1914237 (Refugee) - [2025] ARTA 1532

1914237 (REFUGEE) [2025] ARTA 1532 (17 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Robert Chen (MARN: 0103806)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1914237 and 1912221
Tribunal:General Member L Luo
Date:17 April 2025

Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the first named applicant meets s 36(2)(aa) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 17 April 2025 at 8:12pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Chinese Malaysian – religion – Buddhist faith – fears harm from ex-husband – race riots – psychologist report – depression and anxiety – genuine and continuing relationship – applicant faces a real chance of serious harm – relocation is not reasonable – membership of the same family unit – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Act), ss 5, 36, 65, 423, 499
Migration Regulations 1994(Act), Schedule 2
CASES
BBK15 v MIBP (2016) 241 FCR 150
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v SZQRB (2013) 210 FCR 505
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

These are applications for review[1] of decisions made by a delegate of the Minister for Home Affairs on 30 May 2019 (Applicant 1) and 16 May 2019 (Applicant 2) to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] 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.
The applicants, who claim to be nationals of Malaysia, applied for the visas on 16 April 2019. The delegate refused to grant the visa on the basis that any harm suffered by the applicants did not amount to significant harm.
With consent of the applicants, the applicants appeared together before the Tribunal on 21 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were given until 7 March 2025 to submit evidence requested and they did so on 6 March 2025.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
Applicant 1 is a [age] year old Chinese Malaysian woman of Buddhist faith. She was born in [Town 1], Perak, Malaysia. She lived in Subang Jaya with her ex-husband for some years. While separated from her ex-husband in 2012, she moved to Penang and then to Kuala Lumpur when the divorce was finalised in 2014. She has two children with her ex-husband. A daughter [and a son]. She speaks to her daughter weekly, but has been estranged from her son for 10 years.
Applicant 2 is a [age] year old Chinese Malaysian man of Buddhist faith. He was born in Pahang, Malaysia. He worked in multiple cities in Malaysia and moved around a lot. He was married in 1986 and remains married, though he says they have effectively been separated for decades. He sends his wife money every month for her living expenses but otherwise has no regular contact with her. He has one son in [age range], but they have little contact with each other.
Applicants 1 and 2 met in 2017 while Applicant 2 was volunteering at a [temple]. The two commenced a relationship in 2018. Applicant 2 started working in a [farm] in Sabah in 2018 and Applicant 1 joined him for six months. They came to Australia together in March 2019.
Evidence before the Department
Applicants 1 and 2 submitted separate visa applications on the same day. These contained identical claims about economic hardship. The applicants were not interviewed. Two decisions were made by separate delegates, but in essence both delegates found that any harm suffered by the applicants as a result of economic hardship did not amount to significant harm.
Evidence before the Tribunal
The following pre-hearing evidence was submitted:
·Legal submissions from the applicants’ representative
·Signed statement from Applicant 1 in English and Chinese
·Signed statement from Applicant 1’s brother
·12 police reports in English and Chinese from 2013
·Psychologist report dated 19 February 2025.
At the hearing, the applicants gave evidence separately about their claims and their relationship with each other. Both applicants gave consistent evidence that their visa applications were filled out by an acquaintance in [Town 2] that they met shortly after coming to Australia. Neither applicant was consulted on their claims and did not know what was written on their visa applications.
Applicant 1 claimed that her ex-husband will harm her if she returns to Malaysia. Applicant 2 also claimed to fear harm from Applicant 1’s ex-husband, as well as the trauma he experienced from the 1969 race riots.
The following post-hearing evidence was submitted:
·Written submissions from the applicant’s representative
·Divorce certificate and translation of divorce
·Letter from Applicant 1’s solicitor to her ex-husband’s solicitor
·Signed statement from Applicant 1’s brother.
