2006252 (Refugee)

[2025] ARTA 1715

2006252 (REFUGEE) [2025] ARTA 1715 (30 JUNE 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2006252

Tribunal:General Member M. Tubridy

Date:30 June 2025

Place:Sydney

Decision:The Tribunal affirms the decisions under review.

Statement made on 30 June 2025 at 1:06pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – nationality – stateless – political opinion – Bersih political movement – citizenship of child born in Australia – child considered illegitimate – multiple marriage dates – fear of detention – state protection – employment – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Marriage Act 1961 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 424, 499
Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 March 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). Their application for review was lodged with the Administrative Appeals Tribunal (AAT) on 27 March 2020. On 14 October 2024, the AAT became the Administrative Review Tribunal (the ART). 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 ART. The Transitional Act gives the ART 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.[1]

   CONSIDERATION OF CLAIMS AND EVIDENCE

   [1] References in this decision to ‘the Tribunal’ are intended to include both the AAT and the ART.

   Criteria for protection visa

2. 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.

3. 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.

4. 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).

5. 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.

6. 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

7. 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

8. The applicants present as a mother (the first named applicant, hereafter [the applicant]) who was born on [date] in Malaysia (in the state of Terengganu), and her young daughter (the second named applicant, hereafter [Applicant 2]) who was born on [date] in Australia (in [Town 1] NSW). I have before me [the applicant]’s Malaysian passport which confirms her claims as to her identity, and I also have before me [Applicant 2]’s NSW Registry of Births, Deaths & Marriages issued birth certificate which confirms that [Applicant 2] was born on [date] in Australia (in [Town 1] NSW) and that [the applicant] is her mother. I accept that all this is the case.

9. [The applicant] presents as a citizen of Malaysia. She has consistently claimed this to be the case since she first engaged with the Department by applying for and being granted a visitor visa on 21 November 2014. She then entered Australia on this visa [in] November 2014 travelling on a Malaysian passport which was issued to her [in] 2013. She attached a copy of the biodata page of this document to her 24 December 2015 lodged protection visa application (and she presented the original of this document to the Tribunal as evidence of her identity when she appeared before the Tribunal to give evidence to give evidence and present arguments relating to the issues arising in her case and that of her daughter at hearings which took place on 19 July 2024 and 7 August 2024). [The applicant]’s Malaysian passport presents her as a national of Malaysia who was born in Malaysia (in Terengganu State) in [specified year]. I note, with respect to the law of the relevant country, that the Federal Constitution of Malaysia provides that among the circumstances which will entitle a person to citizenship of Malaysia is when they were born on or after 16 September 1963 in Malaysia to parents of whom at least one was a citizen or a permanent resident at the time of birth.[2] [The applicant] indicated in her protection visa application that both of her parents were citizens of Malaysia, and I have no reason to doubt this. I accept that [the applicant] is a citizen of Malaysia, and I find Malaysia to be her receiving country for the purpose of this review.

   [2] See Article 14(1)(b), and then Part II and III of the Second Schedule (including ‘Interpretation’), in: '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.

10. [The applicant] claims that her daughter [Applicant 2] is stateless. [The applicant] claims that the reason her daughter is stateless is because when she ([the applicant]) and her husband (who is also a citizen of Malaysia) went to register [Applicant 2] for citizenship at the Consulate General of Malaysia in Melbourne (hereafter the Malaysian Consulate) the staff there refused to assist them. [The applicant] has claimed that owing to this her daughter is unable to return to Malaysia because she is unable to obtain a Malaysian passport. [The applicant] has, however, never claimed that her daughter would experience any harm in Malaysia on the basis of being stateless. Instead, [the applicant] claims to fear that in Malaysia [Applicant 2] would be seen as being of illegitimate birth and would on this basis face a lot of pressure which would include being bullied and looked down on, and spoken to sarcastically, and all this might affect [Applicant 2]’s mental health. [The applicant] has also claimed that her daughter is unable to understand or speak the Malay language (or at least that her daughter’s Malay is very limited), and that this and/or the lack of speech pathology services in Malaysia would disadvantage [Applicant 2] in Malaysia, as would [Applicant 2]’s having no contacts or friends in Malaysia.

11. I have some significant concerns with regard to certain aspects of the above claims, and it is convenient to provide an overview of the evidence which has been provided by [the applicant] about these issues, and the manner in which this has occurred over time.

12. [The applicant] arrived in Australia some 10 years ago [in] November 2014 on a visitor visa which was valid for three months (such that this ceased [in] February 2015). Just over a year after her arrival, on 24 December 2015, [the applicant] lodged an application for a protection visa which she had signed on 21 December 2015. I note, for what will come later, that the final pages of the Part C of the protection visa application form include a statutory declaration wherein the signatory attests to a number of matters, including that all of the information they have provided in Part C of their application is correct. The signing of this statutory declaration must be witnessed, and [the applicant]’s signing of her statutory declaration was witnessed at a Melbourne police station. Above the statutory declaration is a warning that a person must not wilfully make a false statement in a statutory declaration, and that the maximum penalty for doing so is four years imprisonment. Having signed this this document [the applicant] submitted her protection visa to the Department. In do so, she submitted that the reason she had left Malaysia was because she was a member of the Bersih political movement[3] and she had been attacked by police during a protest. [The applicant] submitted that if she returned to Malaysia she would be arrested and jailed. No supporting evidence was provided with respect to these claims, and some eight years later [the applicant] would inform the Tribunal that these claims were entirely false, and that (having become unlawful after overstaying her three month visitor visa) she had lodged her protection visa application in December 2015 because she was about to have a child and so wished to obtain bridging visa (thus rendering [the applicant]’s presence in Australia lawful).

    [3] Bersih (which is the Malay word for clean) is the abbreviated name for a movement whose full title in English is: the Coalition for Clean and Fair Elections. It was formed in 2005 and has run an ongoing campaign of calling for reform in Malaysia’s electoral system (eg: the use of indelible ink on polling day, clean electoral rolls, abolition of postal ballots, and equal access to print and broadcast media) which, until May 2018, had not seen a single change in government since Malaysia’s independence, with every general election until that time having been won by the Barisan Nasional coalition led by the United Malays National Organisation (UNMO); see: DFAT, ‘DFAT Country Information Report: Malaysia, Version 2’, 19 April 2018, CIS7B839419347, 3.78-3.80; Teik, K.B. ‘2021/167 “The Profound Impact of the BERSIH Movement since 2007”’, ISEAS, 2021,

13. In terms of further background information, [the applicant]’s protection visa application indicated that: she was ethnically Malay and of the Muslim religion; and: her most recent place of residence in Malaysia had been in Kulim, in the Malaysian state of Kedah (and consistent with this, [the applicant]’s Malaysian passport presents as having been issued to her in Kulim [in] 2013); and: she completed her high school in Kedah between [specified years]; and: that between 1996 and 2013 she was employed in Kulim [at] a [business]; and: after arriving in Australia she had resided at a single address in [Town 2] in rural Victoria (some [distance from] Melbourne);[4] and: her family members outside Australia consisted of her parents and her [siblings] who were all currently residing in Malaysia. [The applicant] also submitted information which indicated that she had married on 21 December 2024 in [Suburb 1] (a suburb of Melbourne).[5] Even so, (and even though this would mean [the applicant] had married the very day she signed her protection visa’ with both these events occurring in Melbourne rather than in rural [Town 2] where she was residing at that time), the protection visa application provided no information about the identity of [the applicant]’s husband or his whereabouts, nor was any indication given about [the applicant]’s then pregnancy.

    [4] [Source deleted.]

    [5] [Source deleted.]

14. [The applicant]’s 24 December 2015 protection visa application was initially found to be valid, and on 30 December 2015 the Department granted [the applicant] a bridging visa to render her presence in Australia lawful while her protection visa application was assessed. I note, for what will follow (with respect to [the applicant]’s account of what happened at her most recent attempt to register her daughter for citizenship) that this was a bridging visa-C, and that it is publicly known that this is a class of bridging visa which is issued to a person (while they are awaiting decision on an application for a substantive visa) in circumstances where that person has become unlawful in Australia by way of overstaying or otherwise breaching the conditions of a previous visa.[6]

    [6] Path Migration & Recruitment, ‘What is a bridging visa?’, ;

15. On 16 February 2016 the Department emailed [the applicant] and notified her that her protection visa had been deemed invalid because she had not provided her personal identifiers as required (that is to say, she had not presented at a Departmental office in person to be photographed and fingerprinted). The Department informed [the applicant] that, as a consequence of this, the bridging visa granted to her (in association with her protection visa application) would cease in 28 calendar days and, if she did not make a valid application for another visa, she should make arrangements to have departed Australia before her visa ceased. Some four months later, on 19 May 2016 the Department granted [the applicant] a subclass 050 bridging visa-e, this being a bridging visa granted to a non-citizen of Australia who is without a substantive visa in order to render their presence in Australia lawful while she/he makes arrangements to leave Australia or is finalising an immigration matter or waiting for an immigration decision.[7] [The applicant]’s first bridging visa-E ceased three months later on 19 August 2016. A further such visa was granted to [the applicant] on 22 August 2016 and this ceased on 1 December 2016. A further such visa was granted to [the applicant] on 1 December 2016 and ceased on 2 March 2017. A further such visa was granted to [the applicant] on 2 March 2017 and ceased on 25 May 2017. A further such visa was granted to [the applicant] on 6 June 2017 and ceased on 23 June 2017.

