1922032 (Refugee) - [2025] ARTA 1567

1922032 (Refugee) [2025] ARTA 1567 (30 April 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Numbers: 1922032 (Applicants 1-3)
2207276 (Applicant 4)

Tribunal:General Member R. Germov
Date:30 April 2025
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)that the first named applicant meets section 36(2)(aa) of the Migration Act; and
(ii)the second and third named applicants satisfy section 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant; and
(iii)the fourth named applicant satisfies section 36(2)(a) of the Migration Act

Statement made on 30 April 2025 at 3:28pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of family violence – illegitimate children – physical assault – strict family adherence to Islam – Tablighi Jamaat movement – coercive control – incestuous sexualised contact – fear of killing – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11
Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175
Haji Ibrahim v Minister for Immigration and Multicultural Affairs [2000] HCA 55; (2000) 204 CLR 1
Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159
Luu v Renevier (1989) 91 ALR 39 at p. 45
Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) FCR 505
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 57
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
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 decision concerns applications for review of decisions made by delegates of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (“the Act”). The applicants are all members of the same family unit. The first and fourth named applicants are husband and wife. The second and third named applicants are their children.
The first, second and third named applicants applied for the protection visas on 11 January 2019. The decision concerning the first, second and third named applicants was made on 26 July 2019. The fourth named applicant applied for the protection visa on 6 February 2022. The decision concerning the fourth named applicant was made on 26 April 2022.
The applicants are Malaysian nationals of Malay ethnicity and the Muslim faith. The delegates refused to grant the visas on the basis that they were not owed protection obligations.
The first, second and third named applicants sought review of the delegate’s decision on 8 August 2019. The fourth named applicant’s review application was lodged on 19 May 2022. The review applications were lodged at the Administrative Appeals Tribunal (“the AAT”) within the prescribed 28-day time limit.[1]
[1] Section 412(1)(b) of the Act and Regulation 4.31 of the Migration Regulations1994 as these provisions existed before 14 October 2024
The AAT was abolished and replaced by the Administrative Review Tribunal (“the Tribunal”) on 14 October 2024. 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 Tribunal is satisfied that the review application was validly made and the Tribunal has jurisdiction to determine the review application.[2]
[2] Sections 412(1)-(3) of the Act as they existed before 14 October 2024
The protection visa applications were lodged separately because the first, second and third named applicants resided in Melbourne and the fourth named applicant was working in [Town 1] and residing there, visiting his family in Melbourne every two weeks.
The first named applicant appeared before the Tribunal on 14 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant confirmed that she could understand the interpreter and was happy to proceed with her assistance. The fourth named applicant appeared before the Tribunal by video hearing on 28 February 2025 at which the first named applicant was also present.
As the second and third named applicants did not appear before the Tribunal and their claims are the same as the first-named applicant’s, the Tribunal will refer to her as “the first named applicant” for the purposes of their application unless otherwise indicated.
BACKGROUND
The applicants arrived in Australia [in] October 2018 as the holders of subclass UD601 Electronic Travel Authorities (“ETAs”) authorising them to remain until [January] 2019. The Department’s movement records indicate that they have not departed Australia since their arrival. The applicants were not interviewed by the delegates and were not represented in relation to their primary and review applications.
Evidence before the Department
First Named Applicant
In her protection visa application, the first named applicant claimed to have been a guarantor for a friend’s debt in the sum of MYR[amount].[3] The friend absconded and the applicant was left to settle the debt. The applicant feared an unnamed group that had threatened to harm her and her family. The only supporting document provided with the protection visa application was the biodata pages from the applicants’ Malaysian passports. The first named applicant also stated that she was separated from her partner and that she had completed secondary school education in Malaysia. No employment details were included in her application.
[3] Approximately AUD[amount]: accessed on 10 April 2025
The delegate accepted that the first named applicant and her children were Malaysian nationals on the basis of their Malaysian passport biodata pages and there was nothing to suggest that these were bogus documents.
The delegate treated the unnamed group as referring to loan sharks and decided that the first named applicant did not fear harm for any of the reasons specified in section 5J(1)(a) of the Act and that she could obtain effective protection from the Malaysian authorities such that there was no real risk of significant harm to her in the reasonably foreseeable future were she to return to Malaysia.
Fourth Named Applicant
The protection visa application stated that the fourth named applicant was seeking protection in Australia because he was gay and would be subject to serious or significant harm in Malaysia. The application also stated he was separated from his wife and that he had completed secondary education in Malaysia in [specified year]. No employment history was included in the application. The only supporting document provided was a copy of the biodata page of his Malaysian passport.
The Department wrote to the fourth named applicant on 24 March 2022 requesting him to provide further information about his claims. He did not respond to the request and the delegate proceeded to make adverse credibility findings concerning the fourth named applicant.
Evidence before the Tribunal
Pre-Hearing Evidence
The first and fourth named applicants did not comment on the delegate’s findings when they lodged their review applications. The Tribunal wrote to the first named applicant by email on 8 April 2024 requesting her to complete a pre-hearing information form. This form enables an applicant to confirm or update their contact details and provide further information about their claims. The first named applicant emailed her completed pre-hearing information form to the Tribunal on 15 April 2024. She reiterated her claim that she was afraid to return to Malaysia because she would be jobless and the moneylender may come after her again.
In her response to the Tribunal’s hearing invitation, the first named applicant forwarded copies of photographs of herself which depicted injuries to her face and mouth. The Tribunal emailed the first named applicant on 6 February 2025 requesting unedited copies of the photographs with date stamps of when they were taken. The first named applicant emailed unedited photographs bearing [a date in] January 2018 to the Tribunal on 7 February 2025.
The fourth named applicant’s review application was constituted to the Tribunal before any prehearing information request was made.
