2006328 (Refugee)
[2025] ARTA 1667
•25 June 2025
2006328 (Refugee) [2025] ARTA 1667 (25 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2006328
Tribunal:General Member R. Germov
Date:25 June 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·section 36(2)(a) of the Migration Act 1958
Statement made on 25 June 2025 at 5:34pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – fear of harm from father – coercive control, abuse, violence and threats to kill against mother and applicant – police inaction – located and harassed after relocating – education and future plans – physical and mental health – treatment limited and medication expensive in home country – mother’s separate protection visa granted – mother’s physical health and applicant’s care – Tamil and atheist – country information – laws and official initiatives – police attitude to domestic violence as private matter – limited information about domestic violence to men – reluctance to report – socially conservative Islamic society – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (4), (5)(b), (c), 5K, 5LA(1)(b), (2B)(b), 36(2)(a), 66(2)(d)(ii), 367A, 412(1)(b)
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(a), (b)(i)
Migration Regulations 1994 (Cth), r 4.31, Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
BMY18 v MHA [2019] FCAFC 189
Chan Yee Kin v MIEA (1989) 169 CLR 279
DAO16 v MIBP [2018] FCAFC 2; (2018) 258 FCR 175
DFQ17 v MIBP [2019] FCAFC 64
Kathiresan v MIMA [1998] FCA 159
Luu v Renevier (1989) 91 ALR 39
MIAC v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211
MIAC v SZIAI [2009] HCA 39; (2009) 259 ALR 429
MIAC v SZQRB [2013] FCAFC 33; (2013) FCR 505
Prasad v MIEA (1985) 6 FCR 155
Prashar v MIMA [2001] FCA 57
Randhawa v MILGEA (1994) 52 FCR 437
Re MIMA; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
1811319 (Refugee) [2024] AATA 3026
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 (as the responsible Minister was then named) on 18 April 2018 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant is a male Malaysian national of Tamil Indian ethnicity and is an atheist. He is now aged [Age] years. He applied for the visa on 1 December 2017. The delegate refused to grant the visa on the basis that he was not owed protection obligations by Australia. The applicant applied for review to the Administrative Appeals Tribunal (“the AAT”) on 16 May 2018. The review application was lodged one day outside the prescribed 28-day time limit and the AAT had no power to extend the time for lodgement [1] Consequently, the Tribunal decided it had no jurisdiction to review the application.[2]
[1] Section 412(1)(b) of the Act and Regulation 4.31 of the Migration Regulations1994 as these provisions existed before 14 October 2024
[2] AAT Case Number 1814166
3. The Federal Circuit Court of Australia (as it then was) remitted the application back to the Tribunal by consent on 23 March 2020 on the basis that the letter from the Department of Home Affairs (“the Department”) notifying the refusal of the protection visa did not clearly state the time within which a review application must be made. The notification did not comply with section 66(2)(d)(ii) of the Act and hence it was invalid and of no legal effect.[3]
[3] This error was identified by the Full Federal Court of Australia in the cases of DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [41]-[65] and BMY18 v Minister for Home Affairs [2019] FCAFC 189 at [32]-[35].
4. The AAT was abolished and replaced by the Administrative Review Tribunal (“the Tribunal”) on 14 October 2024. The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such. The Tribunal is satisfied that the review application was validly made and the Tribunal has jurisdiction to determine the review application.[4]
[4] Sections 412(1)-(3) of the Act as they existed before 14 October 2024
5. The applicant was legally represented in relation to the review by Ms Brianna Partington from Refugee Legal.
6. The Tribunal had scheduled a hearing to be held on 2 April 2025 but after considering the submissions of the applicant’s representative and the medical evidence attached to them, the Tribunal decided to cancel the hearing. This matter concerns the review applicant and the Minister for Immigration and Citizenship as a non-participating party: section 106(3)(a) of the Administrative Review Tribunal Act 2024 (Cth) (“the ART Act”). The Tribunal has decided that it can determine the review application without a hearing pursuant to section 106(3)(b)(i) as the decision is wholly in favour of the applicant after consideration of the applicant’s statements, the legal representative’s submissions and the country information.
BACKGROUND
7. The Department’s movement records indicate that the applicant initially arrived in Australia [in] May 2027 as the holder of a subclass UD601 Electronic Travel Authority (“ETA”) which permitted him to remain for three months. He departed on 3 June 2017. He returned to Australia [in] October 2017 on his ETA which permitted him to remain until [December] 2017. The Department’s movement records indicate that the applicant has not departed Australia since his last arrival. The applicant was not interviewed by the delegate and was not legally represented in relation to his primary and initial review applications. As the applicant was a minor at the time of both the primary and review application, his mother assisted with his applications.
Evidence before the Department
8. It was claimed that the applicant came to Australia to be with his mother as he had no-one to look after him in Malaysia. His mother left Malaysia because she was afraid of her ex-husband who was an alcoholic. The applicant’s father became violent and started to beat his mother. She reported him to police and he was jailed for one month. The applicant’s father accrued debts which his mother stopped paying. His mother was afraid to return to Malaysia because she was afraid her ex-husband would try to harm her and her children.
