1928307 (Refugee)
[2025] ARTA 1777
•31 July 2025
1928307 (REFUGEE) [2025] ARTA 1777 (31 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 1928307 (Applicant 1) & 2508475 (Applicant 2)
Tribunal:General Member S Fitzsimons
Date:31 July 2025
Place:Melbourne
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the order that:
·Applicant 1 meets the criteria in s36(2)(a) of the Migration Act
·Applicant 2 meets the criteria in s36(2)(b) of the Migration Act
Statement made on 31 July 2025 at 3:33pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – written claim of unemployment and fear of economic harm – application prepared by another person without applicant’s knowledge of contents and no adverse inference drawn – later claims of physical and sexual violence and threats to kill by father and uncles, and control, manipulation, violence and threats by former same-sex partner – continuing verbal abuse by father and approaches to sisters by ex-partner – queer identity, mental health, suicidal ideation and psychological treatment – relationship with man in Australian and birth of member of family unit child – child unregistered and claimed to be stateless – cultural marriage not recognised as legitimate – consistent and corroborated claims and evidence, documentation and legal submissions – country information – registration and citizenship laws – birth could be registered, and child not stateless – real chance of serious harm – decision wholly in favour of applicants made without hearing – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(b), 36(2)(a), (b), 65, 348A(1)
Administrative Review Tribunal Act 2024 (Cth), ss 3, 9, 106(3)
Migration Regulations 1994 (Cth), r 1.12(4)(b), Schedule 2CASES
AVN15 v MIBP [2019] FCA 1825
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIMIA v VSAF of 2003 (2005) FCAFC 73Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This decision relates to two separate applications for review by [Applicant 1] and [Applicant 2] who are mother and son. Applicant 1 claims to be a Malaysian citizen and she claims that Applicant 2 is stateless.
Applicant 1 applied for a protection visa on 28 June 2019 and her claims in her visa application primarily related to economic harm. A delegate of the Minister for Immigration and Citizenship refused the visa under s65 of the Migration Act 1958 (Cth) (the Act) on 3 October 2019 because considering country information, the delegate was not satisfied there was a risk of the applicant suffering either serious or significant economic harm that engaged Australia’s protection obligations The applicant lodged a review application with the Administrative Appeals Tribunal (AAT) on 8 October 2019.
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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
Applicant 2 applied for a protection visa on 8 November 2023. A delegate of the Minister for Immigration and Citizenship refused the visa under s65 of the Act on 6 February 2025 because the delegate was not satisfied the applicant was stateless nor was a refugee or owed complementary protection by virtue of being the son of his mother. The applicant lodged a review application with the AAT on 3 March 2025.
DECSION IN THE ABSENCE OF A HEARING
The Tribunal may make a decision without a hearing if all three components ((a), (b) and (c)) of s106(3) of the Administrative Review Tribunal Act 2024 (ART Act) are satisfied. Section 106(3) states:
This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and
(b) either:
(i) the decision is wholly in favour of the applicant; or
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The parties in this case are the applicant and the Minister, who is a non-participating party[1] and so s106(3)(a) of the ART Act is met.
[1] s348A(1) of the Migration Act 1958.
In this case s106(3)(b)(ii) is not relevant. Section 106(3)(b)(i) requires that “the decision is wholly in favour of the applicant.”
As discussed below, I have made a decision wholly in favour of both Applicant 1 and Applicant 2, for the reasons discussed below. In conducting this review, I have come to the conclusion that Applicant 1 meet the requirements of s36(2)(a) of the Act and Applicant 2, as the young son of Applicant 1, meets the requirements of s36(2)(b) of the Act, and accordingly, I have set aside the decisions of the respective delegates and made the corresponding orders.
The issues in this case are whether Applicant 1 and Applicant 2 are either a refugee or owed complementary protection as set out in s36(2) of the Act. To determine whether s36(2) is met (or not) the Tribunal, conducting a merits review[2] stands in the shoes of the Minister. This requires me to consider and determine the issues fresh. To consider afresh whether each Applicant meets the provisions of s36(2), I am required to reach a level of satisfaction[3] about whether the applicant’s protection claims have been made out.
[2] s3 of the Administrative Review Tribunal Act 2024.
[3] See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 (2005) FCAFC 73, 16-19.
“Adequately determined” is not legally defined. In relation to s106(3)(c), the Explanatory Memorandum to the Administrative Review Tribunal Bill[4] relevantly states: “In all of the above circumstances, the Tribunal must consider that the issues can be adequately determined in the parties’ absence. This means that the Tribunal cannot exercise these powers if there are issues that they consider they cannot resolve without seeking further evidence or submissions from the parties.”[5] The Explanatory Memorandum also relevantly states that “[t]his clause supports the objective of the Tribunal resolving matters as quickly and with as little formality and expense as a proper consideration of the matters permits, especially given the time and resources required to conduct a substantive hearing.”[6]
[4] Accessible online:
[5] Ibid, at paragraph 670.
[6] Ibid, at paragraph 671.
I have before me identity documents of both Applicant 1 and Applicant 2. Both Applicants are represented by a lawyer, who has provided the Tribunal with written submissions in relation to both Applicants, as well as detailed written statements from Applicant 1 and other written evidence in support of the protection claims of both Applicant 1 and Applicant 2. Where relevant, these documents have been referred to below in relation to my reasoning and fact finding for both Applicants. On this basis, it appeared to me that I could adequately determine the issues in this case for both Applicant 1 and Applicant 2 and section106(3)(c) of the ART Act is therefore met.