Evidence at the Hearing held on 14 February 2025 – First Named Applicant
The fourth named applicant was not present to give evidence at this hearing as he was working in [Town 1]. The following is a summary of the first applicant’s testimony at the hearing.
The first named applicant stated that she had been married twice. The first marriage took place [in] May 2013 and ended on [date]. This marriage produced two children, a boy aged [age] and a girl aged [age]. Her current marriage had produced [number] children, [number] born in Malaysia and [another] born in Australia last year. The first named applicant’s immediate family in Malaysia consisted of two children from her first marriage, her parents and [number] siblings - [gender numbers specified]. Her siblings were all married. Her parents were still working in Kuala Lumpur – her father as [an occupation 1] and her mother as [an occupation 2]. Her [specified siblings] were all working and [another] was a housewife. The first named applicant did not have any relatives in Australia apart from her husband, the fourth named applicant, their [number] children and her mother-in-law who was on a bridging visa. The first named applicant did not know the visa for which her mother in law had applied. The Tribunal asked the first named applicant why this was the case and she responded that it was a private matter for her mother in law.
The first named applicant did not undertake any further studies after completing secondary education in [specified year]. She was not presently employed but before she came to Australia, she worked in a [business 1]. The first named applicant applied for protection a few days after her ETA expired because she was unaware of the existence of the visa and a friend ended up helping her with the process. The first named applicant did not know what was in her protection visa application. The Tribunal informed her as to what had been claimed and she stated that this was not true.
The first named applicant said they came to Australia to escape from her father. She said that she had lived in fear of him all her life as he was a hot tempered person who beat and humiliated her for the smallest mistakes. He would tie her to the front gate since she was four years old so that people could see she was being punished for being naughty. If her younger siblings fell over, she would be beaten and her father would call his friends to watch.
The first named applicant said her father was a womaniser and forced her to meet his girlfriends. He threatened her with a beating if she told her mother of his affairs. She was beaten very badly on one occasion because he lost his temper at something and she was told not to lock her bedroom door that same night. Her father removed the lock on her bedroom door so she could not lock it in any case. The first named applicant’s father came to her and put a towel on his body and got on top of her and started to move his body up and down hers. The first named applicant asked him “what was this papa?.” He told her “I am trying to comfort you.” The first named applicant said she was very uncomfortable. He told her that if she told her mother about this incident, she had better watch out.
The first named applicant ran away to her late maternal grandmother’s house and told her about what happened. The first named applicant said that her father was a strictly observant Muslim apart from his extramarital affairs. Her grandmother told her father that if he ever did this again, she would report him to police. Her father then told the first named applicant that he would not give his blessing if she ever wanted to get married. The first named applicant could not stand to be in the family home and told him that she wanted to get married. He said that he would not permit it. The first named applicant was 17 at the time.
The first named applicant fell pregnant to her boyfriend. Her father still refused to give his permission but they went to get married despite her father’s stance. In the end, her father attended to the solemnisation to avoid social embarrassment. The first named applicant said that her father still interfered with her life even though she was married with children but did not beat her as much as he used to.
The first named applicant divorced her first husband and during the iddah period[4], she met her current husband. The iddah period was a period of time during which a couple may reconcile. Her father also objected to the second husband. The first named applicant became pregnant again before she got married a second time because her father would not let her marry otherwise. The first named applicant said that he did not want her and her husband to come to the family home anymore. He told her that her husband was useless and a bad Muslim. If the first named applicant ever visited her mother at her family home, her father would call her bad names and speak to her very roughly. She would only see her mother occasionally in secret. Despite never wanting to see them again, her father still interfered in their lives no matter where they lived.
[4] A period of waiting a woman must observe after the death of her husband or after divorce during we she must not remarry. In the case of widows, it is four months and 10 days; and for other women it is three lunar months. A marriage can be re-stablished during this time if the divorcing couple decide to reconcile: Encyclopaedia Britannica online.
The first named applicant’s husband wanted to come to her family home and seek forgiveness from her parents. However, what they both got was a beating from her father. The applicant told the Tribunal that the photographs she sent to the Tribunal were photographs she had taken after that beating as she wanted to have evidence to report the matter to police because they were fed up with her father’s behaviour.
The first named applicant told the Tribunal that they decided to come to Australia after her husband had visited Australia in July 2018 to buy [an item 1]. Her husband’s best friend, who had been living in Australia for quite some time, told him to bring his wife and children because in Australia women and children were prioritised and protected. The first named applicant’s husband spent a week in Australia and returned to Malaysia with his [item]. He asked the first named applicant if she wanted to come to Australia and conveyed what his best friend told him. The first named applicant said she was quite scared to go to a foreign country. The first named applicant’s husband said that they could try it and it was decided that they would prepare to come to Australia. The first named applicant thought she could bring all her [children] to Australia but her father stopped her bringing her two children from her first marriage with her in an attempt to stop her leaving. She told her children that she would only be going away for a short holiday. The first named applicant was clearly very upset at leaving these children behind.
The Tribunal asked the first named applicant why her father had control over those two children. She responded that her first husband was a drug addict who did not care about his children and her father took responsibility for their care and let them live with them to save face in the community. The Tribunal then asked the first named applicant why these two children were not in her care. She responded that her father told her that she had re-married and had a new family and that she could not take care of all those children. The first named applicant said she was too lazy to fight him on this issue. The Tribunal asked the first named applicant whether her oldest two children were living with her and her husband before she left Malaysia. She said that they did not live with her full-time but mainly lived with her parents because they were close to her parents as the first named applicant and her first husband had lived with her parents after they married.
The first named applicant was questioned as to why she and her first husband continued to live with her parents in light of her experiences with her father. The first named applicant said that although she had a lot of relatives, she did not want to burden them and tell them about what she had experienced as it would shame her family and infuriate her father. The applicant said she and her current husband lived in a separate house that they rented.
