1921961 (Refugee) - [2025] ARTA 1200

1921961 (REFUGEE) [2025] ARTA 1200 (2 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1921961 and 1921969
Tribunal:General Member N Schmitz
Date:2 April 2025

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

Statement made on 02 April 2025 at 5:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – separate applications by husband and wife heard and decided together – Australian-born child not registered but registration available – political opinion – anti-government and members of pro-secession group – claim suggested by friends and abandoned at hearing – applied after student visa expired and birth of child in order to be eligible for Medicare – passports expired and failed asylum seekers – country information – possible questioning not significant harm, and claimed fears of harm speculative – economic hardship not significant harm and conditions faced by population generally – child’s education – eligible for state schooling after registration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B)(c), 65, 379A(5)
Migration Regulations 1994 (Cth), r 2.08, Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sivalingam v MIMA [1998] FCA 1167
ZLVZ v MIAC [2008] FCA 1816
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 8 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The first and third named applicants are husband and wife. They are each citizens of Malaysia. A marriage certificate submitted by the applicants indicates they married [in] January 2011 in Miri, Malaysia. Together they first arrived in Australia [in] August 2016. The applicants each applied for the visa on 15 January 2019.[1]
[1] First and third named applicant’s delegate’s decision records.
The applicants’ child, the second named applicant, was born in Australia in [Month Year]. Regulation 2.08 of the Migration Regulations 1994 (the Regulations) provides that if a non-citizen child is born to a parent(s) with an ongoing visa application, the child is taken to have applied for the same visa as their parent(s).
The delegate refused to grant the visas on the basis that the applicants were not owed protection by Australia. On 8 August 2019, the applicants applied to the Administrative Appeals Tribunal (the AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such.
The first and third named applicants have made claims of their own claiming protection, with the second named applicant relying on her membership of the applicants’ family unit.
Given the family relationship and the applicants’ protection claims detailed below, the Tribunal considered that the applications for review could be heard together in a combined hearing and invited the applicants to appear before the Tribunal pursuant to s 379A(5) of the Act. The Tribunal was required to do this because it had considered the information it had and was unable to make decisions favourable to the applicants.
The first and third named applicants appeared before the Tribunal on 12 March 2025 to give evidence and present arguments. The Tribunal did not take evidence from the second named applicant due to her age. 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.
The applicant must satisfy the statutory requirements
The Tribunal is not required to make the applicant’s case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; and Abebe v Commonwealth of Australia (1999) 197 CLR 510.
Fact Finding and Assessing Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims made. Asylum cases present particular complexities in regard to fact finding. An applicant may have difficulties presenting evidence due to experiences in their home country. The full Federal Court in Sujeendran Sivalingam v MIMA [1998] FCA 1167 stated:
Refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[2] Therefore, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[3]
[2] AAT, MRD, Guidelines on the Assessment of Credibility dated 20 December 2017.
[3] Fox v Percy (2003) 214 CLR 118.
The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims; ZLVZ v MIAC [2008] FCA 1816 at [25].
The Tribunal is not required to uncritically accept all or any of the applicant’s claims; Randhawa v MILGEA (1994) 52 FCR 437. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 34 ALD 347.
The mere fact that an applicant claims a fear of ‘serious harm’ for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed; Randhawa v MILGEA (1994) 52 FCR 437. Similarly, an applicant who claims to face a ‘real risk’ of ‘significant harm’ does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements have been made out; MIEA v Guo (1997) 191 CLR 559; and Prasad v MIEA (1985) 6 FCR 155.
Evidence before this review
The Tribunal has taken into consideration evidence adduced to the Department and Tribunal, including a joint statement from the applicants, medical records from Malaysia regarding the first named applicant’s father and the first named applicant’s medical records regarding her pregnancy and associated medical expenses. The Tribunal has also had regard to the oral evidence given by the applicants at hearing and independent country information about Malaysia.
