1929676 (Refugee) - [2024] ARTA 799

1929676 (REFUGEE) [2024] ARTA 799 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1929676
Tribunal:Matthew Tubridy
Date:19 December 2024

Decision:The Tribunal affirms the decisions under review.

Statement made on 19 December 2024 at 4:48pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – mother and children’s fear of harm from husband/father, other family members and community – physical and emotional abuse – no documentary evidence provided – application did not include that husband was in Australia – different and contradictory claims in protection applications by husband and brother-in-law living at same address – claims that husband is bisexual and his parents are forcing applicant to remain in marriage – credibility – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Receiving country
The applicants present as nationals of Malaysia, and as having been citizens of Malaysia at birth, who were born in Malaysia to parents who were both citizens of Malaysia. Their Malaysia issued passports confirm their claims as to their nationality and place of birth; and I note that Part 2, Article 14, of the Federal Constitution of Malaysia provides that a person is a citizen of the Federation of Malaysia by operation of law if they were born on or after 16 September 1963 within the Federation of Malaysia to parents of whom at least one was a citizen or a permanent resident at the time of birth.[1] I find the applicants to all be nationals of Malaysia, and I find Malaysia to be their receiving country for the purpose of this review.
[1] 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; Canada IRB, ‘Malaysia: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognized and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship, 16 November 2007, MYS102621.E.
Protection claims
The applicants are a mother, [the first applicant] (born [Year], and [Age] years of age), and her two children, [the second applicant] (born [Year], and [Age] years of age) and [the third applicant] (born [Year], and [Age] years of age). They arrived in Australia [in] June 2019, and lodged a protection visa application on 16 August 2019. Their protection claims have been advanced by [the first applicant] and for this reason I will refer to her hereafter as ‘the applicant’ (and I will refer to her and her children collectively as ‘the applicants’). [The first applicant] claims to fear that if she and her children return to Malaysia, she will suffer physical and emotional harm from her husband (were he to return to Malaysia also), and that she would also be subjected to mental harm by her own mother, and her husband’s family, and other people in Malaysian society, and that her children would suffer such harm also.
16 August 2019 protection visa application
On 16 August 2019 a protection visa application was lodged which presented the applicants as being ethnic Malay, and Malay speakers, and whose religion was Islam. These claims did not change subsequently in any significant way.
The 2019 protection visa application also presented [the applicant] as submitting that she had left Malaysia because she was a victim of domestic violence and had been suffering from physical and emotional abuse from her husband, and that she was afraid for herself and also that her husband would harm her two sons as they were still small. She submitted that her husband was very hot-tempered and when they argued her husband would harm her by pushing, shoving and strangling her; and this would leave bruises all over her face and body. After every argument her husband would apologize and promise not to do this again. Her husband’s family treated her nicely, so she did not want to tell them about their son’s abusive behaviour. She submitted that she would be unable to find safety in another part of Malaysia because her husband would hunt her down and do worse things if she ran away from him. She submitted that she did not want to seek protection from the authorities in Malaysia because she did not want both families (her family and her husband’s family) or other people to know about her marriage problems.
[The applicant] indicated that she was married in [Year] and as will be apparent from the above she implied that her husband had been left behind in Malaysia, but she provided no details as to the name or specific whereabouts of her husband. Further, in response to the application form’s request for information about the names and whereabouts of other family members (parents, siblings those that are deceased who are in Australia or overseas) the applicant likewise provided no information. The applicant attached identity documentation to establish her claims about her identity and the identities of her children, but she provided no other documentary evidence in support of her claims. She indicated that she was literate in both Malay and English and she had completed the August 2019 protection visa application without any assistance.
18 October 2019 refusal
On 18 October 2019 the delegate refused to grant the visa. The delegate was not satisfied (on the basis of the country information about the availability of protection in Malaysia with respect to domestic violence, and about freedom of movement) that the applicant would face a real chance of persecution or a real risk of significant harm.
