1909378 (Refugee) - [2025] ARTA 1224

1909378 (REFUGEE) [2025] ARTA 1224 (22 JANUARY 2025)
CORRIGENDUM
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1909378

Tribunal:General Member S Kamandi
Place:Perth
Date:22 January 2025
Date of Corrigendum:19 March 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the the statement of reasons for the decision:
Paragraph 74 of the written statement of reasons for the decision is altered to read:
I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act in Malaysia

Statement made on 19 March 2025 at 4:53pm
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1909378

Tribunal:General Member S Kamandi
Date:22 January 2025

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 meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 22 January 2025 at 3:44pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – person with a cognitive disability – physical and psychological workplace injuries – employment – homelessness – access ongoing psychological treatment – psychological abuse and suffering – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Chen Shi Hai v MIMA (2000) 201 CLR 293
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401
Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309
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

The applicant was granted a Tourist (UD-601) visa and arrived in Australia [in] June 2018. He applied for a protection visa on 14 September 2018, which was found invalid. He applied for a further valid protection visa on 21 September 2018.
On 20 March 2019, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 15 April 2019, the applicant lodged a review application with the Administrative Appeals Tribunal (AAT).
On 9 September 2024, the applicant was invited to a hearing before the AAT. On 10 October 2024, the applicant’s representative from Circle Green Community Legal was appointed and requested for a postponement of the hearing to gather information in support of the review application. The postman was granted, and the applicant was invited to a hearing on 6 December 2024.
On 14 October 2024, the 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. This decision and statement of reasons is made by the Tribunal.
The hearing was rescheduled and held on 21 January 2025. The applicant was represented in relation to the review.
BACKGROUND
The applicant was born in [specified year] in Terengganu province of Malaysia. He is of Malay ethnicity and Muslim religion.
The applicant’s parents and siblings remain in Malaysia. While he has some contact with his brother who lives in Kuala Lumpur, he is not in regular contact with his parents or other siblings. At the hearing, the applicant stated that he hardly speaks to his parents. While they are aware of his injury and health conditions, they do not contact him unless he calls them. The applicant stated that he contacts his brother in Kuala Lumpur but is unaware of his exact circumstances.
The applicant has limited education and employment history in Malaysia. At the hearing, the applicant confirmed that he attended school until [grade] after which he did not go to school. In 2011, he travelled to [Country 1] to undertake Islamic studies sponsored by a local faith community in his area but did not complete the course.
After his return from [Country 1], due to his family’s circumstances, crowded house and their disappointment in the applicant failing to complete the course, the applicant could not live at home and moved to Kuala Terengganu and rented a room. He was offered employment at a friend’s [business 1] on a part time basis. Due to his inability to pay rent, the applicant was evicted and became homeless.
In September 2017, the applicant travelled to [Country 2] to work at a factory. He was aware that he was working illegally and returned to Malaysia after 90 days to renew his visa. The applicant returned to [Country 2] a few weeks later and continue to work. He returned to Malaysia in March 2018 before the expiry of his visitor visa.
The applicant was unable to secure employment and accommodation. He got in touch with a person who had travelled to Australia who suggested that he should go to Australia to get out the financial difficulties he was facing. The applicant travelled to Australia in July 2018 using the money he saved while working in [Country 2].
While in Australia, the applicant worked at farms picking fruits. He sent part of his income to his family in Malaysia. In early 2013, the applicant secured a position with [Employer 1] in Perth where he worked as a labourer.
[In] April 2023, he suffered a serious workplace injury. He was taken to hospital for treatment and required time off work to recover. While he tried to return to work due to financial difficulties and unawareness of his rights under the workers compensation legislation, he only lasted a month due to his inability to perform the tasks assigned to him. [In] September 2023, the applicant ceased work and commenced receiving Workcover payments. He has not worked since and is no longer able to provide his family with financial support.
I accept the applicant’s evidence set out above.
CLAIMS AND EVIDENCE
Evidence before the Department
In his protection visa application, the applicant claimed that he left Malaysia due to financial hardship and being jobless. If returned, the applicant stated that he feared that he would be unable to secure employment and make a living. The applicant referred to having been asked to leave ‘my home’ on 3 or 4 occasions, that he had no place to stay, and that he feared becoming homeless if returned to Malaysia. He claimed that he tried to seek assistance from the ‘local state foundation’ but was ignored and that his application for a personal loan was denied due to not having a stable income.