Country of Nationality
There is no dispute that the first and third named applicants are nationals of Malaysia. The applicants each travelled to Australia using apparently genuine Malaysian passports, copies of which are contained in their Department files. They also submitted to the Tribunal copies of their respective birth certificates and MyKad National Identity Cards. They have at all times stated that they are citizens of Malaysia and have been assessed on that basis by the Department. The Tribunal finds that each of the applicants is a citizen of Malaysia and has assessed their claims against Malaysia as the country of nationality and the receiving country.
At hearing the applicants each expressed concerns that they could not return to Malaysia due to their daughter, the second named applicant, being born in Australia and stateless.
The second named applicant’s birth certificate discloses that her mother is the first named applicant and her father is the third named applicant who are each Malaysian citizens. The second named applicant’s birth certificate also details that her parents were married [in] January 2011 in Malaysia, [Number] years before her birth.
The Tribunal has considered country information which was discussed with each of the applicants at hearing as follows:
·There are Constitutional provisions which allow for a child whose parents are Malaysian citizens and were married at the time of the child’s birth and are children of the marriage born outside of Malaysia, to apply for Malaysian citizenship;
·Children of Malaysian fathers born overseas automatically become citizens;[4] and
·Children born overseas to Malaysian parents receive Malaysian citizenship after registration at a Malaysian Consulate, or at the National Registration Department in Malaysia.[5]
[4] The Constitution of Malaysia 1957 Schedule 2(1)(b).
[5] DFAT - DFAT Country Information Report Malaysia dated 24 June 2024.
The Tribunal explained that information before it, including various identity documents submitted by the applicants indicated that they were both Malaysian citizens, who were married at the time of their daughter’s birth and therefore the second named applicant had Malaysian citizenship available to her and did not support their claims she was stateless. The applicants were asked if they wished to comment. The applicants indicated they were unaware of this information and did not challenge it.
The Tribunal has carefully considered the applicants’ claims, however, prefers country information including constitutional provisions which indicate that Malaysian citizenship is available to the second named applicant. Accordingly, the Tribunal finds the second named applicant is a Malaysian citizen as per Schedule 2(1)(b) of the Malaysian Constitution and the Tribunal has assessed her claims against Malaysia as the country of nationality and the receiving country for the purposes of s 5(1) of the Act.
Applicant Wife Personal Background
The applicant wife confirmed that the personal particulars in her protection visa application were true and correct. The applicant wife is a [Age]-year-old female from Miri, Sarawak, Malaysia. She is of the [Ethnicity 1] and a Christian.
At hearing she gave evidence that she primarily resided in Miri, with her family, including her parents and [siblings]. After marriage she resided with her husband, including for approximately one year in [Town] with his family. At other times they resided with her family. She gave evidence that she maintains contact with her family. The applicant wife confirmed she has no family in Australia other than the second and third named applicants.
The applicant wife completed her primary and secondary school and can read, write and speak English, [Ethnicity 2 language] and Malay. After finishing school, from October 2010 to April 2015, she was employed in various roles, including as [occupations 1-3]. She stated after she suffered a miscarriage, her husband asked her to resign from her job which she did and was thereafter a housewife.
Since being in Australia, the applicant wife has had various employment, including as a [occupations 4-5]. She told the Tribunal she ceased work on the Friday prior to hearing to focus on having a second child. The applicants currently live in rental accommodation with their daughter and own three motor vehicles. The applicant wife has also obtained a driver licence.
The Tribunal accepts the above matters to be true.
Applicant Husband Personal Background
The applicant husband confirmed that the personal particulars in his protection visa application were true and correct. The applicant husband is a [Age]-year-old male from [Town], Sarawak, Malaysia. He is of the [Ethnicity 2] and a Christian.
At hearing he gave evidence that he grew up and resided in [Town], Sarawak, with his parents and later his wife. He also resided in Miri for approximately five years with his wife’s family. His family comprises of his parents and [siblings] who at the time of visa application and hearing were and continue to reside in [Town]. He stated his mother did not work, but that his father was the ‘village leader’ and that his siblings worked in the village on a [workplace 1].
The applicant husband completed his primary and secondary school and can read, write and speak English, [Ethnicity 1 language] and Malay. After finishing school, he worked from May 2006 until August 2013 as [work roles 6-7] in Miri. Directly before coming to Australia, he was working in the [Town] village on [a workplace 1] and stated that as his father was the village leader he is was able to help him get employment.
