1913989 (Refugee) - [2024] ARTA 897

1913989 (Refugee) [2024] ARTA 897 (9 December 2024)
DECISION AND
REASONS FOR DECISION
Representative: Ms Catherine Luong
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1913989
Tribunal:General Member J Kotsifas
Date:9 December 2024

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

Statement made on 09 December 2024 at 3:16pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – original claims of economic conditions and limited job opportunities – pre-hearing claims of family violence by father and harassment by husband’s family – inter-ethnic marriage – husband came to Australia separately – mental health and treatment – no evidence of incapacity to subsist – passage of time, lack of communication with father and husband’s family and living far away from parents – husband’s separate application for protection on economic grounds – applicant’s inconsistent evidence in review hearing of that decision – country information – effective state protection available – established universal health-care system – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (2), (4)(b), (5), 5LA(2), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALO 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old woman[1] who claims to be a national of Malaysia. She first arrived in Australia [in] January 2019 holding an Electronic Travel Authority (Subclass UD 601) visa and has not departed since her arrival. She applied for her protection visa on 17 April 2019.
[1] Department File: [Reference], ART File: 1913989
On 30 May 2019, the delegate refused to grant the applicant’s visa on the basis that she is not a person to whom Australia has protection obligations.
The applicant applied to the Tribunal for a review of the delegate's decision on 3 June 2019.
The applicant appeared before the Tribunal on 30 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was not represented at the hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant’s personal background
The applicant was born in Sandakan, Sabah, Malaysia. She was married in Malaysia in [Year]. She has [children] who were born in Malaysia aged [Ages] who reside in Malaysia and one child that was born in Australia who is now [Age] years old. The applicant’s husband resides with the applicant in Australia with their youngest child, whilst the remaining [children] reside with the applicant’s parents in Malaysia.
The applicant has one brother and [sisters] who also reside in Malaysia. One of her sisters still lives with the applicant’s parents. The applicant completed high school and subsequently completed a [course]. Prior to her arrival in Australia, she was employed as [an occupation 1].
In [Year] the applicant moved out of her parents’ home. She ran away and got married to her boyfriend who is now her husband. They lived together with their children in various cities within Kuala Lumpur until 2017 when the applicant’s husband departed Malaysia and travelled to Australia. From late 2017 – January 2019, the applicant lived alone with her [children].
Upon her arrival in Australia in January 2019, the applicant resided in [City], Victoria for approximately eight months where she worked at various [workplace 1s] performing seasonal [work]. She then moved to [Suburb], Victoria where she currently resides with her husband and youngest child. She has previously worked in a [workplace 2] as [an occupation 2] for approximately three years as well as [an occupation 3]. She earned approximately $800 per week from her employment as [an occupation 3]. She ceased working in January 2024 to look after her child.
The Tribunal accepts the above matters to be true.
Evidence before the Department
The applicant’s initial claims for protection
The applicant’s initial claims can be summarised as follows:
·She left Malaysia due to economic factors and the high cost of living. She found it difficult to find an appropriate job on account of her age.
·If she returns to Malaysia, it will be difficult for her to help her family and she will have limited job opportunities.
The interview
Department records indicate that the applicant was not invited to attend a protection visa interview.
The delegate’s decision
The delegate found the applicant’s claimed fear of harm in Malaysia is not for one of the s 5J(1)(a) reasons, that is, their race, religion, nationality, political opinion or membership of a particular social group, and that there was no information before the delegate to suggest the applicant will be targeted on their return to Malaysia for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The delegate was not satisfied there is a real chance that, if the applicant was returned to Malaysia, they will be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act.
With respect to complementary protection, the delegate found that the economic climate in Malaysia affects everyone and that any economic hardship the applicant may suffer on their return does not amount to significant harm. The delegate found there is no real risk of the applicant facing significant harm, as defined in s 36(2A), if they return to Malaysia in the foreseeable future.
Evidence before the Tribunal
The Tribunal asked the applicant whether she had prepared her own protection application. She indicated that she filled out her own application but also had assistance from a friend in doing so. The Tribunal asked the applicant whether her original claims were true and correct and the applicant confirmed that they were true and correct but that the applicant wished to raise new claims which have not been raised previously.
New claims – Family violence from father
The applicant filed a prehearing information form with the Tribunal dated 17 April 2024 which raised new claims. The form states that in addition to her original economic claims, the applicant has also been a victim of family violence from her father.
