1923787 (Refugee) - [2024] ARTA 805

1923787 (REFUGEE) [2024] ARTA 805 (9 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
DecisionNumber:       1923787, 1923814
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 1923787, 1923814

Tribunal:Jon Papalia
Date:9 December 2024

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

Statement made on 09 December 2024 at 5:15pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – family opposition to marriage – fear of physical assault – criminal gangs – fear of black magic – forced divorce – registering births in Malaysia – access to health care – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 338, 347, 348, 351, 363, 367A, 499
Migration Regulations 1994, Schedule 2; r 2.08
CASES
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480
CRB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1180
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
Minister for Home Affairs v CLR15 [2019] FCAFC 45; (2019) 268 FCR 339
MZZMG v Minister for Immigration and Border Protection [2015] FCAFC 134; (2015) 234 FCR 180
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49; (2006) 230 CLR 486
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

The applicants are husband and wife. They respectively seek review of decisions made by the same delegate of the Minister for Home Affairs on 30 July 2019, to refuse to grant them each a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act). The Tribunal held a combined hearing of both applications, with their consent and in a way that was procedurally fair.[1] The appropriate respondent for the combined review is now the Minister for Immigration and Multicultural Affairs. For the following reasons, the Tribunal had decided to affirm the reviewable decisions.
[1] See Migration Act, ss 363, 367B; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49; (2006) 230 CLR 486 at [27]; MZZMG v Minister for Immigration and Border Protection [2015] FCAFC 134; (2015) 234 FCR 180.
Background and jurisdiction
The first applicant is [an age]-year-old national of Malaysia. He was born in Pahang, where his most recent Malaysian passport issued in [2019].
The second applicant is [an age]-year-old national of Malaysia. She was born in Sarawak but grew up in Pahang, where she met the first applicant. They married in Pahang [in] December 2018.
Both applicants are Malay and of the Islamic faith. They arrived in Australia [in] March 2019, as the holders of electronic travel authorities. They both applied for the visa on 18 June 2019.
The Tribunal notes that the applicants they have two children who were born in Australia on [respective dates]. These children are arguably dependent applicants for a protection visa by virtue of reg 2.08 of the Migration Regulations 1994 (Cth) (Regulations). However, because there is no primary decision in respect of their deemed visa applications, the Tribunal cannot consider whether they engage Australia’s protection obligations in this review.[2]
[2] See Migration Act, ss 338A, 347(1); Minister for Home Affairs v CLR15 [2019] FCAFC 45; (2019) 268 FCR 339 at [38].
The delegate refused to grant the first and second applicants a protection visa on 30 July 2019. They sought review within time. When they applied for review, their applications were governed by Pt 7 of the Migration Act and the matter was before the former Administrative Appeals Tribunal (AAT). The AAT was abolished from 14 October 2024. This Tribunal must now finalise the review in an efficient and fair manner.
The delegate’s decisions are “reviewable protection decisions” for the purposes of s 338A of the Migration Act (as amended) and the Tribunal is satisfied that it must review the delegate’s decisions under s 348(1) of the Migration Act.
Conduct of the review
The applicants appeared before the Tribunal on 26 November 2024.[3] They were self-represented and appeared in-person, with the assistance of a Malay interpreter.
[3] An earlier hearing on 14 November 2024 was adjourned because the applicants requested the assistance of an interpreter.
The Tribunal took oral evidence from each applicant and from a supporting witness, [Witness A] (the first applicant’s employer).
The applicants were given and took advantage of an opportunity to provide post-hearing evidence or submissions.
ISSUES
The issues in this review are whether there is a real chance that, if the applicants return to Malaysia, they will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) of the Migration Act (for the purposes of s 36(2)(a)) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Migration Act.
CLAIMS AND EVIDENCE
Initial claims (and their expansion)
The applicants initially advanced a claim to the effect that they left Malaysia because their respective families did not support their marriage and that their relatives were “gangsters”. They did not provide any corroborative evidence to the Department to support these claims (but did provide documents to support their identity).
The first applicant testified that he completed secondary schooling in Malaysia and commenced tertiary studies on a bursary/scholarship. He said he was working in [occupation 1] in Malaysia, which was his hobby. The applicant said that he stopped studying for his degree in [specified year] and travelled to [Country 1] and to [Country 2] for work. He was in [Country 2], working as [an occupation 2], between 2015 and 2017.
