1923461 (Refugee) - [2025] ARTA 959

1923461 (REFUGEE) [2025] ARTA 959 (28 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1923461
Tribunal:General Member L Luo
Date:28 March 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 28 March 2025 at 4:43pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity and political opinion – indigenous Sabahan and member of separatist organisation – distributed pamphlets at local markets – other members detained and leader subject to arrest warrant – fear of harm from police and Filipino group which claims Sabah as part of the Philippines – low-level social media activity in Australia – renewed passport and visited with no harm – religion and particular social group – Christian woman with child born out of wedlock – separated from Muslim partner with no contact or knowledge of whereabouts – blamed by siblings for mother’s death – financial circumstances – education and work history – child eligible for Malaysian registration and citizenship – applicant not subject to syariah law – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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[1] of a decision made by a delegate of the Minister for Home Affairs on 15 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of Malaysia, applied for the visa on 18 May 2018. The delegate refused to grant the visa on the basis that the applicant will not face serious harm in Malaysia for reasons of her political opinion.
The applicant appeared before the Tribunal on 7 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.
BACKGROUND
The applicant is a [Age] year old woman who was born in [Town], Sabah, Malaysia. She is of [Ethnicity] (Indigenous Sabahan) and Christian faith. She arrived in Australia [in] March 2018 on an Electronic Travel Authority.
Evidence before the Department
In her protection visa application, the applicant claimed that she joined the organisation “Sabah’s Right to leave Malaysia”. She claimed that this organisation was criticised and banned by the Malaysian government, and Filipinos in Sabah also threatened members of this organisation. She claimed that her security is not guaranteed if she lives in Sabah. Filipinos in Sabah hate the organisation she joined and they threatened her life. She claimed that Malaysian authorities do not take any action because the organisation is not recognised, she tried to move elsewhere several times in Sabah but was asked to move by the authorities once they knew she was a member of the organisation.
The applicant was not invited to an interview nor requested to provide further information.
The delegate noted, in their decision, that they could not find evidence of an organisation called “Sabah’s Right” and instead assessed the applicant against country information about the Sabah-Sarawak Keluar Malaysia (SSKM) organisation. The delegate found that the there was no information to indicate supporters of SSKM face ill-treatment in Malaysia, as a result the delegate found there was no real chance the applicant will face serious harm in Malaysia for reasons of her political opinion.
Evidence before the Tribunal
In response to a pre-hearing information request, the applicant claimed that she heard the Malaysian government still arrests members of SSKM and Filipinos in Sabah still threaten anyone who belongs to the organisation. She also claimed that her family don’t accept her because she is pregnant with her Muslim partner. Her partner has already left her, and her family are Christians who can’t accept her because she is pregnant and have embarrassed them. She is confused about where to go and to stay if her visa is no longer valid, because she needs to work and make money for hospital bills and expenses for survival.
At the hearing, the applicant said she came to Australia because she was a member of SSKM. She said that in Malaysia she was scared of the police and Filipinos. She claimed there was a Filipino group who behaved like the police and they targeted members of SSKM. She was not harmed by the Malaysian police or the Filipino group. She claimed that she is still a member of SSKM and shares information that SSKM posts on [Social media 1]. She knows a few members of SSKM in Australia but she does not follow them. She claims that she would still continue to be active in SSKM if she returns to Malaysia, but she was also unsure if she would be harmed by the Malaysian government if she returned to Malaysia now as a member of SSKM.
She stated at hearing that the main reason she does not want to return to Malaysia is because she is a single mother with a son born out of wedlock and her family do not approve. She claimed that there was friction with her siblings because her mother passed away in January 2025 and her siblings blame her for causing their mother to become ill. She said that she went back to Malaysia [in] December 2024 and stayed for about three weeks to take care of her mother in hospital. After her mother passed away, she had a big fight with her siblings as they blamed her for their mother’s death. Her siblings told her not to return to Malaysia because she brought shame to the family. They also said that the house she build for her mother is no longer hers and that if she returns to Malaysia, they will take her child away. She said that her main concerns about returning to Malaysia are needing financial support and to sort out her child’s documentation as he does not have a Malaysian birth certificate or passport.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether there is a real chance the applicant will be seriously harmed if she returns to Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I accept that the applicant is a Malaysian citizen and Malaysia is the country of reference.
