a shorter adjournment and reschedule the hearing until 19 December 2024.
On 21 November 2024, the representative wrote to the Tribunal, confirming that she and the applicant would attend the rescheduled hearing. In the completed response to hearing notice, the applicant indicated that both he and the representative would require frequent breaks in the hearing due to health issues, which were specified in the notice.
On 4 December 2024, the applicant’s sister ([Ms A]) wrote to the Tribunal. She indicates that she and the rest of the family are returning to Malaysia for the funeral rites of their [brother], and that the applicant would not have their support at the hearing. She requested that the hearing be rescheduled until after 10 January 2025 when they had returned from Malaysia.
On 5 December 2024, the Tribunal wrote to the representative to confirm whether the correspondence from a third party was authorised by the applicant. On the same date, the representative confirmed that the request was sent by the applicant’s sister at his direction.
On 6 December 2024, the Tribunal wrote to the applicant and his representative, advising that it agreed to reschedule the hearing until 28 January 2025. On 10 December 2025, the representative wrote to the Tribunal to confirm that she and the applicant would attend the rescheduled hearing.
The first hearing went ahead on 28 January 2025, however it was adjourned as not all matters had been canvassed in the time allocated.
On 6 February 2025, the Tribunal notified the applicant and the representative of an intention to have a further hearing, and seeking advice about any dates within the following four to eight weeks that were unsuitable.
On 10 February 2025, the representative confirmed she was unavailable between 1 March and 22 March 2025. The representative noted some translation issues with the interpreting at the first hearing, noting Malaysian Tamil has specific slang and is occasionally interspersed with Bahasa Melayu. No specific interpreting issues were identified. The representative also noted that one of the nominated witnesses ([Mr C]) required an interpreter in Hokkien, Malay or Mandarin.
On 12 February 2025, the Tribunal notified the applicant and the representative of the resumed hearing to take place on 25 March 2025.
On 17 February 2025, the representative confirmed the applicant’s attendance at the hearing. The completed hearing form confirmed witness and interpreters required. The completed notice also states that the review applicant and some of the witnesses were not technologically literate, and that the review applicant was ‘unable to read or write in Tamil, Bahasa Melayu or English’.
The second hearing went ahead on 25 March 2025, however it was adjourned ahead of the scheduled time as it was apparent the applicant was in some discomfort, and not all determinative issues had been discussed. At the conclusion of the second hearing, the representative raised concerns about the interpreting and the applicant’s entitlement to an interpreter in the Tamil (Malay) language.
A Tamil (Malay) interpreter had been requested for the second hearing, but the Tamil (Sri Lankan) interpreter from the previous hearing had been booked. The interpreter booked was highly qualified and experienced, and had been booked in a number Tamil (Malay) hearings without issue.
On 10 April 2025, the applicant and his representative were notified of a resumed hearing (third hearing) to take place on 13 May 2025.
On 16 April 2025, the representative confirmed the applicant’s attendance at the hearing.