The first named applicant was asked what gate she was tied to as punishment when she was a child. She said it was the gate in front of the block of flats in which the family resided. The first named applicant was asked about what her mother’s attitude was to her father’s behaviour. The first named applicant said her mother was afraid of her husband and that if she tried to intervene he would beat her as well. The Tribunal asked the first named applicant why she did not report her father to the police. She responded that her mother begged her not to report it and that she should pity her father. The Tribunal asked why her mother said that. The first named applicant said her mother was embarrassed about it and, in front of other family members, her father appeared very respectable and decent.
The Tribunal asked the first named applicant why her father would be following her around after she married. She said she did not know – it was just that he despised her husband. Her father harassed her husband before they came to Australia. He tried to wreck her husband’s motorcycle by pouring sand into the fuel tank. The Tribunal put to the first named applicant that her husband was much younger than her father and asked why he was afraid of her father given that he was younger and presumably stronger than her father. The first named applicant stated that her father was very tall and strongly-built whereas her husband was diminutive in comparison and he still respected her father as an older person.
The first named applicant and her husband had changed their telephone numbers so her father could not contact them that way. Before they came to Australia, they moved from Kuala Lumpur, where her parents lived, to Petaling Jaya in Selangor. The Tribunal asked the first named applicant if her father knew her address in Petaling Jaya. She said he knew where she lived and still harassed them.

The Tribunal asked the first named applicant what her and her husband’s plans were when they came to Australia. She told the Tribunal they had no plans and did not even work for the first three months after arrival. They got to know many people and were asked why they were not working. The first named applicant said that they needed to obtain a visa that enabled them to work. The first named applicant’s husband moved to [Town 1] and she remained in Melbourne to care for their children.
The first named applicant was asked why her husband was not present at the hearing. She replied that he was working in [Town 1] because it was the height of the [specified] season. Before the birth of their [child] in Australia, the first named applicant worked in a [business 2]. She had applied for a birth certificate but did not yet have a copy of it. The couple’s [Australian] child, a daughter, was born on [date]. The Tribunal explained to the first named applicant that as that child was not born at the time she and her husband had applied for a protection visa and the review, the Tribunal could not take her into account for the purposes of the review. The Tribunal informed the first named applicant that the Department needed to be informed about her child and that normally children are granted the same visa as the parents.
The Tribunal asked the first named applicant why she still feared to return to Malaysia given that it has been a few years since she last had contact with her father and she could move away from him and not let him know that she had returned. The first named applicant said that her father’s temperament had worsened with age and her sister told her that he beat her mother and their [brother]. The first named applicant said her mother told her to go away as far as possible to protect herself.
The Tribunal put to the first named applicant that the police did investigate such conduct and that there was a Women’s Aid Organisation to help women who were the victims of domestic violence. The first named applicant said that she spoke to her friends about these options and the advice was the police would not do anything about family matters unless it was really terrible. The Tribunal put it to the first named applicant that what her father was doing was really terrible. The first named applicant agreed.
The first named applicant was asked how her father would know if she returned to Malaysia if she moved somewhere away from Petaling Jaya and did not tell anyone where she lived. The first named applicant said she had a very large family. If she told her sister about her return, she might accidentally tell another relative and it would get back to her father. She said that her father had a lot of friends all over Malaysia through his time as an army officer and through his religious connections so that wherever they went, people would connect them with her father.
The Tribunal put to the first named applicant that if both she and her husband reported her father’s conduct to the police, the police would presumably take it seriously. The first named applicant said that he would be released and then he would take revenge on the first named applicant, her husband and her mother. The Tribunal put to the first named applicant that she had not given the Malaysian authorities the chance to protect her.
The first named applicant said her mother told her not to involve the authorities as it would disgrace the family and the first named applicant said she felt very sorry for her mother. The Tribunal informed the first named applicant that if she had not availed herself of protection from the police, then it was difficult for the Tribunal to conclude that her fear was well-founded and that effective protection was not available. The first named applicant said that she did not how to respond to this issue.
The Tribunal put to the first named applicant that she had disobeyed her father twice in relation to her marriages and premarital pregnancies and questioned her as to why she was not afraid of his reaction at those times. The first applicant responded that she was still very fearful and wanted to get away from him. His actions were unpredictable.
The first named applicant was asked if she stayed in touch with her mother. She did so in secret but not often. The first named applicant was in contact with her [sister] who was looking after her two children as they did not want to live with her father anymore as he was violent and oppressive.
The Tribunal put to the first named applicant for comment that paragraph 3.120 of DFAT Report stated that the Domestic Violence Act 2017 had been amended to make it easier for victims of domestic violence to have redress and assistance. The first named applicant responded that she did not have any comments. She said she lived in terror of her father since she was a small child. The Tribunal explained to the first named applicant that it had to assess whether her fear of harm was exaggerated due to the trauma of her past experiences or whether she still had a real chance or real risk of future harm. The first named applicant did not comment further.
The first named applicant nominated two witnesses – a female cousin and her mother. The first named applicant said her cousin knew about her beatings. The Tribunal told the first named applicant that it accepted that she was beaten by her father and did not need to hear from her cousin. The first named applicant confirmed that her mother was aware that the Tribunal would be contacting her but she was not sure if her mother was at work or not.
Evidence of the First Named Applicant’s Mother
The Tribunal telephoned the first named applicant’s mother. The first named applicant’s mother was reluctant to speak to the Tribunal because she was busy with her work, had not heard from her daughter for a long time and did not want to get involved. She then hung up. The Tribunal asked the first named applicant why her mother reacted in that manner when she knew the Tribunal would be contacting her.