I accept the applicant is of [Ethnicity] ethnicity and Christian faith, and that she was born and raised in Sabah and lived there until her departure for Australia. I accept that she is an unmarried single mother with no family in Australia. I accept that she was a member of SSKM prior to departing Malaysia for Australia.
SSKM Involvement
I do not accept the applicant will be harmed now or in the reasonably foreseeable future if she returns to her home area as a member of SSKM. For the following reasons, I find that the applicant did not hold a significant leadership or other prominent position when she was a member of SSKM, nor was her involvement of a level that would have led her to have a profile with the Malaysian authorities.
The applicant claimed that, when she lived in [Town], she went to SSKM meetings and followed them on [Social media 1]. She said the meetings were held in community halls once a week in 2015, decreasing to once a month in 2015. She claimed that in these hearings, they discussed distributing SSKM pamphlets, gathering signatures and advertising on SSKM on [Social media 1]. The applicant said that she attended these meetings and distributed pamphlets twice in 2016. Once was in [Location], but she could not remember where the second place was.
The applicant claimed that SSKM members distributed pamphlets in multiple groups of 6-7, usually at weekend markets. The applicant claimed that, in 2016, there was news that a few people who were distributing leaflets were detained, so pamphlet distribution was slowed down because the members were frightened. The second time that the applicant went to distribute pamphlets, some police came and detained members of another group that the applicant was not a part of. She claims that those detained were charged with instigating unrest and the leader of the group, if found guilty, would be sentenced with instigating unrest in citizens. The applicant claimed that members of the group gave names of SSKM members to the police and she thinks they gave the police her name, but she was not sure. She states that she was never arrested or questioned by police, and that many people knew she was a member of SSKM. She claims she put her signature down as a supporter of SSKM and is on a list, but she does not know where the list is.
After coming to Australia, the applicant said that she continued to be a member of SSKM and believed its cause. She claimed that she shares information from SSKM’s posts on [Social media 1] and that she has only done so this year because the SSKM [Social media 1] page has been banned for a few years. She could not remember when the SSKM [Social media 1] page was banned. She states that she uses other social media platforms such as [Social media 2 and 3], however she only shares SSKM information on [Social media 1]. She also indicated that she knows a few SSKM members in Australia but does not follow them, though she is aware that they are still active.
Media reports about the SSKM movement focus mainly on its UK based founder, Doris Jones, who was issued with an arrest warrant in 2015 by a Tuaran court. Most of these reports were from 2015-2017.[2] Malay Mail reported that four volunteers from SSKM were charged under the Sedition Act after distributing pamphlets promoting Sabah’s secession from Malaysia at the Tuaran open market in February 2015,[3] those charges were subsequently dropped in 2016.[4] I accept that these reports are indicative of Malaysian authorities’ treatment of SSKM volunteers in 2015 and 2016, and are broadly consistent with the applicant’s account of what she heard happened to some SSKM volunteers in 2016. There have been no recent reports of SSKM members or volunteers being prosecuted, detained or harmed by Malaysian authorities. DFAT country information states that, while there is significant discontent in Sabah and Sarawak regarding perceived failure of Peninsular Malaysia to honour the 1963 Malaysia Agreement, Malaysia does not have significant separatist sentiment, and real separatist intent regarding Sabah was confined to overseas diaspora. While there is debate on the topic, it is focused on Sabah achieving greater autonomy and restoration of perceived entitlements under the Malaysia Agreement rather than independence. When I discussed this with the applicant at hearing, she agreed that the situation for SSKM members was more serious between 2015-2018 and she has not heard anything about SSKM members being harmed now. She claims that she feared arrest and harm from Malaysian authorities in 2018, but now she is unsure if anything would happen or if she would be harmed.
[2] For example, Malay Mail articles about SSKM at accessed 27 March 2025.
[3] Sabah secessionist group volunteers charged with sedition, Malay Mail, 16 March 2015, accessed 27 March 2025.
