1916333 (Refugee) - [2025] ARTA 1569

1916333 (Refugee) [2025] ARTA 1569 (20 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 1916333

Tribunal:General Member R Lee
Date:20 June 2025

Place:Perth
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 20 June 2025 at 3:45pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – mixed religious marriage – mixed race marriage – birth and marriage registration – children considered illegitimate – fear of detention – criminal penalties – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 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 15 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] March 2018 and has not departed since.[1]
[1] Movement record – 3 October 2024. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision. No disrespect is intended.
The applicant who claims to be a national of Malaysia, applied for the visa on 16 April 2018. The delegate refused to grant the visa on the basis that the applicant would not suffer serious harm as a member of the LGBT community if they returned to Malaysia.
The applicant appeared before the Tribunal on 2 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
Evidence before the Department
According to information contained in their protection visa application, the applicant is [an age]-year-old Malaysian citizen of the Islamic religion who was born in Sibu, Sarawak, Malaysia.
In relation to their claims for protection, the applicant claimed they left Malaysia because they were a member of the LGBT community.
The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application.
On 20 April 2018, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising that the applicant could bring any additional information they would like to be considered to the appointment for the collection of personal identifiers or otherwise provide it to the Department.
The applicant’s appointment to provide biometrics/personal identifiers was 27 April 2018, which the applicant attended. The Department did not receive any further information or documentary evidence from the applicant.
The Department did not invite the applicant to attend an interview.
Evidence before the Tribunal
The review application
On 21 June 2019, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT) and provided a copy of the delegate’s decision.
On 24 June 2019, the AAT wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the AAT to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could.
On 26 July 2024, the AAT sent a link to a pre-hearing information form to the applicant which contained various questions for the applicant to complete and which asked the applicant to provide any further evidence they wished to submit in writing as soon as they could.
On 30 July 2024, the applicant provided the AAT with a copy of the completed pre-hearing information form, in which the applicant claimed that they sought a protection visa because they are of the Islamic faith and in October 2020, they married a Chinese Buddhist Malaysian citizen. They have a child. They would be unable to live as a family in Malaysia, and the marriage and the child’s birth cannot be registered in Malaysia. The applicant’s family incorrectly thinks that the husband has converted to Islam, which he will not do nor will he remove the [specified tattoos] on his body. The husband had his own case before the AAT.
On 14 October 2024, the AAT became the Administrative Review Tribunal (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.
Before the hearing, the applicant provided a statutory declaration signed 25 November 2024 (Applicant’s Statutory Declaration), a statutory declaration signed 25 November 2024 from her husband (Husband’s Statutory Declaration) and written submissions with relevant attachments provided 27 November 2024 (Written Submissions). At the hearing, the applicant made available a translated extract of the husband’s birth certificate.
The hearing: supporting documents and oral evidence
The applicant and the husband attended in person and each gave oral evidence.
The applicant said their parents know the applicant is married; they have met the husband via a few video chats and his religion would be obvious from his appearance. The parents have said it is the applicant’s choice who they are with.
The applicant said the email address for correspondence in the protection visa application was theirs at the time but that they did not understand the protection visa application was their responsibility nor were they aware that they had to tell the truth in the application, because their English was not very good, they were unaware of the process and they trusted the person helping them. The applicant’s employment details in the protection visa application are incorrect. The applicant does not remember receiving emails from the Department.
The applicant said that the husband’s protection visa application was refused before the delegate’s decision in relation to the applicant’s application, but they did not discuss it. The applicant did not read their delegate’s decision, but just read the word ‘refused’. The applicant was not curious about why their protection visa application had been refused. The applicant said it was not because they did not care about the outcome, but they did not know about such things and they let the agent handle everything.
The applicant said the email address in the review application was not theirs. They do not recall seeing the Tribunal’s correspondence, but did receive the Tribunal’s confirmation letter for Medicare purposes. The applicant agreed that they have had a reasonably solid work history in Malaysia and Australia, and the husband probably has more work experience than them.
The applicant said they decided to get married because it was the natural thing to do at that stage of the relationship and they felt during the COVID-19 pandemic it was important to do the right thing. The husband and the applicant did not discuss the refusal of their protection visa applications at the time, and the applicant did not think much about it.