The first named applicant said that she spoke to her mother and that her mother was concerned that her father would find out even though the first named applicant assured her this would not occur. The Tribunal put to the first named applicant that it appeared that her mother had not heard from the applicant for a long time and did not want to give evidence.
The first named applicant said that her mother was very scared of people in authority and that something would happen to her husband. The first named applicant said that the Tribunal should try to let the applicant speak to her. The Tribunal told the first named applicant that her mother said she was at work and that it did not know when it could take evidence from her. The first named applicant asked the Tribunal to try one more time and to let her speak to her mother first. The Tribunal agreed to this course of action. The Tribunal tried to call the mother again but she hung up. The Tribunal adjourned the hearing for 20 minutes to enable the first named applicant to breastfeed her child and contact her mother directly.
After the adjournment, the first named applicant confirmed she had spoken to her mother and that the Tribunal could contact her but she was busy and had to find somewhere private. The following is a summary of the evidence of the first named applicant’s mother.
The first named applicant’s mother stated that her husband was very fierce. She was asked to inform the Tribunal as to what she had seen of her husband’s treatment of her daughter and her husband. The first named applicant’s mother said her husband did not like her daughter’s husband and that he beat him. She said she did not know what to say as he did many things to her daughter. He beat her and spoke to her harshly. The Tribunal asked why the father’s conduct had not been reported to police. The first named applicant’s mother said that she would be the victim as well as her other children if the police became involved. She stated it was best that the first named applicant stayed far away. The Tribunal asked whether it was possible for her daughter to move far away in Malaysia. The first named applicant’s mother said she did not want her daughter to be in Malaysia anymore.
The Tribunal put it to the first named applicant’s mother that as it had been several years since the couple left Malaysia, would it be possible for her husband to finally make peace with the marriage. The first named applicant’s mother responded that she could not be confident about this because her husband could get angry at any time and hated his son in law. They never mentioned the first named applicant’s name at home.
The Tribunal informed the first named applicant that it would have her husband’s review application allocated to it and make arrangements to take evidence from him as soon as possible.
Evidence at Hearing on 28 February 2025 from [name], the Fourth Named Applicant.
The fourth named applicant appeared by MS Teams video. The first named applicant was also present. The couple were both suffering from a cold but confirmed that they felt well enough to proceed with the hearing using the assistance of the interpreter arranged for the hearing. The following is a summary of the evidence given by the fourth named applicant.
The fourth named applicant confirmed he was born in Kuala Lumpur and that he is of Malay ethnicity and of the Muslim faith but not observant. His parents were both alive. His father has a [business 3] and his mother is a housewife. He had [other specified family members]. [One] sister is married but he has not had contact with [another] sister for a long time as he had a falling out with her eight years ago. The fourth named applicant said he seldom had any contact with his family in Malaysia. His mother was in Australia but he did not know what visa she was holding. His mother had been in Australia since 2018.
The fourth named applicant stated that contrary to what was in his protection visa application, he did not complete secondary school and left school at the age of [age]. He did not do any further study in Malaysia. He went to work in [specified roles] in schools on a part-time basis for five or six years. His other source of income was [specified]. [Employment details deleted.] The fourth named applicant was currently employed at the [a farm] and had been working there for six months. Prior to that he worked at fruit farms in the [Town 1] area for around six years. He told the Tribunal that he did not send money back to his family in Malaysia.
The Tribunal asked the fourth named applicant why he did not apply for a protection visa before his ETA expired. He said he did not know about protection visas and only found out about them from a friend of his wife’s. They applied for protection separately because he was in [Town 1] and his wife was in Melbourne. They saw each other once a fortnight in Melbourne. His wife and the friend assisted him with his protection visa application. He did not know what was in the application.
The Tribunal informed the fourth named applicant that it was claimed in his protection visa application that he was gay and that faced harm in Malaysia. The Department wrote to him on 24 March 2022 requesting further information but no response was provided. The fourth named applicant confirmed that the claim about him being gay was not true. The Tribunal asked whether he recalled receiving the request for further information. He said he did not..
The Tribunal informed the fourth named applicant that his application was refused by the delegate because she did not believe his claim was credible. The Tribunal asked him how he found out that his application was refused. He told the Tribunal his wife’s friend informed him. He did not know why his application had been refused. The fourth named applicant was asked if the friend explained to him what claims were made and why the application was refused. He said he did not – he just paid the money and it was done. The Tribunal asked him if he realised that applying for protection was a serious matter. He said that all he knew was that if he did not hold a visa, he would have to go back to Malaysia.
The fourth named applicant was asked if anyone assisted him with the review application to the Tribunal. He said that his wife’s friend assisted. He was asked if he took any interest in the application to find out what was being submitted on his behalf. He did not. All he knew about was opening VEVO.[5] This showed visa status and whether he was allowed to work or not.
[5] Visa Entitlement Verification Online on the DHA website
The couple met by chance via Facebook. They met in person at [a named venue] at [Suburb 1] in 2013. They married a few months later but he could not recall the date. The Tribunal noted that there was no copy of the marriage certificate on the Departmental or Tribunal file. The applicant was requested to provide a copy to the Tribunal with an English translation if necessary. The marriage took place in Kuala Lumpur and was only attended by his mother, [one] sister and his wife’s parents. There was no wedding celebration because his wife’s family disapproved. The couple lived at [Suburb 1] in a rented apartment.
The fourth named applicant told the Tribunal that he had a very bad relationship with his wife’s parents. Her father despised him because his wife was pregnant at the time they got married, he had [specified physical features] and drank alcohol. His father in law thought he was not a good Muslim. The couple had [number] children together in Malaysia and [another] child, a daughter, born in Australia.