    [7] Home Affairs, ‘Subclass 050 and 051: Bridging visa E (BVE)’,

16. On 5 December 2018 the Department emailed [the applicant] and notified her that her 24 December 2015 protection visa application had been assessed as valid and that both she and also her daughter [Applicant 2] were included in this application. Regulation 2.08 provides that if a non-citizen (of Australia) applies for a visa and after the application is made, but before it is decided, then a child born to the non-citizen is taken to have applied for a visa of the same class at the time he or she was born and the application is taken to be combined; and it is apparent from the content of the 5 December 2018 notification and a subsequent Departmental email to [the applicant] of 24 February 2020 (and its attached ‘Request Checklist and Details’) that at some point prior to 5 December 2018 [the applicant] had made the Department aware of the birth of [Applicant 2]. The Department’s email of 5 December 2018 advised [the applicant] that the bridging visa granted to her and [Applicant 2] in association with their protection visa application (this being a bridging visa-C) would become invalid if [the applicant] did not present to the Department in person on 19 January 2019 to provide her personal identifiers (that is, to be photographed and fingerprinted). [The applicant] was also advised that she should already have provided all her claims and supporting evidence when she lodged her application but that she could bring any additional information she would like considered to her appointment for the collection of her personal identifiers. [The applicant] was also advised that: A decision can be made on your application at any time after it is found to be a valid application based on the information you have provided and without another opportunity to present any more information at an interview.

17. It is apparent from the Departmental documents before me that [the applicant] did present to the Department on 19 January 2019 to provide her personal identifiers as required. It is not, however, apparent that she sought to provide any further information to the Department at this time.

18. Three years later, on 24 February 2020, the Department emailed [the applicant] and requested that she provide (within 28 days) a completed Part C protection visa application form for [Applicant 2], including any protection claims that [the applicant] wanted considered. On 18 March 2020 [the applicant] emailed the Department and provided a completed Part C protection visa application form for [Applicant 2]. In this, it was submitted that [Applicant 2]’s mother and father were both citizens of Malaysia, but that [Applicant 2] was stateless and that she had no passport yet. Asked to explain how it was that [Applicant 2] was not a citizen of any country, it was submitted that [Applicant 2] was born in Australia in [Town 1] NSW while her mother was waiting for her ([the applicant]’s) bridging visa. Asked whether [Applicant 2] was registered with her country’s Embassy, High Commission or Consulate, it was submitted that [Applicant 2]’s parents had tried to register her, but this had been denied. [Applicant 2] was listed as being Sunni Muslim and ethnically Malay, and it was indicated that she could speak the Malay language (and would require an interpreter in this language if called for an interview), but that [Applicant 2] could not read or write, nor could she speak in any other language. She had previously resided in NSW but since October 2019 she had resided in [Town 3] in Victoria. It was apparent that she resided with her parents, and a NSW birth certificate was attached as evidence of [Applicant 2]’s identity. Relevantly for what would follow (and whereas [the applicant] had indicated in her protection visa application that she was married on 21 December 2015), [Applicant 2]’s birth certificate indicated that her parents had been married in Australia on [date] April 2015. If so, this would mean that [Applicant 2] was born more than nine months prior to her birth on [date], and thus that she was the legitimate daughter of her father from the perspective of Islamic law and how she would be seen under Malaysian law. Asked if [Applicant 2] was making any protection claims, the box was tricked for ‘no’. Thus, [the applicant] did not at that time express any fears about how [Applicant 2] might be treated in Malaysia (and claims of this kind would not be submitted until 2024).

1. On 19 March 2020 the delegate refused to grant the applicants protection visas. The delegate accepted [the applicant]’s claim to be a citizen of Malaysia, and the delegate also accepted [the applicant]’s then claim to have been a member of the Bersih political movement in Malaysia. But the delegate considered that country information about the situation in Malaysia indicated that [the applicant] would not face a real chance of serious harm, or a real risk of significant harm, for reason of her political opinion in this respect. Given this, and as the applicants had not indicated that they feared harm for any other reason, the delegate refused to grant the visas.

2. The delegate also noted and considered how [the applicant] had claimed that [Applicant 2] was stateless. The delegate did not accept this was the case. The delegate noted, in this regard, that the applicants had indicated (in their protection visa application) that [Applicant 2]’s father was a citizen of Malaysia who had married [the applicant] in Australia on 21 December 2015 (the delegate appears to have overlooked the conflicting marriage date of 17 April 2015 listed in [Applicant 2]’s birth certificate); and the delegate considered that the law in Malaysia with respect to citizenship was such that (as per the Federal Constitution of Malaysia) a child born abroad was entitled to citizenship of Malaysia if they were born from a marriage wherein the father was a Malaysian citizen. The delegate noted that it was required that such a child be registered for their citizenship, and that the website of Malaysia’s High Commission in Canberra indicated that this could be done at the High Commission by either their father or mother, including in circumstances where the child was now more than a year old. The delegate noted that it was a requirement of the process that any parents who had married in Australia had first to have registered their marriage with the High Commission. The delegate noted that the applicants had provided no evidence of having ever done this or of having lodged the appropriate applications more broadly. Given this, the delegate considered that while [Applicant 2] was currently without Malaysian citizenship, she had never been denied or excluded from her entitlement to citizenship of Malaysia. The delegate noted that media reporting indicated that registration of a child’s citizenship was much easier in circumstances where the child was relying on having a father who was a Malaysian citizen rather a mother who was a Malaysian citizen, and that where the child was relying on having a father who was a Malaysian citizen the process only took about three days.[8]

   [8] The Star, ‘Malaysian women want equal rights to confer citizenship to their children', 3 August 2018, 20191128122819.

3. I note, with regard to the matter of [Applicant 2]’s status under the law of Malaysia, that the delegate’s account of all of this is broadly accurate. Article 14(1)(b) of the Federal Constitution provides that: every person born on or after Malaysia Day [ie: independence], and having any of the qualifications specified in Part II of the Second Schedule is a citizen by operation of law; with Section 1(c) of Part II of the Second Schedule then stating: every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation.[9] It is also the case that the Federal Constitution of Malaysia also specifies that where a person is illegitimate (that is, born outside of wedlock) all references to the parent are to be construed as references to the person’s mother;[10] that is to say that for the child to be entitled to her or his father’s citizenship the child must been born after the child’s father married the child’s mother. Moreover, under the Islamic family laws which apply to all Muslims in Malaysia it is required that a birth must take place no earlier than six months after her parents’ marriage for the child to have been born in wedlock.[11] This being the case, and if as per the information submitted by [the applicant] on 24 December 2015 (in her protection visa application) she was married on 21 December 2015 (to [Applicant 2]’s father), then this would mean that [Applicant 2] was born less than six months after the marriage of her parents. If this is the case, then [Applicant 2] is not the legitimate daughter of her father, and she is not entitled on this basis to his Malaysian citizenship.

   [9] 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; Low, C.C. ‘Report on Citizenship Law Malaysia and Singapore', GLOBALCIT, February 2017, CISEDB50AD7469, p.16; ‘Malaysia: High Court Holds Malaysian Mothers Can Confer Citizenship on Children Born Abroad’, US Library of Congress, 9 September 2021,

   [10] See ‘Interpretation’, in: sect. 17, Part III, Second Schedule in: 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; and, see: Low, C.C. ‘Report on Citizenship Law Malaysia and Singapore', GLOBALCIT, February 2017, CISEDB50AD7469, p.17.

   [11] Wan Ismail, W.A.F. ‘A Comparative Study Of The Illegitimate Child Term From Shariah And Malaysia Legal Perspective’, Humanities & Social Sciences Reviews, vol.8: no.4, 2020, pp.101-109, ; Loh, J. & J. Todi, ‘"Pre-Marital" Children In Malaysia: Addressing The Issue’, Ova, 17 January 2023,

4. This noted, and even if [Applicant 2] was of illegitimate birth, this would not mean that she would not be entitled to Malaysian citizenship. For, as already noted, the Federal Constitution of Malaysia specifies that where a person is illegitimate (that is, born outside of wedlock) all references to the parent are to be construed as references to the person’s mother.[12] As a consequence of this, children born abroad to a Malaysian citizen mother out of wedlock have the same legal entitlement to citizenship as would be the case if they were born from a marriage wherein their father was a Malaysian citizen (as per Article 14(1)(b) of the Federal Constitution).[13]

   [12] See ‘Interpretation’, in: sect. 17, Part III, Second Schedule in: 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408.

   [13] Low, C.C. ‘Report on Citizenship Law Malaysia and Singapore', GLOBALCIT, February 2017, CISEDB50AD7469, p.17.

5. For completeness (and this will assist in understanding the context of some subsequent procedural information which will be discussed), there is one further means by which a child born abroad can obtain Malaysian citizenship. This is where the child is of legitimate birth to a marriage involving a Malaysian citizen mother and a foreign father. Prior to 1 June 2010 a child born in these circumstances had no access to Malaysian citizenship. But on 1 June 2010 an administrative amendment was made to Article 15(2) of the Federal Constitution of Malaysia which meant that from that date any child born abroad from the marriage of a foreign father and a Malaysian citizen mother could make an application to be registered for Malaysian citizenship.[14] Matters of this kind are often reported in the news media as arising from a privileging of the status of the male parent, but the reason Malaysia’s citizenship law was formulated in this way had as much to do with it interest in not allowing for any citizen of Malaysia to also hold citizenship of another country. For, Malaysian citizenship law has not tolerated dual citizenship;[15] and owing to how historically many citizenship laws have enabled children of legitimate birth to inherit their father’s citizenship, Malaysian citizenship law had presupposed that any child born abroad from a marriage involving a foreign father would mean that the child automatically inherited their foreign father’s citizenship. Malaysia’s citizenship law had therefore withheld Malaysian citizenship from such children to prevent a situation wherein a Malaysian national would also hold nationality of a foreign country. The 1 June 2010 amendment changed this and allowed a child to have such dual citizenship, but only during their childhood. Before adulthood the child was required to renounce their foreign citizenship if they wished to maintain their Malaysian citizenship. New constitutional amendments passed on 17 October 2024 mean that this must now occur before the child reaches 18-years-of-age (whereas previously this was required before 21-years-of-age). The 17 October 2024 amendments also included a new provision which will mean that any child born abroad after 17 October 2024 to a Malaysian mother and a foreign father will be automatically entitled to Malaysian citizenship (whereas previously this had to be applied for).[16]

   [14] Low, C.C. ‘Report on Citizenship Law Malaysia and Singapore', GLOBALCIT, February 2017, CISEDB50AD7469, p.16; Saleh, N.S.S.N. et al, ‘Equality and Citizenship for Women in Malaysia: Where And When?’, Malaysian Journl of Syariah and Law, vol.9: no.1, June 2021, pp.107.

