1910640 (Refugee) - [2025] ARTA 1442

1910640 (REFUGEE) [2025] ARTA 1442 (26 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1910640
Tribunal:General Member S Muling
Date:26 March 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)(a) of the Migration Act.

Statement made on 26 March 2025 at 12:24pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – written claims of fear of harm from money lending company submitted without applicant’s knowledge and untrue – religion – born Muslim but raised Christian by grandmother – restricted from worship, harassed and threatened –membership and activities in Australia – reported to police and Islamic authorities by husband’s parents – controlling and abusive relationship ceased and ex-husband withholding access to child – mental health – intervention orders, medical records and supporting statement – plausible explanations for inconsistent evidence given in husband’s previous hearing – country information – discrimination and inequality against women banned but persist – conservative religious and cultural practices – state protection often inadequate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
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 made by a delegate of the Minister for Home Affairs on 13 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 28 November 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a protection visa.
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.
The applicant appeared before the Tribunal on 22 November 2024 and 24 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
The applicant claims to be a citizen of Malaysia who was born on [Date] in [City], Sabah, Malaysia. According to her protection visa application, the applicant’s ethnicity is “Malay” and her religion Christian. She resided in [Town], in Sabah from [Birth] to 20 November 2018. The applicant is fluent in Malay and English. She departed Malaysia legally on [Day 1] August 2018, arriving in Australia on [Day 2] August 2018.
Evidence before the Department
The applicant presented her claims in her protection visa application, summarised as follows:
·She left Malaysia because she was mentally abused by the money lender company. Someone applied for a loan with the money lender without her knowledge and permission and failed to pay the debt.
·She tried to explain to the money lender company, but they still forced her to repay the debt which she could not afford.
·When she failed to pay on time, the money lender set fire, sprayed and splashed paint and wrote threats on the walls of her house as a threat of violence and to scare her and her family. The money lender company persons tried to beat her family members and threatened to damage or destroy their property.
·She lodged a police report but no action was taken by the police. She and her family were still abused, harmed and threatened by the money lender every day so she decided to run to Australia to hide from them.
·She cannot move to another place because she was followed by “them” every day. Even if she managed to move to another place, they can still track her down and find her because the money lender company has a lot of informers who work for them.
·If she returns to Malaysia, the situation will become worse, and they will probably kill her.
Evidence before the Tribunal
In the application for review received by the Tribunal on 19 April 2019, the applicant claimed that she ran away from Malaysia because she was not accepted by society. She stated that it has been very hard for her to continue living her life in Malaysia and she prefers to stay in Australia and not return to Malaysia, where her mental health became a big problem. She is happier and content here.
On 17 March 2024, the applicant submitted the completed pre-hearing information form, to which she attached the following additional information about her situation in Malaysia, in summary:
·She was born a Muslim but raised a Christian by her late grandmother. Since she was young she was educated and raised a Christian. As she grew, her faith also grew with her.
·When she attended school or any public events she had to pretend she was Muslim.
·At school she was forced to wear a hijab and learn the Quran as she is registered as a Muslim on her birth certificate, so her teachers saw her as a Muslim.
·She attended church secretly, far from where she lived. On 30 October 2015, with the help of friends, she was baptised a Christian.
·A few months later, news spread amongst the Islamic community and her relatives that she had been baptised. She was hated for her choice, blackmailed and threatened to be killed as converting from Islam to another religion, especially Christianity, is considered insulting Allah.
·Due to the threats, she was not free to attend any Christian meetings or Sunday service prayers and she had to disguise herself as Muslim. She was even married in a Muslim ceremony.
·[In] August 2018, she moved to Australia because she did not feel safe in Malaysia and had heard she could get a better paid job on a [workplace] easily.
·After arriving in Australia she made a few Christian friends and was attending church every Sunday. She found a local community church in the Indonesian language in 2022 and has been very active in the church.
·She and her husband decided to get baptised together in the church and were also married in the same church. She registered her family as a permanent member of the church since then.
·Even though she is in Australia she still has a threat. Her in-laws even lodged a police report and reported her and her husband to the Islamic Department, Jabatan Agama Islam as they have converted and announced this openly through social media and friends and community in Australia.
