1921212 (Refugee) - [2025] ARTA 797

1921212 (REFUGEE) [2025] ARTA 797 (20 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1921212
Tribunal Member: Senior Member A Murphy
Date:20 January 2025

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

Statement made on 20 January 2025 at 5:06pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – stateless – race – Butonese ethnicity – religion – Muslim – particular social group – single women who are victim-survivors of family violence, child abuse and child sex abuse – false declaration of applicant’s parentage – fraudulent birth certificate – serious mental health issues – no remaining family support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), r 4.15, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old woman who travelled to Australia from Malaysia in September 2018 and applied for the visa on 6 April 2019. The delegate refused to grant the visa on the basis of the assessment that the applicant did not engage Australia’s protection obligations.
The matter was first listed for hearing on 15 March 2024 before another member of the Tribunal. In the course of reviewing the file that member identified that there was a related proceeding before the Tribunal (ART proceeding 1815499) and the related proceeding raised issues more appropriately dealt with by female member. Shortly afterward, a pro bono legal service providing limited assistance in the related proceeding submitted relevant medical evidence and asked that the matter be adjourned and reconstituted to a female member due to the nature of the claims.
Both matters were reconstituted to me and adjourned for a significant period of time to enable the applicants to seek legal advice to prepare for the review. Attempts to progress the matter to a further hearing stalled for reasons primarily relating to issues that arose in the related review and to date it has not been possible for a hearing to be held.
On 25 November 2024 the applicant provided additional documents and submissions in the review and requested the Tribunal to make a favourable decision without holding the hearing of the proceeding. Upon review of that information, it was apparent to the Tribunal that the evidence raised significant issue as to the nationality of the applicant which was not adequately addressed in the materials. The Tribunal wrote to the applicant inviting further information submissions on this issue which were received on 17 December 2024.
The Tribunal has considered the applicant’s statements, submissions and accompanying medical information and notes the identified risks to the safety of the applicant that have presented in this matter. The Tribunal formed the view that the issues for determination in the proceeding can be adequately determined in the absence of the applicant and that it should make a decision that is wholly favourable to the applicant without a hearing pursuant to s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).
The applicant (and the applicant in the related proceeding) were represented in relation to the review and the Tribunal was asked to hear and determine the matters together. The issues that arise for consideration are largely the same in each case, but I have produced separate statements of reasons to preserve the privacy of each applicant in relation to particularly sensitive aspects of their evidence.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia as the holder of an apparently genuine Malaysian passport, a copy of which appears on the Departmental file. While a genuine passport is prima facie evidence of the applicant’s nationality, aspects of the applicant’s evidence raise the issue of whether the applicant is legally entitled to Malaysian citizenship.
This is because the evidence indicates the applicant’s parents are Indonesia citizens, as are most if not all of her [number] siblings. While at the time of the applicant’s birth her parents were in Malaysia, her parents took the family from Malaysia to [Town 1] in West Papua when she was aged about four or five. The applicant’s mother died during childbirth in West Papua and the applicant and the younger [number] of her [siblings] were sent to Malaysia to live with their aunt and uncle (being the parents of the applicant in the related review). The applicant’s father remained in Indonesia with the [oldest] siblings.
When the applicant was about 11 years old, she discovered her aunt and uncle were falsely named as her parents on her Malaysian birth certificate, which was made possible because the hospital allowed women to complete birth documentation at home after leaving. This allowed the applicant to attend school, unlike most of her siblings who did not have Malaysia birth certificates. It also allowed her to obtain a Malaysian passport, which she used to travel to Australia at age [age].
It is submitted that the Tribunal should assess the applicant’s claims for protection on the basis that she is a Malaysian citizen obtained by operation of law pursuant to Article 14(1)(b) of the Federal Constitution of Malaysia. Article 14(1)(b) provides that every person born in Malaysia with at least one parent who is a citizen or permanently resident in Malaysia at the time of the birth is a citizen by operation of law.
