1913114 (Refugee)

1913114 (Refugee) [2024] AATA 4437 (2 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Baker Al Musawi (MARN: 0601647)
CASE NUMBER:  1913114
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Rebecca Mikhail
DATE:2 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 October 2024 at 11:08am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Siamese people – Malaysian Chinese ethnicity – religion – Buddhist – fears harm in Malaysia as a female Buddhist of Siamese ethnicity – fear of harm from former colleague – not satisfied the applicant will face a real risk of significant harm in Malaysia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant, who claims to be a citizen of Malaysia, arrived in Australia on [date] March 2019 on a visitor visa.
On 23 April 2019 the applicant applied for a permanent protection visa.
On 22 May 2019 a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether they are entitled to complementary protection. The relevant law and mandatory considerations are set out in the attachments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
APPLICANT’S CLAIMS FOR PROTECTION AND EVIDENCE
Before the Department
The applicant’s claims, as outlined in her application for protection, can be summarised as follows:
·She was born in [a town], Perlis in [year] and resided in [Town 1], Perlis until she left Malaysia to travel to Australia in 2019.
·She is of Malaysian Chinese ethnicity and is Buddhist.
·When she was working in [a town centre], she met a man named ‘W’ and they became friends and dated a few times. She always considered him to be just a friend, but he was deeply in love with her and asked her to marry him, but she refused. He started to get hostile towards her. At first, he threatened to make stories about what a bad girl she was and to tell her friends about it.
·When she continued to ignore him, he started to threaten to harm her. He said that if he cannot marry her, nobody will and threatened to kill her, so she fled Malaysia. She was too afraid to seek help and her only thought was to run away to a safe country. She did not try to relocate as she thought he would find her.
·She believes that if she goes back to Malaysia, he will kill her.
The applicant did not provide any other supporting evidence to the Department of Home Affairs (the Department) in relation to her claims.
The applicant was not invited to an interview with a delegate of the Minister for Home Affairs in relation to her application for protection.
The delegate refused the grant of the visa on the basis that the applicant’s claimed fear of harm in Malaysia is not for one of the s 5J(1)(a) reasons in the Act and there was no information to suggest the applicant will be targeted on her return to Malaysia for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The delegate also found the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s 36(2B)(b) of the Act.
Review application
On 26 May 2019 the applicant lodged an application for review of that decision with the Administrative Appeals Tribunal (the Tribunal). She provided the Tribunal with a copy of the delegate’s decision record with her application. She was represented in relation to this review.
On 13 March 2024 the applicant provided a new statement to the Tribunal which can be summarised as follows:
·She is a Malaysian national belonging to Siamese ethnicity and Buddhist in faith. She was born in [year] to a Siamese father and Siamese Chinese mother.
·She and her family follow Siamese culture and tradition including visiting the Thai Temple in her area for prayers, eating Thai food, listening to Thai songs, and watching Thai television and visiting her grandmother’s village in southern Thailand for yearly prayers.
·She encountered challenges as a Siamese in Malaysia. Her community was not well known in Malaysia.
·During school (1989-1999) she was always mistaken as Malay but when people realised her ethnicity and faith, they would mistreat her, believing that she was an infidel and unclean. She was teased as 'Orang siam' in school which affected her psychological wellbeing. School mates made fun of her or made jokes about her dad’s name or her religion. This isolated her. She was always blamed for not responding to the Islamic greetings. She usually was cursed or told vulgar words. After school, once, she was followed by a Malay elderly man but escaped. She was an easy sex target due to her ethnicity.
·She was also afraid of going to any Chinese restaurant by herself fearing sexual abuse or mistreatment and would only go with her family.
·Living with these struggles she started to feel small, embarrassed, and miserable all the time.
·Post secondary 2000-2001: She was enrolled in post-secondary school in [Town 1]. The majority were Malay students. With the government implementation of quota system, she was unsure if she could gain entry to university as priority is given to Bumiputera (Malay) and 'other' ethnicities, but she passed her exam and was offered a course at a government university in [a field].
·University admission 2002/ 2003 – 2006: University life was fun as she got to meet with other Siamese students around the country as well as international students from Thailand. It was her first experience having friends from a similar ethnicity and faith. Her fear of her Siamese identity was slowly being forgotten. Having Siamese, Chinese, secular Malays, and other ethnicities as friends built her confidence and developed her psychological health. She still faced some challenges in university life as some students did not know of the existence of Siamese people and she still had to explain her background. The questions were never innocent as they hide hatred since she was not Muslim. People still thought she was Muslim as sometimes she wore ‘Baju Kurung’ to avoid abuse and harassment. She wore it with no hijab and that was what brought her attention. When they knew she was Siamese, they physically pushed her away and started narrating verses from the Quran. She also faced challenges at university as she did not have a command of English and was denigrated by others. She made an effort to improve her English and she also studied Mandarin. She faced chronic depression and anxiety.
·In 2006, after having graduated from the university with a second upper class degree, she could not get a government job due to her ethnicity and religion.
·Working Life 2007- 2019: she obtained her first job in [a] Department as [occupation] at a [Workplace 1] due to her advantage of speaking in multiple languages. She found collaborating with Chinese colleagues very hard. Her manager was Chinese and bullied her. She brought this issue up to higher management and they transferred her to another department.