The fourth named applicant said his father in law had been an army officer and was a very tall, well-built man in his [age range]. He was very religious and hot tempered. He did not even look at him while the marriage ceremony took place. He was beaten by his father in law several times. His father in law demanded that the couple divorce. The Tribunal asked him why his father in law would want that given that they had already had children. The fourth named applicant said it was because he did not behave as a Muslim. He refused to divorce his wife because he loved her and had children with her. His father in law was upset and every time they met, his father in law would pick a fight. The fourth named applicant did not hit him back because his father in law was bigger and stronger. The fourth named applicant said he was [height] centimetres tall whereas his father in law was well over [more] centimetres.
The fourth named applicant said they did not see his in-laws. It was only when he had a fight with his wife and she returned to her family home that he saw them when he went there to get her to come back to their home. His mother-in-law was unable to do anything to improve the relationship. His father in law would come to the couple’s home every now and then to disrupt their lives. His father in law’s assaults took the form of slapping, kicking and strongly pulling the fourth named applicant’s long hair.
The fourth named applicant said his father in law did not take any interest in his grandchildren. He told the fourth named applicant that he hated his children.
The fourth named applicant said he initially came to Australia to buy [an item 1] in mid-2018. Friends of his told him about this unique [item]. He spent over a week in in Melbourne at a backpackers hostel at that time. His wife and children were in Malaysia. He decided to take his wife and children to Australia within two months of his return as he had been running away from his father in law for a long time. The Department’s movement records show that the fourth named applicant came to Australia [in] July 2018 and departed [in] August 2018.
The Tribunal asked the fourth named applicant why he would move all the way to Australia rather than to another city in Malaysia. He said that his father in law was a famous person because he was very active in his mosque and belonged to a group in Malaysia called Tablighi Jamaat.[6] Members of this group travel from one state to another promulgating their strict version of Islam and advocating for the arrest of those caught consuming alcohol. His father in law was called [father’s name] as [details deleted]. He had many friends around Malaysia and was well known for his violent temper and strict adherence to Islam. The Tribunal asked the fourth named applicant whether he had thought of going to the police to complain about the assaults. The fourth named applicant said he tried but the police would not get involved in family matters. It was put to the fourth named applicant whether he could ask the police to arrest his father in law for unlawful assault. He said he tried but it was of no avail.
[6] The Oxford Dictionary of Islam (Oxford University Press, 2003) defines tabligh as an Arabic word meaning communication of a message or a revelation which is considered equivalent to da’wah – propagation of the faith. The Tablighi Jamaat is a transnational organisation that originated in India in the 1920s whose aim is to promulgate Islam. Its emphasis is on religious renewal and not on political goals.
The fourth named applicant was asked whether the police made a formal report about his complaint. He asked one of his friends who was a policeman who told him that family problems were not taken very seriously. The Tribunal asked what the police officer friend advised him to do. He said he told him to move. The Tribunal informed the fourth named applicant that laws were introduced in Malaysia to assist people suffering from family violence and that there were organisations specifically for helping women. The Tribunal asked him whether they had considered approaching such organisations. The applicant said that there were such laws but they did not help them.
The Tribunal asked the fourth named applicant what he feared about returning to Malaysia now that seven years had passed. He said that he did not want his children to feel stressed in Malaysia. His oldest daughter was considered illegitimate as she was born before they were married. She could not take his surname and would be made fun of at school. It would also cause difficulties for her in getting married. The Tribunal put to the applicant that he could change the child’s name but the applicant said they could not because they were Muslim.
The Tribunal asked the fourth named applicant to send in copies of his children’s birth certificates. He said he would. The Tribunal pointed out that the [Australian born] child was born after the delegate made their decision and she could not be included in the Tribunal’s decision but that that she would be given the same bridging visa as them. The Tribunal also asked whether they could send a recent a photo of the father in law and any public documents mentioning him. The fourth named applicant said that this was possible but that he was no longer in contact with his policeman friend. The fourth named applicant said he had changed his phone number and confirmed that his father in law knew they were in Australia.
The Tribunal asked the fourth named applicant whether there was anything else he feared about returning to Malaysia other than his family situation. He said there was not but he did not like being controlled by Islam.
The Tribunal emailed the couple on 4 March 2025 requesting that they provide copies of their marriage certificate and birth certificates for their children as well as information concerning [the first named applicant’s father’s] public profile as an Islamist in Malaysia.
Post Hearing Evidence
On 13 March 2025, the first named applicant emailed the following documents to the Tribunal:
(a)Original and English translation of Marriage Certificate showing the date of marriage as [a day in] March 2014;
(b)Original and English translation of Birth certificate for [the third named applicant] born on [date];
(c)Original and English translation of Birth certificate for [the second named applicant] born on [date]; and
(d)Original and English translation of a Hajj Certificate for the first named applicant’s father (date illegible)

The Tribunal emailed the couple on 14 March 2025 requesting information demonstrating that [the first named applicant’s father] was publicly well known as a conservative religious figure in Malaysia. The first named applicant responded by email on 15 March 2025 to advise that he was not politically or socially high profile but was famous in his own mosque as a religious conservative and that he had many friends all over Malaysia through his religious activities.
On 25 March 2025, the first named applicant emailed a photograph of her father. The photograph depicted a tall well-built and fit looking man who appeared to be in his [age range].
The first named applicant emailed a copy of the couple’s Australian born daughter’s birth certificate to the Tribunal on 17 April 2025. The birth certificate stated that [this child] was born on [date] in [Town 1], Victoria.
PROTECTION VISA CRITERIA
The criteria for a protection visa are set out in section 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 sections 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: section 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: section 5H(1)(b).
Under section 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. A real chance is one that is not remote, insubstantial or far-fetched: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279 at p.389 per Mason CJ; at p. 398 per Dawson J; at p.407 per Toohey j and at p. 429 per McHugh J. A fear can be well founded even if the possibility of persecution or serious harm occurring is less than 50%: at p. 398 per Dawson J.