On Friday 9 May 2025 at 16:39, the representative made further submissions ahead of the third hearing, including submissions about the interpreting and querying whether a third hearing was appropriate.
I received those submissions on Monday 12 May 2025, being the day before the hearing.
In terms of the interpreting concerns, the Tribunal contacted its hearing team to confirm whether a Tamil (Malay) interpreter had been engaged. The hearing team advised that it had contacted the interpreting agency, but despite specific instruction to engage a Tamil (Malay) interpreter, a Tamil (Sri Lankan) interpreter had again been booked and no Tamil (Malay) interpreter was available. Efforts were made to engage a Tamil (Malay) interpreter ahead of the next day’s hearing, but these were unsuccessful.
The Tribunal then considered whether to cancel and reschedule the hearing. Having regard to the late submissions as to whether a third hearing was appropriate, and the concerns about the interpreting, I elected to cancel the hearing.
A key concern for me related to the applicant’s right to be heard on the determinative issues arising in the review. While I had an opportunity to discuss some of the issues at the first two hearings, I was yet to discuss other potentially determinative issues to any great extent, some of the issues not at all, including my potential concerns with the evidence of his witnesses.
Under the repealed s 425 of the Migration Act, unless the Tribunal could decide the review in the applicant’s favour on the basis of the material before it,[1] the Tribunal was obliged to give the applicant a sufficient opportunity to give evidence, or make submissions, about the determinative issues arising in relation to the decision under review.[2]
[1] Section 425(2)(a) of the Migration Act (repealed)
[2] SZBEL v MIAC (2006) 228 CLR 152 at [36], [44], and [47].
There are some early indications that the equivalent provisions in the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) will be interpreted in the same way.[3] I note these provisions are not identically worded to the former s 425. Under s 55(1) of the ART Act, the Tribunal must ensure each party to a proceeding is given reasonable opportunity to present the party’s case. That is not expressly tied to a hearing, however s 106 of the ART Act sets out the circumstances in which the Tribunal may reach a decision without a hearing, which indicates that the Tribunal should only make a decision without a hearing in certain circumstances. Key here are the exceptions to a hearing under s 106(3), which refer to a decision that is wholly in favour of the applicant,[4] or where the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding.[5]
[3] LLR24 v MIAC (No 2) [2025] FedCFamC2G 1227
[4] Section 106(3)(b)(i) of the ART Act
[5] Section 106(3)(b)(ii) of the ART Act
Ahead of the third hearing, I considered the cumulative effect of these provisions was that the Tribunal was obliged to have a hearing unless any of the exceptions apply, and that the applicant needs to be given a reasonable opportunity to present his case. Subsequent to the steps taken below, there is some early authority in the case law that confirms this to be the case.[6]
[6] LLR24 v MIAC (No 2) [2025] FedCFamC2G 1227, per Judge Johns at [69]-[70]
While the applicant had a number of health concerns that made the hearing process challenging for him, I did not consider he lacked capacity to proceed at hearing. He was also well supported by his extended family and his representative. In that context, I considered that a third hearing, in which the applicant appeared personally and in which the Tribunal could discuss the issues arising in the review, was necessary and appropriate.