In deciding to make a decision in the absence of a hearing, I have been conscious of my obligation[7] to resolve these reviews in a fair and just manner, quickly and with as little formality as a proper consideration of the matters before me permits, and is responsive to the mental health needs of Applicant 1 and the young age of Applicant 2..
[7] s9 of the Administrative Review Tribunal Act 2024.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s36 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 s36(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: s5H(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: s5H(1)(b).
Under s5J(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 ss5J(2)-(6) and ss5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s36(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: s36(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 ss36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s499 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection claims of both Applicant 1 and Applicant 2 before the delegates
In her protection visa application Applicant 1 claimed that she left Malaysia because she was unemployed and as she had financial responsibilities towards her family she came to Australia to feel safe and start a new life. She claimed she had personal problems in Malaysia that would resurface if she returned to Malaysia.
The delegate refused Applicant 1’s visa application because the delegate was not satisfied Applicant 1 would be persecuted for a refugee reason, and quoting country information, was not satisfied she would she suffer economic harm that was significant, if she returned to Malaysia.
Applicant 2 claimed that as he was born in Australia to parents who were not married at the time of his birth, he is stateless which would lead to harm in Malaysia as he could not access basic necessities such as healthcare and education. In response to a request for more information from the Department, Applicant 1 provided information about the family violence inflicted on her by her father, uncles and her ex-girlfriend [Ms A] and claimed that her son would be subject to the same family violence that she was subjected to.
The delegate refused Applicant 2’s visa application because the delegate was not satisfied Applicant 2 would be persecuted for a refugee reason and was not satisfied that harm resulting from family violence would not amount to significant harm as the delegate was not satisfied Applicant 1 had provided enough evidence to substantiate the claim and that Malaysian authorities are willing and able to provide an adequate level of protection.
Neither Applicant 1 nor Applicant 2 were interviewed by the respective delegates that refused each of their respective visa applications.
Combining these cases
Because it was apparent that Applicant 1 is the mother of Applicant 2, and as Applicant 2 is a young child, and considering the obligation[8] I am under to resolve these review applications quickly, fairly and with as little expense and formality as possible, I determined that the reviews should be heard and decided together, with the evidence in one case being the evidence in the other. This is consistent with the approach advocated by Logan J in AVN15 v Minister for Immigration and Border Protection [2019] FCA 1825.
[8] As per s9 of the Administrative Review Tribunal Act 2024.
Documents before the Tribunal
As well as the Departmental files for both Applicants 1 and 2, I have before me the following documents which relate to the personal background and protection claims of both Applicants 1 and 2:
·Three written statements of Applicant 1[9]
·Labelled photographs
·Money transfer receipts
·Applicant 2’s birth certificate
·Sabah Native Marriage certificate
·WhatsApp chat messages in Malay with English translations
·WhatsApp chat messages in Malay with English translations between Applicant 1 and her sister
·A psychological report in relation to Applicant 1[10]
·Written submissions from the Applicants’ representative addressed to the Tribunal[11]
·Written submissions from the Applicants’ representative addressed to the Department[12]
[9] Two (separate) statements each dated 23 September 2024 and a third is dated 6 March 2025.
[10] Which is dated 17 September 2024.
[11] The written submissions are dated 3 June 2025.
[12] The written submissions are dated 23 September 2024.
Protection claims of Applicant 1
Personal background of Applicant 1
Applicant 1 was born on [Date] in [District], in Sabah, Borneo. She is ethnically Chinese Dusun and she is a Catholic.
Her parents live in Sabah. She has [sisters] and two brothers (one step-brother and one full brother). She is the [birth order]. One sister lives in NSW whilst the rest of her siblings live in Borneo, in Malaysia.
Her mother is a Borneo native and her father’s family are originally from China. Her parents are both Malaysian citizens.
Her father ran a [business] with Applicant 1’s uncle (her father’s brother) until he was about [age] years old and since then he has worked as [an occupation].
Applicant 1 arrived in Australia [in] March 2019.
Since Applicant 1 has been in Australia, she has formed a relationship with a Malaysian man, [Mr B] and they have a child together, Applicant 2, who was born on [Date].
Harm experienced in Malaysia from her father and uncles
Applicant 1 claimed that as a child she grew up in a violent household, where the violence was perpetrated by her father and uncle. Her statement[13] details physical and sexual violence by Applicant 1’s father, towards Applicant 1’s mother, Applicant 1, and her siblings. The violence is described in detail and occurred throughout Applicant’s childhood and occurred almost daily. When Applicant 1’s brother tried to protect their mother from Applicant 1’s father, their father hit Applicant 1’s brother. On that occasion, one of Applicant 1’s uncles, who witnessed the violence, took Applicant 1’s brother from the house away from Applicant 1’s father. Applicant 1’s brother ran away from home to escape his father.
[13] Applicant 1’s statement dated 23 September 2024.
The nature of the violence and who was harmed (which includes Applicant 1), is explained in detail in Applicant 1’s statements. Applicant 1 claimed that as well as physical and sexual violence inflicted on her and her family by her father, her father had threatened to kill her mother, her and her siblings.
When Applicant 1 was about 15 years old, during an argument between Applicant 1’s mother and father, her mother called the police. The police questioned Applicant 1’s father and told Applicant 1 to seek counselling. The police told Applicant 1’s parents to sort out their differences themselves.