Applicant 1’s claims
Applicant 1 and her ex-husband were married in 1999. They had children in [year] and [year]. However, the marriage was volatile from the beginning and there were endless arguments. After her husband was diagnosed with [cancer] and underwent chemotherapy, causing him to be impotent, he became verbally abusive and controlling of the applicant. He frequently accused the applicant of infidelity and caused her and their children to live in fear. He also exhibited violent behaviour toward the applicant’s younger sister in 2006, where, during a dispute about her house renovation project for which he was the manager, he threatened her by putting a knife to her throat. From 2012, the verbal abuse escalated and he would sometimes threaten the applicant with physical objects such as scissors and knives. On 23 December 2012, following a particularly intense argument, the applicant’s ex-husband threatened her with a knife. Fearing for her safety, the applicant left the family home with her son and went to her parents’ home in Perak, approximately two hours’ drive away. However, she left her daughter in the care of her ex-husband as her daughter was at school at the time. The applicant said that her mother-in-law looked after her daughter during this period.
While the applicant was living with her parents, her ex-husband would frequently harass them by visiting their building, banging on the door and shouting on the street. In February 2013, the applicant and her son moved to her younger brother’s house in [City 1], approximately 4 hours’ drive from her ex-husband’s home. Her ex-husband did not know where she was, so he would continue to stalk and harass her parents, as well as visiting her younger sister at her house and her younger brother’s [shop], in an attempt to find her. While he was at her younger brother’s [shop], he tried to smash the shop with a large metal pipe.
After her ex-husband discovered she was living with her younger brother in [City 1], he and his sister accused her younger brother of kidnapping his son. As a result, she moved to Penang to escape him.
While living in Penang, the applicant found a job in a [company] to support her and her son. She discovered that her ex-husband had hired a private investigator and found her. He would call her work and harass her there, as well as try to get her work to fire her. The applicant provided multiple police reports relating to the harassment she received at work.
During this period, the applicant’s ex-husband also frequently posted publicly on [social media] accusing her of infidelity, and that she taken their son without permission and abandoned the family, which incited criticism from their extended family and friends. She claimed that he also published articles in the newspaper about her, containing the same kind of content he posted on [social media], causing her to also face social criticism from society at large.
The applicant and her ex-husband attended a counselling session as part of their divorce proceedings on 1 October 2013. However, this session was called off after her ex-husband’s mother hit the applicant with an umbrella outside the counselling room and tried to do so again inside the room just before the counselling session began. The applicant made a police report about this incident.
The applicant and her ex-husband finalised their divorce [in] April 2014. The applicant claimed that, as a result of the constant harassment, she was depressed and worn down and wanted to finalise the process as soon as possible. As a result, she relinquished custody of her son, as well as her rights to the joint property she held with her ex-husband. She gained custody of their daughter. The applicant indicated that her husband is a very traditional man and wanted to take their son back to carry on his family name.
After the divorce, the applicant claimed that her ex-husband continued to harass and stalk her between 2015-17. Although he was not physically violent, he would taunt her about her ability to survive on her own and make disparaging remarks about her to her and others. He continued to accuse her of infidelity and spread rumours about her to their mutual friends. The applicant did not make any more police reports about these matters because she said the police will not help, as they did not help after the multiple reports she made during the divorce proceedings. As a result of the constant stalking, the applicant’s mental health severely deteriorated and she decided to relocate to [Country 1] to work [in] 2017. She worked there until September 2018. While in [Country 1], the applicant claimed that her
ex-husband did not contact her or harass her to the same extent, however he knew that she was in [Country 1] and continued to badmouth her to their mutual friends.
In 2017, the applicant met Applicant 2 while seeking spiritual support at a Buddhist [temple]. They became friends and she said he provided her with a lot of mental support during this time. They began a relationship around 9 months after they met. After the applicant finished working in [Country 1] in September 2018, she moved to Sabah, where Applicant 2 was working on a [farm]. The applicant did not work on the farm, she took the opportunity to rest and recuperate for 6 months. In March 2019, she and Applicant 2 decided to come to Australia together to escape her ex-husband.