The prehearing information form contains the following claims by the applicant:
·Despite the economic state in my country, I’m also a victim of family violence.
·My father has never been a father to me.
·I’ve been physically and mentally tortured by my father.
·I will elaborate and provide more evidence for my claim during my hearing and will email a separate explanation in a separate form 7 days before my hearing date.
Documents received prior to the hearing
The applicant provided the Tribunal with the following documents prior to the hearing:
·Statutory Declaration of the applicant sworn 24 April 2024.
·Submission of the applicant.
·Declaration of [Ms A] dated 23 April 2024 – the applicant’s mother.
·Declaration of [Ms B] dated 23 April 2024 – the applicant’s schoolteacher in [Year] and [Year].
·Photograph of the applicant and her fellow school students taken on 6 September 2011.
·Photograph of the applicant and one of her children (her first child) dated 30 October 2013.
·Copy of the applicant’s student card confirming she is completing a Certificate III in [Subject].
·Copy of the applicant’s Malaysian Identity Card.
·Photograph dated 7 March 2015 of applicant’s first child in hospital.
Witness evidence
The applicant originally requested that the Tribunal hear evidence from her mother and her schoolteacher, however at the hearing the applicant changed her mind and told the Tribunal that she did not wish to call her mother as a witness.
Economic claims
The Tribunal asked the applicant about her initial claims and invited her to provide the Tribunal with further information about her claims that she left Malaysia because of economic factors and the high cost of living. The applicant stated that her monthly income from her previous employment in Malaysia was only RM1,000 from a factory job. She stated that she could not afford to live on such a low salary especially with rising costs of living. She stated that her husband was working as [an occupation 4] but ran away to Australia in 2017. Prior to her husband leaving Malaysia she had [number] children and was pregnant with [another] child. She stated that she was left alone to care for her children with limited income.
The Tribunal asked the applicant if she was aware her husband was going to travel to Australia, and she said that he just disappeared one day after not coming home from work. The applicant stated that her husband left Malaysia in December 2017. She stated that she found out from her husband’s friend in 2018 that he was living in Australia. The applicant stated that after she arrived in Australia in January 2019, she tried to find her husband and she finally found him in [Town], Victoria. She told the Tribunal that her original intention was to locate her husband and to convince him to return to Malaysia to be with her and their children however, after arriving in Australia and after reconciling with her husband, she decided that she wanted to stay in Australia permanently.
The Tribunal asked the applicant if there had been any communication with her husband between December 2017 and January 2019 when she left Malaysia. She stated that she had no communication with him at all. The Tribunal asked the applicant whether she had tried to call him, and she stated that he did not have a phone.
The applicant told the Tribunal that she left her [children] with her sister in January 2019 to look after them in Kuala Lumpur however her sister subsequently gave the children to the applicant’s parents to look after as she was no longer able to care for them.
The Tribunal asked the applicant how often she was in contact with her children, and she stated that she was not in constant contact with them because her father would get angry if she called home. She stated that she feared her father slapping her mother if she rings. The Tribunal asked the applicant why her father would get angry and slap her mother when she rings. She stated that her father was always angry with her because she had left home at 23 years of age to marry and live with her boyfriend who is now her husband but that he has never provided his blessing and approval for their marriage to take place and he therefore did not approve of the marriage.
The applicant stated that her husband’s family were also opposed to the marriage because the applicant is an ethnic [Ethnicity 1], and her husband’s ethnicity is [Ethnicity 2]. The applicant stated that her husband’s sister had come to their house in 2014 and there was an argument, which resulted in the applicant being pushed and falling down. The applicant stated that she was pregnant at the time and as a result of her fall, she miscarried. The applicant also stated that in 2017 when her father had come to her house, there was an argument and he slapped her. She stated that her father did not come to her house again after this incident.
Family violence from father
The statutory declaration sworn 24 April 2024 and submission of the applicant states the following:
·If she is forced to return to Malaysia, she will continue to be subject to her ‘fathers abusive act’ and her ‘husbands family harassment’.
·She is of [Ethnicity 1], and her husband is of [Ethnicity 2].
·Her husband is also seeking asylum in Australia.
·Her relationship with her father is non-existent.
·She only communicates with her mother and one of her sisters who have cared for her children whilst she has been living in Australia.
·Her father resented her for being born out of wedlock and having to face criticism from his own family for having an illegitimate child.
·He father shows affection only to her other siblings who were born after her parents had married.