The concept of well-founded fear has subjective and objective elements. “Fear” refers to the applicant’s feelings and “well-founded” connotes that the fear has a rational basis that is supported by independently verifiable objective facts concerning the situation in the applicant’s home country.[7]
[7] Refugee Law Guidelines at paragraph 3.4.2
Persecution must involve serious harm to the person and systematic and discriminatory conduct. Serious harm includes threats to a person’s life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where that denial threatens the person’s capacity to subsist and denial of the capacity to earn any kind of livelihood where that denial threatens the person’s capacity to subsist: section 5J(5). Any of the aforementioned reasons must be an essential and significant reason for the serious harm being inflicted: section 5J(4).
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 sections 5J(2)-(6) and sections 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in section 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: section 36(2)(aa) (‘the complementary protection criterion”). The Full Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) FCR 505 at [246] held that the real risk test was the same as the real chance test.
The meaning of significant harm is exhaustively defined in section 36(2A) of the Act, meaning that the person will be arbitrarily deprived of their life, be subjected to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The terms cruel and inhuman treatment and punishment or degrading treatment or punishment are further defined in section 5(1) of the Act and the definitions are included in the legislative extracts appended to this decision as attachment A.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that they could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [36]-[40].
The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11 at [60]–[61].
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.84, made under section 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 (“the DFAT Report”), to the extent that they are relevant to the decision under consideration.
The most recent report from DFAT is the Country Information Report for Malaysia dated 24 June 2024 together with the country information referred to in this decision.
The Refugee and Complementary Guidelines prepared by the Department contain legal analysis and provide examples of how the relevant law has been applied in different jurisdictions. They also provide guidance as to how the law is to be applied.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal is required to make findings of fact on relevant matters in determining whether an applicant is owed protection obligations. This will often involve an assessment of an applicant’s credibility. The Australian courts have made a number of observations concerning credibility assessment in the protection visa application context and the Tribunal is mindful of the difficulties faced by applicants in a foreign legal system and culture. Such difficulties can be compounded by an applicant’s experiences of trauma, their level of education and state of physical and mental health.[8] However, this does not mean that the Tribunal is obliged to accept what an applicant says uncritically.[9]
[8] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30]; Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45 at [30] and [34] per curiam; Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 per Gray J
[9] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J
Section 5AAA of the Act makes it the applicant’s responsibility to specify all the particulars of a claim and provide sufficient evidence to substantiate any claim that enlivens Australia’s protection obligations. The Tribunal does not have any responsibility or obligation to specify or assist an applicant in specifying or establishing any particulars of their claims. This reflects the long-established legal principle in Australia for that it is up to the applicant to make out their own case[10] and that the Tribunal is not in the position of contradictor or cross-examiner. It is not required to have evidence rebutting an applicant’s assertion in order to find that an applicant’s assertion is not made out.[11]
[10] Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 per Gleeson CJ, Gummow, Callinan and Heydon JJ at [57]; Luu v Renevier (1989) 91 ALR 39 at p. 45 per coram; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p. 170 per Wilcox J
[11] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437at [57] per Gummow and Heydon JJ; Gleeson CJ agreeing and [85] per Kirby J; Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576[187] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [18] per curiam.
Section 367A of the Act requires the Tribunal to draw an adverse inference to the credibility of an applicant’s claim or evidence if that evidence was not placed before the primary decision was made if the Tribunal is satisfied the applicant does not have a reasonable explanation for why that claim or evidence was not provided earlier.
The Tribunal accepts that the applicants relied on another person to prepare and assist with their protection applications. The issues raised by the applicants were of a highly sensitive personal nature which the Tribunal appreciates the applicants would not be comfortable disclosing to someone within their community and, consequently, the Tribunal is satisfied that there is a reasonable explanation for the claims and evidence not being raised before the primary decisions were made.
The Tribunal accepts that Malaysia is the receiving country for the purpose of assessing Australia’s protection obligations based on the applicants’ Malaysian passports and there is nothing before the Tribunal to cast doubt on the authenticity of those documents. The Tribunal also accepts that the applicants do not have a right to enter and reside in any other country apart from Malaysia.
REASONS AND FINDINGS – FIRST, SECOND AND THIRD NAMED APPLICANTS
Do the applicants satisfy the refugee criterion for protection?
The first issue in this case is whether the applicants meet the criteria to be owed protection as refugees; that is, for any of the reasons mentioned in section 5J(1)(a) of the Act. The first named applicant fears harm from her father. The Tribunal found the first named applicant and her husband to be credible witnesses. The first named applicant’s mother confirmed that the couple had been beaten by the first named applicant’s father and that she and her other children would suffer if his conduct were reported to police. The initial reluctance of the first named applicant’s mother to give evidence reflected the fear she had of the first named applicant’s father.
The Tribunal finds that the conduct of the first named applicant’s father was not for the essential or significant reason of the first named applicant’s race, religion, nationality, membership of a particular social group or political opinion. The father’s violence against the first named applicant, her siblings and her mother appears to be based on his authoritarian disposition and expectation that he would be obeyed.
Do the applicants satisfy the complementary protection criterion for protection?
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 conduct of the first named applicant’s father involved one instance of incestuous sexualised contact with the first named applicant and many instances of physical violence against her and several against her husband. His conduct in the past was intended to cause severe physical pain and severe psychological humiliation to the first named applicant in order to punish her for her perceived wrong doings and to exercise coercive control over her. The Tribunal finds that beating the applicant and tying her to the front gate to publicly shame her go beyond reasonable parental discipline. The Tribunal finds that the father’s beatings fall within in the definition of significant harm in section 36(2A)(d) and (e).