·She kept applying for government jobs but was not successful. The quota system in Malaysia was not helpful to other ethnic groups besides Bumiputera/Malays. Priority will always be given to them followed by Chinese, Indian and other races but it was never implemented fairly and adequately.
·She also faced a problem in her personal life where a Malay man she knew tried to persuade her to be with him and asked to her convert to Islam and marry him. She strongly refused. She reported the matter to the police, but she escaped his threat and resigned from her job to maintain her safety.
·She moved to Kuala Lumpur. She had to portray herself as Chinese to be able to get a job. Companies had no idea about Siamese people. She did not stay long in a company as she always received unfair treatment from colleagues and superiors.
·In one role where she oversaw contracts, her manager started to load her with a large volume of tasks since he learned about her race. She could not cope with the workload and was terminated. She was stressed and felt down with her working life at that time, receiving mistreatment and harassment all the time.
·Dining in Chinese restaurants, wearing sleeves tops and short pants would bring attention to her, and she was looked at with disgrace. Being tired with all of this, she wore a necklace with a 'Christian cross' with the intention to show to people that she was not Muslim, but this changed nothing in their views and perceptions.
·Every Ramadan, she had to buy takeaway food from restaurants to avoid misunderstanding. She was asked to show her identification to indicate she was not Muslim. Police officers let her go when they knew that she was not a Muslim, however, Muslim officers made insulting comments.
·Her health deteriorated due to her stressful life and significant harm she faced daily. She was not financially stable due to changing jobs or being jobless. She almost gave up on life. Having no family support, living in isolation with a lack of social life was contributing to the stress she went through until she met ‘W’. When she worked in [a town centre], she met a man named ‘W’ and they became friends and dated a few times. She had always considered him to be just a friend, but he asked her to marry him but to convert first to Islam, but she refused. He started to get hostile towards her. She later learned his real Muslim name. At first, he threatened to make stories about what a bad girl she was and to tell her friends about it. When she continued to ignore him, he started to threaten to harm her. He said that if he could not marry her, nobody would. He made it clear that he had strong connections with the authorities and other secret groups. He threatened that if she did not accept his proposal, her life would end. He further stated that he could get her back wherever she was and threatened her if she reported him to the police. As a result of this new threat, she fled Malaysia.
·She is unwilling to return to Malaysia due to serious or significant harm she will be subjected to for the reasons of her faith, ethnicity, and membership of a particular social group.
On 28 August 2024 the Tribunal received a legal submission in relation to this matter which referred to legal argument and country information in support of this application.
On 3 September 2024 the applicant appeared before the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. During the hearing the applicant provided oral evidence in relation to her background and claims for protection. At the hearing the applicant provided her Malaysian passport.
After the hearing the Tribunal received the following additional information:
·An image of the applicant’s Malaysian birth certificate and its accredited translation.
·A medical referral for a mental health assessment dated 5 September 2024.
·A post-hearing legal submission.
·A letter of support from a doctor dated 18 September 2024.
·Email correspondence regarding a medical appointment.
·Photos of the applicant.
REFUGEE ASSESSMENT
Nationality
As noted, at the Tribunal hearing the applicant provided her original Malaysian passport issued on [date] 2015. She also provided a photo image of her Malaysian national identity card with her application for protection. On the evidence before me I am satisfied the applicant is a national of Malaysia and that Malaysia is the receiving country for the purpose of this assessment.
Application for Protection
When I asked the applicant at the beginning of the hearing if she recalled preparing her application for protection, she said her friend referred her to someone to assist her in preparing it, but she did not know if the person was a lawyer or agent. Her friend told her that this person normally assists with visas for Malaysians. She said this person just asked her what happened to her, and she told them about herself and what happened in Malaysia, and she thinks that they did the rest of it on their own. She indicated she knew what was in the application and that the person who assisted her gave her a copy of it and she had read it as she can read English.
Background
During the hearing the applicant claimed that she lived with her family in [Town 1], Perlis. She then moved to Kedah to study and resided in a university hostel from 2000 to 2004. She then worked in a [Workplace 1] in Pehang for several years and stayed in the [Workplace 1] hostel for staff. She said she then moved to Puchong in Kuala Lumpur in 2007 or 2008 where she rented. She said her family moved to Melaka in 2017 or 2018.
The applicant said that her parents continue to reside in Melaka, and she has two brothers who also reside there, and they have their own business. I noted to her that she did not mention any of her family members in her application for protection and she confirmed that she did not.
The applicant also stated that she completed high school in 1993 in Perlis and then went to a pre-university school for two years in Perlis. She then attended a public university in Kedah and studied a bachelor’s [degree]. I noted to her that in her application for protection did not indicate that she had attended university and she said it did not but that she did not know.
In relation to her work experience the applicant claimed that from 2004/2005 to 2007/2008 she worked in a [Workplace 1] in Kedah but resigned due to bullying. She said she then moved to Kuala Lumpur to find another job and obtained a job in 2007/2008 at [a company] where she remained for one year but did not like the job and resigned. She said that she then worked in [Company 1] [for] a year and then resigned. She said she then worked at [a company] in [a] department doing [specified work]. She remained there for one year but resigned due to political issues as she was advised her performance was not good. She then worked for a [company] assisting the manager doing [work] and remained there for one year but then resigned. She then worked for a company [where] she remained for a few years. She then worked for a company [and] did a number of roles in that company where she remained for two years. She resigned a few months prior to coming to Australia. She indicated there were only a few months between her jobs. I noted to her that in her application for protection she only claimed to have worked from 2000 to 2019 as a [occupation] at a company called ‘[name]’ in [a town centre] in Kuala Lumpur. She responded that she only worked in administration in the company and only worked there for two years and was not sure why it stated that.