·Her father has been abusing her physically and mentally since she was young and she had to leave school at the age of 15 because she did not have a MyKad card, and the card was required for school enrolment.
·Her father did not seek to resolve her MyKad card issue and preferred that she no longer attend school. He was happy for her to stay home and to help around the house.
·Her father forced her to work at a [workplace 3] from 16 years of age and he kept all her earnings.
·She met her boyfriend (now her husband) when she was 19 years of age, and her father did not agree to the relationship.
·Her husband assisted her to resolve her MyKad card issue and she was then able to complete her high school education.
·She and her husband ran away in [Year] to Kuala Lumpur to get married and live together because their respective parents did not approve of the relationship because of the applicant and her husband have different ethnicity’s.
·Her father punched her in the eye when she was pregnant with her [child] in 2017.
·Her father’s abuse has caused her depression and she had suicidal thoughts.
·Her husband ran away to Australia in 2017 and he left her with their children in Malaysia.
·When she found out that her husband was in Australia, she decided to come to Australia to find him and to persuade him to return to Malaysia. She had no choice but to leave her children with her family and to come to Australia to find her husband.
·She located her husband and reconciled with him, and they both now wish to remain in Australia permanently so as to escape her abusive father and the harassment from her husband’s relatives.
·Her mental health has improved since she has been in Australia and if forced to return to Malaysia, she would be better off killing herself as she does not have freedom in Malaysia because of her father and her husband’s relatives.
The declaration of the applicant’s mother dated 23 April 2024 states the following:
·She is the applicant’s biological mother, and she came to Malaysia from [Country]. She met her husband in Malaysia whilst working for the same company.
·Throughout her marriage she has experienced domestic violence, verbally and physically, which has caused her emotional distress.
·She witnessed her daughter being made a target of her father’s anger and hatred, but she could not do anything because she is an immigrant in Malaysia.
The declaration of the applicant’s teacher dated 23 April 2024 states the following:
·She met the applicant in [Year] when the applicant was enrolled in her school.
·In [Year] the applicant moved from form 3 to form 5.
·The applicant had shared with her the stress that she was suffering as a result of the emotional pressure from her father who did not allow her to continue her studies.
·She had noticed some bruises on her face and body on a number of occasions.
·She attempted to take the applicant to see a psychiatrist but due to a lack of documentation, they were unable to continue with the appointment.
·She was invited to the applicant’s wedding in [Year] but due to work commitments she could not attend. The applicant told her that she had not received her father’s blessing for her marriage.
The applicant told the Tribunal that she was married at [Age] years of age after running away with her now husband to get married. She is now [Age] years of age, and it has been more than 12 years since she left home to move to another city with her husband. The applicant stated that she lived in numerous cities within Kuala Lumpur and last lived with her husband in Kajang, Kuala Lumpur which is very far away from Sandakan, Sabah where her parents lived. She told the Tribunal that a 3-hour flight is required to travel between the two cities.
The Tribunal asked the applicant if her father had ever harmed her between leaving home in [Year] and departing Malaysia in 2019. The applicant stated that there was one occasion in 2017 when her father came to visit her in Kuala Lumpur where she lived with her husband and children. She told the Tribunal that her father wanted them to divorce because he did not like her husband. The applicant stated that her father was arguing with her husband when he slapped her and punched her in the eye. The applicant confirmed that this was the only time he had touched her after she was married. She also told the Tribunal that her father then left and never again returned to her house.
The Tribunal asked the applicant if she has had any further contact with her father since this incident in 2017 and she confirmed that she has not spoken to her father since this incident.
The Tribunal asked the applicant if there were any other occasions where she had been physically harmed since her marriage in [Year] apart from the 2014 and 2017 incidents that she had described to the Tribunal. The applicant confirmed that she has not been physically harmed or threatened with harm on any other occasion.
The Tribunal heard evidence from [Ms B] who told the Tribunal that she was the applicant’s teacher in [Year] and [Year]. She said that she met the applicant when she was in form 3 and was 17 years of age. She told the Tribunal that the applicant had told her that her father did not want her to finish her high school studies but her boyfriend at the time assisted her to complete her high school education. She told the Tribunal that she had on occasions noticed bruises on the applicant’s body. The Tribunal asked the witness if she had reported this to anyone and she stated that she had reported what she noticed to the school principal. She told the Tribunal that she tried to refer the applicant to a psychiatrist to deal with her emotional state but because the applicant did not have a Malaysian identification card at the time, she could not finalise any appointment with the psychiatrist.