   [15] Low, C.C. ‘Report on Citizenship Law Malaysia and Singapore', GLOBALCIT, February 2017, CISEDB50AD7469, p.20.

   [16] Malay Mail, ‘All you need to know about: The constitutional amendment to Malaysia’s citizenship laws’, 17 October 2024, ; Bernama, ‘8 proposals on changes to citizenship laws’, 10 June 2023,

6. Thus, under the relevant law of Malaysia, a child born abroad automatically acquires Malaysian citizenship if the child was born: 1 from a marriage involving a Malaysian citizenship father; or: 2. to a Malaysian mother who was unmarried at the time of child’s birth; or 3: the child was born after 17 October 2024 and had at least one parent who was a Malaysian citizen. For reasons that will be explained later in this decision, I have concluded that [the applicant] lawfully married her Malaysian citizen husband ([Applicant 2]’s father) in Malaysia some two years before [Applicant 2] was born, such that [Applicant 2] is on this basis a national of Malaysia (such that I also find that Malaysia is [Applicant 2]’s receiving country for the purpose of this decision). But even if it were the case as per [the applicant]’s claims that she and her husband did not have a lawful Muslim marriage more than six months before [Applicant 2]’s birth then, under Malaysian law, [Applicant 2] would nonetheless be a national of Malaysia rather than stateless. This was put to [the applicant] at the second of her Tribunal hearings on 7 August 2014, and [the applicant] did not dispute that [Applicant 2] was a citizen of Malaysia. Indeed, [the applicant] has never claimed that [Applicant 2] is not entitled to Malaysian citizenship. Instead, what [the applicant] has claimed is that Malaysia’s consular staff in Australia refused to receive their registration of [Applicant 2]’s Malaysian citizenship (thus, [the applicant] is claiming that [Applicant 2] is stateless in a practical or de facto sense, rather than a legal or de jure sense).

7. I note, with regard to all of this, that even where a law operates to confer citizenship at birth automatically there will necessarily have to be procedures in place to enable the birth of such a child to be made known to the relevant authority, and so that the relevant authority can be satisfied that the circumstances of the child’s birth are such that the child can be recognised as a citizen. The procedures for how to go about the registration of automatic acquisition of citizenship for a child born abroad (and also for how to go about making an application for citizenship as in the case for a child born abroad to a Malaysian mother and a foreign father after 1 June 2010 and before 17 October 2024) are outlined on the website of Malaysia’s High Commission in Canberra and have remained essentially the same since the time [Applicant 2]’s birth in [year] up to the present day (notwithstanding the amendments of 17 October 2023).[17] In summary these provide instructions for the following four different set of circumstances: 1. the child is less than a year old, and has a Malaysian father; 2. the child is over a year old, and has a Malaysian father; 3. the child was born after 1 June 2010 to a foreign father and a Malaysian mother, and the application is being lodged within a year of the birth; and: 4. the child was born to a single parent. It is specified that these categories are determined by what the situation was at the time of the child’s birth (such that in the case of a Muslim parent the mother will be deemed to have been single if she married the child’s father less than six months prior to the birth).

   [17] 'Birth/Marriage Registration', High Commission of Malaysia, Canberra, 23 May 2025, 20250523080449; 'Birth/Marriage Registration', High Commission of Malaysia, Canberra, No date, accessed 23 June 2023, 20230623085244; 'Birth/Marriage certification registration', High Commission of Malaysia, Canberra, 24 July 2020, 20200724153059; 'Child Registration for Birth and Citizenship Certificate', High Commission of Malaysia, 22 September 2016, CIS38A80122005.

8. In all four such cases,[18] it is explained that any Malaysian citizen parents involved are required to provide a copy of their Malaysian birth certificate (and, for those parents who do not have this document at hand, the website provides instructions for how to go about obtaining a copy of a Malaysian birth certificate from Malaysia’s National Registration Department).[19] Also, where the child was born from a marriage which occurred in Australia the parents will first need to obtain a Malaysian marriage certificate by registering their Australian marriage with the High Commission by way of providing a marriage certificate issued by the relevant Australian state Registry of Births, Deaths and Marriages. Single parent applicants will, on the other hand, first need to obtain documentary evidence that they are not married, including a document to this effect from the relevant Australian state Registry of Births, Deaths and Marriages (and I note also that evidence of single status in Malaysia can be obtained from the relevant State Religious Department in the case of Muslims, and from Malaysia’s National Registration Department in the case of non-Muslims).[20] In addition, the parents or parent in any of the four circumstances will need to provide their identity card (all adult Malaysian citizens are issued a national identity card known as a MyKad),[21] and their passport and its visa page, and also evidence of their current visa status in Australia. In all four cases there is an associated registration application form which must be completed and submitted with the above documents, and some small processing fees which will total anywhere from around AUD25 to AUD45. In all four cases at least one of the child’s parents must appear in person at either Malaysia’s High Commission in Canberra, or at one of Malaysia’s Consulate Generals (Malaysia has operated consulates in Melbourne and also in Perth) to lodge all of the above.

   [18] 'Birth/Marriage certification registration', High Commission of Malaysia, Canberra, 24 July 2020, 20200724153059;

   [19] And see also: 'Extraction of Birth Certificate', High Commission of Malaysia, Canberra, 16 February 2021, 20220802114826.

   [20] See ‘6. Endorsement of Marriage Documents’, in: Malaysia Ministry of Foreign Affairs, ‘Attestation of Documents’,

   [21] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833 5.37-5.38.

9. The website of Malaysia’s High Commission in Canberra provides information which indicates that the only citizenship registration which will be processed in Australia by Malaysia’s consular staff will be cases lodged less than a year after the birth of the child with a Malaysian father. Registrations involving the other three types of circumstances will be submitted to Malaysia and may take as long as six months or more to be processed. Broader country information indicates that in previous years there have been reports of applications for registration of citizenship being declined without explanation.[22] It is apparent from this reporting that these have been applications made under Article 15(2) where the child has been born abroad to a Malaysian mother marries to a foreign father. For, and although such reporting sometimes refers in a very general way to applications lodged for children born abroad to Malaysian mothers, the details of the reporting and the specific cases discussed indicates that those affected by such refusals have been children born abroad to a Malaysian mother and a foreign father. In the specific cases discussed in these reports the child is typically reported to have obtained foreign citizenship via her/his father,[23] though it is also possible for such a child to be stateless[24] (a child would be stateless in this situation if they were also unable to access foreign citizenship via their non-Malaysian father). Some 10% of such applications have been declined at some point resulting in years of waiting and uncertainty for those affected.[25] It is not, however, apparent that there have been any specific instances wherein citizenship registration has been declined for children born abroad to a single mother who is a Malaysian citizen, or where the child was born abroad from a marriage involving a Malaysian citizen father (even where these registrations may have been lodged more than a year after the child was born). Thus, and while registration may take longer than six months in either of these latter circumstances, it is not apparent that citizenship registration will in such circumstances be declined or that the waiting period for completion of the registration process will be more than a year.

   [22] Family Frontiers, ‘The Existing Overseas-Born Children of Malaysian Mothers Must Not Be Left Out by the Non-Retroactive Nature of the Amendment!’, 16 April 2024, ; The Star, ‘Malaysian women want equal rights to confer citizenship to their children', 3 August 2018, 20191128122819.

   [23] Family Frontiers, ‘The Existing Overseas-Born Children of Malaysian Mothers Must Not Be Left Out by the Non-Retroactive Nature of the Amendment!’, 16 April 2024, ; The Star, ‘Malaysian women want equal rights to confer citizenship to their children', 3 August 2018, 20191128122819.

   [24] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.25.

   [25] CNA, ‘“Great gift for women”: Children under 18 born overseas to Malaysian mothers can now apply for citizenship’, 11 March 2025,

1. This noted, it is plausible that Malaysian consular officials in Australia may have refused to provide consular services of this kind to [the applicant] (that is, they may have refused to facilitate the registration of [Applicant 2]’s birth) if they became aware that [the applicant] was holding a bridging visa, and specifically a bridging visa-C or a bridging visa-E (which would indicate that she had overstayed or otherwise breached her visa conditions), and if it became apparent to Malaysia’s consular officials that [the applicant] and/or her husband had active applications for a protection visa. For I note I note in this regard that the website of Malaysia’s High Commission in Canberra specifies that the consular service of passport application or renewal will only be made available to applicants who hold a valid long-term visa in Australia, and who are not holding a protection visa or a bridging visa;[26] and as will be outlined below, the Malaysian government has been seeking to limit the extent to which it citizens overstay their visa on bridging visas and/or lodge protection visa applications.

