1918959 (Refugee)
[2025] ARTA 1251
•21 March 2025
1918959 (Refugee) [2025] ARTA 1251 (21 March 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Jesheka Jeyaneshan
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1918959
Tribunal:General Member M Stratos
Date:21 March 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:
(i)the first and second named applicants meet s 36(2)(a) of the Migration Act; and
(ii)the other 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 21 March 2025 at 6:25pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – family with illegitimate child – victim of family violence – physical assault – gender-based violence – fear of detention – coercive control – fear of killing – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559Any 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 5 July 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Malaysia, applied for the visas on 18 October 2018. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations.
On 14 July 2019 the applicants lodged an application for review with the Administrative Appeals Tribunal (the AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. This decision and statement of reasons is made by the Tribunal.
The applicants appeared before the Tribunal on 14 February 2025 to give evidence and present arguments. The applicants were assisted by their representative Ms Jesheka Jeyaneshan. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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.
BACKGROUND
The applicants are a [married couple] [of respective ages] and their [age] year old son from Sabah, Malaysia. They are of the Muslim faith. The first and second named applicants were both educated at the same high school in [Town 1] and married in August 2017. The three applicants arrived in Australia together [in] August 2018 on an electronic travel authority and applied for protection visas on 18 October 2018.
Evidence before the Department
In the protection visa application form dated 18 October 2018, the applicants’ reasons as to why they left Malaysia are as follows:
The reason why I left my country is to find a better safe place for my family because my parents and my wife's parents both not agree with our marriage. The reason why they don't agree is because my wife was pregnant before we marry, this is not allowed in our religion (Islam). My wife and I regretting our mistake, we want to change the situation, we already talk and apologize to both of our parents but things not seems to be okay.
Day by day the way they treat us was getting worst until the days my wife give a birth to my son. Both our parents didn’t welcome my son and they actually hate him. My wife and I being forced to end our marriage. I also always threatened by my father in-law to divorce my wife and will do something bad if I won't do so.
I made a decision with my wife to find another safe place to us because our current situation was not good for our son. We think that soon our parents might harm us (can be physically) and if that really happen then the real victim actually will be our son and not us (me and my wife) as a parents. We do not want to take risk to wait for the time this all (seriously harmed) happen to make a decision. Before things getting more worst, we decide to move and find other better safe place to live.
We make this decision because we already saw many victims of this kind of situation in my country and the saddest things is at the end the child was the real victim. Its maybe not affect too much with the parents (me and my wife) but it’s too bad for the child (our son).
We already ask for advice from many organisations in our country but we still failed to find the solution regarding to this problem. We never do any police report or anything related to court action about our problem because we just threatened by words and never touched physically yet. Also due to respect for our parents, then we decide not to do any police reports about this problem.
The reason why we choose Australia as a place to move is because child rights was the first priorities in this country, and yes, the main of all reason we want to move is because of our son. We want give him a better chances to grow up and better place to live. We do thanks to Australian Government for the chances to apply a protections or at least be someone that we can talk to. We hopes our application can be considered as well.
Yes I do experience harm from my father in-law. He asked me to end my marriage with my wife, and will do something bad if I won't do so.
Yes I tried to get advice and help from some organisation in my country but I still failed to gain a protection either a solution to my problem. For example, I tried to get help with Islamic Council but still what I get is not helping.
I never tried to move to another part of my country. I also don't get any help from my parents because they also don't welcome my son after my wife giving birth, and this make me lose confident to move within my country because its seem like nobody can help or protect us.
The applicants considered they would continue to face this problem if they returned and their safety would be at risk, as a result of having run away from the families. It was stated that [Applicant 1] had caused his ‘…wife to run away from her family…this is not good with my father in- law and I absolutely in a big trouble. For sure if I return to my country, my father in-law will do something bad to me…’. They did not think they could seek protection from the authorities such as the police or courts as they respected their parents. Relocation was not an option as:
even if we moved to other area in my country, we still have no protection from anybody. People around also will not supporting us and maybe hate us when they knows about our story that my wife was pregnant before we marry. That why we decide to move to other country.
The applicants were not invited to attend an interview with the Department and no additional material was provided by the applicants. By decision dated 5 July 2019 the delegate refused the applicants’ protection visa applications as they were satisfied they did not meet the relevant criteria.
Evidence before the Tribunal
The applicants lodged an application for review of the delegate’s decision with the AAT on 14 July 2019. No additional information was provided in the initial application for review.
In the Pre-Hearing Information Form dated 26 March 2024, the applicants outlined further claims for protection as follows:
As previously stated, my family and I are seeking protection due to the persecution and threats we faced as a result of wife pregnancy before marriage which is against the law and cultural norms of my home country. My father in law, who is a policeman who have high rank has used his position to intimidate us, repeatedly threats to leave my wife and son. In addition to the ongoing threats from our family, we are terrified that community and society at large will react negatively if we return. Moreover, I could face legal repercussions for our actions, which might include imprisonment or worse. The reason we came here for protection is for our son who is innocent in all of this, could also suffer due to actions of his parents. My wife’s mental health has already been affected by the threats and previous miscarriage due to stress and constant fear. we have exhausted all options for resolving the situation peacefully and have been forced to flee our country to protect ourselves and our son. I will include an existing evidence, such as my son birth certificate and our marriages certificate to show that my wife was pregnant before our marriage, it is strongly against our culture and religion back in our home country.
The applicants advised the Tribunal in August 2024 that they were now represented by solicitors. Statutory declarations of the applicants, country information, submissions and other evidence were thereafter filed with the Tribunal.
[Applicant 2’s] Evidence
[Applicant 2’s] statutory declaration of 5 February 2025 outlined she was raised in Sabah in a strict Muslim household by her mother, a homemaker, and her father, a police officer. She has [number] siblings. She stated her father was abusive towards the whole family.
[Applicant 2] described her home life in Malaysia in more detail in evidence before the Tribunal. She has [siblings, ages specified] who does not work. [Applicant 2] described wanting to move away from Sabah after finishing high school to obtain her diploma to become [an occupation 1], but her father forbid it as he did not want his daughter to live away from the family home. Instead, she stayed at home helping her mother in her businesses [specified duties] and performing cooking and catering duties. [Applicant 2] also did some local [jobs] for the neighbourhood. She did some work outside the home when she was [age] years old at a nearby [factory], but after two to three months her father was unhappy with her working outside the home and she quit this job.
[Applicant 2’s] father is a police officer, evidenced by a photocopy of his police identity card and a photo of him in his uniform with name badge. [Applicant 2] advised she had received these documents through her sister who remained living in the family home in Sabah. He was noted to be of high standing within the police force. He often worked away from home for one or two weeks at a time as a result of his police work, and would then return to the family home for a week or two.
Growing up, [Applicant 2’s] father was short tempered, and would become upset at the slightest mistake. He would throw items around the house when angry. Despite keeping a strict Muslim household, he often drank in the evenings outside the home with his friends and would return to beat [Applicant 2’s] mother, approximately once per week when he was home. He began physically assaulting [Applicant 2] when she was in high school about once a fortnight, but she would attempt to stay away from or not anger him to avoid beatings. He would beat her with his hands or nearby objects. He acted in the same way towards her siblings. No one outside the family was told of these beatings and no medical attention was ever sought.