For the reasons discussed at length in my decision in the related case, I have concluded that the applicant’s uncle was not entitled to Malaysian citizenship at the time it was granted to him. This is because of evidence that he was stateless when he arrived in Malaysia from Indonesia and that he received his own Malaysian blue card unlawfully through Project IC, a scheme that provided Malaysian citizenship to Malay speaking Muslim immigrants, particularly those from the Indonesia and the Southern Philippines who settled in Sabah. A Royal Commission of Inquiry on Immigration in Sabah set up in 2012 concluded that Project IC was a covert programme, involving high-ranking members of the government, which issued MyKads to undocumented migrants for at least 10 years, starting in the 1980s. Project IC was stated to have two main goals, being to increase the number of Muslims in Sabah where the people were predominantly Christian and to overthrow the PBS-led state government of the day, also predominantly Christian, in favour of Prime Minster Mahathir’s United Malays National Organisation (UMNO) political party and its allies.[1]
[1] ‘Debate RCI report on Project IC in Dewan Rakyat, says Sabah MP’, Free Malaysia Today, 6 March 2024; The Sabah RCI report in a nutshell’, Malaysiakini, 3 December 2014, 20241204141914
Even if the applicant’s uncle (falsely named as her father on her birth certificate) is a Malaysian citizen according to Malaysia’s citizenship laws, I consider that the applicant will not have gained such citizenship on the basis of a false declaration by her uncle and aunt about her own parentage. Rather it is her sworn evidence that her parents are both Indonesian citizens and it is not suggested that either of them were permanently resident in Malaysia at the time of her birth. It is noted that her claims for protection include that she will be detained, subjected to harm and even deported from Malaysia if the Malaysian authorities find out about her fraudulent birth certificate.
The assessment of the applicant’s nationality must be made by reference to the nationality laws of the relevant state. Malaysia’s nationality laws are not expressed in such a way as would grant citizenship to a child born to persons who are not citizens of Malaysia or permanently resident in Malaysia, merely because there has been a false declaration as to that child’s parentage. For these reasons I do not accept the applicant is a Malaysian citizen as claimed, notwithstanding that she holds a Malaysian passport.
I have considered whether the applicant is an Indonesian citizen, given that Indonesian citizenship laws indicate that children born of Indonesian parents will be citizens of Indonesia in almost all circumstances.[2]
[2] Law of the Republic of Indonesia No. 12 on Citizenship of the Republic of Indonesia (Indonesian Citizenship Law)
However there are many circumstances in which an Indonesian citizen child may lose citizenship. An Indonesian citizen who acquires another citizenship voluntarily; or who does not refuse or relinquish their other citizenship in writing before the age of 18 or who possesses a passport from a foreign country will lose their Indonesian citizenship by operation of law.[3] As the applicant holds a Malaysian passport that was issued to her in 2018, the Tribunal accepts that she will be considered to have lost her Indonesian citizenship by operation of Indonesia’s citizenship laws. While there are legal processes permitting the reinstatement of citizenship lost in such circumstances, a mere entitlement to nationality or a capacity to become a national under the laws of the country is insufficient to establish nationality under the Act.[4]
[3] Ibid at Article 23(a), (b) and (h)
[4] FER17 v MICMA (2019) 269 FCR 580 at [78]; FER17 v MIBP [2018] FCCA 3767 at [28].
There is no evidence that the applicant holds nationality of any country other than Malaysia and Indonesia. Having found that she is not a citizen of either of those countries, the Tribunal concludes that she is stateless. Under s 5(1) of the Act, a person who is stateless must be assessed against his or her country of ‘former habitual residence’. As the applicant was formerly habitually resident in Malaysia, the Tribunal has assessed her claims for protection against that country.
The applicant’s background
The applicant is a [age]-year-old woman of Butonese ethnicity and Muslim religion.
In her written statement submitted to the Tribunal, she states that she is one of [number] siblings born to Indonesian parents, one of whom died in early childhood. While the applicant was born in Malaysia, her parents took the family to West Papua to live she was very young.