The Tribunal also asked the applicant if there were any other reasons, she feared harm apart from the reasons she has given to the Tribunal. The applicant stated that she had contemplated suicide in 2018 because she felt so depressed about her situation, but she did not seek any medical assistance.
The Tribunal asked the applicant where she would live if she was returned to Malaysia, and she stated that she did not know where she would live. The Tribunal also asked the applicant if she could relocate to another part of Malaysia if she returned so as to avoid her father or anyone else that she feared harm from. She stated that there was nowhere she could relocate to.

The Tribunal discussed with the applicant relevant country information particularly information contained in the Department of Foreign Affairs and Trade (DFAT) report[2] that suggests that the amendments to the Malaysian Domestic Violence (Amendment) Act (2017) strengthened protections for victims of domestic violence by expanding the definition of domestic violence, and protects spouses, former spouses, children, family members, ‘incapacitated adults’ who are living as members of the family, and de facto spouses. The Tribunal asked the applicant if she had ever considered applying for an Emergency Protection Order (EPO) to protect her from any fear of harm she has from her father. The applicant stated that she did not consider this as an option because if action was taken against her father, it would leave her mother in a vulnerable position because she is a citizen of [Country] and not a citizen of Malaysia and has no right to remain in Malaysia permanently other than being married to her husband.
[2] DFAT Country Information Report Malaysia, 29 June 2021
The Tribunal asked the applicant why she had not raised her new claims with the department when her protection application was lodged in January 2019. The Tribunal noted that the only claims raised by the applicant in 2019 were related to the economy in Malaysia and the rising cost of living. The applicant stated that she initially came to Australia to locate her husband and after arriving in Australia she started to work and feel safe. She stated that her family problems were the main reason she left Malaysia.
Further evidence received after the hearing
On 9 September 2024, the Tribunal was notified that the applicant had appointed a legal representative who was assisting the applicant to prepare additional information in support of her application. The Tribunal was advised that the additional information would be provided to the Tribunal within 28 days. The Tribunal was requested to refrain making a decision until the additional information was provided to the Tribunal.
On 2 October 2024 the applicant’s representative notified the Tribunal that the applicant had been experiencing mental health issues which had resulted in her being hospitalised and because of this, they had been unable to finalise the additional material to be presented to the Tribunal. The representative requested that the Tribunal refrain from making a decision until the additional material was provided to the Tribunal. The representative advised that the additional material would be provided to the Tribunal as soon as possible.
On 25 November 2024 the Tribunal received the following documents:
·Post hearing submissions from the applicant’s representative.
·Psychology notes for 8, 9 and 14 October 2024 taken by the [Hospital] Psychologist.
·Screening register details dated 21 June 2024
·Letter from [Health services provider] dated 3 October 2024 confirming that the applicant has been a registered client of the Hospital Outreach Post Suicidal Engagement (HOPE) since 8 July 2024. The letter confirms that the applicant had been attending weekly appointments with her allocated HOPE support co ordinator which focused on supporting the applicant to achieve her psychological goals, with the aim of improving her personal circumstances and wellbeing.
·Letter from [Health services provider] dated 21 November 2024 confirming that the applicant had been admitted to the inpatient unit at [Hospital] on 2-16 October 2024 for medical treatment and issues related to psychosocial stressors and that the applicant is managed by the community team and may need ongoing support.
The submissions from the applicant’s representative raises the following matters:
·The applicant has suffered mental illness for most of her life due to her father’s constant abuse.
·The psychological reports that have been provided to the Tribunal show that the applicant is suffering complex longstanding PTSD, with acute symptoms triggered by fear of returning to Malaysia.
·The applicant’s father beat her in 2003 when she came home late.
·In [Year], the applicant’s father forced her to work in a [workplace 3] and took all her earnings.
·The applicant’s father beat her in 2005 using his belt or a block of wood and on one occasion he used a machete to threaten her.
·In 2017, after the applicant moved to Kuala Lumpur to live with her husband, the applicants father went to her house asking for money and when she could not give him any, he punched her.
·In 2017 the applicant’s sister-in-law came to her house and they got into an argument, and she was pushed by her sister-in-law. At the time, the applicant was not aware that she was pregnant and went to hospital after some bleeding. It was then that she discovered that she was pregnant and had miscarried.