Applicant 1 claimed that two of her father’s brothers sexually assaulted her and her sisters.
Harm experienced in Malaysia from Applicant 1’s ex-girlfriend
In her written evidence Applicant 1 stated that by the time she was about 18 years old, she moved within Sabah and engaged in [work sector] training at a [workplace]. She claimed she met a woman there called [Ms A] with whom she started a friendship which later developed into a relationship that lasted on and off for years until Applicant 1 left Malaysia in 2019.
She claimed [Ms A] was very controlling and emotionally manipulative. Applicant 1 claimed [Ms A] took out a loan from a loan shark and forced Applicant 1 to be the guarantor for the loan, which in 2015, Applicant 1 repaid. She claimed [Ms A] had a temper and when she would get angry with Applicant 1, [Ms A] became physically violent. She claimed [Ms A] falsely accused Applicant 1 of cheating on her with a man, and when Applicant 1 denied this, [Ms A] threatened her with a knife. When Applicant 1 tried ending the relationship (which she tried to do multiple times), [Ms A] would emotionally manipulate Applicant 1, tell Applicant 1 she ([Ms A]) would commit suicide, which made Applicant 1 feel powerless and as a result Applicant 1 stayed in the relationship.
By 2019, Applicant 1’s sister [Ms C] was living in Australia and Applicant 1 felt she needed to get away from both her father, uncles and [Ms A] and so she told [Ms A] she was going to Australia. Applicant 1 claimed that [Ms A] was upset and to ensure that Applicant 1 would come back to [Ms A], [Ms A] insisted that Applicant 1 leave her personal documents (including her birth certificate) so that Applicant 1 would return to [Ms A] once Applicant 1 came back to Malaysia. Applicant 1 claimed that she was scared [Ms A] would stop her leaving Malaysia if she did not agree so she left her personal effects with [Ms A].
Applicant 1 stated that once she was in Australia, [Ms A] contacted her frequently, pressuring Applicant 1 to find work so that she could send money to [Ms A] because [Ms A] was not working. Applicant claimed that after she came to Australia she received a phone call from a loan shark who said that they had approved a loan for MYR20,000[14] in her name and when Applicant 1 queried how this was approved when she was in Australia she was told that [Ms A] had given them a letter with Applicant 1’s signature on it. Applicant 1 claimed this was the same loan shark that she had used previously for her own loans. She claimed [Ms A] told Applicant 1 she needed money as she was sick and needed an operation and so Applicant 1 ended up approving a loan for MYR10,000. Applicant 1 claimed she paid the loan in full in 2020 and told the loan shark not to approve any further loans in her name without her consent.
[14] Any reference to MYR = Malaysian ringgit.
After questioning [Ms A] about her illness and the hospital where the operation was taking place, Applicant 1 called the hospital who told Applicant 1 that [Ms A] was not having an operation there and Applicant 1 realised that [Ms A] had lied to her. Applicant 1 claimed this resulted in a fight with [Ms A] over the phone, and she and [Ms A] had no contact for a few months. She stated that when they resumed contact again, Applicant 1 told [Ms A] that she wanted to end their relationship and that she (Applicant 1) had started a new relationship with a man, [Mr B]. Applicant 1 claimed [Ms A] became very angry and threatened to kill [Mr B] if he returned to Malaysia. Applicant 1 claimed that [Ms A] had been checking the [Social media] account and emails of Applicant 1 every day since Applicant 1 had been in Australia.
Applicant 1 claimed that in 2020 she contacted [Ms A], told her she was pregnant, wanted to have nothing to do with her anymore and asked [Ms A] to return her personal belongings. [Ms A] returned Applicant 1’s personal paperwork to Applicant 1’s sister, but [Ms A] kept Applicant 1’s clothes. When Applicant 1 asked [Ms A] to also return her clothes to Applicant 1’s sister, [Ms A] responded by asking Applicant 1 to give her a second chance and that she, [Ms A], wanted to adopt Applicant 2. Applicant 1 stated that [Ms A] “cursed me again, she said bad things about my baby. She told me she will use my personal belongings to do voodoo on me and make me suffer slowly.” The last time she had contact with [Ms A] was in 2021.
Applicant 1 claimed that in 2024, [Ms A] contacted [Ms D] and [Ms E], two of Applicant 1’s sisters who live in Malaysia, asking when Applicant 1 would return to Malaysia and asking for photos of Applicant 1 and Applicant 2. Applicant 1 claimed that [Ms A] has asked Applicant 1’s sisters if she can visit their family as she, [Ms A] was considering coming to Australia and Applicant 1 told her sisters not to communicate further with [Ms A]. Applicant 1 also claimed that in late 2024, [Ms A] was seen driving past [Ms E]’s house on more than one occasion.
Applicant 1’s sexuality
In her written statements, Applicant 1 claimed that from a young age she knew she was attracted to women. She explains in detail her relationship with [Ms A] in Malaysia, a relationship that lasted years. Applicant 1 also refers to her marriage to [Mr B], the father of her son, Applicant 2.
Applicant 1 describes her sexual identity as queer.
Applicant 1’s mental health
Applicant 1 claims that as a result of the trauma she has suffered in Malaysia, she has been diagnosed with PTSD and depression. She claims she has had suicidal thoughts and after Applicant 2 was born she suffered from post-natal depression.