In relation to her previous travel the applicant claimed at hearing that she travelled to Thailand with her mum and stayed with relatives occasionally for prayers once or twice a year but since she pursued her studies and her family moved to Melaka, they had not returned to Thailand and the last time she went to Thailand was in 2002. I then noted to her there were stamps in her passport indicating she had travelled to Thailand in 2015 and 2018. In response she said she was not sure and could not remember. I find this difficult to believe given she last travelled to Thailand just a year prior to coming to Australia. She also claimed she travelled to [a country] for holidays with friends and travelled to [another country] in January 2019 with her mother on a tour and to meet friends in relation to a work opportunity at a [Workplace 1], but she did not proceed with the interview. She said she also travelled to [a country] while studying at university in 2017 with a group of students for a cultural exchange. I noted to her that, according to her own evidence, she was not at university in 2017. After looking at her passport she said she went in 2017 with a friend for a business deal for a day.
I noted to the applicant that she did not mention any of this travel in her application for protection and she responded that she did not as she did not think it was useful as she did not think it related to her application. That is possible but her oral evidence about her travel was also problematic as noted above and adds to my concern about the credibility of her claims about her life in Malaysia prior to coming to Australia.
Although I have concerns about the absence of the above information in the application for protection and they have contributed to my concerns about the credibility of the applicant’s claims about her life in Malaysia, I am prepared to accept the above information in relation to her background.
Ethnicity
According to a 2015 media report, in 2007, there were an estimated 60,000 Siamese Malaysians across the country, with 30,000 living in Kedah state. Historians can trace the origins of Siamese Malaysians to the early 1900s. Their ancestors were living in the Malaysian states that belonged to Siam until the Anglo-Siamese Treaty. The 1909 agreement transferred Siamese rights over the states of Kelantan, Trengganu, Kedah, Perlis and their adjacent islands to the British government. The agreement defined the Malaysian and Thai boundaries that we know today. Siamese Malaysians are split into two groups — Buddhists and Muslims.[1] A more recent report notes that there is a community of 30,000 to 50,000 ethnic Thai Buddhists residing in northern Malaysia.[2] One source notes that Muslims with Thai ancestry tend to blend in with the local Malays, but the cultural identity of the Buddhists is more noticeable in the Muslim-majority country, according to the president of the Malaysian Siamese Association in Kelantan.[3]
[1] 'Thai by blood, not by birth', Bangkok Post, 13 September 2015, 20200611152738
[2] 'DFAT Country Information Report Malaysia', Australian Department of Foreign Affairs and Trade (DFAT), 24 June 2024, 20240624113833
[3] 'Thai by blood, not by birth', Bangkok Post, 13 September 2015, 20200611152738
I had some initial doubts about the applicant’s claim to be of Siamese ethnicity.
I noted to the applicant at hearing that in her application for protection she claimed to be of Malaysian Chinese ethnicity. She said she was not sure why it stated that.
I noted to the applicant that in the statement she provided to the Tribunal it referred to her attached birth certificate, but no birth certificate had been attached. She said it was in her phone and she proceeded to show me an untranslated image of her Malaysian birth certificate.
The applicant’s birth certificate reflected a different first name and she explained that her parents initially gave her a typical Chinese name because her father had been looked after by a Chinese family when he was young but when she had to be enrolled in school it became a problem and the authorities questioned why her name is non-Bumiputera, that is Chinese, when her father is not Chinese so they changed her first name. She claimed her father is ethnically Siam as reflected in his name. She further said her mother is Chinese as her maternal grandfather is Chinese, but her maternal grandmother is Siamese.

I also asked her why she had a typical Chinese surname[4] and she said she was not sure as her aunt gave her that name but then said she did not think her surname was Chinese but similar to a Chinese name.
[4] ‘[deleted].
When I asked her what she could tell me about Siamese culture she said they are Buddhist and go to temple for prayers and celebrate Thai new year and have special occasions and special prayers for their ancestors. When I asked her what else she could tell me, she said that was about it.
During the hearing when I asked the applicant what languages she spoke, she indicated she spoke Malay, fluent Hokkein within her family and a little bit of Mandarin. When I asked her why her family spoke Hokkein she said she was not sure but thinks her father and his adopted family spoke this language but said that he also knows how to speak Thai. I asked her if she spoke Thai, she said she did but did not speak it on a daily basis and within her family. I then noted to her that in the application for protection she indicated she only spoke Mandarin, English and Malay. She said those were her main languages for daily conversation. I noted her that she had just told me that she only spoke a little bit of Mandarin and she says she can only speak this language in daily conversation but not like in the media.