   [26] 'Passport Renewal - High Commission of Malaysia - Canberra', High Commission of Malaysia, Canberra, n.d, 20240710170929.

2. It is reportedly widely known in Malaysia that a lot of money can be earned doing fruit picking in Australia, and that three-month visitor visas for Australia are easily obtained and (although these visa do not provide work rights) cash-in-hand pay for farm work can be easily found, and it is also possible to overstay unlawfully, and to lawfully prolong your stay by lodging a protection visa application which will result in the issuance of a bridging visa while that application is being assessed. A report of 6 July 2019 related the example of a Malaysian national who said he had left Malaysia in late 2016 for Australia on a three-month online tourist visa, knowing he would likely overstay his welcome, to earn money doing seasonal farm work. The man said that while working at a vineyard in Mildura he decided to apply for a protection visa in a bid to extend his work stay after learning about this possibility from a Malaysian work agent. He paid the agent $100 to prepare an application for him, which he then signed at the local police station. Fifteen of his Malaysian housemates in Mildura, mostly farm workers who had also overstayed their visas, reportedly also applied for protection through the same agent who weeks later disappeared with their money. Malaysia’s government is unhappy with such behaviour from its citizens in Australia, as it is considered to be putting at risk the reputation of Malaysian nationals more broadly such that Australia might in the future make fewer visas available to Malaysian travellers.[27]

   [27] Gothe-Snape, J. 'Border Force working to stop Malaysians in 'orchestrated scam' to stay in Australia', ABC News, 03 July 2019, 20190704080209; Gothe-Snape, J. & S. Wijaya, 'Malaysia says Australia's immigration system encourages visa rorting', ABC News (Australia), 04 July 2019, 20190704080416; Walden, M. 'Malaysia urges citizens to obey Australian immigration law after report of 33,000 asylum claims', ABC News, 02 September 2019, 20190902155122; Hodge, A. 'How Malaysian workers rort the visa system', The Australian, 06 July 2019, 20190712085906; Kumar, A. ‘More than 30,000 Malaysians overstay in Australia’, The Sun, 5 November 2019, ; Rizvi, A. 'Labour trafficking is leading to a growing underclass of undocumented workers', Abul Rizvi, Sydney Morning Herald, 30 October 2022, 20221031080543.

3. It is not apparent that Malaysian citizens considered to have acted in this manner will face any penalties upon return to Malaysia beyond a period of being disallowed further international travel. DFAT reports that: Under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries (regardless of if they apply for asylum) may be blacklisted and prevented from further travel, normally for a period of up to two years. Malaysians who are returned from Australia face a passport ban of five years under an agreement between the two countries. In practice, cases are unlikely to come to the attention of authorities unless the Malaysian is removed (ie: deported) from another country or applies to renew a passport through a diplomatic mission overseas. Authorities generally pay little attention to Malaysians who overstay their work or tourist visas, or who breach visa conditions in other countries, upon their return to Malaysia. Likewise, failed asylum seekers rarely face adverse attention, as the Malaysian Government is usually unaware that someone is a failed asylum seeker, although it is possible some failed asylum seekers could face questioning on return, particularly if their passport expired while abroad. The International Organization for Migration (IOM) assists voluntary returnees, and Malaysian authorities cooperate with IOM in these arrangements.[28]

   [28] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 5.31-5.32.

4. Given that [the applicant]’s passport has now expired and given (as will be discussed in what follows) the manner of her engagement with Malaysia consular staff in Australia, the Malaysian authorities are likely aware that [the applicant] has overstayed her original visa and that she has lodged a protection visa application. Given this, it is possible that upon return to Malaysia [the applicant] may face some questioning. But it is not apparent that this in itself would involve any treatment or circumstances (including to the extent that such questioning may be construed as being detained for the duration of such questioning) that could be considered harm, let alone serious or significant harm. It is also possible that [the applicant] may be prevented from engaging in international travel for as much as five years following her return to Malaysia owing to her having overstayed her original visa. But, again, it is not apparent that this in itself would involve any treatment or circumstances that could be considered harm, let alone serious harm or significant harm. I am not satisfied that [the applicant], let alone [Applicant 2], would experience harm upon return to Malaysia in any of these respects; and I note that [the applicant] herself has given no indication that she fears any harm would come to her or her daughter in any such regard (and I have only considered these matters here for completeness).

5. Moreover, and while Malaysia’s authorities in Australia may be unwilling to provide consular services (including passport issuance and renewal) to Malaysian citizens in Australia if they hold a protection visa or a bridging visa, it is not apparent that a Malaysian applicant who has ceased seeking to remain in Australia in this way (and who has indicated their intention to leave Australia for Malaysia) would be denied consular services and/or would not be assisted in this (and I note that in circumstances where such a person does not have a valid passport they can be issued a single journey emergency travel certificate for repatriation).[29]

   [29] Malaysia High Commission, Canberra, ‘Other Information’, ; Malaysia High Commission, Canberra, ‘Announcement: Update On Appointment Application Process’, 26 October 2021,

6. For completeness, I have considered the possibility that [the applicant] might return to Malaysia with [Applicant 2] (such as by way of being issued a one-time, one-way, emergency travel document) before [Applicant 2]’s citizenship registration has been completed, such that there might be a period of time wherein [Applicant 2] was de facto stateless in Malaysia. Given the evidence discussed above, I am not satisfied that there is a real chance or a real risk that such a period would last any more than a year. Given that in Malaysia stateless children with at least one Malay citizen parent have access to primary-level education at public schools, I am not satisfied there is a real chance or a real risk that such a situation would result in [Applicant 2] not having access to fee-free government schooling.[30] It is possible that during this period [Applicant 2]’s parent might have to pay for any basic health care that [Applicant 2] might require but the possibility that [Applicant 2] would require health care during this period, and that this would be at a cost unaffordable to her parents, is too speculative. It is not apparent that [Applicant 2] would be at risk of any other problems as a result of brief period of de fact statelessness while her citizenship is registered. Given all this, I am not satisfied that there is for the foreseeable future a real chance or a real risk that [Applicant 2] would suffer any harm in Malaysia if she was to be affected by an initial period of de facto statelessness while her citizenship registration is being processed.

   [30] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.24.

7. I note, with regard to all of this, that following the delegate’s 19 March 2020 refusal to grant the protection visa, the applicants promptly lodged their application for review on 27 March 2019 (attaching a copy of the delegate’s decision and of the Department’s refusal notification). On 30 March 2020 the AAT emailed the applicant’s (via an email to [the applicant]) an acknowledgement that their application for review had been received. This included a message in the Malay language which advised the applicants that the AAT’s letter was important and required their urgent attention and that, if they did not understand it, they should call the Translation & Interpreting Service who would help the applicants contact the Tribunal. The AAT’s notification of 30 March 2020 included advice to the applicants that the Tribunal had asked the Department to provide the Tribunal with all documents and files which the Department considered relevant to the applicant’s application. The AAT also advised the applicants about the importance of keeping the Tribunal updated as to any changes in their residential or other circumstances, and that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible. Nothing was received from the applicants in response to this invitation. The Department provided the Tribunal with a copy of the applicants’ completed protection visa application forms (and the copy of [the applicant]’s passport biodata page, and the copy of [Applicant 2]’s birth certificate, which had been attached to these), along with associated correspondence and administrative documents, and a further copy of the delegate’s decision and of the Department’s refusal notification to the applicants.

8. On 23 April 2024 the Tribunal emailed [the applicant] and advised her that her file was now being prepared to be given to a Tribunal member. She was asked to assist the Tribunal by completing a ‘pre-hearing information form’ and returning this to the Tribunal within seven day (by 30 April 2024). On 29 April 2024 [the applicant] emailed the Tribunal but, due to a technical issue, the content of this email was not received by the Tribunal. On 6 June 2024 the Tribunal emailed [the applicant] to alert her to what had occurred, and invited [the applicant] to re-send her email (and she was alerted that if she did not re-send her email its content could not be considered by the Tribunal). No response was received from [the applicant].

9. At this point the only protection claim which had been submitted by the applicants was that [the applicant] was a member of the Bersih political movement and that she had been attacked by police during a protest, and that if she returned to Malaysia she would be arrested and jailed. But [the applicant] had provided no documentary evidence to establish that she had ever been a part of Malaysia’s Bersih electoral movement.[31] The assertions which had been made with regard to these matters were vague, and while it was indicated she had experienced harm at a rally (where police responded with tear gas and water cannon), no details were provided as to the date or location of this purported event. Moreover, DFAT assessed of Malaysia that individuals who criticise the government generally face a low risk of official discrimination in the form of legal action by authorities and are generally not at risk of violence on the grounds of their political affiliations.[32] With respect to the assertion that [Applicant 2] was stateless there were also concerns. For, as discussed above, even if it was the case that [the applicant] had been refused consular services to register [Applicant 2]’s citizenship, it was not apparent from the evidence that this would continue to be the case (or that [the applicant] and [Applicant 2] would be unable to register [Applicant 2]’s citizenship and seek assistance for travelling to Malaysia) once their active protection visa application had ceased, and once the applicants had indicated their willingness to depart Australia for Malaysia.