Harm Applicant 1 fears on return to Malaysia
In summary, on return to Malaysia, Applicant 1 fears:
·Her father and her uncles will again subject her and Applicant 2 to the same violence she, her mother and siblings were subjected to because the violence in their family is intergenerational and her father still violent towards her mother as her mother has told her this;
·Her father will physically harm her because he is angry with her for having a child out of wedlock and he still verbally abuses her whenever she speaks with her mother (which is recent as her mother is not well);
·Her father will also physically harm her if he finds out she is attracted to both men and women because her father does not know she was in a relationship with [Ms A];
·[Ms A] will stalk and harm Applicant 1 and kill Applicant 2 and [Mr B] because [Ms A] wants to be with Applicant 1 and only Applicant 1;
·Her suicidal ideation will reoccur due to the proximity of her family and [Ms A], and because of the lack of appropriate mental health support in Malaysia;
·She will be subject to sexual harassment in the workplace because of her background and her sexuality;
·Applicant 2 will be physically disciplined by her family because Applicant 2 has long hair (like his father) and Applicant 1’s family will accuse her of wanting her son to be a woman and to be “gender confused”;
·She would suffer economic harm because Applicant 2, as a stateless child, will not be able to go to school or access medical care unless Applicant 1 pays fees for those services and also because her age is a barrier to getting work in Malaysia;
·She will be discriminated against because she is queer and the police will not protect her because being queer is not allowed in Malaysia.
Applicant 1 claimed she cannot access state protection because when her mother sought assistance in the past, her parents were told to sort out their problems themselves. She claimed the police in Malaysia do not take family violence seriously and they also discriminate against Chinese Malays. She also claimed she cannot relocate because with social media anyone can take photos of her and her son and post them and because of that [Ms A] particularly will find her. She claimed that culturally it is a sin not to be in contact with parents and she would be forced to tell her parents where she is. She fears her father would emotionally manipulate her and verbally abuse her, pressuring her to tell him where she was located which would put her in danger from him.
Protection claims of Applicant 2
Applicant 2’s nationality
The Applicant’s representative submitted in writing that Malaysian citizenship for children born outside Malaysia can only obtain Malaysian citizenship through their father. The representative further submitted that as Applicant 2 was born at a time when both his Malaysian citizen parents were not married, Applicant 2 is illegitimate under Malaysian law which then renders citizenship through his father not possible.
In response to a request from the Department during the processing of Applicant 2’s visa application, Applicant 1 provided a statement[15] explaining her attempts to register her son’s birth with the Malaysian government, which was required before his citizenship could then be recognised.
[15] The statement is dated 23 September 2024 (which is a separate statement to the statement of the same day in relation to Applicant 1’s protection claims).
Both Applicant 1 and her representative provided written statements to the Tribunal stating that Applicant 1 has not married her partner (Applicant 2’s father) in Australia and that they only marriage certificate they have is a marriage certificate issued in Sabah which was issued after they were married in a cultural marriage ceremony. Applicant 1 stated that a cultural marriage ceremony was conducted (that Applicant 1 and Applicant 2’s father attended by video) where the families of Applicant 1 and Applicant 2’s father met and exchanged a dowry.
In summary, in her statement Applicant 1 stated:
-She and her partner [Mr B], who is the father of her son, were not married at the time Applicant 2 was born;
-She was told by the Malaysian Embassy that in order to register her son’s birth with the Malaysian government (which was required to obtain evidence of his Malaysian citizenship) she needed to provide the Malaysian Embassy with, amongst other things, Malaysian birth certificates for her and Applicant 2’s father, their marriage certificate and photo identification of Applicant 2;
-She was able to register her cultural marriage with the Sabah state government but when she provided that marriage certificate to the Malaysian Embassy they would not accept that as proof of her marriage to her partner.
Protection owed due to statelessness
Applicant 1 claims on behalf of her son, that he will be subject to harm on return to Malaysia, because he is the son of Applicant 1 and because he is stateless. Applicant 1 and her representative submitted that Applicant 2 would be subject to family and sexual violence from Applicant 1’s ex-girlfriend and from her father. They also submitted that he would be subject to harm on account of being stateless, which would mean he would be denied access to basic services such as education and health care.
REASONS AND FINDINGS
The issue in this case is whether Applicant 1 and Applicant 2 are refugees or owed complementary protection. For the following reasons, I have concluded that the matters should be set aside and remitted for reconsideration on the basis that Applicant 1 is a refugee because she has a well-founded fear of persecution due to her membership of a particular social group (being “Women in Malaysia”) and that Applicant 2 is owed protection as a family unit member of Applicant 1.
Family unit members
On the basis of the Australian birth certificate of Applicant 2, I accept that Applicant 2 was born on [Date] in the [Hospital] in Victoria and I also accept that he is the biological son of his mother, Applicant 1.
On the basis that I accept Applicant 2 is the biological child of Applicant 1, and that he is currently [Age] years old, I am satisfied that he is a dependent child of Applicant 1. I find that Applicant 1 is the family head and as I accept that Applicant 2 is the dependent child of Applicant 1, I am therefore satisfied that Applicant 2 is a member of the family unit of Applicant 1.[16]
[16] Regulation 1.12(4)(b) of the Migration Regulations1994.
What is Applicant 1’s country of nationality?
I have before me a copy of the applicant’s Malaysian passport which was included with her protection visa application. The delegate was satisfied of the applicant’s identity. In her protection visa application, she stated she is not a citizen of any other country and that she does not have a right to enter or reside in a third country which I accept. I find that she is a Malaysian citizen, and I have assessed her protection claims with Malaysia as the receiving country.