On 15 November 2024, the Tribunal received a submission from the applicant’s newly appointed representative providing an overview of the background and procedural history of the applicant’s case, a summary of the applicant’s protection claims and country information relevant to the applicant’s case.
On the same day the Tribunal received the following documents from the applicant’s representative:
·Statutory declaration made by the applicant dated 11 November 2024.
·Police report, with translation, dated [October] 2023.
·Birth certificate for the applicant’s [child], born on [Date].
·Marriage certificate for the applicant and her ex-husband dated [September] 2023 from the [Church 1].
·Applicant’s birth certificate, with translation.
·Applicant’s Malaysian Identity Card.
·Detail page of the applicant’s Malaysian passport.
·Applicant’s baptism certificate from [Church 2] [District], with translation.
·Applicant’s baptism certificate from [Church 1] Ministry dated 9 April 2023.
·Sabah marriage certificate for the applicant and ex-husband issued on [July] 2019, with translation.
·Applicant and ex-husband’s Queensland marriage certificate registered on [Day 2] January 2021 (for marriage which took place on [Day 1] January 2021).
·Screenshot of WhatsApp messages from the applicant’s ex-husband’s family.
·Certificate of Appreciation issued to the applicant, as [volunteer task] by [Church 1] dated 23 April 2023.
·Letter from the applicant’s GP dated 12 November 2024.
·Referral letter from the applicant’s doctor dated 25 July 2024.
·MARAM Family Violence Risk Assessment.
·Photographs of the applicant at church and practising her Christian faith.
In the statutory declaration made by the applicant dated 11 November 2024, the applicant provided the following additional information, in summary:
·She fled Malaysia in 2018 because she fears being further threatened, harassed, physically harmed or killed due to her conversion to Christianity.
·The money lending claims included in her application were all untrue and were submitted without her knowledge.
·She grew up in [City] with her mother, step-father from [Country] and her [step-siblings]. Her biological father and mother broke up before she was born so he was never involved in her life and was not included in her birth certificate.
·Her grandmother is listed as her mother on her birth certificate because she adopted her as her mother was [age] years old when she gave birth to her. Her religion on her birth certificate is recorded as “Islam”.
·All her mother’s side of the family are Christian. Both her mother and grandmother’s birth certificates say Islam, so hers did as well. It is against Sharia law to practice Christianity when a persons’ identification documents identify them as Muslim. This puts a person at risk of discrimination, harassment and physical violence from the community and the authorities.
·Her mother and grandmother were forced to practice their religion in secret because when they tried to do so openly, they were threatened by the community by having rocks thrown at their car. Other members of her mother’s family had ‘Christian’ listed on their national identity card so could practice their faith without receiving any poor treatment.
·When she visited her Christian cousins who lived 3-4 hours away from her village, she would go with them secretly to church, pray together and accompany them to Sunday school in the school holidays.
·She attended a Muslim primary school where she was bullied, teased and harassed frequently by her teachers and peers. She told her teacher she did not want to participate in the compulsory Muslim subject or wear a hijab because she is not Muslim but a Christian.
·She was secluded by her friends in class, was teased and called a Murtad. She could not cope with everyone in school judging her, so when she was 13 years-old she left school.
·On 30 October 2015, members of her Indonesian community and her cousins helped her get baptised in the Catholic church and on 1 November 2015, she received her first holy communion.
·After she was baptised she continued to suffer psychological and emotional harm from members of the community. As she did not wear a hijab, she would often get singled out and questioned by police to show her national identity card. She would also be treated poorly by people in the community, including being physically harassed by being pushed, pulled and kicked.
·She met her ex-husband when she was around 14 or 15 years old through a family friend. Her ex-husband told her he was a Protestant Christian. He proposed to her after they had been dating for around 6 months.
·After they were engaged she added her ex-husband as a friend on [Social media] and when looking through his pictures, she saw a lot of his female family members wearing hijabs. When she questioned him if he was Muslim, he denied he was however she found out he was lying and was actually a Muslim so she ended the relationship and lost contact with him. After they separated, she found out she was pregnant with his child but sadly had a miscarriage.
·She received assistance in completing her application when she applied for protection. She had told this person her claims for protection were due to her Christian beliefs however they told her this was not a possible claim for protection. She told this person to file her application with her Christianity claims and paid him money to file the application form.