19 January 2019 application for review
On the following day, 19 October 2019, an application was lodged with the Tribunal for review of the delegate’s decision to refuse to grant the applicants a protection visa. On 22 October 2019 the Tribunal emailed the applicant that this application had been received. The Tribunal advised the applicant that if she wished to provide material or written arguments for the Tribunal to consider she should do so as soon as possible. This was repeated in an information sheet which also explained that if she provided further information or evidence which was not given to the Department the Tribunal would, in certain cases, need to consider the credibility of what she had provided and why this was not provided to the Department. Nothing was received from the applicant in response. On 23 November 2021 the applicant telephoned the Tribunal to update her residential and contact details. She also requested a letter from the Tribunal to enable continued access to Australia’s Medicare universal health insurance scheme, and she did so again on 21 February 2023. But she did not indicate that she wished to provide any information which she considered was relevant to the review of the Department’s decision to refuse her and her children a protection visa.
January 2024 related cases become apparent to the Tribunal
Relevantly, the Tribunal was also undertaking the review of two other cases involving Malaysian nationals who were residing at the same address in Australia as the applicant and her children. Like the applicant, these two persons had lodged protection visa applications in which they did not disclose the names or whereabouts of any of their other family members. They were both men with the same surname, and both claimed to be unmarried and to have been rejected by their family in Malaysia because they were gay. Both had arrived in Australia before the applicant. The first of these persons was named, [Mr A], and he appeared before the Tribunal at a January 2024 hearing during which he was asked about his family members and their whereabouts. Relevantly, he indicated that he had a brother, [Mr B] who had a wife and two sons (with these being [the applicants]). [Mr A] claimed that [Mr B] and the applicant and their children [the second and third applicants] were all in Malaysia. In January 2024 the Tribunal put it to [Mr A] that there was information before the Tribunal to indicate that his brother, [Mr B] (and [Mr B]’s wife and children) were all in Australia and residing at the same address as himself. [Mr A] initially had no response, but a week later he submitted that he had now discussed the matter with his brother, [Mr B], who was in Australia.
19 February 2024 hearing invitation
On 19 February 2024 the Tribunal emailed the applicants and advised them that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited the applicants to appear before it on 15 March 2024 to give evidence and present arguments relating to the issues arising in their case. The applicant was asked to read and complete an enclosed ‘Response to hearing invitation’ form and return it to the AAT within 7 days (by 26 February 2024) with an indication of whether she and the other applicants were willing to attend the hearing. She was also advised that any documents she intended to rely on to support their case should be provided to the Tribunal by 8 March 2024.
25 February 2024 request for additional time, and subsequent response
On 25 February 2024 the applicant emailed the Tribunal and made a request to be allowed until 1 March 2024 to complete the enclosed ‘Response to hearing invitation’ form (submitting that she had only just opened the email about this that day, 25 February 2024). The Tribunal agreed to the applicant’s request, and on 1 March 2024 the applicant emailed the Tribunal the completed form and in this she indicated she was willing to attend the hearing and that she intended to rely on a written statement at the hearing. She indicated that her children would not be participating in the hearing.
March 2024 developments in a related case
On 19 February 2024 the Tribunal had also emailed the applicant’s husband, [Mr B], and had invited him to attend a hearing scheduled for 14 March 2024. [Mr B] indicated he would attend, and he subsequently submitted a statement ([Mr B]’s March 2024 statement) in which he now disclosed his marriage and claimed to fear harm on the basis of his being bisexual. In this, he submitted that in about 2016 his wife (the applicant) had found him in a compromising position with a man named [Mr C] and she got very angry and tried to stop him ([Mr B]) from having any relationship with [Mr C], and this caused a lot of tension. On 14 March 2024 [Mr B] attended a Tribunal hearing and, in response to the Tribunal’s questions, he submitted that: his wife (the applicant) had assisted him with composing his March 2024 statement by translating his claims into English; and: that the incident with [Mr C] had happened about six to eight months before [Mr B] arrived in Australia (that is, at some point between July and September 2017); and: that following this the applicant had gone to live with her mother during the period prior [Mr B]’s 11 March 2018 departure for Australia; and that the applicant had reported the [Mr C] incident to [Mr B]’s parents in an effort to compel him to end his relationship with [Mr C]; and: that he and his wife had reconciled and she had then travelled to Australia and was residing with him and his brother [Mr A]; and: it was [Mr B]’s understanding that his wife (the applicant) feared that she and her children would face problems in Malaysia from others because of him (because he was attracted to men).