·The applicant fears that if she returns to Malaysia, she will face serious harm from her father.
·The applicant’s mental health could deteriorate if she is returned to Malaysia, and she may not have access to appropriate mental health treatment.
·The applicant faces discrimination because she was born out of wedlock.
·The applicant fears harm from her in laws if she returns to Malaysia because they will continue to demand that she and her husband divorce.
·The applicant fears that if she returns to Malaysia, she will experience serious harm in the forms of threats to her life or liberty, significant physical harassment and significant physical ill treatment by her father and her husband’s family.
·Effective protection measures would not be available to the applicant upon her return.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent report from DFAT is the Country Information Report for Malaysia dated 24 June 2024. The Tribunal has considered this report, together with the 2021 DFAT report[3] as well as other relevant country information referenced in this decision.[4]
[3] DFAT Country Information Report Malaysia, 29 June 2021
[4] DFAT Country Information Report Malaysia, 24 June 2024
REASONS AND FINDINGS
The issue in this case is whether there is a real chance that if the applicant returns to Malaysia they will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Based on the evidence before the Tribunal, the Tribunal accepts and finds that the applicant does not have a right to enter and reside in a country other than their own country of origin – Malaysia. Therefore, the Tribunal accepts that s 36(3) of the Act does not apply to the applicant’s circumstances.
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[5]
[5] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[6]
[6] Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALO 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained in her Departmental file.[7] She has at all times stated that she is a citizen of Malaysia and has been assessed on that basis by the Department.[8] The Tribunal finds that the applicant is a Malaysian citizen and has assessed her claims against Malaysia as the country of nationality and the receiving country.
Economic claims
[7] Dept File No: [Reference], AAT Case: 1906932
[8] Ibid
The evidence before the Tribunal was that the applicant was employed in Malaysia and that her salary was only RM1,000 per month and that this was not enough to meet rising cost of living standards especially with [number] children to look after. When the applicant was not working, she was looking after her [young children] whilst her husband worked as a [occupation 4] to support the family.
The applicant told the Tribunal that she did not plan to stay in Australia permanently but after arriving she changed her mind and wanted to live in Australia on a permanent basis with her husband and children. There was no evidence before the Tribunal that the applicant had struggled to survive in Malaysia although there was evidence that her husband had travelled to Australia in 2017 seeking the opportunity to work and earn better money and that the applicant was unable to travel to Australia with her husband because she was pregnant with [another] child.
The Tribunal accepts that the applicant may wish to remain in Australia because she likely can earn significantly more money working in Australia than she can in Malaysia. However, the Tribunal finds that the applicant will be able to find employment on return to Malaysia such that her capacity to subsist would not be threatened, although she may face some form of economic hardship, particularly during a period of re-establishing herself in Malaysia before finding work.
Having regard to the evidence of the applicant regarding this claim, the Tribunal finds that the applicant’s circumstances are not such that she faces a real chance of suffering significant economic hardship in Malaysia that threatens her capacity to subsist; or that she faces being denied access to basic services, where the denial threatens her capacity to subsist; or that she would be denied the capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist, as per the (non-limiting) examples of instances of serious harm detailed at s 5J(5)(d)–(f). The Tribunal also finds that there is no evidence to indicate or suggest that the applicant’s financial circumstances were, or in the foreseeable future would be, impacted by persecutory treatment involving systematic and discriminatory conduct directed at her for one or more of the reasons mentioned at s 5J(1)(a).
Family violence from father
The applicant claims that if she returns to Malaysia, she will suffer abuse and harassment from her father and her husband’s family. The applicant left home in [Year] to marry her husband when she was [Age] years of age. The Tribunal accepts that her family and particularly her father, did not provide their blessing for the marriage. The Tribunal also accepts that her husband’s family did not support their marriage because the applicant and her husband are of different ethnicities.
The Tribunal accepts the applicant’s evidence that her father mistreated her as a child and that he did not show her the same love and affection he showed her siblings because unlike her siblings, she had been born out of wedlock. The Tribunal accepts the applicant’s evidence that her father had stopped her from going to school when she was 16 years of age, however with the assistance of her boyfriend, she was able to complete her high school education a few years later. Although the applicant did not provide any evidence to the Tribunal during the hearing about any abuse by her father in [year] and [year], the Tribunal is prepared to accept the submission of the applicants representative that the applicant was beaten by her father in [year] for coming home late when she was 14 years of age and beaten again in [year] when she was 16 years of age and still living at home.