At the end of the hearing, I noted to the applicant I had concerns with the credibility of her claim to be Siamese given in her application for protection she indicated she was Chinese, her parents had given her a typical Chinese name, her family speaks Hokkein and she could not tell me much about Thai culture. In response she said that her mother is Chinese, and they practise a more Chinese lifestyle, but they still believe in Buddhism, and they did not really follow a Siamese way of life. She indicated again she was not sure why it indicated her ethnicity to be Chinese in her application for protection as she had no idea what happened when applying for the protection visa. However, as noted, at the beginning of the hearing the applicant explained that she had been assisted in preparing the application for protection by someone and she provided them with information about herself and she was aware of what was in that application and had read it and had received a copy. When I reminded the applicant of this, she said she just told this person what happened to her and gave them her passport and she was not sure what they put in the application and said there were other errors the application. I am not convinced of this explanation given as I indicated the applicant had confirmed that she had been aware of what was in the application when it was prepared. I also noted to the applicant that she had indicated her mother was only half Siamese and she said that was correct.
As noted above, the applicant subsequently provided to the Tribunal an image of her Malaysian birth certificate and its accredited translation. It noted her father’s race to be Thai. There was also a correction in the birth certificate where the applicant’s first name was changed in 1985 to her current first name. This corroborates the applicant’s claim that parents changed her first name when she was young.
Despite the concerns I have raised I have given weight to the evidence in the birth certificate indicating the applicant’s father is of Thai ethnicity. Given this I accept the applicant’s father is of Thai ethnicity and her mother is half Thai and half Chinese. Although at odds with her written claim that her family follow Siamese culture, I accept the applicant’s oral evidence that her family practise a more Chinese life rather than Siamese and that they are Buddhists.
Claims of mistreatment and discrimination on the basis of ethnicity, gender, and religion
During the hearing the applicant reiterated that she fears harm in Malaysia as a female Buddhist of Siamese ethnicity. She claims she will not get a government job or a private job because she does not speak Mandarin as most companies require Mandarin as a priority. She said that people mistaken her as a Muslim because she looks Muslim. She says she is judged by the way she dresses and was treated unfairly in the workplace. She said she keeps changing jobs because of unfair treatment and discrimination and because her Mandarin was not good.
I have concerns with the credibility of aspects of the applicant’s claims in regard to her claimed experience of mistreatment and discrimination.
I noted to the applicant that there were quite a number of discrepancies in the information about herself between what she told me that hearing and what was noted in her application for protection. She said she said she was not sure why. Her representative orally submitted that her application was prepared by someone else, and it was sent mistakenly without her control, and she was obligated to correct all the answers and when she had become aware of the incorrect answers, her application had been finalised. In the post-hearing submission, it noted the applicant became aware of incorrect answers in her protection visa application through the hearing and she will notify the Department of the incorrectness and of the correct answer as soon as she receives the Tribunal decision. It also noted the applicant stresses that it was not her intent to provide false or misleading information, and the wrong information provided was made by a third party who helped in completing the application. I am not convinced of this explanation as the applicant indicated at the beginning of the hearing that she was aware of what was in it, could read it and had a copy of it. Although I am prepared to accept much of what she told me about her background at the hearing, as noted, these discrepancies add to my concerns about the credibility of the protection claims she has raised before the Tribunal.
I further noted to the applicant that she did not raise these claims in her application for protection. In response she agreed and said at the time she did not have any idea what a protection visa was and, after speaking to her current lawyer, she told him about her experiences in Malaysia and he advised her that she could raise a claim for protection on this basis. Although it is possible she did not receive the assistance of a migration agent or lawyer when she prepared application for protection, the claims she raised in that application reflect that she did have some understanding of what was relevant to a claim for a protection visa and she has claimed she told the person who assisted her in preparing her application about her experiences in Malaysia, so I am also not convinced of this explanation.
I also have concerns about the credibility of these claims because at times the applicant’s oral evidence was unconvincing.
I asked the applicant what happened to her in her various workplaces, she said most companies were okay with her at the beginning but slowly she was discriminated against. She gave the example of being the only Siamese person when working at the [Workplace 1] and worked with seven or eight colleagues but was given more work than others and that the manager did not see her as someone who belonged with the other group. However, she then said she was unsure of the reason for her treatment but felt it was unfair. She said most of the people working there were Chinese, and her Mandarin was not that good, and she was in [a specified role] so maybe they felt she was not useful and was not one of them. She said they spoke badly about her but then said that they just said her performance was not good and they transferred her. When I asked her how she knew this related to ethnicity she said because she was the only Siamese person there.
In regard to her experience in the [Company 1], she said her manager was Indian and she worked at the front desk. She said they did not have enough staff so he asked her to do extra work when their supervisor was absent, but she told him that she could not do that work as she did not know what to do. She claimed he personally attacked her and told her he had high expectations of her to run this shift and she said he did not have a sincere heart when speaking to her. She said, after some time, she was asked to leave. She also gave another example whilst working at [a] company. She said she joined the company knowing that it was an urgent position to replace someone and during the interview they advised her that she could join the company immediately after the interview, the following week. She said after she resigned from that job, she found out the Chinese manager was selfish and racist, and she previously had hired a Chinese lady, but she did not like her, and that person resigned, and they wanted the applicant to replace her. She said she worked for just a year but was advised her work was not good even though she felt it was and she was eventually asked to leave. She said she felt the Chinese manager just wanted someone new. When I asked her if they knew her ethnicity when they hired her, she said she could not recall if she mentioned it in her resume, but they knew she spoke Mandarin and she told the Chinese manager in the interview that she did not have capacity to do all the required tasks. I then asked her how she knew these issues were related to her ethnicity, she said her manager knew that she could speak a little Mandarin but that she had heard that her manager asked about her background and because of that she knew that her manager had bad intentions towards her when her manager knew she was not Chinese. I then asked if she gave them a copy of her national identity card when she was hired and she said she did. I then noted to her that she had previously told me that they would have known from her national identity card that she was not Chinese, and she agreed. I then noted her that it appeared that the Chinese manager would have known that she was not Chinese when they hired her, and she agreed.