·Since being in Australia, she goes to church every week free from the fear of being physically harmed, stopped by police, or killed for attending church. In or around 2020 she decided to be open about her Christian faith on her [Social media] stories for 24 hours account. Her family back in Malaysia, especially her mother, questioned why she had posted on social media and encouraged her to keep it to herself.
·After she started posting about her faith on social media, she began receiving anonymous messages on WhatsApp from Malaysian numbers, threatening to hurt her because of her sinful actions and conversion away from Islam.
·While in Australia, she learned that her ex-husband was also in Australia and had been here since January 2018. They got in contact with each other in or around March 2019 and reconciled. Her ex-husband wanted to get their relationship registered so asked her for her national ID. She thought he would register their relationship in Australia, but he got his father to register their relationship as a marriage in Malaysia. His father has connections with the Government through his work and somehow [in] July 2019, they were registered as married in Malaysia, with their religions identified as ‘Islam’. She does not know how his father obtained this document when they were both in Australia, but she was told by her ex-husband’s father that it is a valid marriage certificate.
·Her ex-husband turned out to be very abusive. He was physically, emotionally, verbally and financially abusive. He has hit, choked, and almost suffocated her with a pillow. The physical violence happened more frequently when he drank alcohol. As a result of his violence, she sustained a back injury which requires regular treatment and visits to the hospital.
·She and her ex-husband moved to [City], Queensland in around late 2020 and around the same time she got pregnant. [In] January 2021, she and her ex-husband registered their marriage in Australia in a Masjit as a friend of her ex-husband said this was the only place they could register their marriage because of their identity cards. She later learned that this was a lie, and they could have married in a Christian church.
·Her [child] was born on [Date] and in 2022 she, her ex-husband and child moved to Melbourne. In Melbourne, she became actively involved in church life and the [Church 3] in [Suburb]. She took part in all the activities she could - she would attend different social outings and help cook for events by the parish. She would also attend Catholic church to pray and would sometimes sing in the choir.
·Her ex-husband started coming to some events and eventually he decided he wanted to convert to Christianity. In 2023, both she and her ex-husband were baptised in the [Church 4] and [in] September 2023, they were married in the [Church 4].
·On 5 October 2023 they were baptised, one of her ex-husband’s friends told her ex-husband’s family in Malaysia that he had converted, and they were married in the Christian church. Her ex-husband’s family contacted her, accusing her of forcing her ex-husband to convert to Christianity.
·[In] October 2023, her ex-husband’s father made a police report with the Malaysian police, informing the authorities of their religious status and pleading that they be punished as apostates.
·She has received anonymous messages from a Malaysian number threatening to kill her and her [child] if she returns to Malaysia. On 11 April 2024, she received another text message stating that her actions have insulted Allah and because of this she will be punished or eradicated.
·After moving to Melbourne, her ex-husband’s behaviour towards her got even more violent. In April 2024, she decided she can no longer live with her ex-husband and on 3 June 2024 they officially separated.
·Due to her fear of being forced to return to Malaysia and the impact of family violence, her mental health has become significantly worse, and she is currently prescribed medication to treat her depression and post-traumatic stress symptoms.
·She has not seen her [child] in person since July 2024 because her ex-husband is withholding [the child] from her. He justifies this saying she is not a fit full-time carer for her [child] due to her poor mental health. She is getting assistance from a family violence service to try to resume access to her [child].
·If she is forced to return to Malaysia she will be harassed, threatened, forced to hide her religion, and could be killed for her conversion to Christianity by the government, authorities, police and members of her ex-husband’s family.
·She will not be free to practice her Christian faith and may be forced to practice Islam teachings.
·Since she has separated from her ex-husband, she is more afraid than ever of his family in Malaysia and what harm they will do to her as they are staunch Islamic believers and will punish her for her religious beliefs, getting married in a Christian church and for her ex-husband’s conversion.
·Her personal details and conversion to Christianity have been brought to the direct attention of the authorities in Malaysia due to the police report filed by her ex-husband’s father. She fears his father will take his revenge on her personally or alternatively he will notify the authorities to put her in prison.
·Her mother is forced to practice in secret due to fears of discrimination, harassment and physical torture. She knows she would have to hide her Christian faith, which is a key part of her identity, if forced to return to Malaysia.