The applicant provided certified copies of his Malaysian driver’s licence and passport to his protection visa application.
The applicant was not interviewed and his protection visa application was refused on the basis that he did not face a real chance of serious harm and was not at a real risk of significant harm for the reasons claimed.
Evidence before the Tribunal
Review application
On 15 April 2019, the applicant lodged a review application without providing any further information in support of his claims for protection.
On 10 July 2024, the AAT wrote to the applicant and advised that his review application was being prepared to be given to a Tribunal Member and that information was being sought to assist the Member in conducting the review. The email asked the review applicant to complete a form which sought updated information regarding their contact details, and circumstances and claims for protection.
The applicant responded providing his current contact details and that he had suffered a workplace incident. The applicant explained that while at work, [accident described] and that he has been seeing his general Practitioner (GP), psychologist, and physiotherapist, on a weekly basis as part of his treatment and recovery. He states that he suffers from ‘PTSD/anxiety/memory loss issues’ and that his mental illness and other symptoms will cause him hardship if returned to Malaysia.
Pre-hearing submission and evidence
On 10 October 2024, the applicant’s representative provided the Tribunal with a copy of a report from [Neurologist A] dated 20 December 2023 which indicates that the applicant has had a closed traumatic brain injury with concussion, post-concussion syndrome and post-traumatic stress disorder (PTSD).
On 30 October 2024, the Tribunal was provided with the following further information:
·A written submission prepared by the applicant’s representative.
·A copy of a statutory declaration by the applicant dated 29 November 2024.
·A copy of a clinical psychology assessment and treatment progress report prepared by [Psychologist A], a clinical psychologist, dated 15 May 2024.
·A copy of a further report from [Psychologist A], a clinical psychologist, dated 11 November 2024.
·A copy of the applicant’s workplace rehabilitation provider progress report dated [in] November 2024.
·A copy of report from a pain physiotherapist addressed to the applicant’s neurologist dated 20 February 2024.
·A copy of a Workcover certificate dated [in] October 2024.
·Copies of various country information/news reports/journal articles.
On 29 November 2024, the applicant’s representative emailed the Tribunal indicating that they were awaiting a further report from [Neurologist A].
On 14 January 2025, the applicant’s representative provided the Tribunal with a copy of a report from [Consultant A], a medicolegal consultant for [Workcover], dated [in] October 2024.
On 17 January 2025, the Tribunal was provided with an article written by Professor Dato’ Dr Andrew Mohanraj dated 4 April 2023.
Hearing
The applicant attended the scheduled hearing with his representative on 21 January 2025.
The hearing was held at the Tribunal’s Perth registry and with the assistance of interpreter in the Malay and English languages. The applicant and the interpreter confirmed that they understood each other and there were no issues raised regarding the communication between the applicant and the interpreter at the hearing.
At the commencement of the hearing, I asked the applicant if he was well enough to proceed with the hearing. The applicant confirmed that he was able to proceed. I indicated that he was able to ask for break as necessary and take time to respond to my questions. I expressed that his representative was present to assist him and that I have considered the information, including his statutory declaration, his representative’s submissions, the large volume of information relating to his workplace injury, and country information that has been provided to the Tribunal.
In addition, I explained the purpose of the hearing and that he was required to answer my questions to best of his ability and that I will be I considering all the evidence, including his evidence given at the hearing, in making my assessment.
The applicant expressed his understanding. Where relevant, the applicant’s evidence given at the hearing is discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Malaysia for reasons of his race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
For the following reasons, I have concluded that the decision under review should be set aside and remitted for reconsideration.
Country of reference
The applicant has consistently claimed that he is a national of Malaysia. He has provided documentary evidence in this regard. I accept that he is a national of Malaysia and that Malaysia is the receiving country for the purposes of this review.
Protection visa application
As outlined above, the applicant’s protection visa application refers to the applicant having suffered from financial hardship while residing in Malaysia and that he fears that he will not be able to secure employment and accommodation and will financial hardship.