However, it was also the case that the applicant’s representative had made cogent submissions about the need for a third hearing, the objectives of the ART Act, and the ongoing health impacts and costs to the applicant.
On 2 June 2025, the Tribunal wrote to the applicant, outlining three potential ways forward. Those were summarised in the correspondence as follows:
Having regard to the matters identified in your submissions, the Member indicated the following options in terms of the hearing or the hearing format:
1. Attending an in person hearing
As with the two previous hearings, the Tribunal will provide breaks whenever needed. You can also again bring a support person or persons.
2. Attending a video hearing (via MS Teams)
This could be done at the office of your representative or in your home. Your representative could also join the hearing remotely from a separate location if this is more convenient. The Tribunal would also provide breaks whenever needed.
3. No hearing
Alternatively, you may wish to decline to participate in a third hearing. You can do so by indicating this on the hearing notice response when it is sent to you.
If you elect not to participate in a third hearing, the Tribunal would then write to you and provide you and your representative an opportunity to address the issues arising in this review through written submissions. If you decline to attend a further hearing, the Tribunal would not offer you another opportunity to appear before it to present your case.
On 4 June 2025, the representative wrote to the Tribunal thanking it for offering the applicant the option of receiving written correspondence outlining the issues arising in the review. In addition to noting the Tribunal’s ‘failures in providing procedural fairness in the review process to date’, the representative wrote that the applicant was happy to accept the option to receive the above in writing, and to be given the opportunity to respond in writing, within a period of time that is reasonable in all the circumstances.
As there was no express request for the Tribunal to make a decision without holding a hearing, the Tribunal proceeded to set down a further hearing as indicated. Ahead of any confirmation that the applicant wished to proceed without a hearing, I considered the notice of hearing should nevertheless be a genuine one. On 6 June 2025, the applicant and his representative were notified of a resumed hearing to take place on 17 June 2025.
On 10 June 2025, the applicant and his representative provided a completed ‘response to resumption of adjourned hearing notice’ indicating the applicant would not participate in the third hearing.
On 11 June 2025, a Tribunal officer unfamiliar with the history of this case sent a standard confirmation to the applicant confirming a request for a decision without a hearing. That response was not consistent with previous correspondence. On the same date, the applicant’s representative wrote to the Tribunal, very fairly expressing concerns about the response. On the same date, the Tribunal wrote to the applicant confirming it would proceed as previously discussed and indicating my apologies for any confusion.
Following confirmation from the applicant and his representative, I proceeded to analyse the evidence and submissions before the Tribunal, draft my decision in this matter, and prepare further correspondence for the applicant as previously outlined. In undertaking that exercise, I formed the view that, notwithstanding a number of concerns with the matters before me, a decision could be made in favour of the applicant.
I weighed whether it was appropriate to nevertheless write to the applicant and seek further submissions as had been discussed, but I elected not to do so. I considered it was both unnecessary, and would potentially result in further undue stress and costs to the applicant. On 14 July 2025, the Tribunal wrote to the applicant to advise him that a decision could be made in his favour.
As is evident in the assessment below, the Tribunal had and has a number of concerns with the applicant’s claims and evidence. However, it was also the case that there were aspects of the applicant’s claims and evidence that the Tribunal considered were credible and corroborated, and revealed that he was and may be a person at risk of harm if he returned to Malaysia.
I note that the representative expressed a number of concerns over the course of this review, in particular in her last submissions. I consider it useful to briefly engage on some of these points.
The applicant and his representative were concerned about the interpreting. The submissions correctly reflect that the Tribunal is obliged to comply with the applicant’s request for an interpreter under s 68 of the ART Act. However, these provisions are not absolute. There are myriad instances – such as this case – where the requested interpreter or dialect (or other request) cannot be accommodated.
The applicant did identify several errors in the interpreting. I note that it appears a key issue here is that Tamil (Malay) speakers from time to time use or intersperse Malay words when speaking Tamil.
In the Tribunal context, I note that imperfect interpretation will not necessarily amount to a denial of procedural fairness.[7] The requirement is not for ‘perfect translation’, but a standard that is ‘sufficiently accurate’ to communicate the ideas or concepts being discussed.[8] A denial of procedural fairness will arise where the errors are of significance in the Tribunal’s decision, or where an applicant is effectively denied the opportunity to make their case.[9]