The second applicant testified that she completed tertiary schooling in Malaysia, graduating with an [occupation 3] diploma at a polytechnic in Pahang.
The applicants both testified that they met in High School and commenced an intimate relationship, but this ended after one or two years due to the first applicant’s infidelity. The second applicant testified that their initial break up was because their family did not want them to be together. However, they renewed their relationship upon the first applicant’s return from [Country 2] in 2018. They said that their respective families opposed their renewed relationship.
The applicants testified that the second applicant’s family includes members of “Pekida”. The Tribunal put to the applicants that it understood that this term referred to the Pertubuhan Kebajikan dan Dakwah Islamiyah SeMalaysia, which translates to the Association of Islamic Welfare and Dakwah of Malaysia, and which was also called the “Three Line” or Tiga Line” gang.[4] This in turn alludes to the three colours of the Malaysian flag.
[4] See Re 1709408 (Refugee) [2018] AATA 2530 at [60]-[61].
The first applicant was asked to explain why the second applicant’s family did not support their renewed relationship. He testified that their families both had other candidates in mind for them. He said that he did not have a stable job at that time, and they wanted someone who could provide for their daughter.
The applicants testified that they went against the second applicant’s family’s wishes and got married [in] December 2018 in the state capital. It was a religious ceremony at a mosque. They obtained permission to marry in the absence of the consent of the second applicant’s male guardian (wali) from a judge, who was also an Iman.
The first applicant was asked by the Tribunal to identify the harm that he fears from either side of their family should they return to Malaysia. He said that they now have two kids and that their family in Malaysia would do “black magic or dark arts to separate us and make, like, our relationship getting worse and then we can get divorce”. This was further explained to mean that their family could use Djinn, Satan, or demons to make their relationship worse. It was said that their family would be motivated to do this, despite their valid marriage and subsequent children, because they do not like that the applicants are happy. The first applicant said that the families remained unhappy because the applicants had disobeyed them and that they “would do anything” to split them up. He frankly admitted that they would not kill him but said that they wanted them to get divorced because they had other candidates in mind.
After being challenged about the absence of evidence to support these claims, the first applicant testified that on his family side, his second sister was only married for two years and then got divorced. He said that “no one knows what happened” and inferred that this was due to black magic. In a similar vein, the first applicant testified that his mother-in-law brought his wife to a cemetery at some stage to do black magic; that his mother-in-law was married four times and his brother-in-law was divorced as well. He admitted that there was no proof that any of the relatives were in a gang.
The second applicant confirmed the first applicant’s evidence described in above paragraph. She said that she was taken to a “shaman” when she was very young. She said that she was very worried about her family using black magic but thought that it only worked when you were in Malaysia or nearby. The family had not done anything because they were in Australia, but if they returned, they would do anything to separate them.
The second applicant accepted that what they were really scared of was their families using black magic, rather than any family member’s membership of a gang. However, she said that her family were Pekida and that her husband’s family belong to another group and they do not see “eye to eye or get along”.
The second applicant testified that her family were unaware of her medical condition and the surgeries that she has undergone (discussed below). She said she was concerned that they would try and convince her, or instigate a separation, on the basis that her husband has not or is not capable of treating her well. The second applicant also said that her health would provide a potential basis for the first applicant’s family seeking that they divorce because she is not perfect anymore.
Additional claims raised during the review
The applicants raised a series of additional claims based upon the second applicant’s health due to acquiring a rare flesh-eating disease following the birth of their second child in [specified year], the socio-economic circumstances in Malaysia, their own economic circumstances and the claimed potential for their children to be stateless.
The first applicant has been working as [an occupation 4] in Perth for a couple of years. He has been employed by [Witness A] and did not want to leave his employ (notwithstanding the potential for other employment in a regional location leading to potential visa sponsorship). He claimed that he could not obtain equivalent employment in Malaysia without knowing someone. When confronted with country information about the Malaysian economy, he claimed that things were not going well, and that this country information was not correct.
With respect to the second applicant’s medical condition, the applicants testified that they are trying for a third child and raised concerns that the second applicant would not be able to obtain adequate treatment for her medical conditions in Malaysia, including [medical conditions 1 and 2].