·People from the Malaysian community know that she has converted to Christianity so she fears people in society who know her will harass, discriminate and subject her to physical harm.
·She fears if both she and her ex-husband were forced to return to Malaysia she would not be safe. The family violence she would experience from her ex-husband would be even worse and the authorities would not be able to protect her.
·She would not get adequate support for her mental health in Malaysia. She fears her poor mental health would get worse because of her fears on return. People who suffer with mental conditions like her usually become homeless and the community view them in a negative light.
Following the hearing on 22 November 2024 (which was adjourned), the applicant’s representative submitted the following:
·A copy of the interim family violence intervention order issued against the applicant’s ex-husband [in] October 2024.
·A copy of the application and summons for an intervention order made by a member of Victoria Police [in] October 2024.
·Photographs of bruises on the applicant.
·A letter of support from the Family Violence Case Manager at [Organisation] dated 6 January 2025.
·Medical and clinical records for the applicant.

On 3 February 2025, the Tribunal received a post-hearing submission from the applicant’s representative which addressed matters arising at the hearing including inconsistencies in the evidence presented by the applicant, the oral evidence the applicant presented as a witness in her ex-husband’s hearing in 2023, the medical evidence provided by the applicant and the authenticity of documents obtained from Malaysia. The applicant’s representative also provided submissions addressing the risk of harm to the applicant, her membership of a particular social group of ‘Christians’, state protection and relocation. Also attached was a statutory declaration made by the applicant and screenshots from the applicant’s [Social media] page.
On 26 March 2025, the Tribunal received a copy of the Family Violence Final Intervention Order issued by the Magistrates’ Court [in] February 2025
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issues in this review are whether there is a real chance that, if the applicant returns to Malaysia, she will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
The applicant travelled to Australia on a valid Malaysian passport and states that she is a national of Malaysia. The Tribunal accepts on the evidence before it, namely a copy of the applicant’s passport, birth certificate and national identification card, that Malaysia is the applicant’s receiving country for the purposes of assessing her protection claims.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
In the applicant’s protection visa application form, she claimed to fear harm from money lenders because someone had applied for a loan, presumably in her name, without her knowledge and when this unknown person failed to repay the money, the money lenders pursued her for payment of the debt. In the applicant’s statutory declaration dated 11 November 2024, she explained that she received assistance with completing her application form from someone who had previously applied for protection, and she only later learned that the claims submitted in the form were all untrue and were included without her knowledge. The Tribunal accepts that as someone with limited English and education, the applicant may have sought assistance with completing her application for protection and that she was not aware until sometime later that what she had told this person (which was that her claims for protection were based on her Christian religion) had not been included. In light of the applicant’s evidence that the money lending claims included in her protection visa application form were false, the Tribunal has not considered these claims made in the applicant’s protection visa application.
The applicant claims to fear harm if forced to return to Malaysia because of her Christian religion. She claims that her identification documents, namely her birth certificate and national identity card, records her religion as ‘Islam’ (as does her mother’s, grandmother’s, and siblings) despite the fact that her family are all Christians. As a result, she (and her family) was forced to practice their Christian faith in secret to avoid scrutiny by the authorities and the community. The applicant claimed that since coming to Australia, she has practised her faith freely and has expressed her beliefs openly, including on social media. She claimed that her ex-husband converted from Islam to Christianity in Australia, resulting in her receiving numerous threats from his family and other unknown Malaysians because they blame her for her ex-husband’s conversion, which she states is a crime in Malaysia.
The applicant also claims to fear harm from her ex-husband, who is a Malaysian citizen with separate claims for seeking protection in Australia. She claimed to have experienced family violence at the hands of her ex-husband since their marriage in Australia.
The Tribunal notes that the claims regarding her fear of harm returning to Malaysia because of her religion and the family violence perpetrated against her by her ex-husband were not before the delegate.
Family violence claims
The applicant claims to have met her ex-husband when she was 13 or 14 years old in Malaysia. Her ex-husband is [Number] years older than her. Her evidence was that when she met him, he told her he was also Christian, and she believed him. However, she later found out he was in fact Muslim when she saw pictures of his sisters on [Social media] wearing a hijab. The applicant claimed that when she confronted her ex-husband about this, he admitted he was Muslim, so she ended the relationship with him. She stated in the hearing that she lost contact with him until she was in Australia.