Since coming to Australia the applicant has had a range of jobs including working at a [workplace 2] for approximately two years, at a [workplace 3] for three years and has had employment with [Employer].
He confirmed he has no family in Australia other than the first and second named applicants and that they were currently renting a property. He confirmed he and his wife own three motor vehicles and that he has acquired a driver licence.
The Tribunal accepts the above matters to be true.
Applicants’ Migration History
The applicant wife gave evidence consistent with the delegate’s decision record which detailed her migration history. She confirmed she first arrived in Australia [in] August 2016 on an Electronic Travel Authority (ETA) visa and was accompanied by her husband. She told the Tribunal she first came to Australia as she wished to undertake a [subject] course.
On 16 March 2017, the applicant wife was granted her first Student visa. She stated she completed a Certificate III in [Subject].
On 18 September 2017, the applicant wife was granted a second Student visa which was valid until 28 June 2019. She undertook a Certificate IV in [Subject] but did not complete the course due to being pregnant. She also stated that she had trouble studying due to living in a share house which had disruptive tenants who would ‘party’. She did not continue with her studies due to giving birth one month early and her Student visa expired.
The applicants each gave evidence that the applicant husband was granted associated Student visas due to being a member of the family unit of the applicant wife. This is also consistent with the applicant’s husband’s delegate’s decision record.
The applicant wife told the Tribunal she departed Australia alone [in] November 2018 and returned to Miri, Malaysia due to her father suffering a stroke. She returned to Australia [in] December 2018. In support she provided various medical records from Malaysia.
The Tribunal accepts the above matters to be true.
Applicants’ Protection Claims
The first and third named applicants’ protection visa applications were in identical terms. The applicants each claimed that they were seeking protection due to the Malaysian government breaching the ‘Malaysian Agreement 1963’ by colonising and controlling Sarawak. They claimed to be political dissidents of the government and part of the Sabah Sarawak Keluar Malaysia (SSKM), a small social media-based political group that campaigns for the secession of Sabah and Sarawak. They also claimed to be unable to find employment to sustain their family. These claims were summarised to the applicants at hearing.
However, at the commencement of the hearing, the applicant wife gave evidence that the claims about the Malaysian government and being a political dissident were ‘not true’ and that she was ‘not relying on the SSKM claim’. She stated at the time of visa application, she was pregnant, her father had recently suffered a stroke and she was in a ‘desperate situation’. She stated that someone at her share house helped her with the visa application and it was a claim suggested by them.
Similarly, at the commencement of the applicant husband’s evidence, he resiled from the claim in his protection visa that he left due to being a political dissident. He stated ‘That part filled out by friend. My friend has returned back [to Malaysia]. I just follow what they filled out’. When the Tribunal Member asked whether he relied on the claim he replied ‘No I am not using that reason. I don’t know what they filled out in there’.

Given the applicants’ evidence, the Tribunal finds that the applicants were not anti-government agitators and political dissidents of the SSKM. The Tribunal finds that there is not a real chance that the applicants will be targeted for harm by the Malaysian authorities, or by any other person or group due to their political opinion if they return to Malaysia now or in the reasonably foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[6] For the same reasons the Tribunal does not accept there to be a real risk that the applicants will be subjected to significant harm by the Malaysian authorities or any other person or group due to their political opinion as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
[6] MIAC v SZQRB [2013] FCAFC 33.
Protection Claims at Hearing – Applicant wife
The Tribunal asked the applicant wife why she applied for the protection visa on 15 January 2019. She replied that at the time she was pregnant and ‘desperate’ and had received a hospital bill stating she would have to pay AUD16,000 to give birth at their facility because she did not have Medicare or private health insurance. In support she provided to the Tribunal a letter from [Health provider] detailing hospital charges for Medicare Ineligible Patients (Overseas Visitors) at a cost of AUD16,000. She stated by applying for a protection visa she would be entitled to Medicare and receive free healthcare.
Failed Asylum Seeker
The Tribunal asked the applicant wife why she feared returning to Malaysia. She replied that her Malaysian passport had expired and that she feared persecution due to being a failed asylum seeker in Australia. She told the Tribunal that she and her husband had not told her family or her husband’s family that they had applied for protection visas and that their respective families believed they were still on Student visas.