The applicant’s mother died due to complications in childbirth with the applicant was five years old, and the applicant and her younger siblings were returned to Malaysia to live with their uncle and aunt. The applicant’s father and [older siblings] remained in Indonesia. The applicant later learned that her father was violent and addicted to alcohol which is why the children could not stay with him in Indonesia following their mother’s death. She had no contact with her father during the years she lived in Malaysia, but after her arrival in Australia he contacted her on [social media]. [Number] of her siblings still live in Malaysia with her aunt and uncle while the [others] remain living in Indonesia.
The applicant commenced school aged about six. This was possible only because she had a Malaysian birth certificate identifying her as the daughter of her uncle and aunt rather than her own parents. She attended school until the age of eleven, when her uncle and aunt pulled her out. This occurred in the context of their fear that the Malaysian authorities would find out through the school that the applicant had been falsely recorded as their daughter on her birth certificate and take away the national ID cards and passports that had been issued to the whole family.
Departmental records states that the applicant arrived in Australia in September 2018 as the holder of a Malaysian passport and an Electronic Travel Authority.
The Tribunal accepts the above matters to be true.
Medical evidence
On 20 September 2024 the Tribunal was advised that the applicant had experienced a major decline in her mental health as a result of which she was admitted to hospital after attempting suicide.
While the Tribunal has not been provided with medical evidence relating to this hospital admission, it notes other materials indicating that the applicant attempted suicide a number of times in Malaysia; that she has been referred to mental health services in Australia and that she is currently taking antidepressant medication.
Having regard to all of the available information the Tribunal accepts the applicant is experiencing serious mental health issues.
Claims for protection
In the protection visa application, the applicant states she came to Australia to join her sister as she has no one in Malaysia to take care of her. In material provided to the Tribunal, she clarifies that her sister (being the applicant in the related ART proceeding 1815499) is actually her cousin. This cousin is the daughter of the uncle and aunt with whom she resided in Malaysia and who are incorrectly named as her parents on her Malaysian birth certificate.
In the material provided to the Tribunal the applicant claims to fear harm on the basis of her Butonese ethnicity and fraudulent identity documents, as well as harm from certain male members of her family whom she says sexually abused her as a child. It is submitted on behalf of the applicant that she has a well-founded fear of persecution for the essential and significant reason of her membership of the following particular social groups:
a)Single women who are victim-survivors of gender-based violence including family violence and sexual abuse;
b)Women who are victim-survivors of significant child abuse and child sex abuse;
c)Young women who are victim-survivors of family violence and sexual abuse;
d)Women with significant mental health concerns including suicidal ideation;
e)Muslim women who are victim-survivors of significance sexual abuse and family violence
f)Women lacking family and/or social supports;
g)Women at high risk of re-victimisation;
h)People in Malaysia whose identity documents may have been obtained through fraud.
I accept the applicant’s account of her childhood abuse, the details of which I do not need to recount here. For the purposes of this assessment it is sufficient to say that I accept that if returned to Sabah the applicant will be without family support.
I record that I do not consider that the formulation of the groups set out above in paragraphs (a), (b), (c), (e) and (g) are capable of constituting a particular social group for the purposes of s 5J(1)(a). This is because the characteristic shared by the members of these groups is fear of persecution, contrary to s 5L(d) of the Act. I note that the published Tribunal decision referred to in the applicant’s submission does not formulate the particular social group in the manner suggested by the submission.
It is also submitted that the applicant faces a real chance of harm for reasons of her Butonese ethnicity and because her identity documents have been obtained through fraud. For the reasons that follow, the Tribunal accepts that the applicant satisfies the complimentary protection criteria.
The applicant’s Butonese ethnicity
The applicant states, and the Tribunal accepts, that her parents were Indonesian citizens of Butonese ethnicity and that she faced discrimination and bullying in Malaysia as a Butonese person. She states that Butonese people are disliked in Malaysia because they look like people from Timor and West Papua. Other children would make fun of the way she looked and she was physically and verbally bullied during her school years.