In his statement to the Tribunal, the applicant recounts his family and financial circumstances in Malaysia and that after having been homeless, a friend suggested for him to travel to Australia and start a new life. He claims that the poverty he experienced in Malaysia led him to apply for a protection visa and that had travelled to Australia with the intention of applying for a protection visa. Regarding the process of his protection visa application, the applicant claims that he completed his protection visa application without obtaining legal advice or understanding the criteria for a protection visa. He states that his friend advised him to wait until his visitor visa expired prior to making an application for a protection visa, which the applicant followed.
At the hearing, the applicant confirmed the circumstances of his travel to Australia and his decision to apply for a protection visa. I accept the applicant’s evidence in this regard.
The applicant’s claims for protection
The applicant’s claims for protection before the Tribunal arises due to a workplace injury he sustained in April 2023, an event that occurred while in Australia and after the delegate’s decision to refuse his protection visa application. The applicant provided some details of his injury and that he had been under the care of health partitioners when advised that his matter was being prepared to be considered to Tribunal Member and to provide any additional information he wished to be considered. I am satisfied that there is a reasonable explanation for not presenting the evidence provided to the Tribunal, with the assistance of his representative, earlier.
Workplace injury/Medical evidence
The applicant sustained a traumatic head injury [in] April 2023 while working as a labourer with [Employer 1] in Perth. The applicant’s evidence, which is consistent with information presented in the medical reports before me, is that the incident involved a [details described] after which he was transported to hospital, treated for lacerations, and had a CT scan of his brain. While he returned to work a month later, due to the ongoing nature of his symptoms which involved severe headaches and unmanaged anger, he was unable to continue with his work duties and stopped working [in] September 2023. At the hearing, consistent the information presented in the documentary evidence before the Tribunal, the applicant confirmed that he has not worked since September 2023 and is in receipt of workers compensation payments. He continues to be on medication and received support from his friends in Australia.
The applicant’s injury described in the medical reports provided to the Tribunal involves both physical and psychological injury. While he has obtained treatment for his injuries, the evidence outlined below indicates that he continues to suffer ongoing symptoms due to his injuries, requires ongoing treatment in the foreseeable future, and is certified as unfit for any work.
Regarding his physical injuries, the report from [Neurologist A] (neurosurgeon) dated 20 December 2023 indicates that that applicant:
‘…has had a closed traumatic brain injury with concussion, post-concussion syndrome and post-traumatic stress disorder. His MRI scan of the brain has been reported as normal. Headache, change in mood, unusual cranial sensations and memory loss are all compatible with his formulation. He has been prescribed amitriptyline 10 mg at night to help his symptoms and pain control. The paracetamol and ibuprofen will continue.’
In addition, the report notes that the applicant has sustained scarring on his scalp due to the injury and has reported to continue to suffer from severe headaches, persistent dizziness and memory difficulties.
Reports from the applicant’s clinical psychologist, [Psychologist A], indicate that the applicant was referred for psychology assessment and treatment in March 2024 by his GP. The report indicates that in addition to his physical symptoms, the applicant reported experiencing heightened levels of psychological distress. He reported becoming easily distressed, experiencing flashbacks of the moment he was injured, and being hypervigilant around his safety for fear of being reinjured. It is noted that the applicant also reported that he spends most of his time at home and is unable to engage in his usual rewarding and pleasurable activities (i.e. gym and socialising with friends). He reported persistent low mood in response his situation and high levels of anxiety about his current functioning for fear his symptoms may never resolve.

The reports indicate that the applicant attended regular therapy sessions and that he been assessed and diagnosed with PTSD and adjustment disorder with mixed anxiety and depressed mood impacting his cognitive, behavioural, emotional, and physiological functioning.
[Psychologist A] conclude that from a psychological perspective it is not recommended that the applicant returns to work at his pre-injury role and is granted appropriate time to engage and benefit from psychological treatment interventions. Without appropriate psychological intervention it is highly likely that his psychological difficulties will become chronic, reducing his confidence in his recovery and therefore his future ability to successfully return to work and ultimately regain his quality of life. It is recommended for the applicant to access ongoing treatment for his PTSD and engage in therapies, including therapy to broaden his coping repertoire, increase his engagement in quality-of-life activities, reduce emotional distress, and a multi-disciplinary approach to pain management.
