1912485 (Refugee) - [2025] ARTA 1424

1912485 (REFUGEE) [2025] ARTA 1424 (17 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1912485
Tribunal:Senior Member C Thwaites
Date:17 March 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 17 March 2025 at 11:09am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Chinese Malaysian – religion – fears from his schizophrenic uncle – fears physical and mental abuse from his family – it is reasonable for the applicant to relocate to Johor Bahru – not satisfied that there is a real risk that the applicant will suffer significant harm – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 46, 65,499
Migration Regulations 1994, 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 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 31 August 2018.
On 17 May 2019 the delegate refused to grant the visa on the basis that the applicant was not a refugee and did not meet the criterion for complementary protection.
On 20 May 2019 the applicant applied to the Tribunal for review of that decision.
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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 26 February 2025 to give evidence and present arguments.
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal has before it the departmental file as well as the Tribunal file.
Protection claims
The applicant’s written claims for protection are made in his protection visa application form and a statutory declaration dated 4 December 2018.
In his protection visa application form the applicant stated that he came to Australia to study and intended to depart on [date] August 2018. However, his mother called him and advised that it was not safe for him to return home. His father and his uncle both have schizophrenia. Last time the applicant travelled to Malaysia they were both aggressive towards him. His uncle is very aggressive in nature, and he took over their house. His mother is a victim of his uncle’s abuse, and his father cannot do anything about the situation due to his mental health. The applicant’s uncle has been abusive towards the applicant in the past and he threatened that if the applicant returned and tried to take back the house he will torture and harm the applicant. The applicant is afraid that he will be harmed if he returns.
The applicant indicated that he had experienced harm in his country and stated there has been a history of abuse by his uncle since he was young. He thought the situation would get better but hearing his mother speak to him over the phone he knew he could not return to Malaysia.
The applicant indicated that he did not seek help within his country and stated the authorities are unable to help. The applicant indicated he did not try to move to another part of the country to seek safety and stated relocation is not an option for him.
The applicant indicated he thinks he will be harmed or mistreated if he returns to his country and stated he believes that he will be targeted and harmed by his schizophrenic uncle.
The applicant indicated he does not think the authorities in his country can and will protect him if he returns, and stated the authorities will not be able to offer protection.
The applicant indicated he does not think he will be able to relocate within his country to an area where he would not be harmed, and stated relocation is not an option.
In his statutory declaration dated 4 December 2018 the applicant declared that he was born in Kuala Lumpur and arrived in Australia on [date] December 2015. He was referred to his lawyers by the asylum seeker resource centre. He sought legal assistance in relation to his protection visa application. He currently has no financial resources or assets and arrived on a tourist visa and was granted a student visa. He rented a room in a house and paid $150 a week. He was studying [and] his visa was about to expire. His college advised him that they would renew his student visa however his college closed and he then found out he was unlawful. He told his family this and they threatened him and stop sending him money for his living expenses. He currently has no money and is unable to pay rent or buy food. His housemate is schizophrenic and threatening to evacuate him from the house if he did not contribute to the rent and bills. He urged consideration of his application for work rights as he was facing financial hardship. He prepared his statutory declaration with the assistance of his legal representative.
Hearing
As noted above, the applicant appeared before the Tribunal on 26 February 2025 to give evidence, discuss the information and documents before the Tribunal, and present his case. During that hearing the Tribunal discussed with the applicant his background, family, education, and work history, as well as the reasons why he left Malaysia and his fears of returning to Malaysia.
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.
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.
ISSUES, REASONS AND FINDINGS
The issues in this case are: Is the applicant a refugee as defined by the Act, and if not, does the applicant satisfy the criterion for complementary protection?
IS THE APPLICANT 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).
Outside their country of nationality
Based on the identity information provided by the applicant to the Department, including the copy of his Malaysian passport, the Tribunal finds the applicant is a national of Malaysia, and is a non-citizen in Australia, and outside his country of nationality.
Well-founded fear of persecution
Section 5J(1) sets out the meaning of well-founded fear of persecution, and states that a 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 their country of nationality, 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 their county of nationality.
During the hearing Tribunal discussed with the applicant the reasons why he left Malaysia and his fears of returning to Malaysia.
While the Tribunal did raise concerns about some differences between the applicant’s oral evidence and his written claims in his protection visa application form and his statutory declaration, the Tribunal does accept the applicant has remained relatively consistent in relation to his experience of harm growing up and his fears of returning to his home due to the risk of harm from him uncle and father who both suffer from schizophrenia.
On the evidence before it the Tribunal accepts the applicant grew up in a household that included his uncle and his father who both suffered from schizophrenia. His uncle was violent and abusive, and the applicant experienced physical and mental abuse growing up.
The applicant told the Tribunal that his family was broken, and he wanted to escape due to his experiences of abuse. He has not had any contact with his family members for a number of years, apart from his younger sister. He has limited contact with his younger sister, around twice a year. He was unsure but does not think she is still living in their parents’ home.
The Tribunal accepts the applicant fears returning to his home because he fears physical and mental abuse from his family, especially from his uncle and father due to their mental illness.
On the evidence before it the Tribunal accepts the applicant fears being physically and mentally abused by his family members if he returned to his family home in Malaysia.