She states she was also harassed in the streets for being Butonese, facing abuse and yelling from men in the street. One particular man, a customer of the [shop] where she worked for her aunt, constantly abused the applicant and her sisters when he saw them by yelling, spitting on them, kicking and hitting them. She was afraid to leave the house because of this man.

The applicant was also afraid of the police who would often come around and check for illegal immigrants, drugs and fraudulent documents. She would hide when they came to the house as she was a young child and didn’t understand what they were looking for. She states that sometimes the police took people from their house to the car, checking their IDs and their passports.
I note the applicant was only [age] years old which she travelled with her uncle to Australia and was placed into the care of her cousin (the related applicant). In the related ART proceeding I considered the evidence about their family’s experience as illegal immigrants of Butonese ethnicity who resided in Malaysia using identity documents that were issued to them on the basis of fraudulent information. The evidence in the related case is considerably more fulsome than that in this case and I accept that to be because of the applicant’s very young age at the time she left Malaysia, compared to her cousin who was significantly older.
I have been asked to determine this matter and the related matter together and I consider it appropriate to reproduce my reasoning in the related matter on the issues of the applicants’ Butonese ethnicity below.
61. Country information reports that the Butonese, also known as Orang Butung or Orang Butuni, is a collective term that embraces diverse ethnic groups, mostly Muslim, from the island of Buton and neighboring islands that constitute the Indonesian province of Sulawesi Tenggara (Southeast Sulawesi).[5] A group of ethnic Butonese, known as Kaledupa fishers, settled in Sandakan, Sabah, with some becoming Malaysian citizens or permanent residents:
[5] Neelakantan, V. (2022, February 12). Butonese Muslims also known as “Orang Butung or Orang Butuni” [O]. doi: Kaledupa fishers, like many other ethnic Butonese, were originally seafarers, carrying cargo on sailing vessels to many parts of the archipelago. In the late 1960s and early 1970s, as motors replaced sails and unemployment levels grew, many left home to find work. One group settled in Sandakan, Malaysia, building a settlement that forms the core of Indonesian migrant community there today. Some of the longer-term settlers have become Malaysian citizens or permanent residents, but as in most migrant communities, there is a constant arrival of younger relatives, recruited to work as crew on the fishing boats.[6]
[6] Stopping Abu Sayyaf Kidnappings: An Indonesia-Malaysia Case Study’, Institute for Policy Analysis of Conflict, 27 March 2020, p.2, 20200331080235
62. The applicant claims that because of the illegality of the family’s identification documents, she and her family always feared any involvement with the government. She claims that they are identifiable as Butonese by their darker skin and accent and assumed to be illegal immigrants from West Papua. She claims she was constantly bullied at school for being Butonese and the family were regularly harassed by police, with local government holding regular operations to ‘clean up’ illegal immigrants in Sabah.
63. She states that when police came to the house, they would often question how the family were able to obtain identification given their Butonese ethnicity. These conversations often ended with her father paying the police money to get them to leave. Once the police knew that they were Butonese, they would check their identification in the streets and regularly came to their home. She describes an occasion on which she was detained on the street with her uncle [and] held by the police for two hours, during which time [her uncle] was beaten in front of her. He kept telling the police that she was his niece, but she couldn’t admit it for fear that her family’s illegal identification documents would be investigated. She does not know how they were released, but assumes her parents paid money to the police as they had done in the past.
64. She claims that sometimes the police would take people from the family home to a detention centre but would then release them after the family paid bribes. When the police came to their home she often tried to hide. A number of people in the Butonese community in Sabah and in her family were detained and/ or deported from Malaysia because they didn’t hold identity documentation or it was found to be fraudulent. This included her father’s brother [and] his wife and five children, who were deported when the applicant was in secondary school.
65. The applicant’s mother has also told her about another family who assisted in the issuing of Malaysian birth certificates to non-biological children, the way that her own parents did for [her two cousins]. Her mother told her they were investigated by police and the whole family lost their citizenship and were deported.