Is Applicant 2 stateless?
I have before me a copy of the applicant’s Australian birth certificate that indicates he is the biological child of his mother, Applicant 1 and his father, [Mr B], and the birth certificates states that [Mr B]’s place of birth is Malaysia. The birth certificate also states that at the time of Applicant 2’s birth, his parents were in a domestic relationship.
Written submissions from Applicant 1 and 2’s representative state that Applicant 2’s parents were not married at the time of Applicant 2’s birth. The marriage certificate of Applicant 1 and Applicant 2’s father is a “Sabah Native Marriage Certificate” and was issued under the Native Courts Enactment 1982.
I have considered the statements by Applicant 1, regarding her relationship with Applicant 2’s father, and the circumstances of Applicant 2’s birth, including Applicant 2’s birth certificate and the Sabah issued marriage certificate. Accordingly, I find that Applicant 1 was not married to Applicant 2’s father at the time Applicant 2 was born and as of the date of this decision Applicant 1 and Applicant 2’s father ([Mr B]) are not legally married but I accept they are in a domestic relationship.
I have found above at [54] and [56] that Applicant 2 was born in Australia on [Date] and that he is the biological child of Applicant 1, who is a Malaysian citizen. On the basis of the evidence of Applicant 1, I accept that Applicant 2’s father is a Malaysian citizen.
Information on the website of the Malaysian High Commission regarding the registration of children born in Australia to Malaysian parents indicates there is a process available to register the birth of a child whose parents are married and a separate process for children of parents who are not married.[17] Under the heading of “Child Registration for Birth Certificate by Single Parent” the website indicates that the “processing time could take up to 6 months and longer. The presence of the child is not required; however the child's thumbprint on the form (page 5, Borang E) and child's photographs must be witnessed and certified by either the Malaysian Consulate, Justice of the Peace or a Police Officer. The father or the mother must lodge the application in person and bring in all the original documents and 2 copies of each document requested below (no need to be certified).”[18] Included in the list of documents required are documents showing that the parents of the child are not married in any jurisdiction in Australia.
[17]
[18] Ibid.
Whilst I accept the process of the birth registration of Applicant 2 may be slow, on the basis of the information quoted above in [29] I find that Applicant 2’s birth can be registered with the Malaysian government.
The DFAT report indicates that:
“According to Article 14 of the Constitution, a child born in Malaysia after Merdeka Day (Independence Day) in 1957 becomes a citizen by operation of law if one parent is a citizen or permanent resident in Malaysia at the time of the child’s birth… However, in accordance with the Second Schedule of the Constitution (Part III, Section 17), if a child is born outside of marriage, or the parents failed to register their marriage, the child is considered illegitimate and will follow his/her mother’s citizenship. Therefore, a child is considered stateless if born to a Malaysian father and a non-Malaysian mother who were not officially married, or had failed to register their marriage.”[19]
[19] DFAT Country Information Report Malaysia, 24 June 2024, paragraph 3.25.
In this case however, Applicant 2 is the child of a mother who is a Malaysian citizen and so whilst Applicant 2 was born outside marriage, I do not accept that, on the basis of the DFAT report quoted above in [63], that Applicant 2 is stateless.
I have therefore considered Malaysian citizenship law which is governed by Part III of the Constitution of Malaysia 1957.[20] Article 14(1)(b) together with the Second Schedule sets out the conditions for citizenship, which includes citizenship by operation of law, for people born outside Malaysia, who at the time of their birth was born to a Malaysian citizen father.[21] Article 15(2) provides that, subject to Article 18, a person under the age of 21 may be registered as a citizen upon application by a parent or guardian, provided one of the child’s parents is a Malaysian citizen.[22] In 2021 the Malaysian Federal Court considered the citizenship status of a child born out of wedlock to a Malaysian father and a non-Malaysian mother and determined that the child’s citizenship follows the mother.[23] In that particular case the mother of the child in question was not a Malaysian citizen however in the case of Applicant 2, his mother is a Malaysian citizen. The Malaysian parliament has recently amended the Constitution[24] to provide for citizenship by registration for children born overseas to a Malaysian mother. Whilst the amendment has not yet come into effect, it did receive royal assent on 7 March 2025.[25] This amendment has occurred as a result of the judicial proceedings of the Malaysian Federal Court in 2021.[26]
[20] Constitution of Malaysia 1957 and
[21] Ibid.
[22] Ibid.
[23] CTEB and CWB v Ketua Pengarah Pendaftaran Negara, Malaysia, Ketua Setiausaha Kementerian[24] Constitution (Amendment) Act 2025 (Act A1752)
[25] Ibid, page 2.
[26] As above at 23, and also see:
On the basis of the country information and my findings above,[27] I accept that Applicant 2’s birth could be registered and as a result I find that there is a pathway to Malaysian citizenship, the country of nationality of his mother and therefore in those circumstances I do not consider Applicant 2 to be at risk of statelessness.
[27] Reference to country information and my findings is a reference to that under the heading “Is Applicant 2 stateless?”
Given that finding, I have therefore assessed Applicant 2’s protection claims with Malaysia as his country of nationality and receiving country.
Applicant 1’s credibility
In her protection visa application, Applicant 1 claimed that she left Malaysia because she was unemployed and as she had financial responsibilities towards her family she came to Australia to feel safe and start a new life. She claimed she had personal problems in Malaysia that would resurface if she returned to Malaysia. Her visa application was lodged on 30 August 2019 and the delegate refused it on 3 October 2019. Applicant 1 stated before the Tribunal that a woman who she thought was a migration agent told her she would lodge a working holiday visa application for her and that the protection claims in the form were done by the agent without input from the applicant, evidence that I accept.