The applicant suggested that they might be under stronger surveillance in urban centres and disagreed that they could move to say Kuala Lumpur to avoid attention, and said the Islamic laws applied whether or not a person was famous. It only took one report. When the Tribunal suggested that it would not be unreasonable to refrain from public displays of affection in Malaysia, the applicant said they ran to the risk of being reported for holdings hands or hugs and Malaysian people have a special talent for spotting people’s ethnicity and the applicant and the husband would run the risk of being reported all the time. The applicant would cover their hair in public in Malaysia and the husband looks Chinese.
The husband said he arrived in Australia [in] February 2018 for a holiday, after his father passed away in 2017. He left school at the age of [age] and worked as [an occupation 1]. He worked in [Country 1] from the age of [age]. The husband commenced a relationship with the applicant on the first day the applicant arrived in Australia, being [in] March 2018. The claim for protection in the husband’s protection visa application was not true, and the application was refused 24 May 2018. When the Tribunal asked why the husband did not check why he had been refused and moved to support the applicant’s protection visa application which was still on foot, the husband said they did not realise how serious things were. They married during the COVID-19 pandemic, so as not to lose each other.
Post-hearing submissions
The applicant provided a further statutory declaration signed 20 December 2024.
The husband provided a further statutory declaration signed 20 December 2024.
The applicant also submitted on 6 June 2025 a Western Australian Birth Certificate for a daughter on [date].
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.
Applicant’s responsibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case, the Tribunal must consider the DFAT Country Information Report Malaysia (24 June 2024) (DFAT Report). [2]
[2] ‘DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024, 20240624113833.
REASONS AND FINDINGS
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The applicant travelled to Australia on a Malaysian passport and claims to be a Malaysian national. The delegate had no concerns about their claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a national of Malaysia, which is also their receiving country for the purposes of refugee and complementary protection assessments.
The Tribunal accepts that the applicant married in Australia [in] October 2020, based on the Commonwealth of Australia Certificate of Marriage between the applicant and the husband provided with the pre-hearing information form. The Tribunal also accepts that the couple’s son was born [on date] in Australia, based on the New South Wales Birth Certificate provided with the pre-hearing information form.
The Tribunal also accepts that the couple’s daughter was born on [date] in Australia, based on the Western Australian Birth Certificate provided to the [Tribunal].
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts that the claim for protection in the protection visa application is incorrect, based on the pre-hearing information form, the Applicant’s Statutory Declaration at [27] and [28] and the Written Submissions. The Tribunal finds that the applicant is not a member of the LGBT community and that this claim is not genuine, based on the facts that the claim for protection in the application is incorrect and that the applicant is now married to a man, and has children with him. The Tribunal finds that there is no real chance of harm to the applicant in the reasonably foreseeable future if they return to Malaysia on the basis of the claim in the protection visa application, because it has found this claim to not be genuine.
The applicant seeks protection on the basis of a sur place claim as a member of a particular social group in Malaysia, being a Muslim woman in an interfaith marriage or a Muslim woman in an interfaith marriage with children who will be considered illegitimate in Malaysia, based on the Written Submissions. The submission is that as a Muslim woman, the applicant cannot live with her husband, be married in Malaysia and safely have her family without being prosecuted for breaking the law. Pressure could be placed on the husband to convert so the applicant can avoid punishment, but this is not possible in their relationship. The applicant will likely be penalised with jail, a fine or caning, which all amounts to serious harm: Written Submissions, page 14.
The applicant submitted that the relationship developed in Australia prior to them both submitting separate protection visa applications; they thought the claim in the protection visa application was based on her interfaith relationship and they did not become aware of the incorrect claim until May 2024 (Written Submissions, page 3 and see the Applicant’s Statutory Declaration at [13]-[27]). The Tribunal is not satisfied that the applicant has a reasonable explanation of why the interfaith relationship was not before the Department, because a person knowing they were not asked for more information than their passport for the application and then not taking responsibility for what is in their own application for over 6 years is not reasonable, and therefore the Tribunal must draw an unfavourable inference as to the credibility of this claim and evidence pursuant to s 367A of the Act. However, the strength of such an unfavourable inference which the Tribunal is required to draw is informed by the applicant’s evidence as a whole.[3]
[3] 1729721 (Malaysia), 4 December 2023, [80] (Member F Robertson).
The Tribunal notes that the applicant and her husband married and the children were born after the delegate’s decision. The Tribunal accepts that at that point in their relationship the COVID-19 pandemic was a driving force for the couple to marry, so that they did not lose each other, based on the evidence of the applicant and the husband at the hearing. The Tribunal is satisfied that the marriage and having children was engaged in otherwise than for the sole purpose of strengthening the applicant’s refugee claims, based on the Applicant’s Statutory Declaration and the applicant’s and the husband’s evidence at the hearing, and so s 5J(6) of the Act does not apply.