   [31] Bersih (which is the Malay word for clean) is the abbreviated name for a movement whose full title in English is: the Coalition for Clean and Fair Elections. It was formed in 2005 and has run an ongoing campaign of calling for reform in Malaysia’s electoral system (eg: the use of indelible ink on polling day, clean electoral rolls, abolition of postal ballots, and equal access to print and broadcast media) which, until May 2018, had not seen a single change in government since Malaysia’s independence, with every general election until that time having been won by the Barisan Nasional coalition led by the United Malays National Organisation (UNMO); see: DFAT, ‘DFAT Country Information Report: Malaysia, Version 2’, 19 April 2018, CIS7B839419347, 3.78-3.80; Teik, K.B. ‘2021/167 “The Profound Impact of the BERSIH Movement since 2007”’, ISEAS, 2021,

   [32] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.98.

10. On 27 June 2024 the Tribunal emailed the applicant’s (via an email to [the applicant]) an invitation to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case at a hearing scheduled for 19 July 2024. The applicants were asked to complete the enclosed ‘Response to hearing invitation’ form and return it to the AAT within 7 days, and to provide any documents they wished to rely on in support of their case by 12 July 2024 (and that any documents not in English should be accompanied by a translation). They were also notified that if no appearance was made at the hearing, then the Tribunal might dismiss their application for review without any further consideration of the application or the information before the Tribunal.

11. On 10 July 2024 the Tribunal received an email from [the applicant] which attached the completed ‘Response to hearing invitation’ form. In this, [the applicant] indicated that she and [Applicant 2] would both be attending the hearing, and that they did not intend to provide any further documentary evidence, nor did they request that the Tribunal take evidence from any witnesses. On 11 July 2024 the Tribunal emailed [the applicant] and noted that she had indicated that [Applicant 2] (then [age]) would be attending the hearing. The Tribunal requested, if this was the case, that the applicants provide an indication of what matters her daughter wished to speak about. Alternatively, if was not intended for [Applicant 2] to speak at the hearing, the Tribunal suggested that [the applicant] make arrangements for the care of [Applicant 2] to enable [the applicant] to attend the hearing without her daughter. On 11 July 2024 [the applicant] replied with an indication that she would attend the hearing without [Applicant 2].

12. On 19 July 2024 [the applicant] appeared before the Tribunal to give evidence and present arguments relating to the issues arising in her case and that of her daughter. The hearing took place with the assistance of an interpreter of the Malay and English languages. It was confirmed with [the applicant] at the outset that she felt well enough to take part in the hearing. It was also confirmed with her that she was able to read and write in English.

13. When asked to explain why she had left Malaysia, [the applicant] responded that she had been unhappy because her husband’s family had not liked her, and she had recently been retrenched from her employment and felt dispirited about the prospect of seeking further employment in Malaysia where she considered the wages to be low, and so she decided to try her luck by going abroad to work. [The applicant] did not, however, give any indication that she had ever feared harm from her husband’s family or his previously married wife, or that she feared any harm in Malaysia in terms of earning a livelihood adequate to meet cost-of-living needs. Asked if she had left Malaysia for any other reason, the applicant said she had not. Asked about the claim put forward in her protection visa application about being involved in the Bersih political movement, [the applicant] said that this information was not correct, and that this information was put in her application by an agent named Ms R who had told her she needed to have a visa if she was going to have a baby in Australia. [The applicant] submitted that she had not read any of the information in her protection visa application before it was submitted, and that she just paid Ms R to fill this out for her. I put it to [the applicant] that the application carried her signature. [The applicant] said she had signed the application but that she had not read over its content. Asked why she had not done this, [the applicant] submitted that at the time she did not think it important to read over such documents.

14. I accept that the protection claims put forward in [the applicant]’s protection application (about involvement in Bersih movement and fearing harm on this basis) are false. I accept that [the applicant]’s reason for lodging her protection visa application was render her presence in Australia lawful at a time when she was pregnant and nearing the birth of her child (such that she would more readily be able to engage with health and medical other government services for her birth and her child); and I note in this regard that during the course of the Tribunal hearings [the applicant] would often speak about having applied for a bridging visa-C (rather than about having obtained her bridging visa-C by way of applying for a protection visa), such that it was apparent that her primary objective had been to obtain the bridging visa which the protection visa application provided. I also accept that [the applicant] was assisted in completing her 24 December 2015 lodged protection visa application by a third party whose involvement remained undisclosed at that time. Even so, it is difficult to believe that [the applicant] would not have understood the basic substance of the kind of visa she was applying for as a means of obtaining her bridging visa-C (that is, a protection visa), or that she would have been unaware of the seriousness of what was occurring given that she was required to sign the application and have this witnessed (and given that she had gone to a police station to have this done). In such circumstances, it is difficult to believe that she would not at the very least have read over the protection claims which she was submitting to Australia’s immigration authorities (particularly given that the statutory declaration which she signed at the end of the Part C form – as to the truth of her information – was preceded by a warning that making a false statement carried a maximum penalty of four years of imprisonment). I note, moreover, that although [the applicant] lodged her application for review with the Tribunal in 2020, it was not until 2024 that she finally disclosed to the Tribunal that the protection claims put forward in her protection visa application (and which were summarised and expressly addressed in the refusal decision which [the applicant] provided to the Tribunal). It was not the case that [the applicant] lodged her application for review in 2020 with an accompanying statement to the effect that the protection claims put forward in her name were false, and that she had been surprised to find these summarised as her claims in the delegate’s decision.

1. Given all of this: I do not accept that [the applicant] was unaware of the protection claims which she submitted in her December 2015 protection visa application. I consider that [the applicant] willingly submitted false protection claims, and I consider that this raises serious doubts about the overall credibility of [the applicant].

2. Asked if she had any reason to fear returning to Malaysia, [the applicant] said that her only concern was that her daughter would be considered illegitimate according to Islamic law because [Applicant 2] had been born less than six months after she ([the applicant]) and her husband were married, and so [Applicant 2] would face a lot of pressure in Malaysia, including being bullied and looked down on, and people would be sarcastic to [Applicant 2], and all this might affect [Applicant 2]’s mental health. [The applicant] added to this that there was also the problem that her daughter had been unable to register for Malaysian citizenship, and that this would mean she would be unable to obtain a Malaysian passport, and this would mean [Applicant 2] would be unable to travel to Malaysia.

3. I asked [the applicant] to explain why she considered her daughter to be stateless given that it appeared that [Applicant 2] was eligible for Malaysian citizenship. [She] submitted that to get Malaysian citizenship for [Applicant 2] they would need to bring her home to Malaysia to get her registered, but they were not able to do this because [Applicant 2] did not have a passport. I put it to [the applicant] that she could apply to have her daughter registered for citizenship through Malaysia’s High Commission in Canberra. [The applicant] said they had gone to Malaysia’s Consulate in Melbourne many times but had been declined, and she did not know what the reason for this was. Asked if she had any evidence of having done this, [the applicant] she did not because the staff did not want to receive their application. [The applicant] said that the first time they went there they were told that they needed to provide her ([the applicant]’s) and her husband’s birth certificates. [The applicant] said that she and her husband had not brought their birth certificates to Australia, and did not know where their birth certificates were, or who could help them to get these. [The applicant] said that another time they went there the staff requested some other documents. [The applicant] claimed to be unable to remember what these were. [She] said that the last time they went to the Melbourne Consulate the staff saw that they all had a bridging visa-C, and the staff then became very angry and scolded them saying they had embarrassed their country.

4. Asked for the date when she first went to Malaysia’s High Commission, [the applicant] said she did not know the exact date, but it was before her child reached one-year-of-age (if so, at some point between February 2016 and February 2017). Asked when the second time was, [the applicant] said that this had been a few months after the first attempt (if so, at some point no earlier than around April 2016 and no later than around April 2017). Asked when they had made their most recent visit, [the applicant] said she could not remember but it was probably more than five years ago (if so, at some point between April 2017 and July 2019); and if the last visit occurred when [the applicant] and [Applicant 2] were holding a bridging visa-C, then this most likely occurred around or shortly after December 2018 (as this was when the Department re-assessed as valid the December 2015 protection visa application which had been deemed invalid since 16 February 2016, with the associated bridging visa-C ceasing 28 days later). If it were the case that [the applicant] and her husband and [Applicant 2] all held a bridging visa-C at that time, then the Malaysian consular staff likely would have judged that [the applicant] and her husband had both overstayed their visas, and the Malaysian consular staff likely would have also suspected that [the applicant] and her husband had lodged protection visa applications with false protection claims in order to obtain their bridging visas.

5. I note, moreover, that while the applicant’s] account of all of this sought to present Malaysia’s consular staff as uncooperative from the outset, and as placing her and her family in a hopeless position, this was plainly not what occurred. For, as has been noted above, it has long been plainly explained on the website of Malaysia’s High Commission that in order to register a child for citizenship there are various documents that must be presented, and this includes the birth certificate of the child’s parents (and the website of Malaysia’s High Commission provides clear simple instructions about how to go about requesting the reissuance of these from abroad). I asked [the applicant] whether she asked for copies of her and her husband’s respective birth certificates to be reissued to them from Malaysia. [The applicant] now confirmed that she and her husband had done this. Asked whether she had then provided these to the Malaysian consular staff, [the applicant] said she had but they had then been told they also needed to provide other documents (as noted already, [the applicant] claimed not to be able to remember what these additional documents were). I put it to [the applicant] that it was apparent from the information on the website Malaysia’s High Commission that she and her husband would have been required to provide various documents to register [Applicant 2] for citizenship. I asked [the applicant] why she did not immediately go back with such documents as were required. [She] said they did, but the last time they went there the staff were angry because they ([the applicant] and her husband and [Applicant 2]) had all held a bridging visa-C, and so since then they had not gone there anymore.