[Applicant 2’s] mother also on occasion would hit her. [Applicant 2] described her mother’s actions as being a result of her lashing out due to the stress of being beaten by her husband. Her mother was not often physical with her.
The applicants met in 2012 while attending the same high school and entered into a relationship [in 2014]. [Applicant 2] did not tell her parents about their relationship as she knew they would be disapproving, and so they would meet in secret at night to avoid being caught together. In 2015 she fell pregnant to [Applicant 1] but was not aware she was pregnant until she miscarried. That night when her mother became aware the applicant had been pregnant and was having a miscarriage, her mother hit the applicant and refused to take her to hospital.
Her mother thereafter tried to send her away to a religious school, but to avoid this outcome [Applicant 2] stayed at a friend’s house twenty minutes away from her home for several months. [Applicant 2] described her mother as messaging her three times a week wanting her to come back home. Her father tried to contact her daily but she would not take his calls. He made threats in messages that when he saw her he would break her legs. [Applicant 2] was frightened but needed to return home as she had nowhere else to stay.
In April 2017 [Applicant 2] fell pregnant again. When her parents discovered, her mother was angry and beat her with a pipe, causing bruising to her back and legs. Her father beat her with his hands.
Once her father became aware of the pregnancy, he wanted to meet [Applicant 1]. Due to their safety concerns, her father met with [Applicant 1] in a public fast-food restaurant, where he advised he did not wish for [Applicant 1] and his daughter to be together, but as she was pregnant they must marry to hide the shame of a child being born out of wedlock. Her father permitted them to marry. [Applicant 2’s] father placed conditions on the marriage however, requiring them to divorce after the birth of the child.
They attended a three day course to obtain a pre-marriage certificate, waited the requisite period after the certificate was issued and then married in late August 2017. The wedding was attended by the people of their village, with a ceremony and food served. Despite being five months pregnant at the wedding, no one noticed or suspected the pregnancy.
[Applicant 2’s] father continued to beat her while she was pregnant but the frequency of such attacks slowed down. He was away for work often, but when he was home he would on occasion still slap her with his hands.
After they were married [Applicant 1] moved into [Applicant 2’s] family home, which she described as being a very hostile environment. [Applicant 2] stated her father’s beatings towards her ceased when [Applicant 1] moved into her family home, although she stated he continued to beat other family members.
She never witnessed her father being physical with [Applicant 1], although she was aware of verbal threats. Her father would say he could arrange for [Applicant 1] to be sent to prison at any time. He threatened that if they did not divorce he would report [Applicant 1] for raping [Applicant 2] and have him incarcerated. [Applicant 2’s] mother was very upset with her at this time as her father blamed the mother for not taking proper care in raising [Applicant 2]. Her mother would give the applicants the ‘silent treatment’ or make sarcastic remarks when she was talking to them.
Their son [Applicant 3] was born in [specified month]. Her parents never helped to care for [Applicant 3], as they were embarrassed about his existence. Her father would thereafter continue to remind them of the need to divorce. Despite the desire for the respectability of a child born to a married couple motivating [Applicant 2’s] parents’ actions, once [Applicant 3] was born a divorce would ensure that [Applicant 1] was removed from their lives. They did not like him as they considered him the architect of their daughter’s downfall.
[Applicant 2] gave evidence that the local community was surprised when she gave birth to [Applicant 3] and realised he was conceived out of wedlock. The community response was to gossip and spread rumours, and her mother was shunned at the local mosque. Her mother’s business also suffered as customers started to stay away.
The applicants moved to [Applicant 1’s] family home in mid-2018 to plan their travel to Australia in secret from her family. This move was against the wishes of her father, but he allowed them to go. [Applicant 2] received telephone calls and text messages from her family and one in person visit, asking her to return home. She felt her father had a protectiveness and needed to know where his family were at all times. During these contacts he would remind her of the need to divorce. They arrived in Australia in August 2018 and for a short time lived with [Applicant 1’s] [relative] before they found their own place to live.
[Applicant 2] is still in contact with her mother, approximately once every few months. She does not speak much with her mother during these calls, but rather uses her mother’s number to contact her siblings and talk with them. Any conversation with her mother focuses on their father, and her mother does not ask after any of the applicants’ welfare. Her sister does not have her own phone as her father won’t allow it after what occurred with [Applicant 2]. [Applicant 2] stated her father had escalated his beatings upon her sister recently, but she was unsure whether [others] suffered a similar fate.
Her father would call and message [Applicant 2] after she arrived in Australia, but she was unable to recall how often. She would never pick up or return his phone calls or respond to his text messages. She does not have a record of any such messages as her old phone was stolen in 2020, and she has subsequently blocked his number from her phone.
[Applicant 2] fears that if she were to return to Malaysia her father would physically assault her, [Applicant 1] and [Applicant 3]. She believes he would kill or imprison [Applicant 1], and hold her and her son against their will as a result of the shame they have brought on his family. He has contacts and power in his role as a police officer to give him the ability to harm the applicants without consequence. She considered he was of high standing within the force, as he would often be used [for high profile duties] when in Sabah.
[Applicant 2] also fears how her son would be treated upon a return to Malaysia as a result of his conception occurring prior to marriage. She feared that because he is considered illegitimate, should something happen to [Applicant 2], [Applicant 1] would have no rights to [Applicant 3] and be unable to care for him. [Applicant 2’s] father would then be a position to put [Applicant 3] into state care instead.
Protection is not available in [Applicant 2’s] view due to her father’s position as a police officer, meaning authorities would not get involved with his family. Police protection would also be difficult to seek given the illegality of pre-marital relations. Her father’s role in the police force would mean he could use contacts to locate the applicants wherever they were if they returned to Malaysia, and they do not have the financial means to live anywhere other than Sabah.
The Tribunal expressed concern that [Applicant 2’s] evidence at the hearing was somewhat at odds with the evidence given in her statutory declaration and the initial application completed by her husband. The visa application had indicated their parents had not yet physically harmed the applicants but they were fearful of the risk of being seriously harmed in the future. The statutory declarations mentioned her father was abusive, and detailed specific instances of beatings, but did not explain further the frequency of any such violence. At hearing [Applicant 2] clarified that although he would often beat her around once a fortnight, there were many periods when he was not always home, and her references to once a fortnight should be seen in light of him only being home for a week or two in every month.
Both applicants gave evidence that [Applicant 1] was not aware of the extent of these beatings. [Applicant 2] explained her mother had raised her family to present as if there were no problems within the household. Although she would often have bruises, [Applicant 1] would not see them as they usually met at night and she wore modest clothes which covered any marks.
The Tribunal expressed concern at the lack evidence of threatening messages on the applicants’ phones as a result of a theft. The applicants’ representative confirmed that a police report was made in 2020 regarding this theft, and a report number provided.
[Applicant 2] stated she was concerned her father was trying to target her in Australia. When asked to explain how she thought he could do this, [Applicant 2] replied that he spoke to someone in the Immigration Department. It was unclear to the Tribunal whether [Applicant 2] was referring to the department in Australia or Malaysia, but either way was not convinced that a police officer, however high ranking, would have connections with the Immigration Department either in Malaysia or Australia.