The Tribunal accepts that between 2012 and 2017 the applicant, her husband and their children lived in Kuala Lumpur whilst her parents resided in Sandakan, Sabah and because of the large distance between the two cities (approximately 2,00 kilometres), a flight is required to travel between the two cities.
Having regard to the evidence of the applicant, the Tribunal finds that in 2014 whilst she was pregnant, she was pushed by her husband’s sister following an argument causing her to fall and miscarry. The Tribunal notes the representative’s submission that this occurred in 2017, however the evidence of the applicant at the hearing was that this occurred in 2014. The Tribunal also finds that in 2017 whilst her father was visiting the applicant and her family, an argument resulted in her father slapping and punching the applicant and that her father did not visit her again following this incident.
Given the passage of time and the lack of any communication with the applicant’s father and her husband’s family, the Tribunal finds that there is not a real chance that the applicant’s father or her husband’s family would be motivated to harm her or her family if she returned to Malaysia now or in the reasonably foreseeable future.
The Tribunal makes this finding for a number of reasons. Firstly, the applicant is now married with [number] children. [The older children, genders and ages] reside in Malaysia and are cared for by the applicant’s parents. Her remaining [child] was born in Australia and is now [Age] years old. The applicant left Malaysia in January 2019 and her father and mother have now cared for the applicant’s [children] who remained in Malaysia since 2019, a period of 5 years. There is no evidence before the Tribunal that the applicant, if returned, would be forced to live with her parents or her husband’s parents. Since 2012 the applicant, her husband and children have lived far away from the applicant’s parents. The distance between Kajang, Kuala Lumpur where the applicant last lived and Sandakan, Sabah where her parents live is approximately 2,000 kilometres and a flight is required to travel between the two cities.
Secondly, the applicant left her family home in [Year], some [Number] years ago, to marry her husband. The applicant’s evidence was that she has not had any contact with her father since 2017, a period of 7 years. There is no evidence before the Tribunal that the applicant’s father has made any threats to harm the applicant upon her return and equally, there is no evidence of her husband’s family having made any similar threats.
Thirdly, there are only two occasions where the applicant was harmed after she left home to marry her husband. The first was in 2014 when she was pushed by her husband’s sister and the second was in 2017 when her father slapped and punched her following an argument. Apart from these two occasions, the applicant was never harmed between 2017 when her husband left Malaysia and 2019 when she left Malaysia to travel to Australia to join her husband.
The Tribunal finds the applicant could return to Malaysia with her family and continue to live away from her father and her husbands’ relatives to avoid any physical harm, harassment or contact from them.
While the Tribunal accepts the applicant’s father may have mistreated her as a child and whilst she lived at home until [Year], the Tribunal does not accept there is a real chance her father, who has cared for her children for the last 5 years, would have any motivation or interest in harming the applicant now or in the reasonably foreseeable future, if she returned to Malaysia. She is now an adult, a married woman and a mother to [number] children and has not lived with her parents for over 12 years.

The Tribunal raised with the applicant her evidence to a differently constituted Tribunal hearing in 2022[9] which dealt with her husband’s separate claim for protection. The Tribunal notes that her husband’s claim for protection was that he left Malaysia because of the poor economic conditions and because it was hard to find a job and save for the future. The applicants initial claim for protection was consistent with her husband’s claim, namely, she left Malaysia due to economic factors and the high cost of living. The applicant gave evidence in that hearing that she and her husband travelled separately to Australia because at the time her husband left Malaysia, she was pregnant with their [child] and could not travel with him. The applicant’s evidence during her husband’s Tribunal hearing did not refer to any fear of harm from her father or her husband’s relatives.
[9] AAT CASE: 1824865
The evidence of the applicant in her husband’s Tribunal hearing casts serious doubts about the reliability of the applicant’s evidence to this Tribunal, namely that her husband disappeared in 2017, that she did not know where he went, that she only found out in 2018 from his friend that her husband had travelled to Australia, that she was left alone to care for her [children] without any income and that she came to Australia in 2019 to search for her husband who had abandoned her and her [children] in 2017.
Given the applicants evidence to the Tribunal during her husband’s protection hearing, the Tribunal finds that the applicant was aware that her husband left Malaysia in 2017 to travel to Australia in order to work and earn a better income. The Tribunal finds that the applicant had always intended to travel to Australia but was not able to travel to Australia with her husband in 2017 because she was pregnant with her [child] at the time.