The Tribunal accepts the applicant reconciled with her ex-husband in Australia and they started living together in March 2019 after resuming contact. The applicant has provided evidence that their marriage was registered in Malaysia [in] July 2019 with the assistance of her ex-husband’s father. The marriage was registered in Australia in accordance with rites used in Islam [in] January 2021, as confirmed by the marriage certificate the applicant submitted. The applicant and her ex-husband were also married in the [Church 1] [in] September 2023, as evidenced by the marriage certificate the applicant submitted.
The Tribunal accepts the applicant’s claim that her ex-husband was abusive. Her evidence was that he started getting physically violent towards her around the end of 2019/early 2020. The violence continued until she was first pregnant and suffered a miscarriage and became worse once they moved from Queensland to Victoria, when her ex-husband would get together with friends and go out drinking with them and he would become more aggressive. It accepts the applicant’s claim that she was afraid to disclose to anyone the family violence she was subjected to out of fear for her child’s safety, repercussions related to her ex-husband’s status in Australia and possible retribution by her ex-husband. The Tribunal has taken into consideration the evidence submitted by the applicant which includes photographs taken of bruising as a result of a physical assault by her ex-husband in April 2024, shortly before she left him and the MARAM Risk Assessment which provides that the applicant experienced significant family violence abuse since marriage including being hit, choked, kicked, punched and suffocated. The applicant also provided a copy of an interim intervention order dated [October] 2024, a further interim intervention order dated [January] 2025, which were both sought by an officer of Victoria Police and the final family violence intervention order which was issued by the Magistrates’ Court [in] February 2025.
The Tribunal notes in the hearing it discussed with the applicant evidence that she provided during her ex-husband’s Tribunal hearing in respect to his application for review which appeared to be inconsistent with her evidence regarding aspects of her relationship with her ex-husband and her and her family’s religious background. In particular, it noted that during her ex-husband’s hearing she stated that they were married in 2017, the reason she travelled to Australia was to visit her ex-husband and the reason she wanted to stay in Australia was because she wanted to stay with her ex-husband and her depression due to her mother. Further, she did not raise that she identified as a Christian prior to her and her ex-husband’s baptism in April 2023 and claimed that it was her distant relatives who were Christian (not her mother and grandmother) and that her siblings are all Muslim. The Tribunal has taken into consideration the applicant’s explanation for the differences in her evidence, provided both during the hearing and in a statutory declaration made following the hearing. The applicant stated that she was told what to say in her ex-husband’s hearing by her ex-husband and his friend and that she was fully under his control because of the sexual, physical, verbal and emotional abuse she was subjected to. She was told by both her ex-husband and his friend that as it was not her hearing what she said would not impact her “visa” and as she did not have a lawyer, she was fully reliant on what her ex-husband told her. Further, she said what she was told to say because she was afraid and fearful of making her ex-husband angry. The Tribunal accepts as plausible the applicant’s explanation for the discrepancies in her evidence, as identified above, particularly in the context of the applicant being a victim of family violence and subject to coercive control by her ex-husband.
On the evidence before it, the Tribunal accepts the applicant was subjected to physical, emotional, verbal and financial abuse and controlling and manipulative behaviours by her ex-husband. The Tribunal refers to the significant age gap between the applicant and her ex-husband and accepts as plausible the applicant’s representative’s submission that this exacerbated the applicant’s ex-husband’s dominance and control over her. The Tribunal finds that this has continued since the applicant separated from her ex-husband by him withholding their child from the applicant. The applicant’s evidence in the hearing was that she had not had any contact with her child since June 2024 until a few weeks ago, for the first time, with the help of a friend. It also accepts as plausible that after the applicant separated from her ex-husband, he continued to message and call her, until police applied for the interim intervention order, and that the applicant experienced abuse and harassment from her ex-husband through their community and mutual connections through his dissemination of malicious information about the applicant.
The Tribunal accepts the applicant believes that if she returns to Malaysia the violence against her from her ex-husband will be worse. The applicant spoke in the hearing about her fear that she will not only face harm from her ex-husband but also his family because she reported his violence to police in Australia. She stated unlike in Australia she will not receive any protection from the authorities.
Does the applicant satisfy the refugee criterion for protection?