6. I put it to [the applicant] that it was my understanding that Malaysia’s consular staff in Australia would not assist Malaysian citizens with consular services if they had an active protection visa application. I asked [the applicant] if it was the case that her husband had also applied for a protection visa. [The applicant] indicated that he had. Asked about this, [the applicant] said her husband’s application had been refused, and he had then sought review at the Tribunal where the decision to refuse his protection visa application had been affirmed. He had as yet not sought judicial review of the Tribunal’s decision but he had, nevertheless, remained in Australia on a bridging visa E (the subclass 050 version of the bridging visa E may be granted to enable a person to remain in Australia lawfully while arrangements are made or awaited to enable their departure ).[33] [The applicant] said her husband would not leave Australia while she and her child remained in Australia because she was no longer working and his income was their sole source of support. [The applicant] gave no indication that her husband had any reason for not wishing to return to Malaysia other than that he wished to remain in Australia to be with and support herself and their child.

   [33] Home Affairs, ‘Subclass 050 and 051: Bridging visa E (BVE)’,

7. I then asked [the applicant] about the timing of her and her husband’s arrival in Australia and why they had lodged separate protection visa application. [She] said that her husband had travelled to Australia after her because he had been having problems with his first wife. [The applicant] gave no indication that she or [Applicant 2] or her husband were at risk of any harm in this regard. Asked about what her husband had claimed in his own protection visa application [the applicant] claimed not to know, and she gave no indication that her husband was currently at risk of any harm in Malaysia. I then asked [the applicant] why she and her husband had lodged separate protection visa applications. [The applicant]’s response did not directly address this question. For, in response, [the applicant] submitted that that this was because all of this had occurred when she was very close to giving birth to [Applicant 2]. [The applicant] said that around two weeks before she was due to give birth, the Department had told her she would need to provide her fingerprints. Then her birth came and was done by Caesarean section, so she was for some time unable to present at the Department. [The applicant] said she had asked for the fingerprinting date to be rescheduled but she had received no response, but her husband was able to go ahead and so had gotten his bridging visa-C while she got nothing at that point in time.

8. I note, with regard to all of this, that [the applicant] lodged her application for a protection visa on 24 November 2015 and thus more than two months before the birth of [Applicant 2] (on [date]). This noted, and although there is no information before me about when it exactly it was over the weeks which followed that [the applicant] was required by the Department to present in person to provide her personal identifiers (that is, to be fingerprinted and photographed), I am willing to accept that this date fell not long after the birth of [Applicant 2] thus making it impossible for [the applicant] to appear as requested. There is no evidence before me to indicate that [the applicant] ever made a request for this date to be rescheduled, or that this was not responded to, but I am willing to accept that [the applicant] may have made such an attempt, and that it was either not successfully received or not replied to for some other reason. Even so, none of this explains why [the applicant] and her husband did not lodge a combined protection visa application.

9. I put it to [the applicant] that her explanation did not answer the question I had asked of her. I put it to [the applicant] that it was after a protection visa application was lodged that an applicant was required to provide their biodata by way of being fingerprinted and photographed. I put it to [the applicant] that this was what had happened in her case. She had lodged had her protection visa application, and, after this, she did not present to the Department to be fingerprinted and photographed, and so her initial application became invalid. I again asked [the applicant] to explain why she had not included her husband in her protection visa application. [The applicant] now said that at the time she and her husband had not known they could have a combined application, and the people (who facilitated their applications) told them to make separate applications. Given how all this unfolded I did not find this persuasive. If it really was the case that [the applicant] and her husband had thought they could only apply for protection applications separately when they first lodged these, I consider that [the applicant] would have said so when I first asked her to explain why they had lodged separate applications. Instead, [the applicant]’s initial response was to assert that this had occurred because of how she had been unable to attend her fingerprinting owing to her physical state following the birth of [Applicant 2]. I note also that [the applicant]’s 24 December 2015 protection visa application provided no details as to the identity of her husband or his location, even though it indicated that [the applicant] was married. What is suggested by all of this is that, for whatever reason, it was [the applicant] and her husband’s preference to run separate protection visa applications, and for [the applicant] to be unforthcoming as to the identity and whereabouts of her husband, while nonetheless indicating that such a member of the same family unit existed (should her application be successful).

10. I put it to [the applicant] that it might be difficult to accept that she was being truthful with the Tribunal given how all of this was unfolding. [The applicant] submitted that she was telling the truth, and she had been required to be fingerprinted shortly after she gave birth, and that the Tribunal could check her records if it had doubts about this. [The applicant] said that after she had applied for a bridging visa-C she gave birth and was required to attend a fingerprinting, but her doctor told her not travel, and so she did not go to be fingerprinted and as a result she did not have a visa after this. [The applicant] said that following this the Department put on an information session which she had attended, and she was told she could apply for a bridging visa-E. [The applicant] said she did not do so at the time because she was not intending to return to Malaysia, but then she was having trouble with registering her child (for Malaysian citizenship), and because of all this she applied for a bridging visa E because she really wanted to go home. However, when she next went to the Malaysian consulate (to talk about her child’s documents) the Malaysian officials pestered her to show them her bridging visa E, and they found that the bridging visa she was on at the time it was actually a bridging visa-C, and the Department told her this was because she had made an application for this before she had had her child.

11. I noted for [the applicant] that a bridging visa E was a bridging visa which could be applied for in certain circumstances such as when intending to leave Australia, but an application could not be made for a bridging visa-C. I put it to [the applicant] that a bridging visa C was issued when a person had applied for some other visa, and it was issued so that the person’s presence in Australia lawful while their application was assessed, and in her case she was issued a bridging visa-C because she had applied for a protection visa in December 2015. Given what [she] described, I consider that [the applicant] presented to the Malaysian consular staff as someone who was intending to return to Malaysian and who held a bridging visa-E for this purpose (rather than a bridging visa of a kind issued while awaiting the outcome of an application for a substantive visa). The Malaysian consular staff, as would be expected, sought confirmation that [the applicant] really did hold a subclass 050 bridging visa-E as a perquisite to providing her with consular assistance. When it transpired that [the applicant] actually held a bridging visa-C, Malaysia’s consular staff would have realised that [the applicant] had overstayed the visa she arrived on, and they would likely have judged that she had an active protection visa application and, on this basis, they would have declined to provide her and [Applicant 2] with any further consular assistance while all this remained the case. Given this, I accept that in around December 2018 Malaysia’s consular staff in Australia refused to assist [the applicant] any further with registering her daughter as a citizen of Malaysia. I am also willing to accept that staff at Malaysia’s Consulate in Melbourne may have admonished [the applicant] and her husband by way of saying to them that they had embarrassed their country. But I am not satisfied that there is a real chance or a real risk that Malaysia’s consular staff in Australia would continue to refuse to assist [the applicant] and [Applicant 2] with registering [Applicant 2]’s citizenship, and with facilitating travel documents to enable them to travel to Malaysia, in circumstances where the applicants no longer had an active protection visa application, and where Malaysia’s consular staff were satisfied that the applicants genuinely intended to depart Australia for Malaysia, or where they were being deported in this regard by the Australian authorities.

12. With regard to her concerns about [Applicant 2] being of illegitimate birth (from the perspective of Islamic law in Malaysia) [the applicant] said that because [Applicant 2] was illegitimate, she would face lot of pressure in Malaysia, including being bullied and look down on, and people would be sarcastic to her, and all this might affect her ([Applicant 2]’s) mental health. As has been noted above, under Islamic (or Sharia or Syariah) law in Malaysia a child will be considered illegitimate if she or he is born less than six months after the marriage of her parents. As has been noted above, [the applicant] stated in her 24 December 2015 lodged protection visa application that she was married on 21 December 2015 (in [Suburb 1]). However, [Applicant 2]’s birth certificate indicates that her parents were married on 17 April 2015 (in [Town 3]) which would be more than nine months before [Applicant 2] was born. At the hearing of 19 July 2024, I asked [the applicant] to state when it was that she and [Applicant 2]’s father were married. [She] responded that that she was married in 2015, but she could not remember the exact date. I asked [the applicant] if she had a marriage certificate which would establish this. She said that she did, and she presented a Commonwealth of Australia certificate of marriage for herself and her husband which documented that this had taken place in [Suburb 1] and which was solemnised under the Muslim rite and in accordance with Australia’s Marriage Act 1961 (and a copy of this document was taken by the Tribunal). However, the date of the marriage was listed as 8 January 2016 (meaning that the marriage documented by this certificate occurred several weeks after [the applicant] submitted her 24 December 2015 protection visa application).

13. This meant that [the applicant] had now provided evidence of being married on 17 April 2015 in [Town 3] in regional Victoria ([Applicant 2]’s NSW birth certificate), and also on 21 December 2015 in [Suburb 1] in Melbourne in Victoria (the 24 December 2015 protection visa application), and 8 January 2016 in [Suburb 1] in Melbourne in Victoria (the Australian marriage certificate of this date); and with two of these dates being supported by documentary evidence in the form of an Australian marriage certificate (8 January 2016 in [Suburb 1] in Melbourne in Victoria) and [Applicant 2]’s NSW birth certificate (17 April 2015 in [Town 3] in regional Victoria).