March 2024 statement & request for hearing by video
On 12 March 2024 the applicant emailed the Tribunal and submitted a written statement (hereafter the March 2024 statement). In doing so she also made a request that her hearing be conducted by video. She submitted that due to certain health conditions she was unable to speak in an enclosed area and got anxiety and so would appreciate having her hearing conducted by video.
On 13 March 2024 the Tribunal emailed the applicant that it had considered her request, but it was the Tribunal’s preference that she should appear in person to give evidence and present arguments relating to the issues arising in her case. The Tribunal noted, in this regard, that the applicant had provided no evidence from a suitably qualified health provider to indicate that she had a history of being unable to speak in an enclosed area, or that she was affected by anxiety; and that the Tribunal had in any event made arrangements to ensure that the room in which her hearing would take place would be a large space (which could comfortably accommodate 9 people sitting well apart from each other).
The applicant’s March 2024 statement submitted as follows:
·     I have suffered domestic violence from my husband, in laws and my parents in Malaysia.
·     Domestic violence is a significant issue in Malaysia, although it often remains underreported due to cultural, social, and legal barriers. The Malaysian government has recognised domestic violence as a serious problem and has no taken steps to address it.
·     In recent time, Malaysia has enacted legislation to address domestic violence, notably the Domestic Violence Act 1994. This law defines domestic violence broadly and provides legal mechanisms for victims to obtain protection orders against their abusers. Protection orders can include provisions such as prohibiting the abuser from contacting or approaching the victim, among other measures aimed at ensuring the safety of the victim and any children involved. However, there have been criticisms regarding the enforcement and effectiveness of these legal measures.
·     But, social and cultural norms and societal attitudes often contribute to the underreporting and perpetuation of domestic violence in Malaysia. Traditional gender roles and expectations may normalize or condone violence within the household, leading victims to hesitate in seeking help or reporting abuse. Moreover, there may be pressure from family members or community elders to keep domestic issues private, further inhibiting victims from speaking out.
·     Despite efforts to raise awareness, domestic violence remains significantly underreported in Malaysia. I have faced fear retaliation from their abusers as I was married to one. I was abused by him as I could not allow/tolerate that he has relationship with men in Malaysia and have relationship with me. My husband identifies himself as a person who has interest in both men and women. I would, however, say he has more interest in men and less interest in women, in particular myself. I was worried about the repercussions of reporting abuse to my in-laws and my family. And my worry became a reality as they abused me and forced me to continue my relationship with my husband. I was ashamed and embarrassed to disclose my experience to anyone. My husband often beat me up and forced me to allow him to maintain relationship with his lovers.
·     I have received no support from society and from police. I was fearful that I will be divorced and become a laughable person in the society. In summary: I fear for my safety, and I have serious concern about my children’s future. I fear if I to return to Malaysia my family I will be disowned, and my children will face humiliation from society.
15 March 2024 hearing
On 15 March 2024 the applicant appeared before the Tribunal at a hearing to give evidence and present arguments relating to the issues arising in her case. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. The Tribunal asked the applicant if she felt well enough to give evidence. The applicant said she was. Asked if she had any physical or mental health issues, she said she did not. It was explained to the applicant that the Tribunal would have regard not only to the evidence provided at the hearing, but also to that she had provided previously (including to the Department). Relevantly, the following was discussed:

I confirmed with the applicant that she was aware that her husband had arrived in Australia in 2018. I asked the applicant why she had given no indication in her 2019 protection visa application that her husband was already in Australia. The applicant submitted that this was because her application had been completed by a [Ms E] who did not understand her situation fully, and she (the applicant) had not read over the content before the application was submitted. The applicant submitted that she had been introduced to [Ms E] by friends, and she and [Ms E] only ever communicated by telephone conversation. I asked the applicant whether the more recent March 2024 statement was accurate. The applicant said it was and that she had read this before submitting it. I asked the applicant if she had written the March 2024 statement herself. She said she had been assisted by a solicitor, [Mr F] at [Law firm], but she could not recall this person’s surname. I advised the applicant that by 22 March 2024 she should provide the Tribunal with the full name of the solicitor she said had assisted her.