As discussed above, the Tribunal accepts the applicant has been subjected to family violence by her ex-husband throughout their marriage and that after the applicant separated from him, he continued to harass her until police sought an intervention order, and he continues to deny the applicant access to her child.
The Tribunal notes that whilst the applicant’s ex-husband is currently in Australia, there is a real chance that he will return to Malaysia given that his application for review of the delegate’s decision refusing him a protection visa was affirmed by a differently constituted Tribunal in December 2023. The applicant also claimed in the hearing that she had been told by a friend that her ex-husband intends to return to Malaysia by the end of the year. She explained that her friend had given her this information knowing that she is in the process of seeking access to her child in Australia.
The Tribunal finds the applicant’s home area is [Town], Sabah, where she was living with her mother, stepfather and siblings prior to coming to Australia. The applicant’s evidence was that her ex-husband lived about 30 minutes from [City], Saba, which is where she previously lived with her grandmother. The travel time between [Town] and [City] is approximately one and half hours. She also claimed that her ex-husband had met her family, so he is aware of where they live.
The Tribunal has taken into consideration the MARAM Risk Assessment conducted by [Organisation] which flagged the applicant as a serious risk of family violence due to “high risk factors present including control, threats to kill, recent separation, jealousy, stalking, choking, AOD misuse and physical assault while pregnant.” The report states that the risk factor remains high due to the applicant’s ex-husband’s unpredictable behaviour and history of violence. The Tribunal notes that the National Domestic and Family Violence Bench Book identifies a number of factors that are accepted as key signifiers of risk for the escalation of family violence, and which outlined above in the MARA Risk Assessment arise in the applicant’s case, including past domestic and family violence and escalation, non-fatal strangulation, separation, misuse of alcohol or drugs by the perpetrator and parenting proceedings and other court proceedings.[1]
[1] AIJA, National Domestic and Family Violence Bench Book, ‘Factors affecting risk’, July 2024.
While the Tribunal accepts that the applicant intends to obtain a divorce in the near future, once she has been separated from her ex-husband for the required 12 month period, and that her ex-husband has not initiated any contact with her since the intervention order has been in operation, the Tribunal accepts the applicant’s evidence that her ex-husband isolates their child from the applicant, which has been said identified as a tactic commonly used by domestic abusers.[2] In this way, the Tribunal accepts that the applicant’s ex-husband continues to emotionally abuse the applicant. Further, the Tribunal refers to the letter from the applicant’s Family Violence Case Manager at [Organisation], dated 6 January 2025, which states that the applicant continues to endure abuse and harassment from her ex-husband, particularly through their community and mutual connections and this ongoing abuse raised concerns about her safety and overall well-being and the continued risks she faces.
[2] Duluth Abuse Intervention Programs, Power and Control Wheel.
The Tribunal has considered country information relating to domestic violence and the situation for women more generally in Malaysia. DFAT reports that violence against women and girls is a significant, albeit underreported, problem. While surveys have indicated that the prevalence of reported intimate partner violence in Malaysia is relatively low (affecting 8 per cent of ever-partnered women, according to one 2013 study), experts believe the actual incidence is likely much higher, and that it is underreported due to it being a ‘sensitive topic’. The Women’s Aid Organization (WAO), an NGO, recorded 2,815 cases of domestic violence between 2021 and March 2023. A 2020 study published in BMC Public Health found significant factors which contribute to intimate partner violence in Malaysia were: ‘lower education background, lower socio-economic status, history/current substance abuse, exposure to prior abuse or violence, violence-condoning attitude; husbands or partners controlling behaviour, substance abuse and involvement in fights and lack of social support.’ A 2021 survey by the WAO found 53 percent of respondents believed domestic violence was a ‘normal’ reaction to stress or frustration.[3]
[3] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024 at 3.115 and 3.116.
The US Department of State, Country Report on Human Rights Practice: Malaysia also refers to information from the WAO including that in 2020 the NGO reported that 9 percent of women who had ever been in a relationship experienced domestic violence and such violence was “symptomatic of a deeper problem: gender inequality.” It was noted that the November report (cited by DFAT, as discussed above) not only reported that over half of respondents believed domestic violence a “normal” reaction to stress or frustration but also 43 percent considered a woman could so anger a man that he hit her without meaning to, suggesting a culture deeming such violence acceptable “when perceived as an emotional gesture, or in the event the victim has behaved in a way that triggers the abuse”. [4]
[4] United States Department of State, 2023 Country Report on Human Rights Practices: Malaysia, 23 April 2024.