The applicant was unable to explain what was the reason why his family members would abuse him if he returned, apart from their mental illness and previous abusive actions.
There is no evidence before the Tribunal to suggest his family members are motivated to harm the applicant due to his race, religion, nationality, membership of a particular social group or political opinion.
On the evidence before it, the Tribunal is not satisfied the applicant fears persecution for the reason of his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant does not satisfy the requirements of s 5J(1)(a).
The Tribunal is not satisfied the applicant has a well-founded fear of persecution.
The Tribunal finds the applicant is not a refugee and does not meet the refugee criterion in s 36(2)(a).
DOES THE APPLICANT SATISFY THE COMPLEMENTARY PROTECTION CRITERION FOR PROTECTION?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
A person meets the complementary protection criterion if there are 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.
The Full Federal Court in MIAC v SZQRB, held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion[1]. A real risk must be substantial, not remote or far fetched. It may be well be below 50% but it cannot be based on mere speculation, conjecture, or surmise[2].
[1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]
[2] Chan v MIEA (1989) 169 CLR 379
Section 36(2A) states a person will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or be subjected to cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment.
Is there a real risk of significant harm?
As noted above, the Tribunal accepts the applicant grew up in a household that included his uncle and his father who both suffered from schizophrenia. His uncle was violent and abusive, and the applicant experienced physical and mental abuse growing up.
On the evidence before it the Tribunal accepts the applicant’s uncle and father still suffer from schizophrenia and there is a real risk the applicant will be physically and mentally abused if he returns to his family home in Malaysia. The Tribunal accepts there is a real risk the abuse will subject the applicant to cruel or inhuman treatment or punishment, and the Tribunal accepts there is a real risk the applicant will be subjected to significant harm if he returns to his family home in Malaysia.
Relocation.
Section 36(2B)(a) states there is taken not to be a real risk that the applicant will suffer significant harm in his country if it would be reasonable for them to relocate to an area of the country where there would not be a real risk the applicant will suffer significant harm.
During the hearing the Tribunal discussed with the applicant if he could relocate to another area of Malaysia, such as Johor Bahru, away from his family home in Kuala Lumpur, in order to avoid the real risk of harm.
In response the applicant told the Tribunal he is concerned his family, his uncle and parents, would look for him and find him and he would be harmed. When asked how his family would know he had returned to Malaysia and how they would seek to find him, the applicant did not know. He speculated that maybe they would find out through friends.
The Tribunal asked the applicant if he could ask his friends not to share his location information with his family. In response the applicant told the Tribunal he could tell his friends but somehow his family would find out, it’s just a matter of time.
The applicant was unable to explain how his family would find out if he returned to Malaysia. The Tribunal notes the applicant has had no contact with most members of his family for a number of years, and only limited contact with his younger sister.
The Tribunal considers it is not unreasonable to expect the applicant to ask his friends and younger sister not to share his location and contact details with his family, or to limit the location information he shares with people who may have contact with his family.
The Tribunal considers the applicant’s concern that his family would find out he had returned to Malaysia is mere speculation. The Tribunal does not accept there is a real risk the applicant’s family would find out he had returned to Malaysia and try to find him and harm him if he returned to Malaysia and relocated to Johor Bahru.
The Tribunal is not satisfied there is a real risk the applicant would suffer significant harm if he returned to Malaysia and relocated to Johor Bahru.
On the evidence before it, the Tribunal finds the abuse the applicant suffered from his family, especially his uncle, has been centred around the family home in Kuala Lumpur, and the Tribunal finds the real risk of significant harm is localised to the applicant’s family home area in Kuala Lumpur.
As discussed with the applicant during the hearing, country information indicates Malaysia has a population of 32.9 million and is considered an upper middle income economy. It has experienced strong economic performance over the last few decades and had a low unemployment rate of 3.4% in 2023. Johor Bahru is a city with a large population and international airport and is located in different state from Kuala Lumpur.[3]
[3] Department of Foreign Affairs and Trade DFAT Country Information Report Malaysia 24 June 2024, MyGOV - TOURISM INFORMATION; Malaysia country profile - BBC News; >
Based on the evidence provided by the applicant, the Tribunal finds the applicant grew up in Malaysia, knows the Malay and English languages, and completed high school in Malaysia. He also completed a [qualification] in Australia. The applicant has worked in [specified] industry in Malaysia and Australia and has been working full time and casual as a [occupation] for a number of years. The Tribunal finds the applicant has significant work experience and professional skills.
The Tribunal is satisfied the applicant could find employment and live a relatively normal life in Johor Bahru judged by the standards of Malaysia. He could fly directly to the Johor Bahru airport without undue hardship or difficulty. The Tribunal considers, in all the circumstances, it is reasonable to expect the applicant to relocate to Johor Bahru.
On the evidence before it, the Tribunal is satisfied that in all the circumstances, it is reasonable for the applicant to relocate to Johor Bahru, where there is no real risk of significant harm.
Therefore, the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that the applicant will suffer significant harm.
Therefore, the Tribunal finds that the applicant does not satisfy the complementary protection criterion for protection set out in s 36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hearing Date: 26 February 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…