I do not draw an adverse inference to Applicant 1’s credibility for the variation in the claims that are before me that were not included in her protection visa application. This is because I find it highly credible that, particularly in the cultural context of a Malaysian woman who has had a lesbian relationship, and given the traumatic nature of the violence she experienced from her father, uncles and her ex-girlfriend, there would be considerable language and cultural barriers in expressing a detailed explanation in a complicated visa application form as to her experiences in Malaysia and how that related to her fear of harm on return.
When given an opportunity in the visa application of Applicant 2, Applicant 1 provided not only detail regarding her son’s protection claims, but disclosed the nature of her personal problems, being the family violence inflicted on her by her family and [Ms A], as well as her claim in relation to her sexuality.
I am mindful that Applicant 1 did seek the assistance of an agent who turned out not to be entirely truthful. I am also mindful that the delegate did not interview Applicant 1. I am also mindful of the challenges of a vulnerable applicant, newly arrived in Australia who does not speak English, being required to explain particularly traumatic events in a long and complex application form. I have considered the psychological report before me that indicates Applicant 1 has undergone sustained and regular psychological support for PTSD, anxiety, depression and trauma counselling, which I accept. The Applicant’s representative submits that Applicant 1 stated that the trauma she has experienced impeded her memory and it was not util she For the reasons in [68] to [71] I do not draw an adverse inference[28] as to the credibility of the claims that are before the Tribunal that were not included in detail before the delegate.
[28] s367A of the Migration Act 1958.
On the contrary, I found the explanations in Applicant 1’s statements, to be detailed, thoughtful and considered which in turn I found to be persuasive.
Assessment of the Protection Claims of Applicant 1
I have found above in [69] to [72] Applicant 1’s written evidence to be credible and also honest and persuasive. Her evidence in relation to the previous harm inflicted on her in Malaysia was consistent across her statements and corroborated by the WhatsApp messages, labelled photographs, money transfer receipts and psychological report before me all of which I have considered when making my findings below. I have chosen not to describe above all of the evidence Applicant 1 has detailed in writing about the harm inflicted on her, her mother and siblings, by her father and uncles, out of consideration for the Applicant, but on the evidence before me, I find that:
·Applicant 1 was, from the age of about four, subjected to repeated, sustained, and severe physical and sexual violence where the perpetrators of that violence were her father and her uncles;
·Her father still physically harms Applicant 1’s mother;
·Applicant 1’s father still verbally abuses her over the phone from Malaysia;
·Applicant 1 had a same sex-relationship with her former girlfriend [Ms A];
·[Ms A] subjected Applicant 1 to emotional manipulation and physical violence and that [Ms A] on more than one occasion lied and threatened to commit suicide as a way of controlling Applicant 1;
·[Ms A] used Applicant 1’s personal information fraudulently to take out a loan for [Ms A]’s own benefit;
·As recently as late 2024 [Ms A] was looking for Applicant 1 in driving past Applicant 1’s sister’s house and that [Ms A] has, during 2024, contacted two of Applicant 1’s sisters regarding Applicant 1 and Applicant 2;
·Applicant 1 is ethically Chinese Dusun;
·Applicant 1 is from Sabah;
·In relation to her sexuality, Applicant 1 identifies as queer;
·Applicant 1 suffers from PTSD, depression, anxiety as a direct result of the trauma she suffered in Malaysia, trauma perpetrated by her father, uncles and [Ms A];
·Applicant 1 has in the past experienced suicidal ideation, and agoraphobia and that to avoid a recurrence, she requires continued ongoing trauma counselling and psychological support.
Does Applicant 1 satisfy the refugee criterion for protection?
Applicant 1 claimed to fear harm in the form of physical and sexual violence from her father, and uncles; physical violence and stalking by her former girlfriend [Ms A] and that [Ms A] will kill Applicant 2 and [Mr B]. She also claimed a fear of sexual harassment and discrimination because she identifies as a queer woman, economic harm and that her mental health will decline if she returns to Malaysia.
For Applicant 1 to be considered at law a refugee,[29] she must have a well-founded fear of persecution. Well-founded fear of persecution is defined in s5J of the Act which requires the satisfaction of various criteria and also contains some qualifications to those criteria.
[29] s5H(1)(a) of the Migration Act 1958.
Subjectively, the Applicant must in fact hold a fear of being persecuted for one or more of five reasons,[30] and objectively, there must be a real chance she would be persecuted.[31]
Is the harm feared for a refugee reason?
[30] s5J(1)(a) of the Migration Act 1958.
[31] s5J(1)(b) of the Migration Act 1958.
The harm Applicant 1 fears must be for one of the reasons in s5J(1)(a) of the Act. Applicant 1 claimed she has been the victim of gendered violence inflicted on her by her family, and her ex-girlfriend [Ms A]. She claimed she will be harmed as she is a queer woman. I therefore consider that Applicant 1’s claimed fear of persecution relates to her gender. Given that fact, I am satisfied that the applicant is a member of a particular social group (“PSG”) called “Women in Malaysia.” A person is to be treated a member of a PSG other than that person’s family[32] if a characteristic (her gender and her nationality), other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic, and that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The applicant cannot renounce or hide her gender or her nationality. Section 5J(1)(a) is satisfied.