[Applicant 2] considered her father had connections as result of his position in the Royal Malaysian Police force and gave evidence of an instance when he freed a friend from their village from prison. The Tribunal queried the reliability of this evidence, and the applicant confirmed her knowledge came from rumours regarding that particular event. [Applicant 2] also stated her father would bring his gun from work into their home, but confirmed that neither herself or [Applicant 1] had been threatened directly with the weapon.
The Tribunal queried the inconsistent evidence given in the protection visa application that stated the applicants had attended some organisations to seek help. [Applicant 2] responded that this was incorrect and she was not aware of having attended upon any body to seek assistance.
[Applicant 2] confirmed she first started seeing her psychologist in 2024, after having received the Tribunal’s pre-hearing information form in March 2024 . She was unable to recall when she first saw the practitioner, and nor could she recall how many times she had attended for counselling and treatment. She claimed to have no record of such attendances.
[Applicant 1’s] Evidence
[Applicant 1’s] statutory declaration dated 5 February 2025 outlines he grew up in Sabah with his parents and [number] siblings. He was raised following Islam, but his family were not overly strict with their religion, although he did attend mosque and studied Islam at school. His family suffered financial difficulties and he was unable to complete his university studies in [subject 1] as a result of the stress this situation caused and the lack of finances to support him while he studied. He thereafter worked in the village selling fruit or seeking intermittent jobs through his friends.
The statutory declaration is consistent with [Applicant 2’s] history of their relationship, the miscarriage in 2015, the circumstances surrounding the pregnancy in 2017 and their subsequent marriage.
[Applicant 1] was scared to meet [Applicant 2’s] father in 2017, as he knew he owned a gun and could harm him with impunity due to his position as a police officer. They met at a local public restaurant where her father explained his disapproval but considered marriage was the only way to cover the embarrassment of the pregnancy. He stated once the child was born he expected the applicants to divorce. [Applicant 1] did not intend to divorce [Applicant 2] but agreed to the proposal as it was their only option and he was fearful what her father would do if he refused. This meeting was described as angry but without raised voices, and was over very quickly.
After this meeting [Applicant 1] approached his own family to explain the situation and borrow money to pay for the wedding. [Applicant 1’s] family yelled at him and said they would no longer be part of his life following the wedding, yet gave him [amount] RM to cover wedding costs. Both families met once before the wedding, and although nothing serious occurred, it was an angry situation where each blamed the other for the current predicament. Both families attended the wedding in an effort to prevent any suspicion of the marriage not being genuine.
Once [Applicant 1] moved into [Applicant 2’s] family home following the wedding, when he was not away for work [Applicant 2’s] father would constantly remind [Applicant 1] he needed to end the marriage, such reminders including threats to kill. [Applicant 1] would not respond to his reminders or threats as he feared her father’s power as a police officer with connections in a corrupt force. [Applicant 1] described an incident where [Applicant 2’s] father used his connections within the police force to seek a waiver of a parking fine the applicants had incurred. [Applicant 1] was aware his father-in-law owned a gun and was afraid it could be used against him.
[Applicant 1] tried to stay in his room when [Applicant 2’s] father was at home in an effort to avoid any confrontation or the reminders of the promise to divorce. His father-in-law would be threatening, use vulgar language and would look like he was about to become physical with [Applicant 1] during these exchanges, although they did not descend into violence at any time. He once threatened [Applicant 1] that he ‘…could kill you and make it look like an accident…’. [Applicant 1] would try to appease his father-in-law, agreeing to divorce or staying silent in an effort to stop any argument escalating. He would also threaten to ‘break his head anytime he wanted’. These threats would occur approximately once a month when [Applicant 2’s] father was home from work. [Applicant 1] would make excuses to leave the house, and on occasion stayed overnight with friends. He did not always tell his wife what he was doing or where he was going in an effort to avoid her father. [Applicant 1] confirmed that [Applicant 2’s] father was never physical with him, and nor did he ever witness him beating or being physical towards [Applicant 2].
[Applicant 1] did not want to divorce [Applicant 2], and he worried she and [Applicant 3] would be taken away from him. [Applicant 3’s] illegitimate status would mean [Applicant 1] would have no rights towards him for his care. He claimed he was mocked by a government official when registering the birth due to [Applicant 3] being conceived out of wedlock, and they kept [Applicant 3’s] birth a secret from their community as long as possible.
[Applicant 1] stated he had attended upon an Islamic Council after the birth of [Applicant 3], to seek help and support so they may remain married, rather than being forced to divorce by the actions of his father-in-law. The council could not assist him as this problem was considered a family matter. He never told his wife about this because he was concerned his attempt to seek help would become known to his father-in-law and cause him to respond angrily.
When the applicants lived with [Applicant 1’s] parents prior to their departure for Australia, the situation was also tense in that household. Although his parents reluctantly let them stay, his parents wanted them to leave, fearing trouble with [Applicant 2’s] family. The relationship between [Applicant 1] and his family remains somewhat strained as a result of these events, and although he speaks with his siblings regularly since arriving in Australia he only contacts his parents once every two to three months. His parents show no interest in [Applicant 3] during these phone calls.
When they first arrived in Australia, both [Applicant 1] and [Applicant 2] would receive calls and messages from her father, which were at times threatening in manner, or pleading to know their whereabouts. One text sent by his father-in-law to [Applicant 1] was said to state ‘…I will prepare a grave for you…’. He has not received any further messages since his phone was stolen in 2020 and he acquired a new phone number.
[Applicant 1] fears that if he were returned to Malaysia the applicants will be forced to divorce, and he would be harmed regardless of whether he complied with this request. He fears being physically harmed or killed by [Applicant 2’s] father, such fear being based on past physical abuse [Applicant 2] suffered at the hands of her father and his menacing presence towards [Applicant 1]. He feared his father-in-law could have him arrested for having pre-marital relations with [Applicant 2], or for some other concocted reason due to his influence within the police department. He considered police connections would mean her father would find them wherever they were located, but they did not have the financial means to relocate regardless.
He feared his son would be raised in an unhealthy environment where his extended family disliked him due to the shame his birth brought to the family, and his illegitimate status will mean he will be treated unjustly by society. This would occur regardless of wherever they lived in Malaysia, as [Applicant 3’s] status as a child born out of wedlock would be apparent due to the [name] registered on his birth certificate. He would be bullied at school, his mental health would be affected and his relationship with his parents may also be impacted.
[Applicant 1] was asked whether he was aware of the frequency in which [Applicant 2’s] father was violent towards her and her family while she was growing up. He responded that he was not aware of her father’s temperament until the miscarriage occurred in 2015 and [Applicant 2] was beaten by both her parents. He contended [Applicant 2] had never spoken to him about the extent of the abuse suffered at the hands of her father growing up.
Medical Report
The applicants filed a medical report from [a named] psychologist dated 7 November 2024. That report relevantly provides:
[Applicant 2] presents with indicators of Post-Traumatic Stress Disorder (PTSD) arising from the reported physical and verbal abuse she experienced from her father when in his care.
[Applicant 2’s] sleep is impacted by the flashbacks and reminders of those experiences. At times she feels threatened or is in the vicinity of raised voices, [Applicant 2] reports that she suffers from panic attacks due to the perceived threat to her safety. This is aligned to her exposure to past traumatic events.