[7] NAOV v MIMIA [2003] FMCA 70, at [35]
[8] WACO v MIMIA (2003) 131 FCR 511 at [66].
[9] Perera v MIMA (1999) 92 FCR 6, at [45] - [46]; Appellant P119/2002 v MIMIA [2003] FCAFC 230; SZGWN v MIAC [2008] FCA 23.
I am satisfied that a competent and qualified interpreter was engaged, albeit one that was not to the requested dialect. I consider it is important for the Tribunal to be open to the limitations of interpreting in any review, and I also consider that the Tribunal, the applicant and representative need to be pragmatic where there are limitations to the available interpreting.
I have weighed the submissions and the issues identified. I note that despite the several errors identified, the interpretation was otherwise very accurate. And, as is reflected below, the issues or errors identified have had no bearing on this review. I am satisfied the applicant was given a fair opportunity to make his case.
Submissions were also made about the length of the Tribunal process. The representative contended as follows:
At this point in time, the applicant has given verbal testimony over the course of some 8 hours, canvassing his entire life history, some of it twice, while in significant pain. We question whether scheduling a third hearing for the purpose of revisiting oral testimony again is ‘accessible and responsive’ to the needs of the applicant. The matter certainly does not seem to have been resolved quickly or with little expense.
I am sympathetic to those concerns, but I do not accept the representation that the applicant was subjected to 8 hours of verbal testimony. The hearing times were 3 hours and 2.5 hours respectively, and I note that considerable portions of the first and second hearings were also taken up by evidence of three witnesses.
Any fair review of the hearing records would also reflect that the Tribunal made reasonable allowances for the applicant’s health concerns and several breaks were allowed in both hearings. Support persons were also permitted. The second hearing was also ended ahead of the allotted time, as it was apparent to me that the applicant was fatigued and confused at times, and made some representations that were not consistent with his earlier submissions.
As noted above, there also remained potentially determinative issues that needed to be discussed, and I formed the view that this necessitated a third hearing. Following consultation with the representative, a way forward was identified. However, I also note that the applicant and his representative could have declined the third hearing invitation at any point prior to these submissions.
Crucially, this has been a complex matter that involves several decades of claims and evidence, extensive supporting material, and an applicant with credible health concerns. It is also a matter where key and significant aspects of the applicant’s history – including an extensive criminal history – were not disclosed to the Department. In that context, I considered it necessary to clearly understand the applicant’s history, and identify the issues arising in this review. These matters necessarily take time.
This has been a complex and time consuming review. I note my appreciation for the applicant’s patience in its resolution.
The following is my determination and decision in this review.
EVIDENCE BEFORE THE TRIBUNAL
A range of submissions and evidence has been provided in support of the matter under review.
Evidence of health issues
Over the course of his application, the applicant has detailed evidence about his medical history, and his current physical and mental health concerns.
On 7 October 2024, the applicant provided medical evidence, including an undated operation report from [Dr E], indicating the applicant had received a ‘targeted percutaneous transforaminal epidural’.
The applicant also provided a 22 August 2023 letter from [Dr F] addressed to OPSM [Suburb] regarding an eye check for CPVV[10] and noting he has DM2.[11] It indicates his current eye medications and his past history as ‘neuropathic pain’ (2022).
[10] Commercial Passenger Vehicles Victoria
[11] This appears to be a reference to Diabetes Mellitus (Type 2)
Additional documents were included relating to vision issues in the applicant’s left eye, including a letter from [Dr G] from [Hospital 2], and a letter from [Dr H], discussing his eye issues, and the development of his T2DM (Diabetes Mellitus (Type 2)) and glaucoma while in Malaysia, each following presentations at the Emergency Department in April and May 2019 respectively.
The submissions also include a letter, dated 6 January 1999, which appears to be the handwritten version of the earlier letter from [Dr D] (provided with his visa application), and an untranslated letter from [Hospital 1] in Johor, which appears to relate to the EEG/EMG/NCT/EP tests undertaken in 1999 and referred to in documentation included with the protection visa application.
The submissions also include a letter and translation from the applicant dated 17 March 1999 which is an ‘Application to loosen conditions of Restriction Order for the purpose of obtaining medical treatment at [Hospital 3]’ and related correspondence (and translations) dated [March] 1999 from the Officer in Charge, Rehabilitation Centre, Johor, and a further copy of the handwritten letter from [Dr D].
In submissions made on 14 November 2024, the applicant provided a ‘patient health summary’ printed on 2 November 2024, from [Medical Centre], which indicate the following:
Active past history:
Neck facet artherosis, stenosis and disc bulge