Real Chance of Serious harm
[32] s5L of the Migration Act 1958.
Objectively, there must be a real chance[33] Applicant 1 will be subject to serious harm because of her membership of a PSG if she returns to Malaysia. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
[33] s5J(1)(b) of the Migration Act 1958.
Notwithstanding that the risk of harm assessment at law is a forward-looking test, I consider the harm the applicant has experienced in the past from her father, uncles and [Ms A], is a reliable indicator of what harm she faces in the future[34] and I therefore give weight to her past experiences of harm when considering whether Applicant 1 has a well-founded fear of persecution. In this case, for the following reasons, I do not accept that the possibility of persecution either on the basis of harm to Applicant 1 from her father and uncles, or from [Ms A] is far-fetched.
[34] MIEA v Guo (1997) 191 CLR 559 at 574.
Applicant 1 began accessing psychological treatment in May 2023, and she has been regularly meeting with her current psychologist, who has provided a report to the Tribunal, since December 2023. Applicant 1’s psychologist is of the opinion that Applicant 1 “has minimal phone contact with her family. The reason for that is that the family still tries to control her emotionally through fear, shame and guilt…”. I give weight to the opinion of the psychologist which, in combination with my findings above at [73] I accept that Applicant 1 has been subjected to gendered based violence from her father and uncles that is intergenerational violence which leads me to find that the past behaviour of Applicant 1’s father and uncles is an indicator of their likely future behaviour towards her.
I have accepted above at [73] that Applicant 1 has, since the age of about four, been subjected to repeated, sustained, and severe physical and sexual violence where the perpetrators of that violence were her father and her uncles.
Gender based violence is founded in the belief that men are entitled to prevent or punish behaviour that is considered not to conform to religious, cultural and social practices.[35] “[D]iscrimination on the basis of sex, and inequality, persist for women and girls in Malaysia. Although women participate widely across various aspects of Malaysian society, some conservative cultural and religious practices continue to limit their choices…”[36] I consider the risk of serious harm to Applicant 1 from her father and uncles is heightened because she would be returning to Malaysia with a child born out of wedlock and because she identifies as a queer woman.
[35] CEDAW Committee, General Recommendation No 35 on Gender-based Violence against Women, Updating General Recommendation No 19, UN Doc CEDAW/C/GC/35 (26 July 2017) at paragraph 19.
[36] As above at 19, paragraph 3.111 page 30.
For these reasons, I am satisfied there is a real chance[37] Applicant 1 faces serious harm[38] in the form of serious physical and sexual violence[39] from her father and uncles if she returns to Malaysia now or in the reasonably foreseeable future.
[37] s5J(1)(b) of the Migration Act 1958.
[38] s5J(4)(b) of the Migration Act 1958.
[39] Harm that amounts to those examples in s5J(5)(a), (b) and (c) of the Migration Act 1958.
I have accepted above at [73] that Applicant 1’s former girlfriend [Ms A] has subjected Applicant 1 to emotional manipulation, physical violence, that for her own benefit, [Ms A] has fraudulently used Applicant 1’s personal information and that as recently as 2024 [Ms A] has been seeking to find Applicant 1. Where perpetrators of violence in intimate relationship settings, engage in multiple forms of abuse, and exhibit controlling behaviour, the risk of repeated and serious forms of violence is heightened.[40]
[40] ‘Factors affecting risk’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[Ms A]’s past behaviour towards Applicant 1 (when she has been in Malaysia and since she has been in Australia), which includes physical violence and emotional manipulation, and the fact that [Ms A] has approached Applicant 1’s sisters as recently as 2024, I find, is indicative of [Ms A]’s future behaviour towards Applicant 1. For these reasons I am satisfied that there is more than a remote possibility, that is, there is a real chance[41] that Applicant 1 will suffer serious harm[42] perpetrated by [Ms A] if she returns to Malaysia now or in the reasonably foreseeable future.
[41] s5J(1)(b) of the Migration Act 1958.
[42] As above at 38.
Applicant 1 has claimed a fear of harm in the form of sexual harassment and discrimination because she identifies as a queer woman. Country information indicates that “Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent…Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour… Prosecutions have taken place under these laws, which includes penalties of whipping and up to 20 years in prison.”[43] DFAT assess that “members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence.”[44]
[43] As above at 19, at paragraphs 3.126 and 3.127, page 32.
[44] Ibid, paragraph 3.148, page 35.
In relation to societal attitudes towards the LGBTQI community in Malaysia, DFAT reports that:
“The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah.”[45]
[45] Ibid, paragraph 3.147, page 35.
The US Department of State supports the applicant’s claims of discrimination in the workplace where it reports that in Malaysia, “[t]he law did not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics and did not recognize LGBTQI+ individuals, couples, or their families. LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality.”[46]
[46] US Department of State, Country Reports on Human Rights Practices for 2023: Malaysia, section 6, available online:
The UK Home Office reports that, whilst prosecutions under the Penal Code are rare, non-Muslim members of the LGBTI community still face arbitrary arrest, harassment, and mistreatment from authorities. Societal attitudes towards LGBTI individuals remain overwhelmingly negative, and access to employment, healthcare, and housing is severely limited.[47]
[47] UK Home Office, ‘Country Policy and Information Note: Malaysia: Sexual orientation and gender identity or expression’, July 2024, p29-30.