[4] Court drops sedition charges against four Sabah secessionists, Malay Mail, 28 September 2016, accessed 27 March 2025.
I accept the applicant’s evidence about her involvement with SSKM and find that her activities were of a limited nature both in Malaysia and Australia. At the height of SSKM’s activities in Malaysia in 2015-16, she only volunteered with pamphlet distribution twice despite her claimed attendance at all meetings. She did not claim that she had any other involvement with SSKM activities when she was in Malaysia. Although she has shared posts about SSKM on [Social media 1], I find that this only constitutes a small portion of her social media usage and would not be significant enough to give her a political profile in Malaysia.
The applicant returned to Malaysia for three weeks from late December 2024. She had no issues renewing her passport in Australia. She had no trouble entering or leaving the country, and she was not questioned about her involvement with SSKM when she was in Malaysia. The applicant expressed that she was not scared for her safety based on her SSKM membership when she was in Malaysia, though she stated that she spent most of her time with her mother and did not travel or go out much. Nevertheless, she did not hesitate to return to Malaysia nor did she take steps to avoid anyone knowing about her return. I find that she was not harmed when she was in Malaysia as a result of her SSKM membership, nor was she at any risk of harm on that basis at the time.
The applicant indicated that she will continue to support SSKM and be involved with SSKM if she returns to Malaysia. She indicated that her involvement would be similar to what she has done so far. She stated that SSKM is still active in Sabah, but only on [Social media 1]. She says that there are no longer pamphlets being distributed and SSKM is not active outside Sabah or Sarawak. She did not claim that she was involved with any other organisation or seek to be involved with any other organisation advocating for Sabah’s rights. Accordingly, I find that if she returns to Malaysia, she will continue to share some SSKM content on [Social media 1]. I find that this activity will not bring her to the attention of Malaysian authorities nor would it be significant enough to raise her profile and lead the Malaysian authorities to take action against her. Based on DFAT country information, social media users who criticise the government or politicians face a low risk of official discrimination in the form of legal action by authorities and the risks are higher for prominent social media users than for those who do not have a significant public profile. I also find, based on media reports about SSKM, that authorities have taken minimal action against SSKM members and volunteers in the past and there is no indication they have been targeting SSKM members since 2016. Since SSKM’s activities are now only on [Social media 1], it appears that Malaysian authorities’ interest regarding SSKM has reduced. It appears that the only interest Malaysian authorities have regarding SSKM is the outstanding arrest warrant for founder Doris Jones. As the DFAT country information indicates that separatist intent regarding Sabah is confined to the overseas diaspora, and debate regarding Sabah within Malaysia is focused on achieving greater autonomy rather than independence, I find that the Malaysian authorities are no longer interested in SSKM members in Malaysia and will not arrest or detain SSKM members in the future. The applicant’s SSKM involvement in Australia has also been minimal and did not raise her profile such that Malaysian authorities would identify her as part of the overseas diaspora with separatist intent, evident by the fact that she had no problems renewing her passport and entering or leaving Malaysia in December 2024 and January 2025. The applicant has also indicated that she is unsure if she would be harmed, and that her main concern about returning to Malaysia is ensuring she has sufficient financial resources and her son has the appropriate identity documents and passport. I find that there is no real chance the applicant will be harmed by Malaysian authorities based on her past, current or future involvement with SSKM, if she returns to Malaysia now or in the reasonably foreseeable future.
The applicant claimed that there is a Filipino group who behave like the police in Sabah. She does not know their name but they captured members of SSKM because they considered Sabah to be part of the Philippines. She claimed that this group would treat any SSKM members that they captured roughly and question why they joined SSKM. The applicant says she was never harmed by this group nor was anyone in her pamphlet distribution group captured or harmed. When I queried the applicant about the claimed aims of this Filipino group and why they would target SSKM members specifically, given both groups appear to want Sabah to leave the Malaysian federation, she claimed that the difference was that SSKM wanted Sabah to be an independent country while the Filipino group believed Sabah belonged to the Philippines. She did not otherwise articulate any reason for why the Filipino group would target SSKM members in particular. She stated that she was not harmed by the group when she returned to Malaysia for three weeks in December 2024.