14. I asked [the applicant] whether prior to her being married under the Islamic rite on 8 January 2016 she had had a civil marriage at an earlier date. [the applicant] said she had not. I put it to [the applicant] that I was asking this question because her daughter’s birth certificate listed her parents as having been married on 17 April 2015. In response, [she] submitted that she had had a wedding ceremony held in the traditional way of the village. I had the impression [the applicant] was now referring to a marriage ceremony which had occurred in Malaysia rather than in [Town 3]. I asked [the applicant] if she was saying that she and her husband he had had a marriage in Malaysia and before she arrived in Australia. [The applicant] said she had but that this marriage was not registered because her husband’s family were opposed to their marriage. Asked when this marriage in Malaysia took place, [the applicant] said she could not remember because she does not celebrate the anniversary of this marriage. Asked to estimate when the marriage occurred in terms of the length of time prior to her arrival in Australia, [the applicant] said she could not remember. Asked if it occurred within the year prior to her arrival in Australia, [the applicant] said she thought it occurred around a year from the date she arrived in Australia (if so, the marriage occurred in around November 2013). Asked where the marriage took place, [the applicant] said it had occurred in her husband’s village in the vicinity of [Village 1] in Terengganu state but that she could not recall the name of the village because she was not herself from that locality.

15. Asked who performed the marriage (in Malaysia, in Terengganu), [the applicant] said she was not sure because her husband had arranged this. Asked who else was present at this marriage, [the applicant] said her husband was there and the wali (the bride’s guardian, who hands over the bride to the husband) and the kadi (celebrant), and two witnesses. Asked who the wali had been, [the applicant] said she was not sure because the wali had been appointed or arranged by others. Asked who the witnesses were, [the applicant] said she did not know because these persons were arranged by her husband.

1. For completeness, I note also that at the 19 July 2024 hearing I invited [the applicant] to explain why she had not raised the above claim (that she feared [Applicant 2] would suffer harm as a result of illegitimate birth) before her and [Applicant 2]’s application was refused on 19 March 2020. [The applicant] responded that at the time she had not been thinking about these things, and she only began to think about this after her daughter had commenced school here in Australia, and because recently there had been a lot of complaints about illegitimate children being harassed in Malaysia even by their teachers, and this had made her worried that her child might face the same issues. I have not found this persuasive. For I note in this regard that while [the applicant] ultimately did provide the Tribunal with copies of articles which addressed issues of this kind (complaints about illegitimate children being harassed in Malaysia even by their teachers), the articles in question appeared in November 2019.[52] The other news reports which [the applicant] provided were published in mid-2017,[53] and I note that it was over these years that Malaysia’s news media gave extensive coverage to this issue, and in particular to a case in which the parents of a Muslim illegitimate had taken taking legal action in Malaysia’s courts to contest the convention formerly implemented by state authorities wherein illegitimate Muslim children were being officially registered with the second name of Abdullah (rather than with their father’s patronym as is the convention for a legitimate Muslim child), and which sometimes resulted in such children being identified as illegitimate (by those who come to know that the child’s father’s given name is not Abdullah) and then subjected to stigma (and sometimes, in the case of some male children, physical assaults from classmates).[54]  

   [52] Azmi, S. ‘Mak War talkah- sato perkongsian’, Facebook, 16 November 2019; Azmi, S. ‘Ok kita kongsi cerita: Gambar Hiasan aje’, Facebook, 16 November 2019; Azmi, S. ‘Anak Luar Nikah- satu perkongsian’, Facebook, 16 November 2019.

   [53] Clark-Hattingh, M. ‘Protect kids' best interests’, FMT, Straits Times, 17 August 2017, ; ‘Alienation and stigma for Muslims born out of wedlock’, 4 September 2017,

   [54] For examples, see: Hamid, N. ‘Mum takes on bullies after seeing teen son’s suffering’, Malaysian Insight, 5 June 2017, ; Ambalagan, V. ‘NRD has no right to add ‘Abdullah’ to Muslim illegitimate child, says court’, FMT, 27 July 2017, ; FMT, ‘Zahid told to respect judicial process on naming out-of-wedlock children’, 30 July 2017, ; Razali, R.D. ‘Discrimination against children: Don't turn a blind eye to issue’, Straits Times, 2 August 2017, ; Mohamed, A.A.A. ‘Solving the 'Bin Abdullah' dilemma’, NST, 10 August 2017, ; Wiakar, P. ‘The manufacturing of moral panics in Malaysia’, Today Online, 17 August 2017, ; Lim, A. ‘Adam’s story: How illegitimate Muslim children here carry ‘bin Abdullah’ stigma’, Malay Mail, 9 January 2018, ; Lim, I. ‘Why Muslim parents are fighting to name their illegitimate children after them’, Malay Mail, 7 February 2018, ; Anbaglagan, V. ‘“bin Abdullah” case: Muslim parents anxiously await court decision’, FMT, 21 November 2018, ; FMT, ‘Alienation and stigma for Muslims born out of wedlock’, 4 September 2017, ; Anbaglagan, V. ‘Dad’s name can’t be used for Muslim illegitimate child, says govt lawyer’, FMT, 14 November 2019,

2. I take it into consideration that [Applicant 2] did not reach school age until after [2020] ([Applicant 2] would not be five-years-of-age until [2021]), and that the delegate’s decision was made the very next day after [the applicant] lodged the Part C form which she had completed in [Applicant 2]’s behalf. However, it is also the case that on 5 December 2018 the Department notified [the applicant] that her protection visa had been deemed valid with [Applicant 2] having been added to this application, and [the applicant] was also advised at that time by the Department that she should already have provided all her claims and supporting evidence when she lodged her application but that she could bring any additional information she would like considered to her appointment for the collection of her personal identifiers. [The applicant] was also advised that: A decision can be made on your application at any time after it is found to be a valid application based on the information you have provided and without another opportunity to present any more information at an interview. [The applicant] ultimately lodged a Part C form which was accompanied by [Applicant 2]’s birth certificate (which carried a parents’ marriage date which did not admit a claim that [Applicant 2] was of illegitimate birth), and in which no protection claims were lodged with respect to [Applicant 2]. The assertion that [Applicant 2] was of illegitimate birth and at risk of harm would not be presented to the Tribunal for a further four years after the date of the primary decision.

3. I am satisfied that [the applicant] does not have a reasonable explanation for why this new claim (that [Applicant 2] would suffer harm as a result of illegitimate birth) was not raised prior to the making of the primary decision. I have therefore drawn an inference unfavourable to the credibility of this claim, and this has only served to further reinforce my finding that [the applicant] and her husband were lawfully married more than six months prior to the birth of [Applicant 2].

4. I have found that [the applicant] and her husband were lawfully married in Malysia, and more than six months prior to the birth of [Applicant 2]. Given this, I am not satisfied that there is a real chance or a real risk that [Applicant 2] would be seen as being of illegitimate birth in Malaysia, or that she would on this basis be registered with the patronym of Abdullah rather than her father’s name (as per her NSW birth certificate), or that [Applicant 2] or for that matter [the applicant] would experience stigma or harassment or harm of any kind on this basis.

5. [The applicant] has also claimed that her daughter is unable to understand or speak the Malay language (or at least that her daughter’s Malay is very limited), and that this and/or the lack of speech pathology services in Malaysia would disadvantage [Applicant 2] in Malaysia, as would [Applicant 2]’s having no contacts or friends in Malaysia.

6. During the hearing of 19 July 2024, when I asked [the applicant] what languages [Applicant 2] spoke, [the applicant] responded that her daughter spoke only English. I queried whether [the applicant] was asserting that her daughter spoke no Malay with herself and her husband at home. [The applicant] said that [Applicant 2] had refused to learn. I note, in this regard, that the Part C application which [the applicant] lodged for [Applicant 2] in March 2020 (when [Applicant 2] would have been a little over [age]) lists [Applicant 2] as speaking only Malay, and that she would require a Malay language interpreter. Moreover, the idea that [Applicant 2] has refused to learn any Malay is difficult to accept given that she has been raised from birth by parents who speak Malay as their first language. I put it to [the applicant] that [Applicant 2] must have been able to speak some Malay given her upbringing prior to attending school. [The applicant] submitted that [Applicant 2] experienced speech delay during her early childhood. [The applicant] added to this that the reason her daughter may have refused to learn Malay was because of how [Applicant 2] had been confused by how she ([the applicant]) and her husband spoke different languages at home. [The applicant] said that this was because she ([the applicant]) was from Kedah while her husband was from Terengganu. Asked to explain further what she was asserting in this regard, [the applicant] said that she usually spoke in either Malay (standard Malay) or the Kedah dialect of Malay, while her husband mostly spoke in the Terengganu dialect. [The applicant] said that although she was born in Terengganu she grew up in Kedah and could only speak the Kedah dialect of Malay, and not the Terengganu dialect, nor could she understand the Terengganu dialect very much.

7. I note, with regard to all of this, that it is true that the Terengganu Malay dialect is known for being difficult to understand for speakers of other Malay dialects.[55] But it is also the case that standard Malay (or Bahasa Malay) is spoken by 80% of the population owing to its being the standard language of instruction in Malaysia’s government schools. And to the extent that there are persons in Malaysia who are unable to speak and understand standard Malay, these are most typically found within those communities which do not themselves speak a dialect of Malay (and this largely means the ethnic Chinese community who make up 22.8% of the population in Malaysia and who generally attend private schools where the language of instruction is Mandarin).[56] Given this, the possibility that [the applicant]’s husband is unable to speak standard Malay (such that he is only able to speak Terengganu Malay, a language which his wife understands little, and his daughter not at all) is difficult to believe.