The Tribunal finds that the applicant does not have a genuine fear of being harmed by her father or any other persons should she be returned to Malaysia. Based on the evidence before the Tribunal, the Tribunal does not accept that there is a real chance that the applicant will be seriously harmed by her father or anyone else upon her return to Malaysia.
Even if the Tribunal were to accept, which it does not, that there is a real chance that the applicant will be subjected to serious harm by her father or her husband’s relatives upon return to Malaysia, there is nothing to suggest that the applicant could not access state protection which is clearly durable, and which consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
Country information[10] suggests that effective protection measures are available to the applicant in Malaysia including police assistance, family violence orders, and various support services. Country information indicates that the Malaysian police force are considered a professional and effective police force. Whilst there may be some instances of corruption, there is nothing to indicate that the police would be unable or unwilling to protect the applicant. As discussed with the applicant, there are also legal protections available to women for acts or threats of violence, including the ability to obtain an Emergency Protection Orders with breaches punishable by penalties including fines and imprisonment. There are also government and non-government bodies who provide shelters and assistance to victims. The government has also introduced One Stop Crisis Centres (OSCC) in the emergency departments of Malaysian hospitals in 1996 which provide a centralised one-stop facility to victims. They provide crisis intervention, counselling, temporary shelter, and legal assistance.[11]
[10] DFAT Country Information Report Malaysia, 24 June 2024
[11] Ibid at 3.122
The Tribunal notes the representative’s submission that the applicant would be unable to access state protection from the harm she fears from her father and her husband’s family because of systematic discrimination against women, involving selective enforcement of the law, which amounts to a failure of the Malaysian government to discharge its responsibility to protect women. The Tribunal has considered these submissions but does not accept the submission that the applicant would be discriminated against in seeking state protection. According to DFAT, the Women’s Aid Organisation reported in 2019 that there were OSCC services in 102 government hospitals nationwide, with the number of clients who access each OSCC varying from fewer than 10 to over 500 a year. In-country sources told DFAT that OSCCs were primarily used in city centres.[12]. In 2017, over 10,000 cases were recorded in OSCC’s all over Malaysia.[13]
[12] Ibid
[13] Developing a quality indicator framework for one stop crisis centre services in Malaysia: A study protocol- Research Square 3 April 2024 - 2ec12f45-3cff-4005-b2e6-d2a1d1d37508.pdf
The representative’s submission to the Tribunal was that whilst processes and procedures do exist in Malaysia for women who have experienced gender-based violence, overarching attitudes impact upon their implementation and on the ability of victim survivors to access protection. The Tribunal accepts the general import of these submissions, and acknowledges that barriers continue to exist in Malaysia for women who are victims of gender based violence, however the Tribunal is not satisfied the evidence established that the State is unwilling to offer effective protection measures to the applicant or effective protection would be withheld because she is a woman and a victim of gender based violence.
Accordingly, the Tribunal finds that effective protection measures, as set out in s 5LA, would be available to the applicant if he returned to Malaysia, so that she does not have a well-founded fear of persecution as required by s 5J(2).
The applicant’s mental health
The psychological documents and reports that have been provided to the Tribunal after the hearing, conclude that the applicant is suffering from longstanding PTSD with acute symptoms triggered by a fear of returning to Malaysia. The reports indicate that the applicant is worried about her children that reside in Malaysia and about her future. The reports also disclose that the applicant’s anxiety, stress, depression and suicidal thoughts have been exacerbated following her attendance at the Tribunal hearing and her fear of being returned to Malaysia. The documentation provided to the Tribunal after the hearing disclose that the applicant’s first engagement with mental health services was on 8 July 2024, some two months after the Tribunal hearing. There was no evidence before the Tribunal during the hearing that the applicant had ever engaged with any health or mental health service whilst in Australia and before the hearing. The Tribunal accepts that the applicant has been suffering with a variety of mental health problems since July 2024 which culminated in her admission as a hospital inpatient between 2-16 October 2024.
The Tribunal has carefully considered the psychological documentation that was provided to the Tribunal and notes that none of the reports that have been provided, refer to the applicant as having been abused by her father. The reports disclose that the applicant has communicated her fear that her family and in laws may try to separate her from her husband if she is returned to Malaysia, however the reports do not refer to the applicant as ever having disclosed to the psychologists that have treated her, any abuse by her father when she lived in Malaysia or any fear of harm from her father or her in laws if returned to Malaysia.