66. In assessing the applicant’s claims, I note that country information indicates there is hostility to migrants in Sabah, especially those from Indonesia and the Philippines, and the Butonese community faces discrimination and harassment from the authorities and the community in part because of their involvement in indentured labour practices as fishers.[7]
[7] Ibid
67. More broadly, migrant communities in Sabah may be raided and harassed by authorities due to the heightened security risk posed by concerns about nearby Abu Sayyaf activities and Abu Sayyaf penetrating local migrant communities:
. . . Hundreds of thousands of undocumented Filipinos and to a lesser extent Indonesians received the coveted “ICs” or identity cards that gave them access to employment, education and health services – and also allowed them to vote. More than 200,000 birth certificates were also issued to undocumented Filipinos. The impact of the so-called “Project IC” turned into a huge debate in the lead-up to the 2013 election with Sabahans demanding and securing a Royal Commission of Inquiry (RCI) on the extent to which the government or the ruling party was involved in issuing fake documents to increase its electoral advantage. The RCI issued a lengthy report that satisfied no one, though it confirmed that covert operations to use migrants to strengthen the UMNO vote had taken place.
Local antipathy to the migrants, which was already high, increased in February 2013 with the bizarre incursion into Lahad Datu, Sabah by an armed force claiming to represent the Philippines-based Sultan of Sulu – or at least, one of several claimants to the position. When it was over, 56 militants, ten Malaysian security personnel and six civilians were dead. The Filipino migrants were now seen not just as illegal voters but as a security threat, even though there was virtually no support on the ground for the Sultan. Mass displacement, deportations and voluntary returns followed. The incursion also led directly to the formation of ESSCOM.[8]
[8] Ibid
68. Malaysia tightened control over its immigrant population in response to criminal activity by Abu Sayyaf militants in Malaysian waters. Military operations by the Eastern Sabah Security Command [ESSCOM] included raids on migrant communities, sometimes accompanied by abuse and extortion. The following account was given by a Butonese fisher asked about ESSCOM’s efforts to register migrants:
ESSCOM only comes, takes notes, orders us to fill out forms, takes our photo and then demands fish. They always take the fish themselves in the boat’s tank, and they always pick the best ones. If we don’t give them what they want, they hit us, even in the open sea. We’re also wondering, why are there so many Abu Sayyaf kidnappings since ESSCOM was set up? [Abu Sayyaf] didn’t capture us before, the most that would happen is that they would ask for bait or food while we were at sea, and we would give it to them.
69. The repeated ESSCOM raids led some in the migrant community to leave the east coast and seek work in western Sabah, especially in the Keningau and Tenom area in the palm oil sector. It is not clear how many moved but interviews in Sandakan suggest that this is an ongoing exodus.[9]
70. It is reported that opposition towards illegal immigrants in Sabah has an ethno-religious tone, coming from native Sabahans and Chinese communities as well as Sabahan political groups. In October 2015, a flash mob event entitled “Black Sunday 3.0” was organized by Solidariti Rakyat (SORAK), a non-governmental organization, to make demands of the state regarding so-called “illegal immigrants” in Sabah, including that:
·action be taken as soon as possible regarding the RCI report released in December of 2014;
·a demand for a solution to cleanse Sabah of “illegal immigrants”; and
·a demand for the registration and issuance of Sabah Identity Cards to all genuine Sabahans in accordance with the established laws of the country.
71. Those demands reportedly snowballed into a broader social campaign for widespread political change to recognise Sabah Identity Cards for ‘Pure Sabahans’, with those calling for Sabah-specific Identity Cards being predominantly from Sabah’s non-Muslim bumiputera groups, supported by the state’s ethnic Chinese communities and other political activist groups.
72. In light of the country information cited above, the Tribunal accepts the applicant’s account of her family’s experiences as ethnic Butonese living in Sabah. The Tribunal accepts that they faced harassment, discrimination and at times arbitrary detention from the Sabahan authorities and community who correctly assumed they had obtained their Malaysian identity documents unlawfully.
73. The Tribunal accepts that should the applicant return to her home area in Sabah, she would again face harassment and discrimination in the manner she has in the past for the essential and significant reason of her Butonese ethnicity. While such treatment may not in all instances rise to the level of serious harm, the applicant is in a position of extreme vulnerability for the reasons set out in the medical evidence cited above.