I do not accept the applicant’s evidence about the Filipino group attacking SSKM members. She did not know the name of the group, did not provide any documentary evidence or point to any media articles about the group, and could not explain why SSKM members would be targeted if the Filipino group wanted to claim Sabah for the Philippines. While there is country information about the territorial dispute between Malaysia and the Philippines over the eastern part of the state of Sabah, and DFAT country information refers to an ongoing high risk of kidnapping in the coastal areas of eastern Sabah by suspected
Philippines-based militant groups and crime syndicates, there is no information about any Filipino group targeting SSKM members. The applicant has not raised fears or claims about any other Filipino group or crime syndicates for any reason other than her SSKM membership. As I do not accept the applicant’s evidence about the Filipino group, it follows that I find she will not be harmed by such a group if she returns to Malaysia now or in the reasonably foreseeable future.
Single mother with child out of wedlock
I accept that the applicant had an unplanned pregnancy and has a child out of wedlock. I accept her child’s father has no contact with her as he did not wish to have a child, and he provides no support to her or her child. I accept that her child’s father is a Malaysian Muslim man and she is unaware of his whereabouts.
I accept that the applicant’s family are devout Christians and there was some friction when they found out she was expecting a child out of wedlock. I accept that the applicant went back to Malaysia in December 2024 for three weeks to look after her mother until she died in January 2025. I accept that the applicant had a fight with her siblings following their mother’s death. However, I do not accept her family will seek to harm her if she returns to Malaysia now or in the reasonably foreseeable future.
The applicant claimed that her relationship with her family was good up until she told them she was pregnant. The applicant’s son was born in [Month, Year]. She claims that she told her older sister about the baby one month before his birth, and told her mother about the baby one month after his birth. Her older sister, with whom she has the closest relationship, has remained supportive of her since finding out about the pregnancy. Her other siblings blamed their mother’s deteriorating health on the shock of finding out about her illegitimate child. She was unsure how her other siblings found out about the baby as she did not tell them personally.
The applicant claims that her mother was very shocked and upset when she found out about the baby, and that her health worsened rapidly such that the applicant had to return to Malaysia without her child when he was only [Age] old. The applicant claims that her mother suffered from intestinal cancer and ulcers. The applicant was accepted as her mother’s carer in the weeks before she passed away, and she did not indicate there was any friction with her other siblings during this time before her mother passed away.
The applicant claims that, after her mother passed away, she had a big fight with her siblings. During this fight, they blamed her baby news for their mother’s health problems and told her to leave Malaysia. They said that she was not welcome in Malaysia with the baby. They told her that she could not live in the house her mother lived in, which she had paid to be constructed with money she earned in Australia. They said if she returned to Malaysia, they would take away her child. She said her older sister did not say much during the fight, but afterwards expressed her support and told her that she should leave and live happily in Australia. When I asked how her siblings would take away her child, she said she did not know but just that they said they would. When I asked whether they would force her to get married or if there is anything else they expect her to do before they would accept her back into the family, she said she did not know as they did not discuss or say anything about this. When I asked if she thinks her family will become more accepting over time, she said she did not know what it will be like in the future, but they are very angry with her now because they blame her for her mother’s death.
The applicant claims that, after she returned to Australia in January 2025, her siblings told her not to go back to Malaysia because she brought shame to the family.
The applicant has [siblings – details]. She says that they all live in Malaysia. Some live in [Town], some in different places in Sabah. All but one of her siblings work. [Some] of her siblings are married and [some] are not. She contacts her oldest sister daily via Whatsapp texts but does not have much contact with her other siblings. She used to send money home but stopped because of the problems caused by her pregnancy and child. Based on the applicant’s account of her siblings, I find that they each have their own family and their own lives and any animosity they feel towards the applicant is short term and driven by grief over their mother’s death. I find that the applicant’s siblings will not take away her child if she returns to Malaysia as their threats of that nature were prompted by grief fuelled anger. Similarly, I find that their threat about not allowing her to live in her mother’s house (which she had funded the construction of) was prompted by the same anger. As the applicant’s older sister is supportive of her, I find that her older sister will help to bridge the gap between the applicant and her other siblings. I find that the applicant will have the chance to reconcile with her siblings once tensions have cooled. While this may not happen immediately, and there may be a period of adjustment required when the applicant settles back into life in Malaysia, I find that this will only be a short period because the applicant and her siblings had good relationships in the past. When asked if her siblings will harm her when she returns to Malaysia, she indicated very clearly that family would not harm her. Accordingly, I find that, if the applicant returns to Malaysia, her siblings will not take away her child or otherwise harm her because they blame her for their mother’s death now or in the reasonably foreseeable future.