I asked the applicant who she was residing with in Australia. She indicated that she and her children were residing with her husband, [Mr B], and his brother, [Mr A]. In response to my questions about these persons, she submitted that: her husband had been unaware of what her claims to protection were until she disclosed these to him recently after being invited by the Tribunal to attend the hearing; and: she was aware that her husband had lodged a protection visa application and that he had attended a Tribunal hearing on 14 March 2024, and that he was claiming to like both males and females. The applicant claimed to be unaware of whether [Mr A] had lodged a protection visa application, and to be unaware of whether [Mr A] knew whether she had lodged a protection visa application. Asked about her own family members in Malaysia, she said that her parents divorced when she was three months old, and she had had no subsequent contact with her father. She said that her mother did not accept her, and had always physically hurt her, and this was why she had come to Australia. She said she was currently not in contact with her mother. Asked why not, the applicant said this was because her mother used to hurt her, and her mother did not like her husband who she knew had cheated on her with another male.
Asked about where she had resided after her marriage to [Mr B] in August 2015, the applicant said after her marriage she resided at her husband’s rented home in Kuantan, in Malaysia’s Pahang state, for around three years, aside from a period when they were residing with her husband’s parents (at the time of the birth of [the second applicant] in [Year]) which was also in Kuantan. Asked if this meant she was residing in Kuantan until around August 2018, the applicant said this was correct, and that after this she went back to Kemaman, in Terengganu state, to reside with her mother while she was in confinement awaiting the birth of her second child [the third applicant] (who was born in [Year]). Asked if she had ever travelled abroad before travelling to Australia (in August 2019) she said had gone to [Country] in January 2018 when her husband invited her and [the third applicant] to go there for a vacation.
Asked if she feared any harm would come to her if she returned to Malaysia, she said that she feared she would experience mental stress, and that her children would also, because her parents-in-law, and her mother, and also people around them, knew about her husband having had an affair. Asked if she had any other fears for herself or her children with respect to returning to Malaysia, she said she did not other than that their family would not accept them because they knew about her husband having had any affair. Asked what she meant when she said she feared mental stress for her herself and her children from her mother and parents-in-law because of her husband’s affair, the applicant submitted: probably it will be very stressful. She did not elaborate any further.
Asked how it was that her mother and parents-in-law knew about her husband having had affairs with men, the applicant said that before she was married she did not know this but when she was pregnant with her first child her husband had had an affair with another male in the house, she had caught him with a man, and had chased the other man away from the home, and she had broken his phone, and then had informed her parents-in-law about this incident, and they already knew he had done this before, and she became aware it was the second time her husband had been caught like this. Asked when this had happened, the applicant said this had been in 2016. Asked what happened next, she said her parents-in-law and mother had forced her to continue in the relationship because they did not want to be embarrassed. She said she continued to reside with her husband. Then she became pregnant with her second child, and it was at around this time that her husband left without telling her that he was leaving for Australia. Asked what she did next, the applicant said that she went to Kemaman to stay with her mother to manage her preparation before having her next child; later in her hearing she submitted that her mother had pressured her to abort her second child because it was from a bad person. I asked the applicant when she became aware her husband was in Australia. She said that about a month after his leaving she received a message from her husband that he was in Australia and happy.
I asked the applicant why she had left Malaysia to come to Australia. The applicant said that her mother had not accepted her and her children, and so she (the applicant) had asked her husband to be responsible for her and their children and, at first, he had not been willing to do this, but after she had insisted that he care for the children, he agreed. She and the children had then travelled to Australia and had resided thereafter with her husband and his brother [Mr A]. She said that her relationship with her husband was currently good, and her husband was also very good toward the children.
I put it to the applicant that there were significant differences between her 2019 protection visa application’s claims and what she was claiming now in 2024. First, it was now her claim that her relationship with her husband was currently good, and that the reason she left Malaysia was because of her mother’s abuse and that she would not accept her (including for reasons that related to her husband’s behaviour) and so she had come to Australia to join her husband. But what she had claimed in her 2019 protection visa application was that she had left Malaysia to escape her husband because he was hot-tempered and subjected her to mental and physical abuse. Moreover, in her recent March 2024 statement she had claimed for the first time that the reason her husband was abusive toward her was that she had confronted him about having relationships with men; whereas in her 2019 protection visa application’s claims there was no mention of her husband being attracted to men, or that she had confronted her husband about this. Further, while at the hearing the applicant had maintained the claim that her husband was attracted to men, and that she had confronted him about this, she had said given little indication that these confrontations had been violent, whereas this was emphasised in her March 2024 statement.