   [55] Ali, A.S. et al, ‘A Comparative Study Between Terengganu and Kedah Dialect in Malaysia at The Semantic Level’, Asian Journal of Social Science and Management Technology, vol.8, March-April 2024, pp.32-33,

   [56] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.11, 3.13-3.14; Asia Localize, ‘What Are the Languages Spoken in Malaysia?’, 19 December 2024, ;

8. At the hearing of 7 August 2024 I took the opportunity to first confirm with [the applicant] my understanding of the key aspects of what she had said during the last hour of the hearing of 19 July 2024 (as the audio recording system had failed to capture the final hour of the hearing of 19 July 2024 and I wished to ensure that a recording was made of what the key aspects of [the applicant]’s evidence had been during the last hour of the hearing of 19 July 2024). I therefore went through these with [the applicant] and asked her whether my understanding of what she had said was accurate, and whether she wished to add anything to this. This included my noting for [the applicant] that: At the previous hearing I asked if you had any reason to fear returning to Malaysia. You said you had just one reason, and this was that you feared that your child would be considered illegitimate under Malaysia’s state Shariah law because she was born less than six months after you were married, and that she would be given the name [deleted], and would be bullied and looked down upon, and that this would cause your child mental harm. I asked [the applicant] if all of this was correct, and she said it was. I then asked [her] if there was anything she wanted to add in terms of fearing harm for herself or [Applicant 2]. [The applicant] responded: My daughter maybe has a bit of problem because she cannot speak Malay. Maybe in terms of education because Malaysia education and Australia’s are very different, and she will be left behind. And one more thing she is undertaking speech therapy in her school but in Malaysia she does not have this opportunity. Asked if she had any other concerns with respect to returning to Malaysia, [the applicant] submitted that her daughter did not have any contacts in Malaysia and would have no friends there.

9. Asked what problems she considered would arise because of this, [the applicant] submitted that her daughter found it very difficult to speak properly in the Malay language and she kept mispronouncing Malay words (thus, and in contrast to what [the applicant] had asserted at the hearing of 19 July 2024, it was now stated that [Applicant 2] did or at least had at some point spoken some Malay, as opposed to the earlier assertion that she had never spoken any Malay and had refused to learn). [The applicant] said she had been trying to teach her daughter Malay, but her daughter preferred to speak English. [The applicant] said of her daughter that her daughter had been speaking English from the time she was three-years-of-age, though even by the time she was attending school this had not amounted to much more than being able to say her name and her age, but she had improved with speech therapy and was now able to speak a lot of words, and was getting better with reading and writing, and it was the speech therapy which was really helping her. I note, with regard to all of this, that what [the applicant] was describing in this latter regard was a difficulty with speaking English rather than Malay, and which appeared at odds with [the applicant]’s assertion that her daughter preferred to speak English rather than Malay.

10. What [the applicant] was asserting in this regard also seemed difficult to believe if it was the case that the applicants were residing in an area of Australia with a Malay Muslim community, and when I asked [the applicant] about where she was currently residing, [the applicant] indicated that some four years ago she and her husband and [Applicant 2] had moved from [Town 1] NSW back to [Town 3] in Victoria. That [the applicant]’s family would have done this is not surprising given that, as has already been noted above, [Town 3] is known as a location where farm work can be readily found, and which has a substantial Malay speaking Muslim community.[57] However, no matter what manner of engagement I proposed might be occurring with other Malay persons in [Town 3], [the applicant] insisted in every instance that her daughter had no such contact. Asked if her daughter had any Malay friends at school, [the applicant] said she did not and that her only friends all came from countries other than Malaysia. Asked whether her daughter associated with any Malay children outside of school such as the children of family friends, [the applicant] said they had no such friends in [Town 3]. [The applicant] did not dispute that [Town 3] had a significant Malay Muslim population, but she asserted in response to this that she had no engagement with this community because she and [Applicant 2] rarely went into town, and generally remained in the farm area where they resided.

    [57] [Sources deleted.]

11. At the hearing of 7 August 2024, I put it to [the applicant] that she had not provided any evidence of her daughter being affected by a speech therapy issue. I asked [the applicant] if she was able to provide any such evidence from the recent year. [The applicant] said she should be able to provide evidence of this kind within a week. [The applicant] subsequently made a submission to the Tribunal on 22 August 2024, but this did not include any speech therapy reports for [Applicant 2], nor has any such evidence been provided subsequently.

12. It is reported that the parents of approximately 25 percent of children in Australia concerned about their children’s communication development, and that those who are able to access speech therapy services (from a speech pathologist) generally do so.[58] Given how commonplace this is, I am (notwithstanding that no documentary evidence of this has ever been provided for [Applicant 2] in this respect) willing to accept that [Applicant 2] has had speech therapy assistance from a speech pathologist. Given that it is reported that Malaysia has a shortage of speech pathologists,[59] I accept that there is a real chance and a real risk that [Applicant 2] may not be able to access such services in Malaysia. But I am not satisfied on the evidence before me that there is a real chance or a real risk of this occurring for any reason other than the limited availability of such services in Malaysia. I am therefore not satisfied that such a situation would amount to persecution since I am not satisfied that there is a real chance such a situation would involve systematic and discriminatory conduct. Likewise, I am not satisfied that there is a real risk that such a situation would involve an act or omission intended to cause [Applicant 2] harm (such that such a situation would not amount to degrading treatment or punishment, or cruel or inhuman treatment or punishment, or torture). I am also not satisfied that such a situation would result in [Applicant 2] being arbitrarily deprived of her life, or of her having the death penalty carried out on her. I am thus not satisfied that there is a real risk such a situation would result in [Applicant 2] suffering significant harm.

    [58] Verdon, S. ‘Australia, we need to talk about the lack of support for children with communication needs’, Charles Sturt University, 17 May 2021,

    [59] Mok, O, ‘Patients wait an average of 205 days for speech therapy appointments in Penang govt hospitals, state assembly told’, Malay Mail, 22 May 2025, ; Code Blue, ‘Zaliha: Only 156 Speech-Language Therapists In MOH’, 23 June 2023, ; Malay Mail, ‘UKM study shows Malaysia needs more speech therapists’, 12 July 2016,

13. For completeness, I am also not satisfied that [Applicant 2] would in Malaysia, for the foreseeable future, face a real chance or a real risk of experiencing difficulties in the development of her speech in either English or Malay as would delay or prevent the development of her communication abilities in such a manner as to cause her harm. For, if it really were the case that that [Applicant 2] was facing significant problems of this kind, I consider that [the applicant] would have provided the Tribunal with evidence from a speech pathologist to this effect.

14. With respect to [Applicant 2]’s current language abilities, I am not satisfied that [the applicant] has been entirely forthcoming with the Tribunal about the extent of these. I am willing to accept that [Applicant 2]’s understanding of spoken Malay is limited (that is, for a child of her age, and in comparison to that of Malay children who have lived all their lives in Malaysia and have been attending schools where Malay is the language of instruction), and I am also willing to accept that [Applicant 2] has had little to no engagement with written Malay. But I do not accept that [Applicant 2] has no ability whatsoever to understand or speak the Malay language, or that her father does not speak any Standard Malay at home to her and her mother, or that [Applicant 2] is unable understand and actively participate in basic conversations in Standard Malay.

1. I accept that for the foreseeable future there is a real chance and a real risk that [Applicant 2] will, in Malaysia, face challenges and difficulties while she progresses through a period of developing proficiency in written Malay, and in developing greater proficiency in spoken Malay, and that (with the possible exception of English language classes which I note are taught as a compulsory subject throughout primary school and into secondary school,[60] and wherein [Applicant 2] should be at an advantage as a result of her time attending school in Australia) there may be a period where [Applicant 2] will fall behind the level of academic achievement she is currently attaining here in Australia. I am not, however, satisfied that such a situation would amount to persecution since I am not satisfied that there is a real chance such a situation would involve systematic and discriminatory conduct. Likewise, I am not satisfied that there is a real risk that such a situation would involve an act or omission intended to cause [Applicant 2] harm (such that a situation of this kind would not amount to degrading treatment or punishment, or to cruel or inhuman treatment or punishment, or to torture). I am also not satisfied that such a situation would result in [Applicant 2] being arbitrarily deprived of her life, or of her having the death penalty carried out on her. I am thus not satisfied that there is a real risk such a situation would result in [Applicant 2] suffering significant harm.

   [60] Liu, V. ‘The Education System in Malaysia Explained’, Tutor Chase, 16 December 2024,

2. I accept that [Applicant 2] currently has no friends or contacts in Malaysia. However, the possibility that [Applicant 2] would upon return to Malaysia be unable to establish friendships and connections with others (whether for reason of her language development or any other reason) is too speculative, as is the possibility that [Applicant 2] would be caused any harm as a result of her having no friends or contacts in Malaysia when she initially arrives in the country. I am not satisfied that [Applicant 2] would, for the foreseeable future, face a real chance or a real risk of experiencing any kind of harm for reason of her having no friends or contacts in Malaysia.

   Do the applicants satisfy the refugee criterion for protection?

3. For the reasons given above, I am not satisfied that that either one of the applicants would, for the foreseeable future, face a real chance of persecution no matter whether they were to return to Kedah or to Terengganu (or any other area of peninsular Malaysia) in returning to Malaysia. I am therefore not satisfied that either one of the applicants would face a real chance of persecution in all areas of their receiving country. I am therefore not satisfied that either one of the applicants has a well-founded fear of persecution.

4. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Do the applicants satisfy the complementary protection criterion for protection?

5. For the reasons given above, I am 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 (and of their returning to either Kedah or Terengganu, or any other area of peninsular Malaysia), there is a real risk that either one of the applicants will suffer significant harm.

100. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

Other considerations

1. There is no evidence before me to indicate, nor is it otherwise apparent, that either applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa (whether that be the husband/father to [the applicant] and [Applicant 2] respectively, or anyone else). Accordingly, neither applicant satisfies the criterion in s 36(2).

   DECISION

102.   The Tribunal affirms the decisions under review.

Dates of Hearings:  19 July 2024 & 7 August 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.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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