Malaysia has a well-established universal health care system, which is accessible to most of the population and health facilities are available within a 5-kilometre radius in urban centres.[14] DFAT reports that mental health services are hard to access, and expensive and mental health services are regarded as a notable gap in Malaysia’s otherwise strong healthcare system.[15] The report indicates that there is significant stigma attached to mental health issues in Malaysia, though this appears to be declining in urban areas.[16]
[14] DFAT Country Information Report Malaysia, 24 June 2024 at 2.11
[15] Ibid at 2.14
[16] Ibid
Even if the applicant’s treatment available in Malaysia is not of the standard she has received in Australia, there is nothing to indicate treatment would be withheld or that she would not have access to the same mental health services as other Malaysians if she were to return to Malaysia.
The representatives’ submissions state that the applicant’s mental health may suffer if she is returned to Malaysia, and she will face discrimination as a result of her mental health condition. Whilst the Tribunal accepts that there may be a stigma attached to people with a mental health condition and that the applicant may experience some level of discrimination because of her condition, the Tribunal does not consider that in the particular circumstances of the applicant, such stigma and discrimination rises to the level of cruel or inhumane treatment or punishment or degrading treatment or punishment as those terms are defined.
Having regard to available country information and the circumstances of the applicant, the Tribunal does not accept there is a real chance the applicant will be seriously harmed if she returns to Malaysia by reason of her suffering from a mental health condition. There is nothing to suggest the applicant would be denied healthcare in Malaysia for any of the reasons in s 5J(1)(a). The Tribunal finds the applicant does not face a real chance of harm of being denied healthcare.
Discrimination because the applicant was born out of wedlock
The applicant’s representative submits that the applicant faces discrimination because she was born out of wedlock and that this will also impact on her ability to access mental health services if returned to Malaysia and that this will threaten her ability to subsist.
The psychology documents disclose that the applicant provided some brief details about being ignored and bullied whilst she was at school because she does not have her father’s last name. The applicant’s teacher also gave evidence that the applicant had difficulty accessing the services of a psychiatrist in [Years] because she did not have a national identification card at the time. The applicant’s evidence was that she obtained her Malaysian Identity Card (MYKAD) with the assistance of her husband before they were married, and she was then able to complete her high school.
There was no evidence before the Tribunal that the applicant suffered any discrimination in accessing any services or benefits after she had obtained her MYKAD card. Apart from being ignored and bullied whilst at school, there is no evidence before the Tribunal that the applicant has experienced any other forms of discrimination whilst living in Malaysia because she was born out of wedlock.
Under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:
(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.
Whilst the Tribunal accepts that some members of the community may look down on the applicant because she was born out of wedlock, the Tribunal does not accept there to be a real chance that the applicant’s life or liberty would be threatened by any group or person nor that any members of the community will respond with significant physical harassment or physical ill-treatment of the applicant. Nor does the Tribunal accept there to be a real chance the applicant will be denied access to basic services or the capacity to earn a livelihood of any kind or subjected to economic hardship that threatens her capacity to exist and support her family because she was born out of wedlock.
The Tribunal does not consider that the applicants feared harm rises to the level of serious harm as set out in s 5J(5). For these reasons the Tribunal does not accept there to be a real chance that the applicant will face serious harm from any person because she was born out of wedlock.
Does the applicant have a well-founded fear of persecution if returned to Malaysia?
The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that the applicant would face a real chance of serious harm now or in the foreseeable future if she returned to Malaysia.
For the reasons given above, the Tribunal finds that the applicant does not have a well-founded fear of persecution as required by s 5J for any of the grounds advanced and it therefore finds that she is not a refugee within the meaning of s 5H.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion?
In considering whether the applicant meets the complementary protection criterion in s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.
In this case, the Tribunal has found that the applicant is a national of Malaysia, and the Tribunal therefore finds that Malaysia is her ‘receiving country’ for the purposes of s 5(1).
‘Significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Malaysia. In Minister for Immigration andCitizenship v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept that there is a real risk that the applicant would face significant harm if returned to Malaysia for any of the above reasons, whether taken individually or cumulatively.
The Tribunal is not satisfied that the applicant meets the requirements of s 36(2)(aa).
Family unit member assessment
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 any of the criteria in s 36(2).
DECISION

101. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of Hearing: 30 April 2024
Representative: Ms Catherine Luong

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.
…