Since being in Australia, she has not had any contact with her ex-husband. However, she claims that he has continued to look for her by contacting her family and loitering around their houses or workplaces. She claims that he does not know about Applicant 2 yet, but if she has to return to Malaysia, he will find out about Applicant 2 and will seek to harm or kill them as he has always accused her of infidelity.
Applicant 2’s claims
Applicant 2 was [age] years old at the time of the 1969 Malaysian race riots. He said he vividly remembered the chaos and hate towards Chinese people at the time. He said that the trauma from that period has stayed with him throughout his whole life and he has been unable to sleep properly or avoid having flashbacks about the events he witnessed. He said that after finding religion and meditation, the spirituality helped him move past some of the hurt. He did not claim to have been harmed by anyone while living in Malaysia, but that each election period there will be painful reminders of the race riots.
Applicant 2 is married with one son and another who died when he was a child. He said that the marriage was loveless from the beginning, but he felt and continues to feel an obligation towards his wife for bringing up their child and maintaining their home while he worked away from home. As a result, he continues to send her money each month as well as pay their mortgage. He did not indicate that he planned to divorce her, but he said even if he did he would continue to pay her as it was his duty.
The applicants’ relationship
The applicants have lived together since they moved in together in Sabah in 2018. In Australia they lived in [Town 2], before moving to Melbourne where Applicant 2 worked in multiple [jobs]. During COVID lockdowns in Melbourne, Applicant 2 started managing a [shop] in [Suburb 1] where he successfully maintained the business. As a result, he became a 50% shareholder of that [shop] with his boss. With the success of the [Suburb 1] [shop], Applicant 2 expanded to a [shop] in [Suburb 2] and thereafter to a [business] in [Suburb 3]. Applicant 1 manages the [shop] in [Suburb 2] and the applicants live in the back of the [shop]. The applicants have amassed significant savings in joint accounts both in Australia and overseas, and they share all expenses.
The applicants both claim to derive significant emotional support from each other and are committed to each other. Applicant 1 is aware of Applicant 2’s wife and that he continues to send her money. She indicated that this was why she knew he was a good man, as he had a sense of responsibility despite having no feelings for his wife. Applicant 2 stated that Applicant 1 was very supportive of him sending money to his wife and would frequently remind him to send her money. He said that he was grateful to have met his soul mate in Applicant 1.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicants satisfy the refugee or complementary protection criterion. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
I accept both applicants are Malaysian citizens with no citizenship of, or right to enter, any other country. I find that Malaysia is the receiving country for both applicants for the purpose of this review.
I accept both applicants’ explanation for why they did not include their claims in their original visa application, and do not draw an adverse inference under s 423A of the Act.
Applicant 1
Based on the detailed written submissions and oral evidence received, as well as police reports referring to each of the violent incidents that occurred after Applicant 1 left her family home, I accept that the applicant was harmed by her ex-husband in a sustained period of family violence over a number of years during their marriage, characterised by verbal abuse and threats. I accept the marriage broke down in December 2012 because the applicant feared for her safety and escaped the family home, taking her son but leaving her daughter. I accept she left her daughter behind because she did not want to disrupt her daughter’s schooling, and that her daughter stayed with her ex-husband and was cared for by his mother until the divorce. I accept the applicant was subjected to stalking (including through hiring a private investigator), intimidation and harassment between her separation from her ex-husband and their formal divorce in April 2014. I accept that he spread rumours about her in public forums such as [social media] and local newspapers, as well as contacted her workplaces to harass her. I accept he also harassed and intimidated her immediate family members, including visiting their homes on multiple occasions and tried to smash her younger brother’s [shop] with a metal pipe. I also accept her ex-husband threatened her younger sister with a knife during a dispute over her sister’s house renovation in 2006. The applicant gave detailed oral evidence of this event and submitted a police report made by her sister shortly after the event in 2006.
I accept the police did not take action after each of the incidents were reported because they considered the matter to be domestic in nature. This was reflected in evidence provided by the applicant, which included correspondence from the police stating that no action was to be taken in relation to some of the reported incidents. The applicant also submitted a letter from her lawyer to her ex-husband’s lawyer, during divorce proceedings in 2014, asking his lawyers to prevent him from harassing her at work.