I noted to the applicant it appears as though she was assuming she struggled in her workplaces due to her ethnicity/religion, but it appeared from her own evidence that it related to her performance. I noted to the applicant I may find on the evidence that her experiences in the workplace were to do with her performance rather than her ethnicity or religion. She said she faced a lot of struggles to get a job as a Thai person. Her response did not overcome my concern as she just reiterated her claim. I am not satisfied in respect of the applicant’s evidence that she was mistreated in her previous workplaces or lost some of her previous jobs because of her ethnicity and/or religion.
I asked the applicant if she had any other examples that she wished to discuss in relation to her workplace and she referred to the treatment she experienced at university.
At hearing, the applicant claimed that whilst at university people thought she was Malay and people tried to avoid her when they realised she did not belong to their ethnic group. She also said that people would greet her with a Muslim greeting because they thought she was Malay, and she would have to explain that she was not and then they would avoid her, and she would be alone in class. She said it would be hard for her to find groups to work with for assignments because she thought that they thought she did not have good English as she was not Chinese or Indian. I asked her if they ever said that to her and she said no but it was from the way they ignored her. I then asked if she spoke English and she said yes, and then asked if they knew that and she said yes. I highlighted to her the fact that she had just said that they assumed she did not have good English. She responded that people did not know where she was from. I noted to her that she had just told me they knew she spoke English and she agreed. I asked her why her ethnicity would be a problem and she speculated maybe from her appearance as she did not reply to them with a Muslim greeting and the Chinese would look as her as though she was Muslim, and they would also ignore her. When I noted my concern about this evidence at the end of the hearing, she said that was what she faced and maybe people have that perception towards her when they know she is not Chinese and maybe that is why she could not have a good career as she did not feel suitable and this happened in all aspects of her life and was she was at risk of sexual harassment because they thought she was a Muslim and also suffered verbal abuse.
I noted to the applicant that in her statement to the Tribunal she said university life was fun and she had met local Siamese students and it was her first experience having friends with a similar ethnicity and faith and that she also had Chinese, secular Malays and other ethnic groups as friends which built her confidence and developed her psychological health. In response she said she had Chinese and Thai roommates and otherwise had one Malay friend and knew other people by name, but they were not that close. She agreed it was fun but also challenging for her. When I noted this concern again at the end of the hearing, she said she did get to know different people from different states who are similar to her and got a chance to mingle with them so at that time she felt happy but on the other hand she was still struggling with these issues in class and she received bad intention from others so she felt discriminated against.
In her written statement to the Tribunal the applicant said that she still faced challenges at university due to other students not knowing the existence of Siamese people and asking about her background and having to explain her background. She has claimed the questions were never innocent, but this appears to be her speculation, similar to her speculation in regard to why she struggled in her workplaces.
In a 2024 report by the Australian Department of Foreign Affairs and Trade on Malaysia (DFAT), it noted government regulations and policies have included numerous affirmative action style preferential programs to boost the economic position of Bumiputera, a Malaysian term to describe ethnic groups including Malay and indigenous peoples.[5] I noted to the applicant that in her statement to the Tribunal she claimed Bumiputera/Malays get priority followed by Chinese, Indian and other races. However, during the hearing, the applicant stated that the Siamese are also considered Bumiputera. This is supported by fact that she had been admitted to a public university. Country information sources confirm that the Siamese are considered part of the Bumiputra ethnic group because they settled in Malaysia before British colonisation changed the border between Thailand and Malaysia.[6] In 2012 the Prime Minister stated that the Siamese community in the country will be looked after just like the other Bumiputera communities and his government would ensure that the community gets all the privileges provided for Bumiputera groups as enshrined in the Constitution.[7] Further, in 2011, the Ministry of Home Affairs announced that the status of the Thai community in Malaysia on their MyKad (Malaysian identity card) would be changed from ‘Thai Descent’ to ‘Bumiputera Siam’ to allow them to access public universities and own property.[8] In response she said the Malaysian Constitution states Thai people are considered Bumiputera but in terms of getting a place at university or government job it depends on the quota system and during her time only three Thai people qualified to go to ‘upper 6’ to prepare for university because at that time the government implemented a system where they would pick only a small percentage of Thai people to access university or get a government job. One report confirms Siamese Malaysians are not entitled to all the same rights as indigenous Malaysians. For instance, they cannot buy land plots reserved for indigenous Malaysians, but they can maintain ownership of land they inherited from their ancestors.[9] A 2014 report by DFAT also noted that despite the removal of government-sanctioned ethnic quotas for public universities in 2002, admission decisions remain heavily biased towards ethnic Malays.[10] I accept the applicant’s claim that only a small number of Thai people qualified to enter public universities at the time of her admission but the fact remains that she was successful in this regard.