The second applicant testified that she was scheduled to have [specified surgery] [in] December 2024. The Tribunal put to the applicants that this was cosmetic surgery. The second applicant agreed but claimed that her treating doctors had told her that it was preferable for her to remain in Australia and that they had scheduled another two or three forms of treatment after her surgery [in] December 2024. She accepted that her infection had resolved and what was required was cosmetic treatment to try and restore her to the way she was before the infection and consequential [treatment]. When asked to explain why she would not receive adequate treatment in Malaysia, the second applicant testified that she had been told by her treating doctors that there was not an equivalent service in Malaysia that could provide this sort of treatment.
The Tribunal put to the applicants that the DFAT Report did not support that proposition, or that they would otherwise be at risk of significant harm in Malaysia. In response to this, the first applicant testified that they were happy and supported in Australia (including in respect of healthcare) and that in Malaysia they would have “nothing”. The second applicant testified that she felt that she would be more stressed in Malaysia, and that she was planning to have [another child] and that she feared that she would not get the right treatment because she has had [medical condition 1] and the doctors here understand her conditions. She claimed that the Malaysian health system was bad and may not be equipped to deal with her issues. It was put to the second applicant that [part of her condition remained stable], and she testified that she would still [remain healthy with medical condition 2]. The Tribunal noted that the applicant had testified that she was on medication [for medical condition 1]. She said that was correct but that she did not know what treatment would be required for her to conceive or what they would recommend.
The first applicant also claimed that their children’s births were not registered in Malaysia, and that they could not register them without original copies of the first and second applicant’s identity documents, which they have now lost.
He was challenged on this proposition by the Tribunal, noting that it was hard to accept that they could not obtain assistance from the Consulate-General of Malaysia based in Perth to obtain new identity documents and to register the birth of their children. The Consulate-General website clearly identifies that birth registration and passport applications are consular services that they provide.[5]
[5]
The first applicant then admitted that their children had not, in fact, been refused Malaysian citizenship but stated that they could not apply for it until they had obtained new identity documents, which he said they could not obtain whilst in Australia. The first applicant then expanded the claim to include an argument that his children would not be Malaysian citizens because they are not born in Malaysia.
The Tribunal put to the applicants that this was not correct as matter of Malaysian law and having regard to their particular circumstances. Specifically, the Tribunal noted that country information identified that Malaysia’s citizenship laws confer citizenship by descent to children born in wedlock where both parents are citizens and regardless of the child’s country of birth.[6]
[6] See Report on Citizenship Law – Malaysia and Singapore, Choo Chin Low, 1 February 2017, CISEDB50AD7469; US Office of Personnel Management, Investigations Service, Citizenship Laws of the World, March 2001, p 126.
In response to this country information, the first applicant testified that “yes, we know, they are going to get – but it is going to take time”. He then suggested that he needed money to make things happen faster because of corruption in Malaysia.
The second applicant testified that the probability of getting citizenship for her children was low because they had their identity cards and passports stolen and that they could not go to the Malaysian consulate to obtain new ones (instead they needed to be in Malaysia).
The second applicant testified that her priority was to protect her children and that in terms of education, Australia was “safer” and that she did not know what the process was for citizenship and for schooling. She said that the prospect of returning to Malaysia “weighed heavily” on her mind.
Post-hearing material
On 30 November 2024, the applicants provided the Tribunal with three documents in support of their claims: a letter from [Doctor A], [from Hospital 1] (undated) regarding the second applicant’s health and treatment; a photograph of paperwork from the Malaysian Consulate regarding registration of child birth where the applicants had placed crosses next to the Malaysian identity documents they claimed they were not able to produce; and an undated academic article on bewitchment as a defence in divorce cases in Malaysia.
[Hospital 1] Letter
[Doctor A] confirms that the second applicant has significant [medical condition 1] and that the second applicant requires further cosmetic surgeries, which would require hospital admission and regular clinic visits. The second applicant is on the public health waitlist for these procedures at [Hospital 1].
Malaysian paperwork photograph
The photograph of the Malaysian government paperwork for the registration of birth confirms that registration of children born overseas is possible in Australia.
Academic article about witchcraft and divorce in Malaysia
The academic article appears to have been written by people at the University of Malaysia in Pahang. The authors refer to the practice of witchcraft as an “ancient practice” that involves the use of djinn and devil for a particular purpose, including for “eliminat[ing] feelings of love among family members, to cause divorce of a married couple” and that it is no surprise that it has been raised in Family Court proceedings in the Shariah Courts of Malaysia (page 1).