The report from [Consultant A], a medicolegal consultant for [Workcover] dated [in] October 2024, indicates that the applicant reported of persistent headaches, impaired memory and speech, and suffering from continued nightmares and psychological issues, such as anger, lack of interest in daily activities, loss of balance, and anxiety. He continues to be on painkillers and Amitriptyline and continues to do home-based exercises as advised by his physiotherapist and remains unfit for work.
[Consultant A] opines that the applicant remains unfit for his pre-injury role. He reports that the applicant’s reported symptoms are consistent with the diagnosis of PTSD and expresses support for the recommendation that the applicant is approved for further psychology sessions to address his PTSD symptoms; adjustment counselling treatment sessions, further physiotherapy sessions, referral to an occupational therapist skilled in managing people with post-concussion symptoms, and to continue to take medication, including additional psychotropic medications in consultation with the applicant’s GP. [Consultant A] expresses that the applicant requires ongoing and ‘a whole person approach’ to his psychological, cognitive and vestibular conditions because of their complex interactions.
A Workcover workers compensation progress medical certificate dated [in] October 2024, indicates that the applicant is totally unfit for work. This is echoed in a workplace rehabilitation provider progress report dated [in] November 2024, which also notes that the applicant continues to experience psychological symptoms and headaches and memory loss, and that he continues to be under the care of his GP and utilises prescribed analgesia to cope with pain. In addition, a report from a pain physiotherapist dated 20 February 2024, indicates that the applicant was assessed in need of ‘Pain Option’ sessions to manage his ‘persistently high headache intensity’.
At the hearing, the applicant’s representative confirmed that the applicant continues to be assessed as unfit for any type of employment.
Based on the detailed medical evidence before me, I accept that the applicant has suffered, and continues to suffer, physical and psychological symptoms due to a traumatic brain injury sustained in April 2023. I accept that the applicant suffers from severe headaches, persistent dizziness and is on prescribed medication to cope. I accept that he has been diagnosed with closed traumatic brain injury with concussion, post-concussion syndrome, PTSD and adjustment disorder with mixed anxiety and depressed mood which impacts his functionality, including his ability to cope with his symptoms, to engage in daily living activities, and his behavioural and emotional regulation which impacts his ability to participate in society. I accept that he requires ongoing physical, pain management, and psychological intervention. I also accept that the applicant has been found to be totally unfit for work and has not engaged in work since September 2023 and the medical evidence and the applicant’s presentation does not support a conclusion that he will be fit for any type of work in the foreseeable future.
Assessment of claims – harm in the foreseeable future
It is submitted that the applicant faces a real chance of serious harm in Malaysia on the basis of his acquired brain injury and cognitive disability, in the form of significant psychological abuse and suffering which will include verbal and physical abuse by strangers, inability to support himself, deterioration of his medical conditions, and discrimination in the form of isolation and daily disrespectful conduct.
It is submitted that persons with an acquired brain injury and/or a person with a cognitive disability in Malaysia constitute a particular social group and that the applicant will face a real chance of serious harm for the essential and significant reason of his membership of the said particular social group. It is argued that neither the state authorities nor a party or organisation is willing and able to offer the applicant effective state protection and that the harm he fears applies to the whole of the country.
Country information
I have consulted country information and research studies, including reports and studies provided by the applicant’s representative. Below is a summary of the relevant aspects of the reports consulted and reviewed.
DFAT[1] reports that Malaysia has a well-established universal health care system which is accessible to most of the population and is generally affordable. However, the report indicates that mental health services are a notable gap in Malaysia’s otherwise strong healthcare system. In-country sources reported that mental healthcare was hard to access, expensive and ‘only for the privileged’. There is significant stigma attached to mental health issues in Malaysia, though this appears to be declining in urban areas. Attempting suicide was decriminalised in Malaysia in May 2023. The word gila (crazy) or the term ‘gila monster’ is often used to describe people living with mental illness. Some Malaysians, irrespective of socioeconomic status, ascribe mental illness to supernatural causes and turn to traditional spiritual healers and exorcists, rather than health professionals, for support. Spiritual healers are particularly common in Sabah and Sarawak, especially in rural areas where health services are lacking.