The first named applicant did not state that there was any further sexualised contact from her father. Incestuous relationships are prohibited by shariah and under the Malaysian Penal Code,[12] - the offence focuses on sexual intercourse between persons in a prohibited degree of relationship. While the sexualised contact by the first named applicant’s father is a form of sexual assault, the Malaysian Penal Code does not contain any provisions that expressly mention sexual assault. The offence of Outrages on Decency in section 377D refers to acts of gross indecency done in public or private. Gross indecency is not defined in the Penal Code and this offence is punishable by two years’ imprisonment. The Women’s Aid Organisation website lists the forms of sexual assault covered by Malaysian law apart from rape and it mentions various offences against children as well as Outrages on Decency and use of force with the intent to outrage modesty which is punishable by imprisonment up to 10 years or whipping.[13]
[12] Section 367A of the Malaysian Penal Code
[13] Sections 377D and 354 of the Penal Code; >
The first named applicant did not refer to any other instances of sexual contact from her father and the Tribunal finds that there is no real risk that it would be repeated in the reasonably foreseeable future. In making that finding, the Tribunal recognises the deep distress it caused to the first named applicant and that it continues to affect her when she recalls it.
There is country information before the Tribunal that incest is an issue of concern in Malaysia and that it was under-reported due to the victim’s sense of shame, fear and societal taboos.[14] Some 6300 cases were reported between 1997 and 2022.[15] Incest is prohibited by the Malaysian Penal Code and there is evidence that incest is on the increase in Malaysia, particularly in low-income families. The authorities are attempting to provide better reporting mechanisms and educational materials that are directed at reducing the stigma and shame felt by victims.[16]
[14] “Continued existence of incest is worrying” – Sivanisvarry Morhan, The Sun, 28 June 2024.
[15] Ibid.
[16] “Nation faces growing issue of incest” – Kirtinee Ramesh, The Sun, 20 January 2025
Family violence is also a major problem in Malaysia. The Malaysian Constitution bans discrimination against women but nevertheless such discrimination continues to persist and violence against females is significant and under-reported.[17] The Malaysian authorities have introduced initiatives such as the Domestic Violence (Amendment) Act 2017, women’s shelters, specialised One Stop Crisis centres in hospital emergency apartments, Emergency Protection Orders and specially trained female police officers. However, the requirement to report family violence to the nearest police station to the incident can make it difficult for women because the perpetrator may be on friendly terms with the police and most women’s shelters are under-resourced to meet the demand.[18]
[17] DFAT Report at paragraphs 3.11 and 3.15
[18] Ibid.at paragraphs 3.119-3.123.
The Women’s Aid Organisation (“VAO”) provides advice, training to organisations and government bodies, referrals to One Stop Crisis Centres, assistance with making police reports and applying for Emergency Protection Orders.[19]
[19]
In a survey done by the VAO in 2021, 53% of Malaysians considered that domestic violence against women was a normal reaction to everyday stress and frustration.[20] DFAT assesses that females in Malaysia face a moderate risk of gender-based violence in the form of domestic violence and that State protection is not consistently reliable in that not all police stations have female officers and police often fail to follow up reports of gender-based violence, believing it to be a “family matter”.[21]
[20] [20] Women’s Aid Organisation – A Study on Malaysian Public Attitudes and Perceptions towards Violence Against Women November 2021 at pp 39-40.
[21] DFAT Report at paragraphs 3.117-3.118 and 3.125; “Women’s minister says aware some cops refuse to accept domestic violence reports, will bring this up with Home Ministry”, Malay Mail, 28 March 2022.
The Domestic Violence Amendment Act 2017 is gender neutral and offers protections to victims harmed by spouses or family members regardless of the victim’s sex. Malaysia’s domestic violence legal framework also requires police to investigate reports of domestic violence against males. However, many males are reluctant to report domestic violence out of embarrassment or because they fear the police will not take them seriously.[22] There were reports concerning male victims of domestic violence in Penang[23] and Selangor.[24]
[22] “Intimate partner violence within the frame of Malaysian laws” – M.S.M Na’aim, R. Rajamanickam, R. Nordin – UUM Journal of Legal Studies, Vol 13, Number 1, January 2022 at p. 134.
[23] “Husbands are also victims of domestic violence,” Bernama, 28 November 2023;
[24] “Selangor records increase in domestic violence cases since 2017 – Police”, Bernama, 13 September 2023.
The evidence before the Tribunal is that the applicant’s father is a former army officer and that he is part of the Tablighi Jamaat movement in Malaysia. The Tribunal accepts that the applicant’s father has shown a pattern of unwavering vindictiveness towards her and her husband. The Tribunal also accepts that he is an observant Muslim that seeks to promulgate a conservative interpretation of Islam. The Hajj is the fifth pillar of the five pillars of Islam and involves numerous rituals as well as considerable expense, although the Malaysian Government provides subsidies for low income earners going on their first pilgrimage to Mecca.[25]
[25] Encyclopedia Britannica on-line; The New Encyclopedia of Islam – Cyril Gasse (Rowman & Littlefield Publishers, Inc, Maryland, Fourth Edition, 2013); “Tabung Haji maintains Haj cost at RM33,000, allocates RM261m for Malaysian pilgrims in 2025 subsidies” – MalayMail, 16 December 2024.
The applicant and her husband have also expressed concern that their eldest daughter is regarded as illegitimate despite their marriage. It is not possible to legitimise Malay Muslim children born out of wedlock or less than six months after the date of marriage.[26] An illegitimate child has no right to inherit their father’s property unless expressly provided for in his will.[27] Until recently, illegitimate children were required to bear the surname Abdullah which immediately identified them as illegitimate as it was not permissible to register the father’s name on the birth certificate.