Specifically, the academics note within the article, after referring to a reported appeal judgment where witchcraft was raised as a ground, and an error found to have been committed, because the primary judge did not obtain expert evidence, that:
In reality, there are hundreds (maybe thousands) of other similar cases encountered by witchcraft victims outside court. Based on the interviews conducted with a few judges of Shari’ah court in Kuantan and Kuala Terengganu, they believe that the use of witchcraft related to divorce cases really exists, and the judges have faced such cases (Mahyuddin, 2011) (page 2).
The academics suggested that “witchcraft victims” may fall into a category of cases where divorce by repudiation by the husband (talaq) would not be valid because of the influence of witchcraft (page 2). They refer to religious Islamic texts that support the proposition that witchcraft exists and has been used to “control the mind and the desire of the victim especially in the issues related to marriage” (pages 2-3). They also referred to cases where the parties to a marriage could apply for annulment (fasakh) because of physical issues of incapacity arising from the use of witchcraft (page 3). They report “two types of witchcraft that are normally used [in Malaysia] for these purposes, namely sihir batang keladi (refers to a type of black magic ritual using taro or yam) and sihir jerutan (refers to a type of black magic ritual using tie or rope)” (page 3).
The academics’ hypothesis in the article was that the victims of witchcraft should be given an opportunity to defend themselves in family court proceedings, including by proving the existence of “common symptoms of witchcraft” and by adducing expert evidence about it (pages 3-4). This was supported by the appeal judgment referred to above, where the Appeal Court remitted the matter to the first instance decision-maker for the failure to make factual findings and to obtain expert evidence, including the “the healer who treated the appellant to get statements in order to ensure that the appellant was really sick due to witchcraft which caused the divorce” (page 4).
Mandatory considerations

In accordance with Ministerial Direction No 84 dated 24 June 2019, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, to the extent that they are relevant to the decision under consideration.
The Tribunal has also had regard to the DFAT Country Information Report for Malaysia dated 24 June 2024 (DFAT Report).
Analysis, reasons and findings
Credibility and obligation to put forward material
It is the applicant’s responsibility under s 5AAA of the Migration Act to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim.[7]
[7] See also Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [83]-[84].
A “claim” is “not to be equated with a singular factual allegation” but “is to be understood as a narrative of alleged facts that, if accepted, might support a finding that one or more of the alternate criteria for a protection visa is fulfilled”.[8]
[8] CRB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1180 at [21].
The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is “well-founded” or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”.
The Tribunal is not required to accept uncritically any or all of the claims made by an applicant.[9] Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]
[9] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 [21].
[10]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
Where claims are raised or evidence presented that was not raised or given to the delegate, the Tribunal is required to draw an adverse inference to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation for why the claim was not raised or the evidence not presented before the delegate’s decision.[11]
Country of nationality
[11] Migration Act, s 367A.
The applicants each provided the delegate with a copy of their respective Malaysian passports and their Malaysian Identity Cards. There is nothing before the Tribunal to suggest that the applicants are not the persons identified in the application or to doubt the authenticity of those documents.
The Tribunal accepts, based on those documents, that the applicants are nationals of Malaysia and of Malay ethnicity and the Islamic faith.
The Tribunal therefore finds that Malaysia is the receiving country/country of reference for the purpose of their refugee/complementary protection assessments.
The Tribunal does not accept that the applicants’ two children are likely to be stateless or that they are unable to register the birth of their children with the Malaysian authorities. As a matter of Malaysian law (specifically Article 14 of the Federal Constitution), each child is clearly eligible for automatic acquisition of citizenship by descent because they were born in wedlock and their parents are citizens of Malaysia.[12] They can obtain confirmation of citizenship at the Malaysian Consulate-General in Perth. [13]
Are the applicants refugees?
[12] See MyGOV - The Government of Malaysia's Official Portal; US Office of Personnel Management, Investigations Service, Citizenship Laws of the World, March 2001, p 126; Report on Citizenship Law – Malaysia and Singapore, Choo Chin Low, 1 February 2017, CISEDB50AD7469.
[13] DFAT Report, [5.36].
The definition of “well-founded fear of persecution” requires, relevantly, that the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because they are a member of a particular social group (PSG).[14]
[14] Migration Act, s 5J(a).
The applicants have raised no claims that directly relate to any of the five refugee reasons. They are both Malaysian nationals, of Malay ethnicity and adherents of the state religion. The DFAT Report does not support the existence of a real chance of serious harm arising from the applicants’ nationality, race or religion.