[Applicant 2] reports to have left Malaysia with her husband and young child, to escape from her father and the threats he made related to her and her family’s safety. Since learning of the upcoming hearing for their visa application, [Applicant 2] has been suffering from severe anxiety as evident in her inability to focus and concentrate, poor sleep and experiencing regular panic attacks. She presents as teary, agitated and fearful at the thought she may be required to return to Malaysia if the Visa was not approved. This has caused her to feel unsafe, vulnerable and fear for the wellbeing of not only herself, but that of her husband and son.
Based on the information provided from [Applicant 2], her father is a high-ranking Police officer and has significant standing within the Malaysian community. He has continued to threaten her family since arriving in Australia to the present time.
In our sessions [Applicant 2] speaks openly and succinctly about her past experiences and her current situation. At times she becomes teary and needs time and support to express herself, which she reports is made more difficult by the continued influence of her father’s views regarding negative connotations of emotions and demonstrating these.
[Applicant 2] has been provided with an overview of PTSD and how it relates to her situation and in how it maintains her sense of fear, panic and low self-worth. Given her willingness to engage in support and the ability to express and address the impact from her past, her prognosis is positive. However this is also based on her sense of security in having her Protection Visa granted and thus the fear she will be returned to Malaysia removed.
Submissions
The submissions provided by the applicants’ legal representative dated 6 February 2025 outline the history of the applicants’ relationship in Malaysia as previously provided in the applicants’ statutory declarations.
It is contended the applicants fear upon a return to Malaysia:
(i)they would be hunted by [Applicant 2’s] father and seriously harmed;
(ii)[Applicant 2’s] father would hold her and [Applicant 3] against their will;
(iii)[Applicant 2’s] father would imprison, seriously harm or kill [Applicant 1] for running away without facing any significant consequence;
(iv)[Applicant 3] will be discriminated against and unfairly treated as a child born out of wedlock.
The applicants’ consider state protection and relocation is not available due to [Applicant 2’s] father’s role as a police officer would mean other police would not get involved in any dispute or report against him, and he would be able to use his connections to locate the applicants throughout Malaysia.
It is submitted on behalf of the applicants they have a well-founded fear of persecution for the essential reason that they are members of particular social groups, being:
(i)victims of family violence;
(ii)in [Applicant 2’s] case, a woman at risk of gender-based violence;
(iii)individuals who engaged in pre-marital relations;
(iv)in [Applicant 3’s] case, a child conceived out of wedlock; and
(v)family members of a police officer of the Royal Malaysian Police.
The applicants claim to have experienced serious harm in Malaysia in the past through the physical and verbal abuse [Applicant 2] was subjected to by both her parents, and threats made to both adult applicants by [Applicant 2’s] family. The applicants submit their claims for protection are substantiated by independent and credible country information in relation to the prevalence of domestic violence in Malaysia, the lack of protection available for domestic violence victims, police corruption and discrimination faced by illegitimate children.
The applicants further contend they would meet the complementary protection criteria in that there is a real risk they would suffer significant harm if returned to Malaysia for the same reasons there is a real chance of serious harm pursuant to the refugee criteria.
REASONS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the refugee criterion or on other complementary protection grounds or are members of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Nationality and Receiving Country
The applicants claim to be citizens of Malaysia and no other country. A copy of their passports and identity cards of [Applicant 1] and [Applicant 2] were provided to the Department, and the delegate was satisfied with their authenticity and identities. The Tribunal has no evidence before it to doubt the authenticity of this documentation. As such, the Tribunal is satisfied the applicants are Malaysian citizens and that Malaysia is the receiving country for the purpose of assessing claims against the refugee and complementary protection criteria.
Do the applicants satisfy the refugee criterion for protection?
The Tribunal expressed some concerns regarding inconsistencies between the background provided in the initial protection visa application, the statutory declarations and the applicants’ evidence at hearing. The protection visa application disavowed any violence in the past on behalf of their families but feared this would occur in the future, and there was no mention of [Applicant 2’s] father’s role as a police officer. The statutory declaration of [Applicant 2] referred to her father as being ‘abusive’ but did not describe a pattern of violence. Evidence at the hearing was such that [Applicant 2’s] father had been consistently violent and coercive towards her and her family.
[Applicant 1] at hearing was unable to corroborate the extent of violence suffered by [Applicant 2], even with second hand knowledge, as he considered they did not talk about stressful things together. Both their phones were no longer available due to a theft and thus they had lost any corroborative material regarding threats made by [Applicant 2’s] family.
However, the Tribunal considered these inconsistencies or lack of corroboration did not affect the credibility of the evidence of the applicants. The histories given in the visa application were not so different to the more comprehensive and fleshed out events detailed in their statements and evidence as to render their accounts unreliable. Any differences in their accounts were of minimal consequence, and the Tribunal found the applicants’ oral evidence to be compelling. They were clearly committed to each other and fearful of what would happen to their relationship, their son and themselves if they returned to Malaysia.
No evidence has been provided to doubt the authenticity of the photocopy of the ID card and picture of [Applicant 2’s] father in uniform with a name badge. The pre-hearing information form returned to the Tribunal dated 26 March 2024 first stated this information although it had not been provided in the initial application for protection. The Tribunal accepts [Applicant 2’s] father is a police officer with the Royal Malaysian Police. The Tribunal accepts he has access to weapons.
The Tribunal accepts [Applicant 2’s] father has been physically abusive towards his family. The Tribunal accepts he beat his wife, [Applicant 2] and her siblings. The Tribunal notes he often worked away from home so was not co-habiting with his family full time, however, the Tribunal accepts when he was at home he could be angry, ill-tempered and violent. The Tribunal also accepts [Applicant 2’s] father displayed coercive or controlling behaviours, in that [Applicant 2] was not allowed to study or work far from home, and when she was not resident in the family home she was harassed by him to return.
The Tribunal accepts the history of the applicants’ relationship, namely having commenced in 2014 in secret, [Applicant 2] becoming pregnant and miscarrying in 2015 out of wedlock, and a second pregnancy in 2017 after which they were forced to marry by [Applicant 2’s] family. The Tribunal accepts [Applicant 2] was subjected to physical harm from her mother as a result of her miscarriage, and that both her parents beat her upon finding out about the pregnancy in 2017. The Tribunal accepts her father continued to inflict physical punishment on her during the pregnancy, but this was of a lower level than previously in the form of slaps and of less frequency than previously.
The Tribunal accepts [Applicant 2’s] father made verbal threats to [Applicant 1] once the applicants moved into the family home, although did not physically abuse or harm any of the three applicants after this time. The Tribunal accepts he was menacing and threatened violence and incarceration of [Applicant 1], regularly demanded the applicants divorce and created a hostile environment. The Tribunal accepts both adult applicants would take measures to avoid him where possible, or to attempt to placate or not displease him when present in an effort to mitigate his angry outbursts or possible physical responses. The Tribunal accepts there was no protection from these behaviours from other family members, who were also subject to the same behaviours, or in the case of [Applicant 2’s] mother who also on occasion beat [Applicant 2].