I have accepted that Applicant 1 identifies as a queer woman and that she is from Sabah. The violent behaviour of her father and uncles towards Applicant 1 that I have accepted above, and the fact that her family are from Sabah, I find, when considering the country information quoted above at [86] to [89], places Applicant 1, as a queer woman at elevated risk of harm in the form of societal harassment and discrimination, possible arrest and prosecution and I find that the risk is more than remote. For these reasons, I am satisfied there is a real chance[48] that Applicant 1 would, as a queer woman, suffer serious harm in the form of a threat to her liberty if she returns to Malaysia now or in the reasonably foreseeable future.
Behaviour modification and reason for the persecution
[48] s5J(1)(b) of the Migration Act 1958.
I find that Applicant 1’s gender and her nationality are fundamental to her identity and that she cannot modify or conceal her gender or her nationality to avoid a real chance of persecution, and indeed she is not required by law to do so. Section 5J(3) is therefore met.
Applicant 1’s membership of a particular social group (Women in Malaysia) is the essential and significant reason for the persecution from her father, uncles, ex-girlfriend and as a queer woman, and I am therefore satisfied that section 5J(4)(a) is met.
Systematic and discriminatory conduct
The persecution must involve systematic and discriminatory conduct. I have found that the applicant faces a real chance of persecution because she is a member of a PSG being “Women in Malaysia.”
DFAT reports that violence against women and girls is a significant problem.[49] “A 2021 survey by the Women’s Aid Organisation found 53 percent of respondents believed domestic violence was a ‘normal’ reaction to stress or frustration.”[50] Whilst gender-based violence can be experienced by men and women, it is widely acknowledged to be experienced significantly more by women than men.[51] I am satisfied that the persecution from Applicant 1’s father, uncles and ex-girlfriend in this case does involve conduct that is systematic and discriminatory towards women. Considering the country information quoted above in [86] to [89], I am satisfied the serious harm Applicant 1 faces as a queer woman is also systemic and discriminatory. Section 5J(4)(c) is met.
Does the real chance of persecution relate to all areas of Malaysia and can the applicant access effective protection?
[49] As above at 19, paragraph 3.111, page 30.
[50] Ibid, paragraph 3.116, page 30.
[51] ‘Terminology’ National Domestic And Family Violence Bench Book, AIJA, July 2024,
The fact that [Ms A] used Applicant 1’s personal information fraudulently and maintained contact with Applicant 1 after she came to Australia, combined with [Ms A] continuing to contact Applicant 1’s sisters in Malaysia, satisfies me that [Ms A] is still maintains an interest in Applicant 1 regardless of where Applicant 1 was located in Malaysia.
Amendments to domestic violence laws in Malaysia expanded the definition of domestic violence to protect family members from other family members, and also “introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week to prevent a perpetrator from entering a safe location. An EPO can also be used to remove an offender from the house where the victim lives.” However, in-country sources told DFAT that EPOs were difficult to obtain and required strong evidence of violence or damage to property and also that police reportedly do not always enforce EPOs.[52]DFAT assesses that in relation to women seeking protection from gender-based violence, state protection, whilst available, is often inadequate or ineffective.[53]
[52] Ibid, paragraphs 3.120 to 3.121, page 31.
[53] Ibid, paragraph 3.125, page 30.
The serious harm the applicant faces is from her own family, her ex-girlfriend and the Malaysian state. As the Malaysian state is one of the perpetrators of the harm and considering the country information quoted above at [96], I accept that the serious harm extends to all areas of Malaysia and that state protection is not available to the applicant. I am therefore satisfied that section 5J(1)(c) and section 5J(2) are met.
There is nothing before me indicating that Applicant 1 has engaged in any conduct in Australia for the purpose of strengthening her refugee claims and therefore I am satisfied that s5J(6) does not apply.
For the reasons given above on the material before me, I am satisfied that Applicant 1 has a well-founded fear of persecution for reason of her membership of a PSG (being Women in Malaysia) if she returns to Malaysia now or in the reasonably foreseeable future. It follows that I am satisfied that Applicant 1 is owed protection as a refugee under s36(2)(a) of the Act.
Having determined Applicant 1 has a well-founded fear of persecution at the hands of her father, uncles and ex-girlfriend because of her membership of the particular social group Women in Malaysia, and therefore is a refugee as defined by s5H, I have not determined Applicant 1’s other claims to have a well-founded fear of persecution because of her mental health or because she faces economic hardship.
Does Applicant 2 satisfy the refugee criterion for protection?
As I have accepted that Applicant 2 is the child of Applicant 1 and Applicant 2 is therefore a member of the same family unit of Applicant 1, I am satisfied that Applicant 2 meets the criteria for protection under s36(2)(b) of the Act and it is not necessary for me to consider Applicant 2’s own claims for protection.
Having concluded that Applicants 1 and 2 meet the criteria in ss36(2)(a) and (b) respectively, it is not necessary for me to consider the alternative criterion in s36(2)(aa) for either Applicant 1 or Applicant 2.
DECISION
For the reasons set out above, in relation to Applicant 1, the Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that Applicant 1 satisfies s36(2)(a) of the Act.
For the reasons set out above, in relation to Applicant 2, the Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that Applicant 2 satisfies s36(2)(b) of the Act.
Date of Hearing: N/A
Representative for the Applicants: Ms Parichehrsadat Shakiba (Lawyer, ASRC)
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(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.
…
Dalam Negeri and Kerajaan Malaysia (Federal Court Civil Appeal No.: 01(i)-34-10/2019(W))
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