[Deleted]

Lumbar canal stenosis

Back pain

Diabetes Mellitus, Type 2

Glaucoma

Cervical radiculopathy
An undated letter from [Dr I] of [Surgery] in Puchong, Selangor. He states that he is a medical professional and that he confirms between the period of 21 August 2018 to 30 August 2018, the applicant was treated as a patient by [Dr I] after the applicant was assaulted. [Dr I] states:
During this time, my notes indicate that [the applicant] disclose to me that he had : -
1. Large open wound with severe bleeding on [hand]. This deep cut caused by sharp machete. Instantly treatment given, sterilized the wound, closed up with sutures, and compact dressing.
2. Large [injury] on [leg] region. This injury caused by hot exhaust of motorcycle. Treatment given, sterilised the wound with wound healing creams and compact dressing.
The submissions include a 11 November 2024 handwritten letter from [Dr J], indicating the applicant was assessed on 3 January 2012. The applicant had a [medical condition] and underwent [surgery] on 14 January 2012. The applicant was discharged ‘well’ and last reviewed in 2012.
In submissions made on 10 December 2024, the applicant provided further evidence of his health, including a report from a registered psychologist, [Ms K], dated 18 November 2024, indicating she had examined the applicant over on 10 and 11 November 2024 for a 2 hour assessment. She relevantly contends that the applicant is suffering from ‘Post Traumatic Stress Disorder’ and ‘Major Depressive Disorder’ and that his symptoms are severe. She considers he had endured torture and physical violence and suffered complex trauma. She further states:
The chronicity of his psychiatric condition and cognitive impairment without a support system would make an attempt to relocate to Malaysia extremely difficult. His resilience would be poor and his ability to make decisions and adequate judgements would be impaired due to his psychiatric condition. He requires the support of his sister and her family in Australia. Without the family support of his daily mental health care requirements it would be definitely detrimental to his mental health.
An updated report from [Ms K] dated 28 May 2025 reconfirms her earlier assessment, and also states that the applicant presents with reduced cognitive function, and that his current psychiatric symptoms affect his focus, attention and memory, and he is suffering from ‘brain fog’ on a daily or weekly basis. She assesses his mental impairment is at a level of moderate to severe and permanent.
Criminal history
In the course of the applicant’s submissions to the Tribunal, the applicant provided a copy of his Malaysian criminal history and a translation. The information is summary in form and provides few substantive details, but aspects of that criminal history were supplemented (to some extent) by the applicant’s oral and written evidence, as well as the representative’s written submissions.
Statutory declarations
The applicant provided a range of statements from third parties in support of his application.
In a statutory declaration made on 4 December 2024, the applicant’s sister ([Ms A]) provides information about the applicant’s past experiences with the gang, their family’s and her own issues with the gang, broader issues of discrimination and harassment, and concerns with the agent who assisted the applicant to raise his protection visa application.
The Tribunal also spoke to [Ms A] at the first hearing.
In a statutory declaration made on 4 December 2024, the applicant’s sister ([Ms B]) discusses her relationship with the applicant, her brother’s history and experiences with the gang, her and her family’s issues because of the gang, broader concerns with the police, and the ongoing threat to the applicant.
The Tribunal spoke to [Ms B] at the second hearing.
In a statutory declaration made on 20 March 2025, the applicant’s nephew ([Mr L]) provided further information about the circumstances in which his uncle returned to Klang, his treatment following an assault, and further information about the applicant’s application for an ETA and the assistance provided by his nephew.
The Tribunal elected not to speak to [Mr L] at any subsequent hearing.
Letters of support
In addition to statutory declarations, the applicant provided letters from a range of third parties.

100. The applicant provided a letter of support dated 29 November 2024 from a person named [Mr M], a citizen of [Country 1], indicating he had known the applicant since 2009, and that the applicant had lived with him in [City 1] until some men came to their village inquiring about the applicant, after which he returned to Malaysia. No identity document was attached to the statement.
101. The applicant provided a letter of support dated 13 January 2025, from [Mr N], the Head Monk in [Temple 1], [Country 2], indicating he had known the applicant since 1999, when he was treated for serious injuries he had suffered, and his involvement with ‘[Gang]’ in Malaysia. The Head Monk states:
I learned that he had a lot of problems from [Gang] members in Malaysia after he had borrowed money from them, and how they were trying to force him to do illegal activities. He told me about his time in prison and how the police are in the pockets of the gangs as well. This explained the extensive injuries he had when he first came to us.

102. The Head Monk goes on to state that the applicant was committed to becoming a monk, that he received ‘a lot of [deleted]’ for protections and blessings, and after a few years undertook pilgrimages with many other monks. He contends that the applicant had to leave life as a monk after his [surgery]. The monk also states he has visited the temple the applicant built in [Town 1].
103. The applicant provided a letter dated 5 December 2024, from [Mr C], from Alor Setar in Kedah. He states that he has known the applicant since 1981, when they met in Alor Setar while working [in work sector]. He claims they reconnected in 1999, when the applicant came to [Town 1] and was seriously injured at the time. He states:
He told me that he had borrowed money from ([Gang]) to help his family and that he was not able to pay them back, which led them to try to force him to smuggle illegal goods & drugs and since he refused, they worked with police to send him to prison. He said they try to threaten him or might even go to lengths to kill him if he still refused.