[5] 'DFAT Country Information Report Malaysia', DFAT, 24 June 2024, 20240624113833
[6] 'Thai by blood, not by birth', Bangkok Post, 13 September 2015, 20200611152738; 'Bumiputera: Are you one? Or can you ‘become’ one in Malaysia?', Malay Mail, 26 July 2017, 20240122142244
[7] ‘Siamese community now regarded as Bumiputeras’, Malaysia Today, 25 February 2012, available at
[8] 'Human Rights and Statelessness in Peninsular Malaysia', Human Rights Commission of Malaysia (SUHAKAM), 13 March 2023, 20230518155408
[9] 'Thai by blood, not by birth', Bangkok Post, 13 September 2015, 20200611152738
[10] 'DFAT Country Information Report Malaysia', DFAT, 3 December 2014, CIS2F827D91671
Country information indicates other ethnicities say they are discriminated against in the Chinese-dominated corporate sector in Malaysia, and that many jobs require Mandarin language skills, which effectively excludes non-Chinese, even though the language of commerce is chiefly English.[11] I asked applicant if her employers knew that she did not speak Mandarin when she was hired, she said that she put it in her resume that she spoke Mandarin but in the office, they speak English so it is not a priority but speaking Mandarin was a bonus. I then noted I was confused given she claimed she had been discriminated against for not speaking Mandarin. She said that if you speak Mandarin then there is a higher chance of obtaining the job. I asked the applicant how she was discriminated against for not speaking Mandarin if she was able to get the job, she said maybe the companies want people to speak Mandarin. I then noted her that she was able to obtain quite a number of jobs and she said it was quite hard until she put Mandarin on her resume. I accept this as plausible but note that the applicant claims to speak some Mandarin.
[11]'DFAT Country Information Report Malaysia', DFAT, 24 June 2024, 20240624113833
During the hearing the applicant also said that when she was at school, during Ramadan, the police asked her to show them her identification as she was not fasting. She said she explained to them that she was not Muslim and showed them her identification and they apologised. Country information confirms the religious status of Muslims is recorded on their birth certificates and on their MyKad, reportedly to assist with the application of syariah religious laws. Other religious affiliations are not reflected visibly on the card, although they are encrypted on a smart chip in the card. Authorities inspecting restaurants for compliance with Ramadan will check patrons’ identification cards.[12] I accept she may have been asked why she was not fasting during Ramadan and her identification may have been checked.
[12] Ibid.
I also noted to the applicant that I had not found other country information to corroborate her claims of societal discrimination and harassment on the basis of being Siamese. In response she said there is nothing public about this in the news, but it actually happens in real life, and they know what the government is doing, and the government provides them with the minimum support so most Thai people have to work hard for themselves in order to achieve something, but priority is given to Malay people or people from Sabah and Sarawak. She said she worked hard to get a government job but did not succeed based on the system. She said people do not know the Siamese and it hard for them to show who they are.
I also noted to the applicant that a 2014 report by DFAT assessed that Buddhists do not face discrimination on a day-to-day basis in Malaysia.[13] In response she said there is racism amongst the different ethnic groups in Malaysia. That may be the case but as noted I did not find country information to support her claims of the extent of societal discrimination and harassment she claimed to have endured.
[13] 'DFAT Country Information Report Malaysia', DFAT, 3 December 2014, CIS2F827D91671

I also noted to the applicant that she claimed she was not financially stable, but it appears she travelled regularly overseas. In response, she said she only able to go to three countries in Asia which did not cost much, and she had to save for a few months. I then noted that she was able to afford to travel to Australia. She said that was her last money as she had been unemployed. I find this response unconvincing as she claimed to have been paying rent in Kuala Lumpur and was unemployed but could also then pay for an overseas trip and fund plans to start a new life in a new country.
The applicant claims her experiences impacted her mental health but when I asked her if she had been diagnosed with any condition, she said no but she thinks she has anxiety and depression but did not see a doctor. She also said that after coming to Australia she was diagnosed with [a medical condition] which could have been from stress. When I asked her if she had been advised that, she said no and there is no research to indicate that, and her doctor said it could be genetic. I also noted to the applicant that, given my concerns about the credibility of her claims, I may also have concerns regarding the claimed impact this has had on her mental health, and she had not provided any medical evidence in support of this claim. She said she had experienced these issues since she was young but can do a check up and get medical evidence. I noted to her that even if she did obtain medical evidence in relation to her mental health, it is not necessarily corroborative of her claim that her mental health issues are due to her claimed mistreatment on the basis of her ethnicity and religion. She said these challenges really affected her as a person. After the hearing the applicant submitted a referral from a doctor in respect of the applicant to an organisation named ‘[name] dated 5 September 2024 in respect of an assessment where the doctor noted she has adjustment disorder with anxiety/depressed mood. It noted the applicant would like to get tested to check if her symptoms are related to her childhood experience/trauma. It noted she had two previous suicide attempts and the last was in November 2023. It noted her background and mistreatment in Malaysia as a Thai person, but I do not give this reference any weight as it merely reflects information she provided to her doctor. The applicant provided a further letter from her doctor dated 18 September 2024 which stated that she has adjustment disorder with anxiety/depressed mood, and she will see a psychiatrist in November for further assessment and management and in the meantime, she will see her doctor for a mental health care plan and will be referred to a psychologist for psychotherapy. The applicant also provided correspondence of her medical appointment to see a doctor in November 2024. As noted, the above evidence does not reflect that her current mental health issues are attributed to her claimed experiences of discrimination and harassment in Malaysia as a Siamese Buddhist woman. Whilst her mental health issues are unfortunate, even if she were to provide a further report from a psychologist or psychiatrist, it would be of limited corroborative objective value as it would merely reflect information the applicant would give to the relevant medical professional about her claimed experiences.