The Malaysian Federal Court overturned the decision of a lower court that held that the father of an illegitimate child could put his name on the birth certificate. The Federal Court held that section 13A of the Births and Deaths Registration Act 1957 did not apply to the registration of Malay Muslim children as Malays do not have surnames.[28] Section 13A(2) of the Malaysian Births and Deaths Registration Act 1957 provides that a father of an illegitimate child can have his name placed on the child’s birth certificate if he requests it. The Malaysian Legitimacy Act 1961 makes it possible for illegitimate children to be made legitimate but does not apply to Muslim Malays: section 3.
While illegitimacy is not a rarity in Malaysia, it carries a strong social stigma.[29] Illegitimate children are subjected to taunts and humiliation at school which is likely to have an adverse impact on their mental health. Illegitimacy can also have an ongoing adverse impact on educational, career and relationship prospects. In many instances, such children will be ostracised from their extended families due to the shame of illegitimacy. The Tribunal accepts that taunts, bullying and social ostracism can amount to significant harm in the form of degrading treatment or punishment if it results in severe mental distress.
The Tribunal is prepared to give the first named applicant and her husband the benefit of the doubt that the first named applicant’s father is well-known in Islamic circles throughout Malaysia. The applicant’s mother’s evidence was that her husband was fiery and unpredictable. As a former army officer and a part of the Tablighi Jamaat movement in Malaysia it is plausible he would have contacts throughout the country and also with the Malaysian authorities.
The couple impressed the Tribunal as committed to each other and their children. There is no evidence before the Tribunal that the couple’s marriage will not continue. The fourth named applicant has a distinctive physical appearance in terms of his [specified physical features] which would make him more readily recognisable and identifiable regardless of where he lived in Malaysia.
[26] “Does Illegitimacy Status of Children Matter? A Review on Malaysian Perspectives” Meerah Deiwi Raja Gopal, International Journal of Applied Psychology, 2015, 5(4) 109-114.
[27] “Born out of Wedlock in Malaysia – 3 Conditions where Muslims can inherit property” – Property Guru, 1 June 2021
[28] “Federal Court rules Muslim child conceived out of wedlock cannot use father’s name” – New Straits Times, 13 February 2020.
[29] Does Illegitimacy Status of Children Matter? A Review on Malaysian Perspectives” op cit. at p. 110; “Discrimination against an Illegitimate Child According to Law and Society” Anur Nadhrah Roslan; Nik Sarah Adilah Abdul Aziz and Fathin Izzati Mohd Shaharudin, Current Legal Issues, (2021) 3 at 16-21; at p. 19.
In light of the country information concerning the inconsistent approach of the Malaysian police to domestic violence and the possibility that the applicant’s father has influence with the police, the Tribunal finds that there is a real risk that effective protection may not be provided to the applicants and that relocation would not be a durable way to avoid the risk of significant harm recurring in the reasonably foreseeable future: section 36(2B) of the Act.
The Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and that she satisfies the criterion set out in section 36(2)(aa) of the Act.
The Tribunal is satisfied that the second and third named applicants satisfy the criterion in section 36(2)(c)(i) of the Act as they are a members of the first-named applicant’s family unit. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the applicants will be entitled to a protection visa provided the criterion in section 36(2)(c)(ii) and the remaining criteria for the visa are met.
REASONS AND FINDINGS – FOURTH NAMED APPLICANT
In contrast to the first named applicant and based on the same factual findings set out above, the Tribunal finds that the conduct of the fourth named applicant’s father in law was for the essential or significant reason of the fourth named applicant’s religion – or rather his lack of compliance with the tenets of Islam as considered correct by his father in law. Reprisal for having no religion or not practising a religion can constitute persecution for the essential and significant reason of religion: Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 57 at [19] per Madgwick J.
The physical assaults on the fourth named applicant constitute significant physical ill-treatment which falls within the parameters of serious harm in section 5J(5) of the Act. The conduct was systematic and discriminatory on the father in law’s part. The assaults were not random violence but directed at the fourth named applicant personally. The assaults do not have to be regular, organised or methodical in order to be systematic and discriminatory. It is accepted law in Australia that even a single act will be sufficient if it is deliberate and intended to harm: Haji Ibrahim v Minister for Immigration and Multicultural Affairs [2000] HCA 55; (2000) 204 CLR 1 at [95]; [99]-[100].
The Tribunal accepts that the fourth named applicant is not physically a match for his father in law and that there is a real chance that the father in law would assault him again based on his past conduct, at least for as long as the fourth named applicant remains married to the first named applicant.
The Malaysian Constitution states that Islam is the religion on the Malaysian Federation and persons born in Malaysia of Malay ethnicity are automatically classified as Muslims.[30] Sunni Islam is the only version of Islam that is acceptable in Malaysia and is the only religion that is permitted to proselytise.[31] The Tribunal finds that there is a real chance that the Malaysian authorities may not be willing to protect the fourth named applicant from his father in law in the reasonably foreseeable future.
[30] DFAT Report at paragraph 3.36
[31] Ibid at paragraph 3.37.
The Tribunal also finds that the fourth named applicant cannot be reasonably expected to modify his appearance or alter his lack of religious observance to comply with his father in law’s expectations as such a modification would conflict with characteristics that are fundamental to his identity: section 5J(3)(a) and 5J(3)(c)(i).
Consequently, the cumulative effect of the Tribunal’s findings leads it to conclude that a real chance of persecution relates to all areas of Malaysia in the reasonably foreseeable future.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
(i)the first named applicant meets section 36(2)(aa) of the Migration Act; and
(ii)that the second and third named applicants satisfy section 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant; and
(iii)the fourth named applicant meets section 36(2)(a) of the Migration Act.
Date of Hearings: 14 and 28 February 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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