I accept the applicant and her ex-husband were divorced in 2014 and that they swapped custody of their children, with the applicant taking her daughter and her ex-husband taking their son. I accept she has been prevented from seeing her son ever since the divorce. I accept the applicant relinquished all property rights to her ex-husband upon their divorce, as this was documented in the divorce decree.
I accept the applicant’s ex-husband continued to stalk and harass her, including at her work, after they divorced. I accept he continued to badmouth her to their mutual friends. I accept she decided to find work in [Country 1] to avoid him. I accept that when she was in [Country 1], he did not harass her to the same extent that he did when she was still in Malaysia because he did not find her for some time.
I accept the applicant’s ex-husband does not know about the applicant’s relationship with Applicant 2 because they kept a low profile while in Malaysia, such as living together only in a remote farm in Sabah where the applicant’s ex-husband was unable to track, and then moved to Australia.
I accept the applicant’s ex-husband has not been able to contact her while she is in Australia, though he has continued to contact her family and friends to ascertain her whereabouts. I accept the applicant’s younger brother’s written evidence that her
ex-husband has continued to loiter outside her younger brother’s [shop] since the applicant left Malaysia, and that as recently as 2 January 2025 he has been loitering outside the shop looking for her.
Does the applicant satisfy the refugee criterion for protection?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are 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.
On the basis of the above findings, I find that the applicant holds a subjective fear that she will be persecuted if she returns to Malaysia. She has submitted a psychologist report stating that she suffers from depression and anxiety, and the underlying causes are based on her past experiences of harm and fear and uncertainty about her safety in the future if she has to return to Malaysia. I find that, if the applicant returns to Malaysia now or in the reasonably foreseeable future, she will most likely return to where her daughter lives in Kuala Lumpur. If she returns to Kuala Lumpur, based on her ex-husband’s previous conduct, including when she lived in Kuala Lumpur after their divorce, there is a real chance he will find out she has returned through their mutual connections and he will use a private investigator to track her exact whereabouts. When he finds her, there is a real chance she will be harmed by him in the form of harassment, stalking, intimidation and physical harm. This harm amounts to significant physical harassment and constitutes serious harm for the purposes of s 5J(5). The harm will be directed at her for one of the s 5J(1)(a) reasons, namely, the applicant’s membership of a particular social group comprising women in Malaysia.
DFAT country information states that discrimination against women is banned, however discrimination on the basis of sex persists in Malaysia. Violence against women and girls is a significant problem, and significant factors contributing to intimate partner violence in Malaysia include violence condoning attitudes and controlling behaviour by husband or partners.[2] While intimate partner violence can affect all genders, it is well documented to affect women disproportionately.[3] In Malaysia, this is compounded by prevailing attitudes towards women and ineffective or inadequate state protection for women experiencing gendered violence. I find that the applicant’s ex-husband harmed her because he believed that her status as a woman was to be subservient to him, and he had the right to control her as a man and her husband. He also believed her to be disloyal and did not fulfil her duties as a wife, which he used as an excuse to justify his harassment towards her. Accordingly, I find that the harm directed at her will be for the essential and significant reason of her gender and will involve systematic and discriminatory conduct.
[2] DFAT Country Information Report Malaysia, 24 June 2024, p 30.
[3] Australian Government Attorney-General’s Department, Australasian Institute of Judicial Administration Inc, University of Melbourne, National and Domestic Violence Bench Book, July 2024, accessed at on 14/4/2025.