104. [Mr C] contends that he was the one that brought the applicant to [Country 2] for treatment by the monk. He further states:
I was the one that was bringing him in and out of [Country 2] and supporting him. He returned the favour for me by telling the [Country 2] police at the border to let me go once when they stopped us. They kept him for one week before letting him go, but he helped me since I have a family and he didn’t want me to get involved in these problems as well. I don’t know for sure, but I think maybe the [Country 2] border police had been paid by the gang to make trouble for us.

105. [Mr C] contends that he takes care of the applicant’s house in Malaysia, and there have been multiple occasions where gang members have come to the house, and interrogated him and a monk about the applicant’s whereabouts. In terms of more recent events, [Mr C] states as follows:
Most recently we had prayers done just before Deepavali this year for [the applicant]’s recently passed sibling. A lot of people came to the house as we did the prayers with 4 monks (which is quite big). Three guys came up in a car with the [sticker] of [Gang] on it. They asked us if [the applicant] had come to the prayers, as they assumed that he would have visited for the memorial of his brother.

106. The Tribunal spoke to [Mr C] at the second hearing.
107. [Mr C] provided a supplementary statutory declaration after the second hearing dated 9 May 2025 in which he states he had difficulty understanding the interpreter during the hearing, and seeking to correct or explain issues with his evidence at the hearing.
108. The applicant also provided a letter of support dated 28 November 2024 from a person named [Mr O], a citizen of [Country 2]. He states he met the applicant in 2002 in [Country 2], and that he was learning to become a monk at the same temple. He contends he stopped practising as a monk and moved to Klang in 2007 and visited the applicant. He was struggling financially and the applicant’s family ‘opened up a tattoo shop’ for him, and the applicant was a silent partner. He contends the gang would come to the shop and demand money and ask where the applicant was. He contends members of [Gang] threatened to destroy his shop if he did not tell them where the applicant was, they broke a glass door, and forced him to pay protection money. Eventually, they took the shop from him. He returned to [Country 2] in 2023.

Photographic evidence
109. The submissions included the following photographic evidence:
·Evidence of the applicant as a monk
·Evidence of the applicant’s tattoos. It states that ‘most’ of his tattoos were obtained as a monk. The [tattoos] are not religious and are ‘for the look’
·Evidence of the applicant’s scarring
·Evidence of a Tattoo Shop ([Shop name]) at [Address 1], Klang, Selangor, Malaysia, and its owner [Mr O].
·Evidence of a temple in [Town 1] – which appears to be [Temple 2] at [Address 2], Kedah, Malaysia – including framed photos of the applicant and donations made by the applicant of ‘caskets for paupers’

110. The Tribunal has considered the applicant’s oral and written evidence and submissions. To the extent relevant and determinative to this review, these matters are discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
111. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
112. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

115. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.

If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

117. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
An applicant will suffer significant harm if they will be subjected to torture: s 36(2A)(c). Torture is exhaustively defined in s 5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).