Although the applicant referred to her family’s conservative religious beliefs in her

pre-hearing submissions, at hearing she focused on her siblings’ anger towards her primarily because they blamed her for their mother’s death. I find that, as the applicant’s pre-hearing submissions were made before her mother’s death, her mother’s death has since changed the nature of her siblings’ animosity towards her. The applicant referred to her siblings saying that she had brought shame to the family, however it appeared to be in the context of them blaming her for their mother’s death and not related to the family’s religious beliefs. I find that, based on the applicant’s evidence at hearing, her siblings are only angry at her because of their mother’s death and not because of their religious views. Accordingly, I find that, if the applicant returns to Malaysia, there is no real chance, now or in the reasonably foreseeable future, that the applicant’s siblings will harm her because they feel she has shamed the family as an unwed single mother.
The applicant was concerned about her son’s ability to be granted Malaysian citizenship and issued with a Malaysian passport in order to travel back to Malaysia. She said that, as she is unmarried and the father’s name is listed on her son’s Australian birth certificate, it would be difficult for her to register his birth with the Malaysian consulate unless she applies to remove his father’s name from the Australian birth certificate. I discussed DFAT country information with the applicant which indicates she will be able to register her son’s birth at a Malaysian consulate in Australia. She agreed with this information but said the process is complicated and long, and she will not have sufficient time to do it if her protection visa is refused. On 10 March 2025, Free Malaysia Today reported that the Federal Court made a consent order to allow a person under the age of 21 born before the amendment to the Constitution in October 2024 to be entitled to apply for citizenship if at least one parent is a Malaysian citizen.[5] As the applicant’s son was born before the Constitution was amended, this order will apply to him should the applicant wish to register him without his father. Based on country information and the applicant’s own evidence, I find that the applicant’s son will be granted Malaysian citizenship once the applicant registers his birth with the Malaysian consulate, and he will be issued with a Malaysian passport. Accordingly, there is no real chance the applicant will be harmed on the basis of her son’s citizenship if she returns to Malaysia now or in the reasonably foreseeable future.
[5] Agreement reached in case on citizenship for overseas-born children, Free Malaysia Today, 10 March 2025, accessed 28 March 2025.
The applicant claims that her son’s father has relinquished custody of their son and does not wish to be involved in their lives. Prior to the birth of their child, he said that he would not take responsibility for the child and she should go back to Malaysia if she gives birth. She does not know where he is, other than that he is still in Australia. She claims that his family in Malaysia do not know about her and her son and did not indicate that they were likely to find out. I accept her evidence about these matters. Accordingly, I find that there is no real chance the applicant will be harmed by her son’s father or his family now or in the foreseeable future if she returns to Malaysia.
The applicant expressed concern in pre-hearing submissions about her financial situation and she also indicated at the hearing that she needs more time to financially prepare to return to Malaysia with her son. I discussed DFAT country information with the applicant at hearing, including that Malaysia has experienced real GDP growth in recent years and has a low unemployment rate, with labour shortages in many sectors. I said that it appeared the applicant would have no trouble finding work if she returned. The applicant said that she went back to Sabah and saw a lot of people without work and that there is big competition for any job opportunities. The applicant has been working in various [workplaces doing a job task] in Australia and currently has some modest savings. I find that if she did return to Malaysia, she could find work again based on her work experience and education. Although she will have a young child, which may limit the type of work she can access, I find that she will nevertheless be able to find work as well as access financial support from her older sister initially, and other siblings once they have reconciled. We discussed whether it would be possible to relocate to a bigger city like Kuala Lumpur and the applicant indicated that she would need time to save money. Based on the applicant’s evidence, I find that she will return to Sabah and any internal relocation will only be considered in the future. Accordingly, I find that there is no real chance the applicant will not be able to find work and support herself and her son financially if she returns to Malaysia now or in the reasonably foreseeable future.