The applicant asked what it was that the Tribunal would like her to clarify. I asked her to begin with explaining why her 2019 protection visa application’s claims were so different from what she was claiming now. The applicant submitted that the 2019 protection visa application was completed by someone else who did not understand her situation.
I next asked the applicant to explain why there were difference between what she had told me at the hearing compared to what was submitted in the March 2024 statement which she had provided a few days earlier. The applicant asked what differences there were in this regard. I put it to the applicant that what was emphasised by her March 2024 statement was that her husband had been mentally and also physically abusive toward her, and that this was occurring because she would confront him about his wanting to have relationships with men, but during the hearing she had given little indication of this. In response, the applicant said that she had just been responding to the Tribunal’s questions. I put it to the applicant I had asked her what fears she had if she returned to Malaysia (and her response had been that she feared harm from parents-in-law, and her mother), and I noted that she had indicated that her relationship with her husband was now good. The applicant said that this was because in Australia things were different because of the how the safety of women and children was prioritised. She said that in Australia her husband could not doing anything to her because she would not hesitate to take action against him and, also, in Australia he could do whatever he liked with males, and she had no choice but to accept this so he would be responsible to the children. The applicant submitted that in Malaysia he had been very violent toward her because she had confronted him about this.
Asked if she had any evidence that her husband had ever been violent toward her in Malaysia, the applicant said that she did not because she no longer had the mobile telephone which she had had in Malaysia which had contained evidence of nasty messages from her husband, and photographs with evidence that he had beaten her. Asked if she had ever required medical attention as a result of an incident with her husband, the applicant said she had not. Asked if she ever reported her husband’s behaviour to a women’s support group in Malaysia or to the police, she said she had not because she was afraid of a how her husband and his parents might react. Asked what she had feared her husband’s parents might have done, the applicant said her husband’s parents had threatened to tell her family members about her husband. Asked if there was any other reason why she was fearful of going to the police, she said there was not. I put to the applicant that in her March 2024 statement she had submitted that she did not go to the police because she was fearful of being divorced and becoming a laughable person in society. I put it to the applicant that this appeared to be at odds with how she was also claiming that her husband’s parents were compelling her to remain in the marriage with such threats. The applicant submitted that she feared both harm from her parents-in law and her husband, but she had also feared divorce.
I also put it to the applicant that earlier in the hearing she had claimed that after the 2016 incident (in which she claimed to have caught her husband with another man), her parents-in-law and her mother had forced her to continue in the relationship with her husband; and yet she also claimed to fear that if she returned to Malaysia her mother and parents-in-law and others would not accept her because they knew about her husband. I explained to the applicant that this seemed contradtcory. The applicant asked how it was contradictory. I put it to the applicant that I might find it implausible that, on the one hand, her mother and her husband would have compelled her to stay in a relationship with her husband, and yet at the same time that they would reject her and be abusive toward her because of her husband’s behaviour. The applicant said that she remembered that one time her father-in-law had told her husband that if he as caught a third time for doing such things he (the father-in-law) he would not hesitate to report her husband to the authorities. The applicant submitted that if they went back to Malaysia, and her father-in-law reported her husband to the authorities, she was concerned for what would happen to her children.
Although I did not find this aspect of the applicant’s evidence compelling, I have drawn no adverse conclusions from the above given that in situations like this people can act in contradictory ways, and a wife might become the focus for resentment toward a husband’s behaviour even while being compelled to remain in a relationship with him; and person might simultaneously fear being divorced, while also feeling that they were being subjected to harm by being forced to remain in an abusive a marriage. But for other reasons I have ultimately not been persuaded of the credibility of the applicant’s claims.
I put it to the applicant that her 2019 protection visa application claims gave no indication that she had ever experienced harm from anyone other than her husband; and had even submitted that she had not wanted to tell her husband’s parents about his abusive behaviour because they (her parents-in-law) had treated her so nicely. I asked the applicant to explain how her claims could now be so different. The applicant submitted again that in 2019 she had had someone else complete the visa application.