The Tribunal also accepts that as a result of [Applicant 3] being conceived out of wedlock, neither [Applicant 2’s] nor [Applicant 1’s] parents care for him in any way. The Tribunal accepts they did not look after him or help raise him when he lived in Malaysia, other than provide accommodation, and that they do not ask after his welfare since he has lived in Australia, despite contact between [Applicant 2] and her mother, and [Applicant 1] and his parents.
The Tribunal accepts [Applicant 2’s] father sent threatening messages by text to [Applicant 1] and demands for her return to [Applicant 2] after their departure from Malaysia. The Tribunal accepts these stopped when the applicants obtained new phones after a 2020 burglary. The Tribunal accepts [Applicant 2] remains in contact with her mother in an effort to speak with her sister, and [Applicant 1] remains in contact with his parents and siblings.
[Applicant 2]
Real Chance of Serious Harm
To find a person meets the criterion for a protection visa, the Tribunal must be satisfied, amongst other things, that there is a real chance the applicant will face serious harm in the reasonably foreseeable future if they were returned to their receiving country. A real chance is a substantial chance, as distinct from remote[1]. Generally, to assess what is likely to occur in the future requires findings as to what occurred in the past, as although past events may not be a certain guide as to the future, proof of past events can provide a reliable or rational basis for determining the chance of their occurrence[2].
[1] Chan v MIEA (1989) 169 CLR 379 at 389
[2] MIEA v Guo (1997) 191 CLR 559 at 574
[Applicant 2] claims a well founded fear of persecution on the grounds that she will be hunted, held against her will and seriously harmed by her father now and in the reasonably foreseeable future if returned to Malaysia.
The Tribunal accepts [Applicant 2’s] father has been physically and verbally abusive to [Applicant 2] in the past. The Tribunal accepts he has continued to try to coerce [Applicant 2] into returning to Malaysia and divorcing her husband after she departed Malaysia but that this ceased in 2020. The Tribunal also accepts he continues to be physically abusive to [Applicant 2’s] sister.
Based on the past physical and coercive harm suffered by [Applicant 2], the harassment by phone, and understanding his abusive behaviours have continued in [Applicant 2’s] absence towards her sister, the Tribunal finds there is a real chance [Applicant 2] will face harm from her father were she returned to Malaysia now and in the reasonably foreseeable future. He has demonstrated coercive behaviours in the past, can be violent when drinking, and has over the course of decades been angry, ill-tempered and violent towards his family members. The Tribunal finds he has continued to display these behaviours towards other family members in [Applicant 2’s] absence and will not change such behaviours in the foreseeable future. The Tribunal finds he will continue to demonstrate these behaviours and continue to seek to break up [Applicant 2] and [Applicant 1] with whatever means he may have at his disposal. The Tribunal considers her father will have an ongoing interest in [Applicant 2] despite the passage of several years since they had contact, and that upon a return to Malaysia the intensity and range of harm he will inflict would escalate. The Tribunal finds there is a real chance [Applicant 2] will face harm in the form of physical harassment and ill treatment by her father.
The Tribunal finds [Applicant 2’s] father would subject her to a significant level of physical harassment and ill treatment in the form of regular beatings and controlling behaviours as he has done in the past. The Tribunal finds such behaviours will be escalated upon her return to Malaysia, as he would also now be angry concerning her departure from Malaysia in 2018. He will continue to verbally harass [Applicant 2] regarding her marriage in an attempt to force a divorce. The Tribunal finds the harm faced by [Applicant 2] to be serious harm.
Persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion
To meet the relevant criterion to be eligible for a protection visa, a person must have a well-founded fear of being persecuted. Section 5J(1)(a) of the Act qualifies that fear of persecution as being for one or more of the reasons of race, religion, nationality, membership of a particular social group or political opinion. Section 5J(4) requires that one or more of those reasons must be the essential and significant reasons for the persecution, such persecution involving serious harm and systematic and discriminatory conduct.
Domestic and family violence is acknowledged to disproportionally affect women and girls[3]. Studies have shown that gender inequality is a common underlying reason for domestic and family violence, and high rates of gender based violence are found where women are accorded less value and access to power than men[4]. Key drivers of this inequality include rigid stereotypes regarding the roles of men and women in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independence in public and private life and societal attitudes condoning violence against women[5]. This can be especially so for Muslim women, where the concept of male authority and male guardianship over women play a central role in institutionalizing and justifying a patriarchal model of families in Muslim contexts[6].
[3] ‘Terminology’, Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book (2021)
[4] Our Watch, Change the Story: A Shared Framework for the Primary Prevention of Violence Against Women in Australia (2nd Edition, 2021) at 36
[5] ibid
[6] Musawah and Sisters in Islam, Joint Report on Muslim Family Law and Muslims Women’s Rights in Malaysia 69th CEDAW Session Geneva Switzerland (February 2018) 10
DFAT country information reports that discrimination against women is banned under the Constitution, however, discrimination on the basis of sex, and inequality, persist for women and girls throughout Malaysia and although women participate widely across various aspects of Malaysian society, some conservative cultural and religious practices continue to limit their choices[7]. Violence against women and girls is a significant, albeit underreported, problem[8] and a 2021 survey of attitudes to violence against women in Malaysia indicated a high level of societal condonation of domestic and family violence[9]. DFAT assesses women in Malaysia face a moderate risk of gender based violence in the form of domestic violence, state protection is available but often inadequate or ineffective in practice and family, economic and societal pressures act as barriers to leaving abusive relationships[10].
[7] DFAT Country Information Report Malaysia (DFAT Report) June 2024 at 3.111
[8] DFAT Report at 3.115
[9] Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions Towards Violence Against Women (2021) at 37
[10] DFAT Report at 3.125
The Tribunal finds the serious harm [Applicant 2] fears from her father is for the essential and significant reason of her membership of a particular social group as a woman. The Tribunal finds the serious harm faced by [Applicant 2] now or in the reasonably foreseeable future should she return to Malaysia in the form of violence at the hands of her father amounts to systematic and discriminatory conduct. Her father’s harassment towards her in the past has been systematic, in that it has been deliberate and ongoing, and the Tribunal finds he will continue his harassment and indeed escalate his behaviours should she return. His violence towards her has been discriminatory, in that a driver for and ability to continue his behaviour stems from gender inequality, societal attitudes towards women and general condonation of violence towards women in Malaysia.
Real Chance Relates to All Areas
Under s5J(1)(c), the real chance of persecution must relate to all areas of the receiving country, being all areas where there is safe human habitation and to which safe access is lawfully possible.
Should the applicants return to Malaysia, the Tribunal finds they would live in the small town of [Town 1], Sabah. They were both born, raised and worked in [Town 1]. Both their families remain in [Town 1], who they remain in contact with, other than [Applicant 2’s] father. Neither [Applicant 2] nor [Applicant 1] completed any study following high school, and neither of them have held steady employment. Rather, they have performed ad hoc jobs when a local need has arisen. In Australia they have performed farm work and housekeeping. Their options for employment will be limited upon a return to Malaysia and will see them needing to return to live where they have family to help support them.