[1] DFAT Country Information Report – Malaysia, 24 June 2024.
Regarding people with disabilities, the DFAT reports that people living with disabilities in Malaysia often face challenges in daily life. UNICEF reports that people with disabilities, especially children, are often hidden, portrayed negatively, or excluded from society, face daily stigma and discrimination, and are prevented from accessing their rights due to gaps in legislation.
The 2020 Human rights council report[2] indicated that people with disabilities in Malaysia face widespread societal discrimination and obstacles that prevent them from participating in society on an equal basis with others and that workforce participation among people with disabilities is low due to lack of accessible environments and negative employer perception of people with disabilities. The report found the government’s policies in this regard inadequate. A further research report found that stigma towards persons with mental disorder remain despite the increase in public knowledge of mental health issues within the country because of the perception that mental illness stems from moral weakness or spiritual or superstitious forces.[3]
[2] Human Rights Council,’ Report of the Special Rapporteur on extreme poverty and human rights’, 6 April 2020.
[3] L Sheri., ‘Reducing stigma towards people with mental illness in Malaysia’, ASEAN Journal of Psychiatry (Vol 16 (2) July-December 2015).
In 2023, Malaysian health advocate organisation CodeBlue expressed concern over Malaysia’s failure to harmonise domestic ratification of the United Nations Convention on the Rights of Persons with Disabilities and called for the inclusion of the word ‘disability’ in an amendment to the federal constitution, which would expressly prohibit discrimination on the grounds of disability.[4] An article written by Professor Dato’ Dr Andrew Mohanraj (a consultant psychiatrist and the Malaysian Mental Health Association president) dated 4 April 2023, further highlights that individuals with psychosocial disabilities are often subject to cruel stereotypes and discrimination in the form of verbal abuse, isolation, and stigmatisation in society, and have unequal access to resources and opportunities, which leads to their inability to access basic needs such as healthcare and insurance coverage, employment and education.
[4] CodeBlue, ‘how far behind regional countries is Malaysia in its disability legislation? – OKU Rights Matter Project’, 6 November 2023.
There are several studies[5] which report that while a large proportion of the Malaysian population suffer from mental disorders, there is a low rate of patients seeking care and treatment due to lack of knowledge, lower socioeconomic status and education level leading to lower level of mental health literacy, and stigma among patients, caregivers, and healthcare providers. Stigma has also been reported to have manifested in forms of labelling, social exclusion, and discrimination at the hands of the affected person’s relatives, friends and by employers. In addition, it is noted that health caregivers also display hostility, negative stereotyping, and inclination to avoid providing care, towards suffers of mental health disorders, and that due to social isolation and limited employment opportunities, this group of people often face homelessness.
[5] A N Hanafiah and T V Bortel, ‘A qualitative exploration of the perspectives of mental health professionals on stigma and discrimination on mental illness in Malaysia’, International Journal of Mental Health Systems, 10 March 2015; N Ibrahim, A M Safien, C S Sian and S Shahar, ‘The effectiveness of a depression literacy program on stigma and mental help-seeking among adolescents in Malaysia: a control group study with 3-month follow-up’ (online, 1 February 2020); C F Petrus, H M S Sahimi, M Midin and J T Y Lim, ‘The impact of mental health stigma in a young Malaysian lady with recurrent suicidal ideations and moribund presentations to the Emergency Department: a case report’, Frontiers (23 October 2023); TM Khan, MA Hassali, H Tahir, A Khan, ‘A Pilot Study Evaluating the Stigma and Public Perception about the Causes of Depression and Schizophrenia’, Iranian Journal of Public Health, Vol.40, 2011.
Regarding traumatic brain injury rehabilitation and treatment, studies have reported[6] that rehabilitation and treatment facilities are limited in Southeast Asian countries, including in Malaysia, thereby contributing to the poorer quality of life of people with this condition. There is a dire need for government and private institutions to provide support for the advancement of traumatic Brain injury reporting, the progression of basic and clinical care, and the development of efficient interventions for Malaysians.