The applicant has emphasised that she did not want to hide her Siamese ethnicity and wants to be proud of it, but this is somewhat at odds with her admission that she does not live a Siamese life culturally, but she and her family live a more Chinese way of life.
At the end of the hearing, in response to all the concerns I raised, her representative said that she the harassment from her colleague in the [Workplace 1] and from ‘W’ were two examples of the applicant being a sex target but that is not what is reflected in the applicant’s own evidence as these men were aware she was not Muslim but still asked her to marry them and convert to Islam. It is not evident these men wished to harm her or considered her a ‘sex target’ because of her gender combined with her ethnicity or religion.
After the hearing the applicant provided two photos of her in public wearing a cross. One photo was dated in 2012 and the other undated. It is not evident from the photos where the applicant was and if the photos were taken in Malaysia. As noted, there is also no country information to corroborate her claim that women of her ethnicity and religion wear a cross to avoid adverse attention.
A 2024 article indicated that many Malays do not know of the Siamese community so I accept as plausible that may be the case. I accept that the applicant may have had to explain her background to some people on occasion. I also accept that she may have had to explain to the authorities why she was not fasting during Ramadan, but I note she claimed this last occurred when she was in high school. I also accept that she may not have been able to access a government job on the basis of her ethnicity as preference may have been given to ethnic Malays and she had to note on her job applications she speaks Mandarin in order to obtain opportunities in the private sector.
However, on the basis of my concerns with the applicant’s evidence and country information before me I do not accept the remainder of her claims in regard to her purported mistreatment and discrimination on the basis of her ethnicity or religion or in combination with her gender.
I asked the applicant what she feared would happen if she returned to Malaysia, she said that it would be hard for her to obtain employment and portray her identity. However, she also said in recent years Malaysians have become more aware of her community and the government had recognised more Thai people and had more activities around their culture. This is corroborated by country information.[14] I then asked the applicant, if that was the case, why did she still have concerns now. In response she said there was more awareness of her culture now but there was still unfair treatment and trouble obtaining jobs and she may be asked why she was not fasting during Ramadan.
[14] ‘PM Anwar calls for unity and harmony through Songkran festival’, Malay Mail, 13 April 2024, available at ‘Water load of fun for Siamese community celebrating Songkran in Penang’, Malay Mail, 14 April 2024, available at
I noted to the applicant that she was able to complete school, was admitted to a public university and completed a degree, travelled, she obtained regular work in the private sector and only had a few months between jobs, and being questioned by police during Ramadan had not happened since school. I said I may find that not obtaining a government job did not amount to serious or significant harm. She said she faced a lot of struggles and did not want to be portrayed as Muslim and wanted to practise her religion and she will be sex target if people assume she is Muslim.
I also noted to the applicant that in DFAT’s 2024 report on Malaysia is stated that 18.7 per cent of the population are Buddhists and DFAT assessed that Buddhists are generally not at risk of societal discrimination.[15]
[15] 'DFAT Country Information Report Malaysia', DFAT, 24 June 2024, 20240624113833
The legal submission to the Tribunal received on 28 August 2024 referred to country information including a citation from the US Commission on International Religious Freedom (USCIRF) annual report 2024 which claimed federal and state governments continued to compel Muslim citizens to obey government-approved interpretations of Sunni Islam according to Shafi’i jurisprudence. There was also a reference to a ‘historical list of research and country information to support the fact that Siamese-Malay are on ongoing persecution due to their race and faith’ but that was actually a document titled ‘Thailand’s Muslim Minority and Thai Siamese-Malay Relations – A Bibliography of English Language Scholarship’ and did not reflect that description. It also cited country information about the state religious departments who take an active role to expand and preserve the official Islamic identity of individuals and society and cited a case regarding the conversion of three children to Islam by the mother’s Muslim ex-husband and how one department declared Muslims could not participate in activities or visit non-Muslim houses of worship. I noted to the applicant that this country information did not appear relevant to her circumstances.
The applicant’s representative submitted that the quote from the USCIRF also stated that religious freedom remains poor which he submitted contradicts the above DFAT report. I acknowledge that it states this, but the following sentence stated that the ‘Federal and state governments continued to compel Muslim citizens to obey government-approved interpretations of Sunni Islam according to Shafi’i jurisprudence’. The remainder of that report did not specifically refer to the mistreatment of Buddhists. The representative indicates he would provide further country information to the Tribunal after the hearing. In the post-hearing submissions, it cited an academic paper on the Siamese in Kedah for historical background. It also cited a 2020 report by the US Department of State which stated local human rights organisations and religious leaders said society continued to become less tolerant of religious diversity and NGOs also cited some Muslim groups’ continuing public condemnation of events and activities they said were ‘un-Islamic’ as well as heavily publicised statements targeting non-Sunni Muslims and non-Muslim groups. However, the report did not cite any examples of this in respect of the treatment of Buddhists.[16] The post-hearing submission did not otherwise refer to any cited country information in support of these claims.
[16] '2020 Report on International Religious Freedom: Malaysia', US Department of State, 12 May 2021, 20210513090814
I also noted to the applicant that she had indicated there was more awareness of her community in the last few years.