The Tribunal accepts [Applicant 1] and [Applicant 2] have a commitment to each other as husband and wife. They have shown their commitment through their continued relationship since 2014 in the face of adversity and their families’ disapproval. They do not intend to divorce as demanded by her father. If returned to Malaysia, the Tribunal finds they would be returning to their home village of [Town 1] as a married couple. The Tribunal finds their status as a married couple will continue to anger [Applicant 2’s] father and cause his impulsive, coercive, hostile and violent behaviours towards [Applicant 2] to escalate in an effort to force the applicants to divorce. The Tribunal finds there is a real chance of serious harm for [Applicant 2] if she were to return to her village or the surrounding area of Sabah.
The Tribunal accepts her father is a police officer, who often works away from home in other areas of Malaysia. The Tribunal accepts he has available to him the means to locate his daughter and son-in-law through police enquiries and information. Given his past behaviours in harassing [Applicant 2] through text messages and phone calls when she has stayed in other locations in the past (in 2015 after her miscarriage, in 2018 when the applicants stayed with [Applicant 1’s] family, and following her departure until 2020 when she resided in Australia), the Tribunal finds he will pursue the applicants upon their return to Malaysia to continue his harassment. The Tribunal accepts if [Applicant 2] returns to Malaysia her father will use the means available as a police officer to locate and pursue her, wherever she may reside. The real chance she faces of serious harm as a result of violence and harassment from her father is not localized to [Town 1] or Sabah, but will extend across Malaysia.
Effective Protection Measures
Section5J(2) of the Act outlines that a person does not have a well-founded fear of persecution if effective protection measures are available to them in their receiving country. Effective protection measures are available if protection against persecution could be provided by the State, and the State is willing and able to offer such protection. A State is taken to be able to offer protection against persecution to a person if the person can access the protection, the protection is durable, and consists of an appropriate criminal law, reasonably effective police force and impartial judicial system.
State protection for women experiencing gender-based violence is mixed. Multiple local and international sources consider the Royal Malaysian Police to be a professional and effective force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption[11]. There are special police units that deal with gender based violence who tend to respond more sensitively and effectively than regular police, however, these services were often inadequate to meet demand[12]. DFAT states police often failed to follow up on reports and that it is common for women to be denied a police report, not be informed whether the offender has been charged, and not be advised of the next steps in the legal process[13].
[11] DFAT Report at 5.5
[12] DFAT Report at 3.117 and 3.118
[13] DFAT Report at 3.118
Amendments to the Domestic Violence (Amendment) Act (2017) strengthened protections for individuals who experience domestic violence and expanded the definition of domestic violence to protect children and family members[14]. Those amendments also introduced enhanced procedures in the form of Emergency Protection Orders (EPOs) that can prevent a perpetrator from entering a safe location or remove an offender from the house where a victim resides although sources advise EPOs were difficult to obtain, required strong evidence of violence and were not always enforced[15]. Attitudes of mistrust toward women’s reports of violence has been noted to also inhibit police responsiveness[16].
[14] DFAT Report at 3.120
[15] DFAT Report at 3.121
[16] Women’s Aid Organisation, A Study on Malaysian Public Attitudes and Perceptions Towards Violence Against Women (2021) at 103
The Tribunal finds the position of her father as an officer would compound [Applicant 2's] ability to seek protection. The Tribunal finds his role within the force would impact other officers’ ability to prosecute any complaint made against him, noting the country information regarding the quality of police responses can depend on engagement in corruption. Many Malaysians perceive police to be one of the most corrupt institutions in the country[17] and there are reports of ongoing complaints related to issues of corruption, abuse of power and misconduct within the force[18].
[17] DFAT Report at 5.5; see also The Strait Times, ‘Malaysia’s Police Chief Causes Ripples with claims of corruption in senior ranks of force’, 23 March 2021
[18] Channel News Asia, ‘Over 1,600 police officers, personnel in Malaysia sacked in past decade over various offences’, 26 July 2024
The available country information indicates a pattern of state unresponsiveness to gender based or family violence despite legislation designed to strengthen protections. Services that are available are often inadequate to cope with demand, or react inconsistently to complaints. The Tribunal finds [Applicant 2] would not be able to access protection from the harm she fears from her father as a result of unresponsive and inadequate services, coupled with her father’s position as a member of this same police force, if she were to return to Malaysia now or in the reasonably foreseeable future.
Modification of Behaviours
As the Tribunal is satisfied that effective protection measures are not available to [Applicant 2] in Malaysia, the Tribunal must determine if [Applicant 2] could take reasonable steps to modify her behaviour to avoid a real chance of being persecuted. The Tribunal finds there are no reasonable steps [Applicant 2] could take to modify her behaviour to avoid harm. She could not change her sex to avoid violence from her father, such characteristic being innate or immutable. The Tribunal considers it unreasonable to expect [Applicant 2] and [Applicant 1] to divorce to avoid the demands and threats of her father, and the Tribunal finds given his past behaviours towards [Applicant 2] unrelated to her relationship with [Applicant 1], such action would not avoid a real chance of suffering serious harm.
There is no evidence before the Tribunal to indicate [Applicant 2] has a legally enforceable right to enter and reside in any country other than her country of nationality, Malaysia. The Tribunal finds she is not excluded from Australia’s protection obligations by reason of s36(3) of the Act.
For the reasons set out above, the Tribunal is satisfied [Applicant 2] is a person in respect of whom Australia has protection obligations under s36(2)(a) of the Act.
Given this finding, it is unnecessary for the Tribunal to consider [Applicant 2’s] other claims for protection.
[Applicant 1]
Real Chance of Serious Harm
[Applicant 1] claims there is a real chance he will face serious harm at the hands of his father-in-law in the form of violence, death, forced into divorce or false imprisonment now and in the reasonably foreseeable future if he were returned to Malaysia.
The Tribunal accepts [Applicant 1’s] father-in-law has been verbally abusive towards him in the past. The Tribunal accepts he has been hostile and menacing towards [Applicant 1] in his campaign to force the applicants to divorce while the applicants were resident in Malaysia. The Tribunal accepts his father-in-law has also sent text messages upon their departure from Malaysia, threatening [Applicant 1] with death, although such messages ceased once [Applicant 1] obtained a new mobile phone in 2020. The Tribunal accepts the evidence of the applicants that [Applicant 1] was never harassed physically by his father-in-law.
Despite the lack of past physical harm, the Tribunal finds there is a real chance his father-in-law will harm [Applicant 1] now and in the reasonably foreseeable future. The Tribunal considers [Applicant 1] will be the subject of harassment by his father in law upon a return to Malaysia in the form of verbal threats and physical violence. The Tribunal bases this finding on his father-in-law’s menacing and threatening behaviour towards [Applicant 1] in the past, his ongoing harassment and threats made by telephone between 2018 and 2020, and his continued physical assaults upon other family members, demonstrating a continued propensity for violence. The Tribunal considers his father-in-law will be angry upon the applicants’ return to Malaysia as a result of their failure to divorce and for having ‘run away’ from him. The Tribunal finds this will lead to an escalation in the father-in-law’s behaviours and as such there is a real chance [Applicant 1] will be subjected to violence at his hands.