Overall, the Tribunal found the applicant to be credible, as they provided frank evidence without embellishment at the hearing in line with the Applicant’s Statutory Declaration, as amended by the further statutory declaration provided after the hearing. The Tribunal also found the applicant’s husband to be credible, given his frank and direct evidence at the hearing, which was in line with the Husband’s Statutory Declaration, as amended by the further statutory declaration provided after the hearing. On balance, the Tribunal finds that the unfavourable inference is overcome, because of the applicant’s subsequent marriage, their two children and the overall credibility of the applicant and the husband at the hearing.
The Tribunal finds that the applicant is Muslim, based on the Applicant’s Statutory Declaration. The Tribunal also finds that the husband is Buddhist, is active in practising his religion and will not convert to Islam due to respect for his Chinese ancestral lineage heritage and because he is the eldest son, based on the Husband’s Statutory Declaration at [12], [18] and [20].
The Tribunal accepts that the husband’s protection visa application has been rejected, based on the Applicant’s Statutory Declaration at [5]. The Tribunal finds that if the applicant is to return to Malaysia, the applicant will do so with the husband and two children as a family unit, because the husband’s application has been rejected and based on the Applicant’s Statutory Declaration. The Tribunal finds that the applicant is from Sarawak, Malaysia and the husband is from Melaka, Malaysia, based on the Applicant’s Statutory Declaration and the Husband’s Statutory Declaration, and as such finds that if the family returns to Malaysia it will be to Melaka, Malaysia, being where the husband is from.
The Tribunal accepts the country information submitted by the applicant that the Malaysian government does not recognise marriages between Muslims and non-Muslims. The Tribunal accepts that the applicant is Muslim and the husband is Buddhist, based on the evidence before it, and as such accepts that their marriage in Australia will not be able to be registered and recognised in Malaysia, and the children will be considered illegitimate under Islamic law (Written Submissions, pages 6 and 12), because this information accords with the DFAT Report.[4] The Tribunal also accepts that in Malaysia a non-Muslim (male or female) must convert to Islam before marrying a Malaysian Muslim.[5]
[4] At [3.60].
[5] At [3.64].
The Tribunal finds that in about October 2020 the Malaysian Consulate [refused] to issue the applicant and her husband a Malaysian marriage certificate, and said the husband would have to convert to Islam first, based on the Applicant’s Statutory Declaration at [35]. The Tribunal finds that twice in 2022 the Malaysian Consulate [refused] to provide a Malaysian birth certificate for the son because the applicant and the husband had applied for protection visas and had not registered their marriage in Malaysia and said the husband would have to first convert, based on the Applicant’s Statutory Declaration at [37].
The Tribunal accepts the country information submitted by the applicant that married Muslims must carry photo identification of themselves with their spouses as proof of marriage, being a requirement enforced in practice (Written Submissions, page 8) and that religious enforcement officers have a range of powers depending on the syariah laws that apply in each state and can detain and charge individuals to go before syariah courts for a range of reasons, including for being in close proximity to members of the opposite sex (Written Submissions, page 9), as this is stated in the DFAT Report.[6] The Tribunal also accepts the country information submitted by the applicant that Islamic authorities could enter private premises without a warrant to apprehend Muslims suspected of engaging in offenses such as having sexual relations outside marriage (Written Submissions, page 9), based on the US Department of State, Country Reports on Human Rights Practices for 2023 (Malaysia).[7]
[6] At [3.39], [5.9].
[7] 'Country Reports on Human Rights Practices for 2023 - Malaysia', US Department of State, 22 April 2024, 20240502105551.
The applicant submitted that under Islamic law the applicant may face financial penalties, imprisonment, potential caning and removal to an approved home, for marrying a non-Muslim man, living with him “out of wedlock” as the marriage is not valid under Islamic law, or even for being caught in a secluded place with him (Written Submissions, pages 9-10). The Tribunal accepts that:
(a)in May 2024, a man crashed his car into a river in Melaka and fled leaving his car and girlfriend behind. The couple had been involved in a police chase. They sped off in fear of being caught for khalwat (that is, close proximity between unmarried individuals of the opposite sex who are not related or married) when a police patrol came close to where they were parked;[8] and
(b)a 2022 article[9] looked at the steps taken by an interfaith couple to avoid detection by authorities. Although they were not married, the Muslim woman suggested she and her Chinese Buddhist partner get cheap wedding rings when they moved in together, so their neighbours assume they were married. The couple avoid posting any images of them together on their social media, out of fear of state religious authorities. The woman said she will likely never marry or have children with her partner, as she does not want to force him to convert.