Similarly, no political opinion claims (whether real or imputed) have been raised or otherwise emerge on the material before the Tribunal. The claim that the applicants’ family members had divergent political views was vague and unconvincing and seemed to be based upon the proposition that they disliked their marriage and wanted them to be with other people. When the Tribunal asked the applicants to explain why they feared harm from their respective families, they testified that they feared them using black magic and that their families do not see eye-to-eye. They were not able to articulate why the families do not agree, and why they would be at risk of harm for this reason (beyond the proposition that they would do anything to get us to divorce).
A family unit may constitute a PSG. However, the reason for the persecutor targeting the applicant must be because one or more of their family members would otherwise be persecuted for a refugee protection reason.[15]
[15] See Migration Act, s 5K.
The Tribunal is prepared to accept, based on the journal article provided by the applicants, that witchcraft beliefs may be present in Malaysia, particularly in Pahang State, and that people may believe that witchcraft has been the cause of their marital or physical problems. The applicants have been married for six years and have two children. They were validly married in Malaysia. They are planning to have a third child. The views of their respective families on their marriage have not influenced them to date and are unlikely to do so in the reasonably foreseeable future. In any event, this witchcraft claim is grounded on superstitious beliefs that have little connection with reality. Moreover, the academic article provided demonstrates that the applicants could, in fact, raise witchcraft as a defence in any divorce proceedings should they wish to do so (and the article also indicates that witchcraft can be treated/healed). The Tribunal finds the applicants’ claims to fear harm because they would be a target of witchcraft by their relatives is not substantiated. The Tribunal further notes that divorce in and of itself does not amount to serious harm within the meaning of s 5J(4)(b) of the Migration Act.
Lastly, the DFAT Report does not support that the applicants would face serious harm as part of being members of a PSG as returned asylum seekers.[16] They have each been lawfully resident in Australia.
[16] See DFAT Report, [5.31]-[5.33].
The Tribunal is not satisfied that there is a real chance of serious harm for any of the reasons listed in s 5J(1)(a) of the Migration Act. They therefore do not meet the criteria in s 36(2)(a) of the Migration Act.
Are the applicants owed complementary protection?
Having concluded that the applicants do not meet the refugee criterion, the Tribunal has considered whether they are persons in respect of whom Australia has protection obligations under the complementary protection grounds set out in s 36(2)(aa) of the Migration Act.
The assessment of ‘real risk’ of significant harm under complementary protection grounds uses the same test as the ‘real chance’ test which is used when deciding whether there is an objective factual basis for a person’s claims for having a well-founded fear of persecution for the purposes of s 36(2)(a) of the Migration Act.[17]
[17] See Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [246], [296] and [342].
In order to meet the complementary protection criterion found in s 36(2)(aa) of the Migration Act, the harm that an applicant will suffer must be one of the kinds of harm that is exhaustively set out in s 36(2A) of the Act. The terms “torture”, “cruel or inhumane treatment or punishment” and “degrading treatment or punishment” are defined in s 5(1) of the Migration Act. Importantly, “torture” whilst requiring an intentional act, need not be caried out by or at the instigation of, or with the consent or acquiescence of, a public official. The term “arbitrarily deprived of their life” is not defined in the Migration Act and is to be given its ordinary meaning. While each form of significant harm is distinct, there may be some overlap in the categories under which particular treatment may fall. This is largely a question of fact.[18]
[18] An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480 at [83] per Emmett J (Lindgren J relevantly agreeing).
In considering whether the applicants meet the complementary protection criterion by reason of the claimed harm they have experienced or may experience in Malaysia, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Malaysia, there is a real risk that they will suffer “significant harm” within the meaning of s 36(2A) of the Migration Act.
The fact that a person may enjoy less favourable social, economic or cultural rights in another country does not, of itself, give rise to a protection obligation. There is no duty to house the homeless or provide for the destitute that is recognised by Art 7 of the ICCPR (as incorporated into domestic law by s 36(2A) of the Migration Act).[19]
[19] See R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66; (2006) 1 AC 396 at [7]; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [45]
Malaysia is an upper middle-income, export-oriented economy.[20] Their economy has recovered since COVID-19 but there are ongoing challenges including inflation and high levels of household debt.[21]
[20] DFAT Report, [2.7].
[21] DFAT Report, [2.9].