The Tribunal finds there is a chance of [Applicant 1] being arrested at the instigation of his father-in-law as a police officer in retribution for not divorcing his daughter or as punishment for his role in ruining his daughter. Although this only constitutes a small chance, the Tribunal does not consider it to be remote or far-fetched. The Tribunal accepts [Applicant 1’s] evidence that his father-in-law used his influence to make a traffic fine disappear, although the Tribunal does not accept the rumour regarding his action in freeing a friend from prison. Coupled with country information regarding a level of corruption within the Malaysian police force[19], and the father-in-law’s threats to have him arrested, the Tribunal finds there is a real chance [Applicant 1] will face harm of this nature.
[19] See paragraphs 92 and 94 above
The Tribunal finds that the harm [Applicant 1] will face described above constitutes serious harm as outlined in s 5J(5) of the Act, such harm constituting a threat to [Applicant 1’s] life or liberty, significant physical harassment and significant physical ill-treatment.
Persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion
100. A family is capable of constituting a particular social group for the purposes of 5J(1) of the Act. However, this is subject to s 5K , which provides that, in determining whether [Applicant 1] has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of his family, the Tribunal must disregard:
(i)any fear of persecution, or any persecution, that any other family member has experienced, where the reason for the fear or persecution is not for a refugee reason (as mentioned in s5J(1)(a)); and
(ii)any fear of persecution, or any persecution, [Applicant 1] or any other family member has experienced, where it is reasonable to conclude the fear of persecution would not exist if it were assumed the fear or persecution mentioned in a. above had never existed.
101. The effect of these paragraphs is that where a person claims to fear persecution by reason of being a member of a particular social group consisting of that person’s family, the persecution of the other family member must be for one or more of the reasons of race, religion, nationality, membership of a particular social group or political opinion.
102. [Applicant 1], [Applicant 2] and their son comprise a family unit. The Tribunal has already found that [Applicant 2’s] well-founded fear of persecution is for a reason mentioned in s 5J(1)(a), being that she fears being persecuted for reasons of her membership of a particular social group as a woman. Her fear of persecution has the refugee nexus required. [Applicant 1’s] fear of being harmed by his father-in-law relates directly to his membership of that family, as such harm will be perpetrated against him as a consequence of his familial relationship with [Applicant 2].
103. The Tribunal finds the harm [Applicant 1] fears from his father-in-law is for the essential and significant reason of his membership of a particular social group, that being a member of a family. It is [Applicant 1’s] relationship and ongoing marriage to [Applicant 2] that motivates his father-in-law to seek to harm him.
104. The Tribunal finds the harm that [Applicant 1] is threatened with should he return to Malaysia by his father-in-law amounts to systematic and discriminatory conduct. Such harm is systematic in that it is deliberate behaviour on the part of the persecutor, is not accidental or random and will be undertaken intentionally against [Applicant 1]. The actions of his father-in-law feared by [Applicant 1] are discriminatory in that the intentional harassment targets [Applicant 1] for the reason of his membership of a social group, being the family unit.
Real Chance Relates to All Areas
105. In relation to whether the real chance of persecution relates to all areas of Malaysia as required pursuant to s 5J(1)(c) of the Act, the Tribunal re-iterates the findings and reasonings set out in this decision above at paragraphs 88, 89 and 90 to find that for the same reasons the real chance of [Applicant 1] facing serious harm is not localized to his home village in [Town 1], Sabah, but extends across all areas of Malaysia.
Effective Protection Measures
106. [Applicant 1] claims effective protection measures are unavailable to him from any harm suffered at the hands of his father in law as he does not consider the police would respond to any request for assistance as a result of his father-in-law’s status as a police officer. He contends that any reporting in an effort to seek protection would bring harm upon himself and [Applicant 2] in the form of shame and embarrassment to them and their families, along with a fear that they would be exposed to punishment for having engaged in pre-marital relations which is illegal under Syariah law.
107. The Tribunal refers to earlier outlined country information in finding that although there are enhanced protections for individuals who experience domestic violence (including family members such as [Applicant 1]), such protections, for example EPOs, can be difficult to obtain and are not always enforced. As outlined in paragraph 94, the persecutor’s role as a police officer and family member will impact the effectiveness or ability to access any protection from the police force from the serious harm [Applicant 1] faces.
108. For these reasons, the Tribunal is satisfied that effective protection measures are not available to [Applicant 1] now or in the reasonably foreseeable future upon a return to Malaysia.
Modification of Behaviours
109. The Tribunal finds there are no reasonable steps [Applicant 1] could take to modify his behaviour so as to avoid a real chance of persecution in Malaysia. The Tribunal accepts the evidence of [Applicant 1] that he loves [Applicant 2] and wishes to remain together with her and their son [Applicant 3] as a family unit. The Tribunal finds it unreasonable to expect [Applicant 1] and [Applicant 2] to divorce as demanded, and considers even if such an action was taken there remains a real chance that [Applicant 2’s] father will continue to seek retribution against [Applicant 1].
110. There is no evidence before the Tribunal to indicate [Applicant 1] has a legally enforceable right to enter and reside in any country other than his country of nationality, Malaysia. The Tribunal finds he is not excluded from Australia’s protection obligations by reason of s36(3) of the Act.
111. For the reasons set out above, the Tribunal is satisfied [Applicant 1] is a person in respect of whom Australia has protection obligations under s36(2)(a) of the Act.
112. Given this finding, it is unnecessary for the Tribunal to consider [Applicant 1’s] other claims for protection.
[Applicant 3]
Real Chance of Serious harm
113. It is submitted on behalf of their child [Applicant 3], that he has a well-founded fear of persecution relating to his status as illegitimate, being born out of wedlock. They claimed there is a real chance he will face suffer serious harm in the form of discrimination towards illegitimate Muslim children in Malaysia, including losing access to his father should anything untoward happen to his mother and being raised in an unhealthy environment where his extended family dislike him due to the shame his birth brought to the family.
114. Under Islamic Law, a child is considered illegitimate if they are born less than six months after solemnization of marriage. An illegitimate child cannot be placed under the lineage of the father and thus the father cannot become the guardian to the child in question[20]. [Details deleted][21]. It is noted […] that section 13A of the Births and Deaths Registration Act 1957 provides that where the person acknowledging himself to be the father of the child requests so, the surname may be the surname of the father.
[20] 57th National Council for Malaysian Islamic Affairs Fatwa Committee Muzakarah, 10 June 2003
[21] Meerah Deiwi Raja Gopal, ‘Does Illegitimacy Status of Children Matter? A Review on Malaysian Perspectives’, International Journal of Applied Psychology 2015
115. The impact of illegitimacy for a child born out of wedlock can see a child discriminated against or stigmatized by society, where fear, shame and the judgment of others can weigh upon the child. They can be treated poorly in school, given ill names and some not accepted into their families[22].
[22] ‘Discrimination against an Illegitimate Child According to Law and Society’, Ainur Nadhrah Roslan, Nik Sarah Adilah Abdul Aziz and Fathin Izzati Mohd Shaharudin
116. [Applicant 3’s] birth certificate reveals his name as ‘[full name]’. [Applicant 1] is listed on the certificate as his father. The name on [Applicant 3’s] passport, confirming that he has Malaysian citizenship, is [full name]. [Details deleted.]