I noted to the applicant that I may not find she will face a real chance of harm that arises to serious harm or significant harm. She said she did not feel that way and may not have explained herself well and she was at risk of being harassed and condemned and not fitting into society and subject to vulgar words.
The pre-hearing submission stated that the applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution in her home country as far as these steps require her to alter, conceal or cease her religious beliefs or political opinion. The post-hearing submissions also noted that she genuine fears of being persecuted for the reasons of her imputed political opinion, her ethnicity, membership of a particular social group and her faith. It is unclear what the submissions are referring to in regard to the applicant’s imputed or actual political opinion as that was not reflected in the applicant’s other evidence before the Tribunal and the representative said, at hearing, they were focused on the applicant’s ethnicity, religion, and gender.
I accept there is a real chance the applicant may have to explain her background to people in the future on occasion and explain why she was not fasting during Ramadan and that she may not obtain a government job due to preference towards ethnic Malays, and that there may jobs in the private sector she may not be able to obtain due to not speaking fluent Mandarin, but I do not consider this to, individually or cumulatively, amount to serious harm.
I am not satisfied on the evidence she will face a real chance of serious harm on the basis of her profile as a female Buddhist of Siamese ethnicity or for any other reason, individually or cumulatively.
Fear of harm from former colleague ‘W’
During the hearing the applicant referred to her fear in relation to her former colleague who harassed her and threatened her when she refused to marry him. She said the harassment continued for several months and so she resigned from her job. I asked her what happened after she resigned, and she said moved to Melaka out of fear. I then noted to her that she had earlier told me that she had remained in Kuala Lumpur before coming to Australia and she said she moved to Melaka as she did not have any more income and had to stay with her family, and he did not know where she stayed in Melaka. I asked her what happened after she moved to Melaka, and she said she did not feel safe and was afraid. She said she did not report him to the police as he said he had strong connections with the government and could do anything and she did not want to make it bigger. I asked her why she believed his claim to have these connections and she said she heard him say it conversation.
I noted to the applicant that in her statement she claimed to have reported another man who was similarly harassing her and she said this man knew where she lived in Perlis and went to her house and her parents asked her to stop working at the [Workplace 1] and she was not close to them and needed to earn income and she reported to the police that she had an argument with her family and they had stopped her working. She said she mentioned this man to the police as it created a problem with her family. I noted this is not what was reflected in her statement.
I noted to the applicant that it had been years now since she left Malaysia so why did she still fear her former colleague, she said because of his past threats. I asked why she thought he would see her again and she said she had no other place to find a job other than Kuala Lumpur as it is a big city. I noted that she had earlier said she would return to Melaka. She said it is not safe and is just two hours from Kuala Lumpur and anything can happen there. I asked her how she knew he was still there, and she said she was not sure, and she did not have any contact with him anymore.
I noted to the applicant that she was not physically harmed by this man despite his threats, he did not find her in Melaka and that is where she said she will return, and the fact that he did not find her adds to my doubt that he had ‘connections’ in the government. She said she changed her phone and so he could not contact her, and she resigned and went back to Melaka. That does not address his supposed connection and ability to find her wherever she went.
On the evidence before me I accept the applicant’s claim that she met a man named ‘W’ in Kuala Lumpur and they became friends and dated a few times, and he asked her to marry him, and she refused. I accept he started to get hostile towards her and threatened her, but I do not accept he had connections such that he can find her anywhere in Malaysia.
I also noted to the applicant that she had not remained in contact with him and did not even know if he was still in Kuala Lumpur. She said she thinks he is still there as that is where he is from. However, that is at odds with her previous evidence that she did not know. I also noted that I may not be satisfied there is a real chance he will find out she had returned to Malaysia. I also noted it had been many years since she left Malaysia and there is no credible evidence he is still interested in her since she left. Given the above concerns I noted to the applicant that I may not be satisfied there is a real chance she will be harmed by this person if she returns to Malaysia. In response the applicant reiterated that he previously threatened her which causes her to fear returning. Her response did not overcome my concerns as she just reiterated her claims.
On the evidence before me I am not satisfied the applicant will face a real chance of harm from ‘W’ in the reasonably foreseeable future if she were to return to Malaysia.
The applicant does not meet the requirements of the definition of refugee in s.5H(1). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
COMPLEMENTARY PROTECTION ASSESSMENT
For reasons already noted, I accept there is a real risk the applicant may have to explain her background to people on occasion and explain why she was not fasting during Ramadan and that she may not obtain a government job due to preference towards ethnic Malays, and that there may jobs in the private sector she may not be able to obtain due to not speaking fluent Mandarin, but I do not consider this to, individually or cumulatively, amount to significant harm. On the basis of her profile as a Siamese Buddhist woman or for any other reason, I am not satisfied she will face a real risk of being arbitrarily deprived of her life, or the death penalty will be carried out on her, or being subjected to torture, or that these experiences will reach the threshold of cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in the Act.
I have found the applicant will not face a real chance of any harm in relation to her other claims. Consequently, she will also not face a real risk of any harm in Malaysia in relation to those claims.[17] I am not satisfied the applicant will face a real risk of significant harm in Malaysia.
[17] MIAC v SZQRB (2013) 210 FCR 505.
There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. I am 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.
Rebecca Mikhail
Member

ATTACHMENT A - CRITERIA FOR A 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). 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 Attachment B.

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 Attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B- 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.
…

[2024] AATA 4437

2 October 2024

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