Applicant’s profile
I have considered the applicant’s profile as an indigenous [Ethnicity] woman of Christian faith and an unwed single mother and whether she will be harmed on this basis.
DFAT country information states that while Malaysia’s indigenous people are included within the term Bumiputera, they are marginalised within Malaysian society. Many Indigenous people in Sabah and Sarawak live outside urban areas and have limited access to schooling and healthcare and some Indigenous people in Sabah and Sarawak have experienced land grabs by property developers. DFAT assesses that Indigenous people of Malaysia face a low risk of official discrimination in the form of inadequate service provision and failure to uphold and protect customary land rights. The applicant did not claim that she was ever harmed on the basis of her ethnicity and has not expressed any concerns about harm on this basis if she returns to Malaysia. While she was in Malaysia, she successfully completed high school, worked as [an occupation] at a [business] for 3-4 years after high school, and her family also own land where they were able to build housing. I find that she did not experience any discrimination or ill-treatment on the basis of her ethnicity, and there is no real chance she will be harmed on this basis if she returns to Malaysia now or in the reasonably foreseeable future.
In relation to the applicant’s religion. DFAT reports that approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak and around 65 per cent of whom are Indigenous. The Malaysian Constitution also protects freedom of religion. Other than references to her family’s conservative religious views, the applicant has not claimed any previous harm from anyone based on her religion. I find that, as the applicant lived in and will return to a predominantly Christian dominated population, there is no real chance she will be harmed because of her religion if she returns to Malaysia now or in the reasonably foreseeable future.
Discrimination against women is banned under the Malaysian Constitution. The applicant has also not claimed that she has been harmed on the basis of her gender. Accordingly, I find that there is no real chance the applicant will be harmed because of her gender if she returns to Malaysia now or in the reasonably foreseeable future.
DFAT reports that there is strong social stigma attached to pre-marital sex and pregnancy. However, it appears that the situation is much worse for Muslim women due to the operation of syariah laws and criminalisation of pre-marital sex. There have been reports of women being forced to give up their children to escape stigma from society and their families.[6] While I accept that the applicant may face some social stigma when she returns to Malaysia as an unwed single mother, I find that any discrimination will be low level as she is not Muslim and not subject to syariah laws, her child’s father no longer wants anything to do with her and her son, and she will have family support from her sister initially and other siblings once they have reconciled. She has not claimed that she will give up her child to escape stigma, only that if required she would relocate with him. However, as discussed above, I find that she will return to Sabah and be able to live there. Further, as discussed above, although her child’s father is Muslim, he does not wish to be involved in their lives and his family also do not know, accordingly I find that there is low risk of stigma attached to their previous interfaith relationship and pre-marital sex. I find that there is no real chance the applicant will be harmed on the basis of her status as an unwed single mother if she returns to Malaysia now or in the reasonably foreseeable future.
[6] For example, Pregnant and alone: In Malaysia, social stigma forces unwed mothers to give up babies, Channel News Asia, 11 October 2019 (Updated 31 December 2020), accessed on 28 March 2025.
I find that there is no real chance the applicant will be harmed on the basis of her profile, either individually or cumulatively, as an Indigenous [Ethnicity] woman of Christian faith and an unwed single mother if she returns to Malaysia now or in the reasonably foreseeable future.
Does the applicant satisfy the refugee criterion for protection?
As I have found that there is no real chance of serious harm in the reasonably foreseeable future if the applicant returns to Malaysia, I find that the applicant does not have a
well-founded fear of persecution under s 5J(1) and she is therefore not a refugee under s 5H and does not meet the criterion in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
Accordingly, for the above reasons, I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. I find that the
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:   7 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.
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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.
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receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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