I then explained to the applicant that I needed to put to her some information which, subject to her comment or response, would be the reason or part of the reason for affirming the decision not to grant her and her children the visa. I explained to the applicant that I would give her the particulars of the information, and then I would explain its relevance, and once I had confirmed with her that she understood the information and its relevance as I had explained it, she could comment or respond, and/or he could make a request for additional time to do this.
I then put it to the applicant that in 2018 her husband [Mr B] had lodged a protection visa application in which he claimed to be gay, and in which he also indicated that he had never been married, and he gave no indication that he had ever had any children. Then, in January 2024, the Tribunal had a hearing with [Mr B]’s brother [Mr A], and at that hearing [Mr A] indicated that he had a brother name [Mr B] and who was married to a [the applicant] and who had two children name [the other applicants], and when I asked [Mr A] where these persons were he said they were all in Malaysia. I had then put it to [Mr A] that there was information to indicate that all these persons were living with him in Australia, and a week later [Mr A] emailed the Tribunal and indicated he had discussed this with [Mr B]. Then, on 12 March 2024, the Tribunal received a statement from [Mr B] in which he disclosed that he was married to [the applicant] and in which he claimed to be bisexual; and on 14 March 2024 the Tribunal had a hearing with [Mr B] and he had said that she (the applicant) had left Malaysia and did not want to return because of problems she had experienced from others because he was attracted to men.
I explained to the applicant that this information was relevant because, as with her husband, she had provided the Tribunal with a new statement on 12 March 2024, and as with her husband she had submitted for the first time that her husband was bisexual. I explained to the applicant that doubts were raised by how she and her husband had made this new claim on the same day and following the [Mr A]’s becoming aware that the Tribunal now knew that she and [Mr B] were married and that they were all in Australia together. I explained that my concern was that the reason she had altered her claims, and the only reason she was now disclosing the presence of her husband in Australia, was because [Mr A] had made her and [Mr B] aware of what the Tribunal knew, and because this rendered her earlier claims (in which she claimed to fear and to have fled Malaysia from her husband) implausible. I explained that this might lead me to conclude that she and her husband had been colluding together to fabricate claims for the purpose of obtaining a visa that would allow them to remain in Australia permanently, and that she had fabricated claims about suffering abuse from her husband and her wider family; and if I did not accept these claims I might not be satisfied that she or her children would be at risk of any harm on such a basis if they returned to Malaysia.
I asked the applicant if she understood the relevance of the information as I had explained it. She said she did. But she then asked how she and [Mr B] were related to [Mr A]. I explained to the applicant that her 2019 protection visa application presented her as fleeing Malaysia to escape an abusive husband, had given no indication that she had any fears with regard to her husband’s family who she had indicated they had always been nice to her, and she gave the impression her husband had been left behind in Malaysia, and she gave no indication that he was in Australia with her. Similarly, her husband had lodged a protection visa application in 2018 in which he claimed to be a gay man and he gave no indication that he had ever been married or had any children. But all of this changed after the Tribunal communicated to her brother-in-law, [Mr A], that the Tribunal knew that she and her husband and [Mr A] were all living together in Australia. It was after this that she and her husband changed their claims, and on the same day, and this raised the suspicion that the reason their claims had changed was not because these new claims were true, or because mistakes were made in her 2019 protection visa application because someone was assisting her, but because after [Mr A] told her and [Mr B] about what the Tribunal knew, she an [Mr B] realised that their existing claims would not be believed, and so they invented new claims.
I then suggested that, before asking if she would like to comment or respond, I would ask her a direct question, and this was to ask her whether she had been told by [Mr A] or by [Mr B] that the Tribunal was now aware that they were all living in Australia together. The applicant took some seconds to respond. When she did, she said that [Mr A] had told [Mr B] about this. I asked the applicant if what she meant by this was that [Mr B] had then told her about this. She submitted that this was what had occurred. I put it to the applicant again that my concern was that her evidence had changed (from what was claimed in 2019 to what was being claimed now) because she and [Mr B] had realized that the Tribunal’s knowledge about their all being together in Australia meant that the Tribunal would not believe their original claims. I asked the applicant if she would like to comment or respond. The applicant submitted that what she had said was the truth. I asked the applicant if she would like additional time to respond. The applicant said she did not.