Malaysia has a well-established universal healthcare system which is accessible to most of the population.[22] It also has a well-developed social security framework, constituted by direct government aid, social insurance and pensions, and labour market programmes.[23]
[22] DFAT Report, [2.11].
[23] See BTI 2024 Country Report - Malaysia', Bertelsmann Stiftung, 19 March 2024, p 27, 20240320103758; ‘Social Protection Programme in Malaysia, Do We Need Integration?’, Samad, S A and Shahid, M Md, International Journal for Studies on Children, Women, Elderly and Disabled, volume 5, October 2018, pp 72-73, 20201116170755; ‘Social Security Programs Throughout the World: Asia and the Pacific, 2018: Malaysia’, Social Security Administration, March 2019, 20201116141555; ‘Social Protection for all: The next step of the Malaysian welfare’, Koutronas, E, University of Virginia, 18 July 2020, chapter 2, 20201117115643.
The applicants were educated in Malaysia. They also have transferable skills: [occupation 4] (for the first applicant) and [occupation 3] (for the second applicant). The applicants are not persons with no means and no alternative sources of support, who are unable to support themselves and who would be likely to face the prospect of being denied the basic necessities of life in Malaysia by the deliberate actions of the state (or, indeed, by anyone else).
The Tribunal accepts that the second applicant desires [surgery] to treat the [medical condition 1] and that she may not receive the same medical care or treatment in Malaysia that she can access in Australia, including at a cost to the Australian taxpayer. However, this is unlikely to amount to an arbitrary deprivation of life or either cruel or inhumane treatment or punishment. There is no suggestion that returning the first applicant to Malaysia would increase the severity of her medical conditions or that there is any inability to access medical treatment in Malaysia which would consequently increase the severity of the applicant’s health conditions. As noted above, Malaysia has a universal healthcare system which is accessible to most of the population. The Tribunal does not accept that there are substantial reasons for believing that because of removing the second applicant to Malaysia she would not be able to obtain adequate medical treatment, including treatment that requires hospital admission and regular follow-up care. The Tribunal notes that there is [an association of related surgeons], which is affiliated with [international counterparts], and that [the specified surgery] is a procedure listed on their website with further patient information about that procedure.[24]
[24] See [Source deleted.]
Primary school education is free and compulsory in Malaysia.[25] The applicants are from the Bumiputera and their children would not be adversely discriminated against in terms of access to secondary or tertiary education.[26]
[25] DFAT Report, [2.15].
[26] DFAT Report, [2.15]-[2.16].
There is nothing before the Tribunal to suggest that the applicants would be at real risk of suffering any of the kinds of harm set out in s 36(2A) of the Migration Act upon their return to Malaysia in the reasonably foreseeable future. The applicants have provided no evidence which would establish such a risk. Accordingly, the Tribunal does not accept that there is one.
Having considered the applicants’ claims individually and cumulatively, the Tribunal has concluded that the applicants do not meet the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa).
There is no suggestion that any of the applicants satisfies s 36(2) because they are 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 applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant each applicant a protection visa.
MINISTERIAL INTERVENTION
The Minister may substitute this decision with another decision that is more favourable to the applicants if he considers that it is in the public interest to do so.[27] That power is exercisable by the Minister alone, acting personally,[28] and the Minister does not have a duty to consider whether to exercise the power.[29]
[27] Migration Act, s 351(1).
[28] Migration Act, s 351(3).
[29] Migration Act, s 351(7).
The Minister previously issued Guidelines on the ministerial intervention powers then found in ss 351, 417 and 501J of the Migration Act in March 2016. The Tribunal does not consider the applicants to have any of the unique or exceptional circumstances described in cl 4 of those Guidelines. However, the Tribunal notes that the first applicant has been working in Australia as [an occupation 4] and that his employer has continued to support him, including by appearing as a witness before the Tribunal and by giving them financial assistance when the second applicant was in hospital. There is no information before the Tribunal to suggest that the applicants’ continued presence in Australia would post a threat to the Australian community or to security.
The applicants can request that the Minister consider intervention either online or by post.[30]
[30] See Ministerial intervention.
ATTACHMENT- Relevant Law and extracts from Migration Act 1958
The relevant law
1. The criteria for a protection visa are set out in s 36 of the Act and Sch 2 to the Migration Regulations 1994 (Cth) (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.
2. 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 (the refugee criterion).
3. 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).
4. 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 below.
5. 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).
6. 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 below.
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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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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