I find that the applicant experienced harm from her ex-husband in Subang Jaya, Selangor, where she lived with him, and where her younger sister and younger brother lived. I find that she also experienced harm from her ex-husband in [Town 1], Perak, where her parents lived, and [City 1], Penang, where her other younger brother lived. I also find that she experienced harm in Kuala Lumpur and Subang, where she lived with her daughter after the divorce. The applicant did not experience harm, nor was her ex-husband able to find her, in Sabah where she lived for 6 months. Although her ex-husband was able to find her in multiple states in Malaysia, I find that most of the places where he found her was localised to Subang Jaya or the broader Kuala Lumpur region, and the places outside those areas were known places he suspected she would go to as they were where her parents or siblings lived. I accept that he hired a private investigator to track her whereabouts, however he still needed a suspicion about where she might be in order to localise his search efforts and he appeared to mostly target his search efforts on where her family lived. There is no evidence he has the unlimited resources or connections to scour the entirety of peninsular Malaysia, Sabah and Sarawak. Further, the applicant’s ex-husband was unable to find or harm her while she was in Sabah, because on her own evidence nobody but her brother knew she was there. Accordingly I find that her well-founded fear of persecution does not extend to all areas of Malaysia and she does not have a well-founded fear of persecution under s 5J(1).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where 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; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B)(c) of the Act.
For the reasons given above, I find there is a real risk the applicant will be harmed by her ex-husband in the reasonably foreseeable future if she returns to Malaysia. I find that he will subject her to significant harassment, stalking, intimidation and physical harm and that this constitutes cruel or inhuman treatment or punishment as I find that he intends to inflict pain or suffering upon her.
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
I have considered whether the applicant could relocate to an area of the country where the would not be a real risk she will suffer significant harm. As noted above, the applicant was safe from harm in Sabah. However, although Malaysia provides for freedom of internal movement, Sabah and Sarawak have autonomy over their own immigration and non-Sabah and Sarawak citizens can only visit for a maximum of three months.[4] I accept Applicant 2’s evidence that he and Applicant 1 overstayed their visitor permits in Sabah and do not have the right to permanently move there or to Sarawak.
[4] DFAT Country Information Report Malaysia, 24 June 2024, p 44.
I have considered whether it would be reasonable for the applicant to relocate to other parts of peninsular Malaysia. The applicant indicated at the hearing that, in order to ensure she could not be found by her ex-husband, she would have to cut off all contact with her friends and family to avoid any of them accidentally disclosing her location to her ex-husband. She claimed that this was unreasonable as she has a large community of friends and family, and she would need to keep in contact with them for her life in Malaysia to feel worth living. She claimed that no matter where she goes in Malaysia, she will constantly be on the lookout for her ex-husband because she will not know when he will find her.
Although the applicant has lived in Australia for a number of years without her existing support systems, I find that if she returns to Malaysia she will find it difficult to survive without those supports, especially if she continues to fear her ex-husband. I find that it would be unreasonable for the applicant to relocate to another part of peninsular Malaysia because the only way to ensure her safety is for her to cut off contact with her family and friends, and I find she will not be able to do so.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].
For the reasons above, I find that, based on the applicant’s own experience of reporting incidents of threats and harassment to the Malaysian police, the Malaysian authorities cannot offer protection to the applicant such that there would not be a real risk that she will suffer significant harm. Further, country information states that state protection is available but often inadequate or ineffective in practice.[5]
[5] DFAT Country Information Report Malaysia, 24 June 2024, p 30.
Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2B)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.
I find that the real risk faced by the applicant is faced by her personally as the risk comes from her ex-husband.
Accordingly, I find that there are 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.
Applicant 2
I accept Applicant 2 is a Chinese Malaysian man of Buddhist faith. I accept he witnessed traumatic events during the 1969 Malaysian race riots as a young child and as a result he has experienced mental health concerns such as anxiety and sleeplessness during his adult life. I accept he found solace in religion and meditation. I accept his account of his life in Malaysia.
Race discrimination
I have considered whether there is a real chance or real risk Applicant 2 will suffer serious or significant harm if he returns to Malaysia on the basis of his ethnicity.