Applicant’s personal circumstances on return
[6] J Ong, A Arulsamy, F Shaikh, ‘current status of post-traumatic brain injury rehabilitation care in LMI Southeast Asian Countries: a Mini systematic review’, Neuroscience Research Notes, 24 November 2022; A Arulsamy and M Shaikh, ‘current status of traumatic brain injury research in Malaysia: A systematic review’, Neuroscience Research Notes, 5 October 2020.
At the hearing, the applicant expressed that he would not be returning to his family home. Although his parents, who are elderly, are aware of his injury and circumstances in Australia, they do not contact him unless he calls them. While he talks to his brother who is in Kuala Lumpur, he is not in regular contact with him. When asked about where he would go if returned to Malaysia, the applicant said he did not know. It was clear from his presentation at the hearing that he does not have the capacity to plan or engage with the process of having to return to Malaysia. The applicant confirmed that he is not in contact with any extended family members and does not have any friends that he could rely upon in Malaysia.
I accept that the applicant does not have access to family or a support network to provide him with financial and emotional support. He does not have access to any form of ongoing accommodation and given his physical and psychological condition, which as indicated above has remained unchanged with no prospect of improvement in the foreseeable future, I find that the applicant will not have access to accommodation, social support, or any financial means to support himself.
Conclusion
I accept that the applicant is a person with a disability and suffering from severe mental health disorders due to acquired brain injury he sustained in Australia.
Courts have consistently found that ‘particular social group’ should be interpreted broadly.[7] Considering the country information cited above, I am satisfied that a person with disability and suffering from severe mental health disorders in Malaysia constitute a particular social group within the meaning of 5L of the Act. Their disability/mental health disorders are a recognised characteristic which is innate and distinguishes the group from others in the society and the characteristics is not a fear of persecution.
[7] Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 (Lockhart J); Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMA (2000) 201 CLR 293.
Country information cited above indicates that people with disabilities and those suffering from mental health disorders face stigma, victimisation, discrimination, abuse, and isolation. The information indicates that they may face such treatment at the hands of their family members, healthcare providers, employers, the authorities, and the general society/community. This is widespread and across the country. The information supports a conclusion that people with cognitive or other disabilities and those suffering from mental health disorders, such as the applicant, face significantly diminished prospects of securing employment, housing, and engaging in society. There is a lack of adequate access to mental health services and treatment and care for patients suffering from acquired brain injuries.
Given the applicant’s current mental and physical conditions and diagnosis, which impacts his ability to work and support himself, and lack of familial/social/community support, he faces a real prospect of suffering repeated social stigma/disrespect/abuse and isolation/ostracism. His conditions have clearly impacted his ability to work and care for himself and will continue to impact his ability to access essential services, including employment and medical treatment, in the foreseeable future. The medical evidence before me indicates that without adequate and appropriate treatment (which is very likely if he is returned to Malaysia) his condition will deteriorate. Given these matters, I am satisfied that the applicant, if returned to Malaysia, will face a real chance of significant harm involving threats to his life or liberty, significant physical harassment or ill treatment, and significant economic hardship that would threaten his capacity to subsist.
I am satisfied that the applicant will be subjected to serious harm for reasons of his membership of the above identified particular social group and that the persecution he will face will involve systematic and discriminatory conduct. Accordingly, I am satisfied that the applicant faces a real chance of serious harm for a reason under s 5J(1)(a) of the Act.
In light of the country information cited above, which notes lack of adequate policies to protect persons such as the applicant and the general negative attitude towards people with disabilities or those suffering from severe mental health conditions by the society at large, including the authorities, I am satisfied that effective protection measures, as defined in s 5L of the Act, would not be available to the applicant and that the real chance of persecution cannot be said to be restricted to a particular area of the country and relates to all areas in Malaysia. Requiring the applicant to modify his behaviour would require him to alter or conceal an innate or immutable characteristic which is impermissible pursuant to s 5J(3)(b) of the Act.
I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act in Pakistan.
There is no information, and I find, that the applicant does not have a presently existing right to enter and reside in any other country. It follows that s 36(3) of the Act does not apply.
DECISION
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)(a) of the Migration Act.
Date of hearing   21 January 2025
Representative:  Ms Sarah Pickles
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.
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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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