[8] ‘Man ditches car and girlfriend into river fearing ‘khalwat’ bust’ The Sun (10 May 2024).
[9] Liani Mk, ‘Moral policing’: religious enforcement is shaking multicultural Malaysia’, South East Asia Globe (24 November 2022).
The Tribunal accepts the country information submitted by the applicant that to avoid the stigma of being registered without their father’s surname and with a surname that indicates that they are illegitimate, many mothers in Malaysia do not register their illegitimate children which means the children are denied citizenship rights and not registering her children could result in the applicant as a Muslim woman being prosecuted for ‘fornication’ under the Islamic criminal law of the state they are in and they may be fined or imprisoned or both: Written Submissions, pages 12-13.
The Tribunal finds that the applicant fears persecution for reason of their membership of particular social groups, being a Muslim woman in an interfaith marriage or a Muslim woman in an interfaith marriage with children who will be considered illegitimate in Malaysia, because it accepts that the applicant is Muslim, is married to a man of the Buddhist faith and has two children with the husband, the common characteristic of the social group is that the members are persons who are in an interfaith married relationship where one of the parties is a Muslim, and it accepts the fear as raised by the applicant in the Statutory Declaration and before the Tribunal as it is consistent with the fear held by other interfaith couples as referred to above.
The Tribunal acknowledges the DFAT Report includes information that DFAT assesses that individuals who are likely to attract official attention under state syariah-based law, including Muslims wishing to marry non-Muslims, may, subject to the absence of economic and other barriers also move to large urban centres to avoid attention,[10] as submitted by the applicant in the Written Submissions, page 17. On balance, though the Tribunal considers that the applicant, her husband and children will not be able to avoid attention because it accepts that the applicant is ethic Malay and that the husband’s ethnicity as a Chinese Malaysian is easily identifiable by his features, based on the Applicant’s Statutory Declaration at [7(c)] and [19], the applicant’s evidence at the hearing and the husband’s passport photo, and if asked to provide their identification, their respective MyKad’s will show that the applicant is Muslim and the husband is not.
[10] At [5.25].
The Tribunal finds that the applicant faces a real chance of harm in the reasonably foreseeable future if she returns to Malaysia with her husband and children, because the applicant is vulnerable to imprisonment or being fined pursuant to Syariah laws if the applicant continues her relationship with the husband in Malaysia, even in the event such penalties are ‘rarely’ imposed, and will face official censure of their relationship, forced separation and the potential breakdown of their marriage. The Tribunal finds that the real chance of harm to the applicant is for the essential and significant reason of the applicant’s membership of a particular social group identified above and that due to the nature and application of Syariah law it is systematic and discriminatory conduct which applies to all areas of Malaysia and there is no effective protection measures available to the applicant.
The Tribunal agrees with the following statements in 1706007 (Refugee) [2023] AATA 878 (27 February 2023) concerning a Christian woman, and a Muslim man (the second applicant), both Malaysian citizens, who met and married in Australia, and had an Australian born child, and finds they apply equally to the applicant in this matter:
[108] The Tribunal is satisfied that these outcomes are of a nature which would properly and reasonably be considered to cause the applicants serious harm, particularly when they include the criminal penalties particularly faced by the second applicant immediately, including caning and imprisonment...
[118]..concealing a marriage or forcibly living separately and apart from your family…reflects a significant denial of fundamental characteristics of the applicants, particularly their right to live as a family unit...The Tribunal finds in all the circumstances that the steps required to modify their behaviour so as to avoid a real chance of persecution in Malaysia are not reasonable. The Tribunal finds that the applicants could not take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in Malaysia.
Right to enter or reside in any other country
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act.
Under s 36(3), where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
In the delegate’s decision, it was found that the applicant does not have a right to enter and reside in a country other than Malaysia and so s 36(3) of the Act does not apply to the applicant. On the evidence before the Tribunal, there is nothing before the Tribunal which suggests otherwise, and as such the Tribunal finds that the applicant does not have a right to enter and reside in a country other than Malaysia and that s 36(3) of the Act does not apply to the applicant.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing:   2 December 2024
Representative for the Applicant: Ms Lisa Kastropil
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.
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36     Protection visas – criteria provided for by this Act
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(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.
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