DFAT country information states that there are no laws discriminating against Chinese Malaysians.[6] While Chinese Malaysians may face discrimination when trying to enter the civil service or higher education, or when starting their own business,[7] this does not appear to have been the experience of Applicant 2. By all accounts, Applicant 2 led a successful life in Malaysia where he worked multiple jobs, owned multiple businesses and was able to build substantial savings. Accordingly, I find that, if Applicant 2 returns to Malaysia, there is no real chance Applicant 2 will suffer serious harm, and no real risk he will suffer significant harm, now or in the reasonably foreseeable future on the basis of being Chinese Malaysian.
Harm from Applicant 1’s ex-husband
[6] DFAT Country Information Report Malaysia, 24 June 2024, p 15.
[7] DFAT Country Information Report Malaysia, 24 June 2024, p 16.
I have considered whether Applicant 2 is at risk of harm from Applicant 1’s husband. I accept that part of the reason Applicant 1’s husband harmed her was because he believed she had been having an affair during their marriage. I accept that if he finds out about Applicant 2, he may well feel that his fears were justified and also assume that Applicant 1 had been cheating on him with Applicant 2. However, I do not find that Applicant 1’s ex-husband will harm Applicant 2. Applicant 1’s ex-husband, while unpredictable, has only targeted Applicant 1 to exert his control. Although he has behaved with intimidation towards Applicant 1’s family members, those actions were in the context of trying to locate her. The incident in 2006 where he threatened Applicant 1’s sister was an isolated incident and also showed that he only targeted women. Applicant 2, being a man of roughly the same age, would not be someone he would seek to harm. Accordingly, I find there is no real chance and no real risk that Applicant 2 will suffer serious or significant harm from Applicant 1’s ex-husband if he returns to Malaysia now or in the reasonably foreseeable future.
Applicant 2’s profile
I have considered whether there is a real chance or real risk Applicant 2 will suffer serious or significant harm if he returns to Malaysia on the basis of his profile as a Chinese Malaysian man of Buddhist faith.
As above, I have found the applicant will not be harmed on the basis of his ethnicity. DFAT country information states that the Malaysian Constitution guarantees freedom of religion with some limitations on proselytising by non-Sunni Muslims.[8] Applicant 2 was not restricted from practising his religion in Malaysia and gave evidence that he regularly volunteered at a temple. Accordingly, I find that, if Applicant 2 returns to Malaysia, there is no real chance he will suffer serious harm, and no real risk he will suffer significant harm, now or in the reasonably foreseeable future on the basis of being Chinese Malaysian or a Buddhist individually or cumulatively.
Applicant 1 and Applicant 2’s relationship
[8] DFAT Country Information Report Malaysia, 24 June 2024, p 19.
I find that Applicant 1 and Applicant 2 are in a de facto relationship as defined under
s 5CB(2). I accept the parties are not in a married relationship because Applicant 2 is still married. However, despite Applicant 2 being married, I find that he has been separated from his wife for decades and it is a relationship of mere formality with some sense of financial obligation on Applicant 2’s behalf. I find that, based on the consistent oral evidence of the parties, they have a mutual commitment to a shared life to the exclusion of all others (s 5CB(2)(a)), the relationship between them is genuine and continuing (s 5CB(2)(b)), they live together (s 5CB(c)(i)) and they are not related by family. Accordingly, I find Applicant 2 is a member of her partner’s family unit under reg 1.12(4)(a) of the Regulations. I am satisfied she meets s 36(2)(b).
Does the applicant satisfy the refugee criterion for protection?

As there is no real chance the applicant will suffer serious harm if he were returned to Malaysia, I find that he does not have a well-founded fear of persecution under
s 5J. Accordingly, he is not a refugee under s 5H and does not meet the criterion in
s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the above reasons, I find there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. Accordingly, he does not meet the criterion in s 36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).
The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the de facto partner of the first named applicant and is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·(i) the first named applicant meets s 36(2)(aa) of the Migration Act; and
·(ii) that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Date of hearing:  21 February 2025
Representative for the Applicant:             Mr Robert Chen (MARN: 0103806)
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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
…
(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.
…