121. However, torture 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 ICCPR.
122. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
123. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
124. Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].
Mandatory considerations
125. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
126. The issue in this case is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
127. The evidence in this review can be divided into two periods. The first period relates to the applicant’s historical issues and association with a criminal gang in Malaysia and his period travelling within Malaysia for work, and other countries as a monk. The second period relates to the ongoing issues and threats and violence he and his family members claimed to have faced in the ten or fifteen years before he left Malaysia.
128. In the course of this review, I identified a number of concerns with the applicant’s claims and evidence, in particular the supporting evidence that related to this more recent second period of his claims. Conversely, I found the applicant’s evidence of the first period to be more plausible and to have some corroboration. A key consideration in this regard was the applicant’s criminal history.
129. My concerns with the applicant’s later claims and evidence weighed heavily on this assessment for some time. In reviewing the evidence, it became apparent that despite my concerns with the evidence and submissions provided in support of his application, the aspects of history and evidence that I did accept – crucially a number of the applicant’s claims surrounding his past, his health and his criminal history – became determinative of this review.
130. As discussed below, I continue to have concerns with the more recent claims and evidence. In this regard, I consider the applicant’s family have sought to support the applicant’s claims in ways that are not credible or plausible and were potentially fatal to his application. However, none of those concerns ultimately removed an assessment that the applicant would be at risk if he returned to Malaysia.
Identity and receiving country
131. The applicant provided the Department with a copy of the biodata page from his Malaysian passport. His oral and written evidence revealed no concerns with his identity. On the basis of the oral and written evidence before me, I am satisfied that the applicant is a national of Malaysia.
132. The applicant has spent considerable time in other countries, principally during his period as a practising monk in [Country 2], and also an extended period in [Country 1]. However, there is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before me, I am satisfied s 36(3) of the Act does not apply.
133. On the evidence before the Tribunal, I am satisfied that Malaysia is his receiving country and I have assessed his claims against that country.
Health issues
134. As indicated above, the applicant has provided extensive medical evidence. That evidence is unequivocal in indicating that he has extensive and complex health issues, and that his health continues to deteriorate.
135. In terms of his physical health issues, the applicant has had [surgery] while in Malaysia. He has ongoing neck, back and lumbar issues (stenosis, artherosis, and disc bulge), glaucoma with impaired vision in one eye, and type 2 diabetes. The applicant has also provided evidence of scarring and past trauma he experienced while living in Malaysia.
136. The applicant also suffers from a range of mental health concerns, and the most recent assessment from [Ms K] is that he is suffering from deteriorating and permanent cognitive decline.
137. I have weighed closely his mental health evidence, in particular as it pertains to his capacity to give evidence in the course of this review, but also in terms of potential vulnerability if he were to return to Malaysia. I also consider his health issues to some extent corroborate aspects of his past claimed experiences.
138. My assessment of his health is not unqualified. While it is clear the applicant presents with a range of health issues, it also appears that he was working for more than two years in Australia. That raised questions for me about the extent of his health and mobility, as well the contentions that he is unable to read or write the Malay, English or Tamil languages.
139. At the first hearing, the applicant claimed that he had worked for [Service] as a delivery driver for around two years. That claim is consistent with the August 2023 letter from [Dr F] regarding an eye check undertaken for CPVV (Commercial Passenger Vehicles Victoria).
140. [Service] is an app-based service, that requires drivers to pick up and deliver [products] using the app, which necessarily requires a driver (or cyclist) to be able to read and comprehend addresses, directions, orders and road rules. Drivers are also required to complete training modules.[12] CPVV also has a range of registration and accreditation requirements, including medical assessments, licensing and road rules.[13]
[12] [Deleted].
[13] CPVV, ‘Apply for your CPV driver accreditation’, Safe Transport Victoria (website), undated (accessed May 2025)
141. I accept that the applicant has significant health issues, however it also appears that his health issues are not (or at least were not) at a level that prevented him from undertaking what the Tribunal considers would be physically demanding work with [Service].
142. His evidence about his employment also contradicts his claims that he is unable to read or write English. I do not accept the applicant would be able to work for [Service], or attain the necessary licensing and other accreditations needed to work as a CPV driver in Victoria, if he was unable to read or write English as is contended in his evidence and the hearing responses provided to this Tribunal. That raises doubts for me about his claims to not read or write Tamil or Malay.
Criminal history
143. A key consideration in this assessment has been the applicant’s criminal history. In his protection visa application form, the applicant indicated he had no such history.
144. In his initial declaration to the Tribunal, the applicant seeks to correct that evidence. He notes that ‘no’ is ticked for all the character questions in his protection visa application. The applicant adds:
i.I was convicted of smuggling goods in the early 1980s. I will explain more about this later in my declaration.
ii.I have been associated with a group that is involved in criminal conduct. I will explain this more later in my declaration as my fear of return has a lot to do with this association.