[9] 'Stopping Abu Sayyaf Kidnappings: An Indonesian-Malaysian Case Study', Institute for Policy Analysis of Conflict (IPAC), 27 March 2020, p.14, 20200331080235
Having accepted the applicant’s cousin’s account of their family’s experiences as ethnic Butonese living in Sabah, I accept that they faced harassment, discrimination and at times arbitrary detention from the Sabahan authorities and community who correctly assumed they had obtained their Malaysian identity documents unlawfully.
I further accept that should the applicant in the current review return to her home area in Sabah, she will experience harassment and discrimination in the form experienced by her cousin and other members of her family for the essential and significant reason of her Butonese ethnicity. As I have noted in the related proceeding, the Australian courts have recognised that there are times in which comparatively lesser forms of harm could have a more detrimental impact on one person than on others as a result of personal attributes or circumstances such as age or frailty.[10]
[10] SZBQJ v MIMIA [2005] FCA 143; SZBBP v MIMIA [2005] FMCA 5
In light of the applicant’s personal circumstances, her serious mental health conditions and the fact she left Malaysia as a young child and is without family support, the Tribunal accepts that if she returns to Sabah, there is a real chance that the harassment and discrimination she will face for the essential and significant reason of her Butonese ethnicity will rise to the level of serious harm for the purpose of s 5J(1)(a).
However, the Tribunal does not accept that the real chance of persecution relates to all areas of Malaysia as required by s 5J(1)(c). In making that assessment, the Tribunal notes that there is no evidence that ethnic Butonese face discrimination or harassment outside of Sabah. Rather the circumstances in which the hostility towards ethnic Butonese and Filipinos has arisen relates to the specific goals of Project IC, being to increase the number of Muslims in Sabah where the people were predominantly Christian and to overthrow the PBS-led state government of the day, which was also predominantly Christian.[11]
[11] ‘Debate RCI report on Project IC in Dewan Rakyat, says Sabah MP’, Free Malaysia Today, 6 March 2024
On the evidence before it, the Tribunal does not accept that the applicant faces a real chance of serious harm outside of Sabah for reasons of her Butonese ethnicity and therefore she does not meet the criteria set out in s 5J(1)(c) and cannot come within the definition of a refugee.
Complementary protection criteria
In considering whether the harm she fears in Sabah amounts to ‘significant harm’ as that term is exclusively defined in s 36(2A), the Tribunal finds that it does. In particular the Tribunal is satisfied that the harassment and discrimination which she will face on return for reasons of her Butonese ethnicity constitutes, in her particular circumstances, ‘degrading treatment and punishment’, being an act intended to cause extreme humiliation which is unreasonable and which is inconsistent with Article 7 of the ICCPR.
Given that the perpetrators of the harm viewed by the applicant include the Sabahan police and state authorities, the Tribunal is satisfied that the applicant would not obtain sufficient protection from the Malaysian authorities, such that there would not be a real risk that she will again suffer significant harm. Therefore, s 36(2B)(b) does not apply to her.
While the Tribunal has not accepted that risk of harm extends across all areas of Malaysia, this is not a criterion for complementary protection. Rather, the applicant will be entitled to complementary protection unless it would be reasonable for her to relocate to an area of the country where she would not be at real risk of significant harm: s 36(2B)(a).
The Tribunal considers that relocation for the applicant is neither reasonable nor practicable. Since the age of[age] she has lived with her cousin here in Australia and I have found she has no remaining family support in Sabah. Her cousin has been recognised in the related proceeding as a person who engages Australia’s protection obligations and she will not return to Malaysia. I have accepted the applicant is living with serious mental health issues and I consider that confluence of circumstances mean that relocation is both unreasonable and impracticable for the applicant.
Finally, the Tribunal is satisfied that the real risk faced by the applicant is one faced by her personally and not faced by the population of the country generally. Therefore s 36(2B)(c) does not apply to her.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

Representative for the Applicant: Ms Imogen Hines
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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