117. The Tribunal accepts [Applicant 3] was born out of wedlock in accordance with Syariah law and is thus labelled as illegitimate. Sources consulted could not locate any information indicating that an illegitimate child would be removed from the parents’ guardianship on the basis of the child’s status[23]. The main consequence for illegitimate children relates to the possibility of them being stateless, or there being a question as to their nationality in the event their birth was not appropriately registered. This consequence can see stateless people in Malaysia denied access to affordable healthcare and access to public education[24].
[23] Sources included CISNET, research reports, media reports and internet searches.
[24] DFAT Report at 3.28
118. The Tribunal accepts [Applicant 3] is considered illegitimate. The Tribunal does not accept that he would be denied access to health care and education on account of his illegitimate status, as he has been registered as having Malaysian nationality. The Tribunal does not accept he would be removed from his mother or father arbitrarily on account of his illegitimate status, based on the available country information.
119. The Tribunal accepts he will be subjected to hostility from his extended family, noting both his parents’ families have displayed little care and attention towards him, other than providing him shelter alongside his parents when they resided in Malaysia. Similarly, they have not displayed any desire to learn of him since his departure to Australia, in that his grandparents do not discuss his welfare with his parents when there is contact. This hostility in the future will take the form of disinterest and dislike, based on past experience.
120. The Tribunal also accepts on the basis of country information available he will face stigmatization from parts of society in the form of low level and isolated bullying at school and name calling, and an inability to inherit from his father due to lineage rules. The Tribunal accepts hostility from his extended family and stigmatization from society will be hurtful and unpleasant for [Applicant 3]. In the absence of any evidence to suggest otherwise, the Tribunal does not accept this will cause any particular impact upon his relationship with his parents as claimed, nor that it will have definite mental health impacts.
121. To find a person meets the criteria for a protection visa, the Tribunal must be satisfied there is a real chance they would face serious harm now and in the reasonably foreseeable future if they were returned to Malaysia.
122. Although this list is not exhaustive, 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.
123. Although it is understood there can be some societal and religious stigma attached to illegitimate children as described by this country information, the Tribunal does not accept that discrimination and stigmatization in the form of bullying at school and name calling, and an inability to inherit from his father due to lineage rules, amounts to serious harm. Similarly, the Tribunal does not accept that disinterest from his extended family amounts to serious harm. Such actions would not threaten [Applicant 3’s] capacity to subsist or interfere with his basic rights or be of such intensity that he could not be expected to tolerate it. As such, the Tribunal finds there is no serious harm [Applicant 3] would face now or in the reasonably foreseeable future should he return to Malaysia on account of his illegitimate status.
124. The applicants also claimed a fear that his grandfather would physically harm [Applicant 3] and hold him against his will. The Tribunal notes that although [Applicant 2] and [Applicant 1] claimed a fear that [Applicant 3] would be physically hurt by his grandfather, there were no specific examples given as to what they feared he might do, other than hold him against their will. It was not clear how [Applicant 2’s] father would hold [Applicant 3] or remove him from their care.
125. The Tribunal notes no evidence was given as to there ever having been any instances of physical violence perpetrated against [Applicant 3] once he was born and whilst all applicants lived under the same roof. Similarly, the Tribunal notes no evidence was given as to any threats made by [Applicant 2’s] father against [Applicant 3]. The only evidence available as to his grandfather’s attitude towards him was that he was disinterested and disliked him. The Tribunal finds he has not been subjected to any violence, nor had any threats made against him by his grandfather.
126. Although the Tribunal accepts there is a real chance [Applicant 2] and [Applicant 1] faced serious harm in the form of significant physical harassment and ill treatment from her father, the Tribunal relied upon information relating to behaviours her father exhibited in the past, cogent threats he had made and continued to make, and his escalating behaviours towards other family members still resident with him. The Tribunal considers although there is a real chance [Applicant 2] and [Applicant 1] will face significant physical harassment, the situation in this instance is different for [Applicant 3].
127. Although his grandfather does not like him, for what he represents and the shame his birth has caused their family, his grandfather has not threatened him with harm in any way. [Applicant 2’s] father is angry and seeks to harm her and [Applicant 1] for having pre-marital sex, conceiving a child out of wedlock, for failing to divorce, for being disobedient and for running away from him. He is not motivated by these same concerns to harm [Applicant 3]. [Applicant 3] is not his child to seek to control in the same way he seeks to control and coerce his own children. The Tribunal does not accept he has the same view of [Applicant 3] as he has of [Applicant 3’s] parents. Any chance that his grandfather would physically harm him is, on the current evidence, speculative and remote.
128. For these reasons, the Tribunal does not accept there is a real chance [Applicant 3’s] grandfather would cause him serious harm in the form of violence or arbitrary removal from the applicants. The Tribunal accepts he would be disinterested in [Applicant 3] and dislike his grandson, and that this will lead to an unpleasant family environment, but the Tribunal does not accept that treatment amounts to serious harm. Hostility of this nature, or an unpleasant family environment, would not amount to harm of a kind that would be at a level to suggest [Applicant 3] could not be expected to tolerate it. The Tribunal does not accept there is a real chance [Applicant 3] would face serious harm at the hands of his grandfather now or in the reasonably foreseeable future if he were to return to Malaysia. He does not satisfy the criterion in s 36(2)(a).
129. The Tribunal must then consider whether he would meet the complementary criterion in s 36(2)(aa). To be owed complementary protection, the Tribunal must be satisfied as to whether it has substantial grounds for believing that as a necessary and foreseeable consequence of [Applicant 3] being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm of any kind.
130. ‘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.
131. The Tribunal has found [Applicant 3] will suffer hardship upon a return to Malaysia in the form of societal stigma, discrimination and a hostile family environment as a result of his extended family’s dislike and disinterest towards him. The Tribunal finds that these hardships do not meet the definition as outlined in the Act of significant harm. Such treatment would not amount to cruel or inhuman treatment or punishment in that the Tribunal does not accept the level of stigmatization or discrimination within society is such for illegitimate children that it would lead to intentionally inflicted pain and suffering that is cruel or inhuman in nature. Similarly, although unpleasant and hurtful for [Applicant 3], such treatment would not lead in this instance to extreme humiliation that is unreasonable.
132. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Applicant 3] being removed from Australia to Malaysia that there is a real risk he will suffer significant harm of any kind.
133. Nonetheless, given the Tribunal has found [Applicant 3’s] parents meet the criterion to be owed protection obligations, the Tribunal is satisfied [Applicant 3] is a member of the same family unit as [Applicant 2] and [Applicant 1]. As such, the Tribunal is satisfied [Applicant 3] meets the criterion to be owed protection pursuant to s 36(2)(b)(i) of the Act.
Conclusion
134. For the reasons given above the Tribunal is satisfied that the first and second named applicants are persons in respect of whom Australia has protection obligations and satisfy the criterion set out in s 36(2)(a) of the Act.
135. The Tribunal is not satisfied that the third 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 third named applicant is the son of the first and second named applicants and is a member of the same family unit as the first and second named applicants for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first and second named applicants’ application. It follows that the third 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
136. 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 and second named applicants meet s 36(2)(a) of the Migration Act; and
(ii)that the third 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 and second named applicant.
Date of Hearing: 14 February 2025
Representative for the Applicant: Ms Jesheka Jeyaneshan
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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
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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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