The WAO study on Malaysian Public Attitudes and Perceptions towards Violence Against Women (VAW) found that a large proportion of Malaysians believe that abusive relationships are enabled by both the perpetrator and victim. Over one third of those surveyed also tended to believe domestic violence is a private matter that needs to be settled within the family and 32.1% believed that domestic violence can be excused if the perpetrator is truly sorry for what has happened. The study found that only about half of Malaysians are likely to oppose violence-endorsing attitudes and support gender equality. It was noted that the persistent denial of or ignorance towards the reality of gender inequalities helps to maintain the structures of gender inequality in a vicious cycle that places women at increased risk of vulnerability and harm.[5] In light of societal attitudes towards violence against women, and particularly domestic violence being viewed as a private family matter, the Tribunal finds it is unsurprising that such violence is underreported.
[5] Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence Against Women (VAW), October 2021

Against this background, taking into consideration the abuse the applicant was subjected to since she began living with her ex-husband in 2019 (from the age of [Age]) until she separated from him in mid-2024, the Tribunal finds that there is a real chance the applicant will face serious harm in the form of physical and emotional abuse from her ex-husband, now or in the reasonably foreseeable future, if returned to Malaysia. The Tribunal accepts the applicant’s mental health issues increases the gravity of harm she would experience. The Tribunal accepts the applicant’s evidence that she is in the process of obtaining legal assistance to obtain access to her child and that if she was to pursue her right as a parent to see her child in Malaysia, that this would exacerbate the situation and place the applicant at greater risk of serious harm, not only from the applicant’s ex-husband but also his family. This is particularly so given the applicant’s child is a [gender] and arguable considered to be a Muslim by her ex-husband’s family. The Tribunal accepts as plausible that the applicant’s ex-husband and his family may seek to use the applicant’s claimed Christian religion to intimidate her and cause her potential harm in light of the fact that her identification documents identify her as a Muslim.
The Tribunal finds the harm the applicant fears from her ex-husband is for the essential and significant reason of her gender. Whilst domestic and family violence can affect any person irrespective of age, gender, socio-economic status or cultural background, it is widely acknowledged that women are significantly more likely than men to experience domestic and family violence.[6] The Tribunal’s gender guidelines recognises this form of violence as a form of gender-based violence that may be directed at a person on the basis of gender.[7] Issues such as structural inequalities, affirm attitudes and social conditioning have been identified as contributing to the overarching prevalence of men’s violence against women.[8] Domestic and family violence, as a type of gender-based violence, has been identified as intricately linked to women’s position in society and the product of power imbalances between men and women.[9] In this respect, the Tribunal refers to the DFAT report which provides that despite discrimination against women being banned under the Malaysian Constitution, discrimination on the basis of sex, and inequality, persist for women and girls in Malaysia. Although women participate widely across various aspects of Malaysian society, some conservative cultural and religious practices continue to limit their choices. According to the World Bank, female labour force participation rate was 53 per cent in 2022, up from 43 per cent in 2008.[10] In the 2018 Concluding Observations to the Malaysian government, the Committee on the Elimination of Discrimination against Women (CEDAW Committee) cautioned about the “persistence of patriarchal attitudes and deep-rooted stereotypes regarding the roles and responsibilities of women and men in the family and in society,” which they saw as “a significant impediment to the implementation of the Convention and are a root cause of the disadvantaged position of women in several areas, including in the labour market and in political and public life.”[11]
[6] AIJA, National Domestic and Family Violence Bench Book, ‘Understand domestic and family violence’, July 2024.
[7] AAT Migration and Refugee Division, Guidelines on Gender (July 2015) [8]
[8] White Ribbon Australia, Domestic Violence Resources Facts & FAQs | White Ribbon Australia
[9] Australian Government, Working for Women, Priority area 1: Gender-based violence | Working for Women
[10] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024 at 3.111.