The Tribunal referred to country information as follows:[7]
Authorities generally pay little attention to Malaysians who overstay their work or tourist visas, or who breach visa conditions in other countries, upon their return to Malaysia. Likewise, failed asylum seekers rarely face adverse attention, as the Malaysian Government is usually unaware that someone is a failed asylum seeker, although it is possible some failed asylum seekers could face questioning on return, particularly if their passport expired while abroad. The International Organization for Migration (IOM) assists voluntary returnees, and Malaysian authorities cooperate with IOM in these arrangements.
[7] DFAT – DFAT Country Information Report Malaysia at [5.32]
The applicant wife was given an opportunity to comment. She indicated that she was unaware of this information and stated, ‘Me and my husband can return’.
The Tribunal has carefully considered the applicants wife’s claims that she and her husband will be returning as failed asylum seekers. The Tribunal has had regard to the first and third named applicants’ Malaysian passports that both expired in [2021].
The Tribunal accepts that the applicant wife and her husband will be returning to Malaysia as failed asylum seekers. The Tribunal further accepts that the applicants may be identified as failed asylum seekers due to returning on temporary travel documents. However, on the basis of the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicants will be persecuted for reasons of their membership of a particular social group namely as ‘failed asylum seekers’ and who have sought asylum in Australia.
The applicant wife’s evidence about this is speculative and unsupported by any independent evidence that is before this Tribunal. The Tribunal also notes that the applicants have not disclosed their immigration status to their respective families who believe they are still on Student visas and therefore this information is unlikely to come to the attention of any third party. In addition, recent DFAT country information suggests that Malaysian authorities have little interest in failed asylum seekers and that they rarely face adverse attention by the authorities. The country information does not support that the questioning by authorities may lead to any harm to the applicants and the Tribunal finds that such treatment does not reach the level of serious or significant harm. The Tribunal places significant weight on this country information which it regards to be credible. Accordingly, the Tribunal is not satisfied that there is a real chance the applicants will face serious harm as a result of any follow-up by any Malaysian authorities or agencies.
The Tribunal accepts that the applicants may face questioning on return as failed asylum seekers, but that is all. The Tribunal does not accept this amounts to ‘significant harm’ because the questioning will not lead to the applicants being harmed but only questioned and does not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment nor any other form of significant harm as those terms are defined. Accordingly, the Tribunal finds that as failed asylum seekers there is no real risk that the applicants will suffer significant harm from the authorities if they return to Malaysia now or in the reasonably foreseeable future.
Economic Hardship
The applicant wife told the Tribunal she feared economic hardship if she returned to Malaysia. When asked to elaborate she stated, ’Would have to start from zero if I return’.
At hearing, the Tribunal explained to the applicant wife that a refugee was a person with a well-founded fear of persecution in their home country, which meant that the Tribunal had to be satisfied there was a real chance she would be subjected to serious harm for reasons of her race, religion, nationality, membership of a particular social group or political opinion. When the Tribunal indicated to the applicant wife that this did not appear to apply to her, she replied that she wanted to return to Malaysia but was concerned about her husband finding employment.
The Tribunal further indicated that whilst having financial difficulties was extremely unpleasant, it did not appear that the type of financial harm would reach the level of ‘significant harm’ required under the legislation and if she wished to comment. She replied, ‘Education here superior. Healthcare very good’. The Tribunal also indicated that the economic conditions appeared to be general country conditions faced by the population generally rather than the applicant personally. She stated she did not want any problems.
The Tribunal accepts that the applicant wife came to Australia to study and that she wishes to remain here because she and her husband have had employment, accumulated assets and she thinks the education and healthcare is good. The Tribunal further acknowledges that it would be deeply worrying for the applicant to consider having to ‘start from zero’ again. However, the Tribunal finds that the economic harm feared by the applicant is not for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or political opinion and therefore, that harm does not meet the criteria set out in s 5J(1)(a) of the Act. The Tribunal is comfortable making this finding, noting the applicant wife’s strong employment history in Malaysia and the fact that she resigned from her employment not for any s 5J(1)(a) reason, but on the request of her husband to focus on starting a family.