145. The applicant states that the form was not filled out by him, but a person named [Mr P], who is or was the Manager at [Company]. The applicant contends he did not know any incorrect information was provided.
146. The applicant also provided the Tribunal with what appears to be a record and translation of his formal criminal history. Far from just ‘smuggling goods in the early 1980s’, this included the following criminal history:
·The applicant was ‘restricted’ for an offence under s 7(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Malaysia) (Special Preventative Measures Act, or the ‘LLPK’[14]) in [Town 1] (1999)
·The applicant was ‘arrested’ for an offence under the Dangerous Drugs Act 1952 (Malaysia) in [Country 2] (2005)
·The applicant was ‘punished’ for an offence under s 135(1)(G) of the Customs Act 1967 (Malaysia) in [City 2] (1983)
·The applicant was ‘acquitted and discharged’ for an offence under s 39(B)(1) of the Dangerous Drugs Act in [Town 1] (1988).
·The applicant was ‘detained’ for an offence under s 6(1) of the Dangerous Drugs Act in [City 3] (1992).[15]
·The applicant was ‘detained’ for an offence under s 11(A)(1) of the Dangerous Drugs Act in [City 3] (1994).[16]
·The applicant was ‘detained’ for an offence under s 6(1) of the Special Preventative Measures Act (LLPK) in [City 3] (1998).
[14] Akta Dadah Berbahaya (Langkah-langkah Pencegahan Khas) 1985
[15] While the reference here appears to be the s 6(1) of the DDA, I accept the clarification in the submissions that it in fact refers to s 6(1) of the DD(SPM)A (or LLPK). There is no “s 6(1)” of the earlier DDA.
[16] While the reference here appears to be the s 11(A)(1) of the DDA, I accept it refers to s 11A(1) of the DD(SPM)A (or LLPK). There is no “s 11(A)(1)” of the earlier DDA.

147. The applicant’s criminal history raised two concerns for the Tribunal. It was not provided to the Department, and it appears to be significant and raises questions about the extent of his involvement with [Gang].
148. In terms of the first concern, the applicant’s criminal history was not previously disclosed when he applied for a protection visa. In fact, at three separate points in time, the applicant failed to disclose his criminal history to the Department of Home Affairs. Firstly, in his application for an Electronic Transit Authority (ETA) while in Malaysia. Secondly, on his incoming passenger card (IPC) when he arrived in Australia. And thirdly, as part of his protection visa application.
ETA application
149. In terms of the first instance, it is contended in the submissions that the applicant did not knowingly omit information about his criminal history when applying for an ETA.
150. An applicant for an ETA applies through the Australian ETA App. That process includes a question as to whether the applicant has a criminal record. It states that where a person has a criminal conviction, the person should apply for a different visitor visa (subclass 600) and provide evidence about their criminal convictions.[17]
[17] Department of Home Affairs, ‘Australian ETA App – Guidance note for industry users’, undated (accessed: May 2025)

[49] Mohd Alif Jasni (et al), 'From Stigma to Community’s Discrimination: The Experience of 16 Former Prisoners in Malaysia' (2021) 16(4), Journal of Social Sciences and Humanity, 1-16; Mohd Alif Jasni (et al), ‘Tough Life after Prison: An Analysis of 19 Former Prisoners in Malaysia’, (2020) 14(1) Journal of Community Development Research (Humanities and Social Sciences), 24-36
[50] MIAC v MZYYL (2012) 207 FCR 211, at [40]
342. Having regard to the submissions and evidence before the Tribunal, I am not satisfied that if the applicant returned to Malaysia, he could obtain from an authority of the country protection such that there would not be a real risk that he would suffer significant harm. It follows that s 36(2B)(b) does not apply.
Generalised risk
343. The applicant’s risk profile is unique and personal to him, relating to past involvement and association with a criminal gang in Malaysia. I am satisfied that the real risk of harm faced by the applicant is faced by him personally, and these are not risks faced by the population of Malaysia more generally. It follows that s 36(2B)(c) does not apply.
344. In the case where none of the exceptions in s 36(2B) of the Act apply, it follows that the Tribunal is satisfied that there is a real risk that the applicant will suffer significant harm if he were to return to Malaysia from Australia.
Character considerations
345. The applicant provided the Tribunal with evidence of his past criminal history and activities. The Department is not aware of that evidence, nor has it been considered in any sense, and these may be matters relevant to any future character assessment.
346. The Tribunal observes that the applicant is a man in his 60s with complex health issues. There is nothing to suggest he is a danger to the community, however these are matters outside the scope of this review.
Conclusion
347. 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)(aa).
DECISION
348. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date of hearings: 28 January 2025 and 25 March 2025
Representative of the Applicant: Ms S Smith
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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