[11] Committee on the Elimination of Discrimination against Women, “Concluding Observations on the Combined Third to Fifth Periodic Reports of Malaysia” United Nations, 2018, >
Considering the above, including the independent information regarding domestic violence in Malaysia, the Tribunal accepts that the harm the applicant fears is for the essential and significant reason of the applicant’s membership of a particular social group of “women’. The identifiable characteristic shared by the members of this group is their gender and not a shared fear of persecution. The Tribunal finds the applicant faces a real chance of serious harm in the form of significant physical harassment and ill-treatment amounting to serious harm under s 5J(5) and that this harm involves systematic and discriminatory conduct.
The Tribunal has considered whether the applicant’s real chance of serious harm extends to all parts of Malaysia. The Tribunal finds the applicant’s strong desire to be reunited with her young child (which as a mother, the Tribunal finds is entirely reasonable) would bring her to the attention of her ex-husband and his family and place her at risk of being seriously harmed regardless of where she returns to in Malaysia. Accordingly, the Tribunal finds the real chance of persecution relates to all areas of Malaysia. The Tribunal also agrees with the applicant’s representative’s submission that the applicant’s particular circumstances, specifically her mental health concerns, very limited education, and lack of any familial support, would make relocating to another area fraught with difficulty and risks to such an extent that it would be unreasonable to expect her to do so.
The Tribunal does not accept on the evidence before it that the applicant will be afforded effective protection by the Malaysian authorities from any harm she may face from her ex-husband and his family. Section 5LA provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Section 5LA(2) provides that a state is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. The DFAT report provides that multiple local and international sources consider the Royal Malaysian Police to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption.[12] With respect to protection available to women experiencing gender-based violence, the DFAT report provides that state protection is available but often inadequate or ineffective in practice. While there are special police units to deal with gender-based violence such as family violence, in-country sources told DFAT that these services were inadequate to meet demand. In-country sources also advised that police often failed to follow up on reports of gender-based violence and it was not uncommon for a woman who has experienced gender-based violence to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process. DFAT noted that amendments to the Domestic Violence (Amendment) Act (2017) had strengthened protections for individuals who experience domestic violence by introducing enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week to prevent a perpetrator from entering a safe location. An EPO can also be used to remove an offender from the house where the victim lives. However, in-country sources told DFAT that EPOs were difficult to obtain and required strong evidence of violence or damage to property. Further, police reportedly do not always enforce EPOs.[13] In addition to EPOs, victims of domestic violence can also apply for an interim protection order which can be issued for a longer period while investigations take place or a protection order for one to two years.[14]
[12] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024 at 5.5.
[13] [13] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024 at 3.117, 3.118, 3.120, 3.121 and 3.125.
[14] 'Who Is Protected Under The Domestic Violence Act 1994?', Mondaq, 11 October 2022
Consistent with this information, the US Department of State report for 2023 provides that although the government and NGOs maintain shelters and offered other assistance to victims of domestic violence, activists asserted that support mechanisms were inadequate. NGOs reported that the government did not act in cases of domestic violence; victims had to gather and maintain evidence, gather witness testimony and ensure their own safety.[15] There are reports that some police personnel refuse to accept reports lodged by victims of domestic violence, citing it as a family matter.[16] The WAO in a December 2021 report, noted that there are barriers in women accessing justice often because the police fail to take serious action or conduct a proper investigation. WAO attributed theses failures to a lack of training and awareness of domestic violence procedures.[17]
[15] United States Department of State, 2023 Country Report on Human Rights Practices: Malaysia, 23 April 2024.
[16] 'Bring medical report to cops, minister tells domestic violence victims', Bernama, 27 March 2022
[17] Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions towards Violence Against Women (VAW), October 2021
Based on the independent information discussed above, which suggests that state protection available to victims of domestic violence is insufficient and ineffectual and that despite amendments to the law to strengthen protections for victims, access to government and non-government assistance for victims is inconsistent, the Tribunal finds that effective protection measures against domestic violence is not available to the applicant.
For the reasons discussed above, the Tribunal finds the applicant has a well-founded fear of persecution for reasons of her membership of a particular social group of women if she returns to Malaysia, now or in the reasonably foreseeable future. The Tribunal therefore finds that applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Given the above findings, the Tribunal does not consider it necessary to assess the applicant’s protection claims relating to her Christian faith.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
DECISION
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 Hearings:  22 November 2024 and 24 January 2025
Representative:   Ms Madelyn Madeira
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
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.
…