The applicant wife does not suggest that any economic harm she might suffer from in Malaysia would arise from the intentional or deliberate act or omission of a third person or persons such as to constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor does she suggest that she will be subjected to the death penalty in Malaysia for any reason.
As put to the applicant wife at the Tribunal hearing, the risk of suffering poor economic conditions is a real risk faced by the population generally and not her personally. Section 36(2B)(c) of the Act provides that there is taken not to be a real risk of significant harm where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
For these reasons the Tribunal does not accept that any economic harm to which the applicant may be subjected if returned to Malaysia would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A) and was discussed with the applicants at hearing.
The Tribunal asked the applicant wife whether there was anything she wished to tell the Tribunal which she felt had not been adequately covered during the hearing. The applicant wife replied in the negative.
The applicant wife has not claimed to fear harm from any other source or for any other reason and no other claims are apparent on the information before the Tribunal.
Protection Claims at Hearing - Applicant husband
Inability to access education services
The Tribunal asked the applicant husband why he feared returning to Malaysia. He replied he feared his child would not be protected there. When asked in what sense, he replied ‘because she was born here [Australia]’. When asked by the Tribunal who he feared would harm her, he stated he was concerned she would not be able to attend a government school.
The Tribunal referred to above country information which indicated that his daughter was not stateless and had Malaysian citizenship available to her. The Tribunal further indicated there was no information before the Tribunal to suggest that the second named applicant would have an inability to access an education in Malaysia. The applicant was asked if he wished to comment. The applicant replied ‘No’.
Accordingly, the Tribunal does not accept that the second named applicant would not be able to attend a public school, therefore she will not be denied an education. The Tribunal does not find that there is a real chance of harm that the second named applicant will face harm on this basis.
For the same reasons, the Tribunal does not accept there to be substantial grounds for believing that there is a real risk that the second named applicant will suffer significant harm as a as a necessary and foreseeable consequence of being removed to Malaysia from Australia.
Economic Hardship
The applicant husband confirmed that he still relied on his claims of economic hardship.
At hearing, the Tribunal explained to the applicant husband that a refugee was a person with a well-founded fear of persecution in their home country, which meant that the Tribunal had to be satisfied there was a real chance that he would be subjected to serious harm for reasons of his race, religion, nationality, membership of a particular social group or political opinion. When the Tribunal indicated that this did not appear to apply to the applicant husband he did not wish to comment.
The Tribunal further indicated that whilst having financial difficulties was extremely unpleasant, it did not appear that the type of financial harm would reach the level of ‘significant harm’ required under the legislation and if he wished to comment. He replied in the negative.
The Tribunal accepts that the applicant accompanied his wife on a student visa and wishes to remain here to work. However, the Tribunal finds that the economic harm feared by the applicant husband are not for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion and therefore, that harm does not meet the criteria set out in s 5J(1)(a) of the Act. The Tribunal is comfortable making this assessment noting the applicant husband’s work history in Malaysia and his evidence that his father is the village leader and has been able to assist him find employment in the past.
The applicant husband did not suggest that any economic harm he might suffer from in Malaysia would arise from the intentional or deliberate act or omission of a third person or persons such as to constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor does he suggest that he will be subjected to the death penalty in Malaysia for any reason.
As put to the applicant husband at hearing, the risk of suffering poor economic conditions is a real risk faced by the population generally and not him personally. Section 36(2B)(c) of the Act provides that there is taken not to be a real risk of significant harm where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
For these reasons the Tribunal does not accept that any economic harm to which the applicant husband may be subjected to if returned to Malaysia would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A) and was discussed with the applicants at hearing.
The Tribunal asked the applicant husband whether there was anything he wished to tell the Tribunal which he felt had not been adequately covered during the hearing. The applicant husband replied in the negative.
The applicant husband has not claimed to fear harm from any other source or for any other reason and no other claims are apparent on the information before the Tribunal.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do 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 not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decisions not to grant the applicants a protection visas.
Date(s) of hearing:    12 March 2025
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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