I informed the applicant that a decision would not be made on her matter any earlier than 22 March 2024, and if she wished to provide any further information she could, and beyond this I would have regard to any information she provided before a decision was made, and that at this point the Tribunal had not made up its mind about anything. Asked if there was anything further that she wished to say to the Tribunal, she said that there was not.
21 March 2024 email submission
On 21 March 2024 the applicant emailed the Tribunal and provided the name of the solicitor who she claimed had indicated had assisted her with her March 2024 statement, and she also submitted that her statement had been accurate and truthful, and that the situation of [Mr A] was unrelated to her and her children.
10 April 2024 invitation in writing
On 10 April 2024 the Tribunal emailed the applicants and set out its concerns (and in expanded detail) in writing so that [the applicant] might have the additional opportunity to comment and/or respond to these in writing after having had the opportunity to consider these concerns in print and with two weeks in which to respond or to request additional time in which to respond. No response to this invitation was subsequently received. The applicant did subsequently contact the Tribunal to request a letter to enable continued access to Medicare for herself and her children, but she gave no indication that this was a matter relevant to the review, nor was this otherwise apparent.
Findings

The applicant has claimed that her 2024 claims are the truth and that the reason for the difference between these and her 2019 protection visa application claims is that the 2019 claims were written by a person to whom her claims were explained by telephone and who did not fully understand her situation. I find this explanation difficult to accept given how substantially different these claims are. Moreover, I find it difficult to believe that the applicant would have submitted her 2019 protection visa application claims without reading what these were (and I note that it is apparent that the applicant’s 2019 protection visa application was submitted via an email account which has been used by the applicant up to the present day to communicate with the Tribunal).
Given this, and given in particular the manner in which this has all unfolded (and, given that the applicant conceded that she had become aware of what information was put to [Mr A] in January 2024), I am not persuaded that the applicant was unaware that [Mr A] was pursuing a protection visa application, or that she was unaware of the nature of his protection claims, and I consider that the evidence overwhelmingly suggests that first [Mr A] and then [Mr B] arrived in Australia and falsely claimed to be gay men who had never married and who feared harm from their families (without disclosing the identities or whereabouts of their family members), and that when they were later joined by the applicant (and her children) she falsely and intentionally claimed to have fled an abusive hot-tempered husband (whose family she did not want to inform about this because they treated her nicely), and that once [Mr A] made [Mr B] and the applicant aware what the Tribunal knew (that she and [Mr B] were married and residing together with their children in Australia) the applicant and her husband fabricated new claims in which he was bisexual, and in which she feared being mistreated by him and/or his family and her mother and others in Malaysia society for reasons associated with [Mr B]’s bisexuality, and that the applicant’s mother had been abusive toward her more broadly.
I do not accept that [Mr B] is bisexual or that he is sexually attracted to men, or that the applicant has ever suffered any abuse from him or her mother or [Mr B]’s family or anyone else in Malaysia for reasons relating to [Mr B]’s being attracted to men and/or bisexual, or for any other reason.
Does the applicant satisfy the refugee criterion for protection?
I consider that the applicant’s claims about fearing harm in Malaysia for herself and her children are contrived and untrue; and while domestic violence is a problem for many women and their children in Malaysia,[2] I am not satisfied that this is the case with respect to the specific circumstances of the applicant and her children. I am therefore not satisfied that the applicants would for the foreseeable future face a real chance of harm if they were to return to Malaysia. I am therefore not satisfied that the applicants have a well-founded fear of persecution with respect to Malaysia.
[2] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.115-3.125.
For the reasons given above the Tribunal is not satisfied that any of the applicants satisfy the refugee criterion in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that none of the applicants meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the reasons given above, I am not satisfied that the applicants would face a real risk of harm if they were to return to Malaysia. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country, there is a real risk that the applicants will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that any of the applicants satisfy the refugee criterion in s 36(2)(aa).
For completeness, there is no suggestion that any of the applicants satisfy s 36(2) on the basis of being a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, none of the applicants satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decisions under review.
Date of Hearing:  15 March 2024
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.
…