9. The delegate found that the applicant’s claim invoked section 5J(1)(a) of the Act by regarding the applicant as a member of a particular social group of victims of domestic violence in Malaysia. However, the delegate concluded that the applicant could obtain effective protection from the Malaysian authorities or from non-government bodies that have been established in Malaysia to assist victims of domestic violence.
EVIDENCE BEFORE THE TRIBUNAL
10. The applicant’s mother was found to be owed protection obligations pursuant to section 36(2)(aa) of the Act.[5] The AAT accepted that she was a credible witness who had suffered horrific domestic violence which included being subject to an acid attack that permanently scarred her and put her in hospital for a month. She was unable to work for two years. Her ex-husband also beat her severely and exerted financial manipulation, coercive control, emotional abuse and threats to kill her and the applicant.
[5] AAT Case Number 1712759
11. The applicant’s father forced his mother to leave him in his custody and only released him to her when she threatened to make a police report after he physically assaulted her.
12. The AAT found that the applicant could not obtain effective protection from the Malaysian authorities due to resource limitations with protective services and shelters. The Tribunal found that the applicant’s mother was at risk of significant harm due to those limitations and his father’s persistence in pursuing her after their divorce in 2016, despite being reported to police.
13. The applicant’s mother became an Australian citizen [in] November 2023.
Legal Representative’s Pre-hearing Submissions
14. The applicant’s legal representative forwarded a submission dated 28 March 2025 in anticipation of the hearing that was scheduled to take place on 2 April 2025. The submission informed the Tribunal that the applicant suffered from [physical condition] which caused temporary [symptoms]. The applicant would find it difficult to effectively participate in a hearing if the condition flared up on the date of the hearing and that an adjournment may be required at short notice.
15. The submission also stated that the applicant was deeply traumatised by his experiences throughout his childhood and alerted the Tribunal to the need to adopt a trauma informed approach to the conduct of the hearing. The applicant’s mother would also be attending and giving evidence. She suffered from chronic pain due to a work related injury which made it difficult for her to sit or stand in the same position for long periods and would need to move around to alleviate her pain.
16. The legal representative appended medical evidence concerning the applicant and his mother’s conditions. [Dr A] provided a medical certificate dated 3 April 2025 which stated that the applicant suffers from Post Traumatic Stress Disorder (“PTSD”) which causes him to experience excessive distress and stuttering when discussing past events. [Dr B], [specialisation], provided a report dated 7 February 2025 confirming that the applicant suffered from active [condition] which was being treated with painkillers and steroids including methotrexate.
17. The applicant suffered frequent physical abuse from his father which included being hit with a golf club, belts and tennis racquets and thrown down the stairs. His father emotionally abused him by telling him his mother abandoned him.
18. The legal representative asserted that the applicant feared harm from his father, his immediate family and the wider Malaysian community which were further detailed in the statutory declaration dated 1 April 2025 that accompanied the submission.
Applicant’s Statutory Declaration of 26 March 2025
19. The contents of the applicant’s statutory declaration are summarised as follows. He is of Tamil ethnicity and an atheist. His mother is an Australian citizen and they both fled from Malaysia to escape constant abuse from his father. His older sister is married and lives in Johor with her husband.
20. The applicant lived with his aunt and was continually harassed by his father who constantly telephoned him to find out where he was staying. The applicant missed his mother a great deal and was very depressed. He visited her for one week before returning to Malaysia. His mother had already applied for a protection visa which was refused and under review at the AAT and could not add him to her application.
21. The applicant suffered physical abuse from his father throughout his entire life which included being hit, punched and having things thrown at him. His father threw him down the stairs and broke his arm when the applicant was aged around nine or ten years. The applicant was told to lie about how his arm came to be broken when he received medical treatment for it. The applicant’s father hit him with golf clubs, belts, tennis racquets and clothes hangers. He forced the applicant to drink alcohol as a punishment for any misbehaviour. His father was an alcoholic who tortured his mother mentally for years and threatened to take the applicant away from her and to kill them both if she left the marital home.
22. The applicant’s mother left the marital home in November 2005 to live with her sister and his father would not permit her to take the applicant and his sister with her. The applicant did not have a particularly good relationship with his mother because his father told him she had abandoned him because she had a new boyfriend and that he was not his father’s son because his mother had an affair. The applicant’s father would behave well for a couple of weeks and then become tired of his children’s presence. He would start hitting and verbally abusing the applicant before taking him to his mother’s place as it was no longer convenient for him to look after the applicant. The applicant’s father would take him from Child Care Centres or babysitters and refuse to return him to his mother until there was no-one in his family to look after the applicant. The applicant was only able to live with his mother permanently in 2010 when he was [age] years old.
23. The applicant’s mother moved away from Shah Alam to Subang Jaya in 2015 to get away from his father but his father located them within two or three months. He would frequently turn up to their new home, yell abuse, and force the applicant and his sister to leave with him. The applicant’s mother called the police but they did not take any action. This incident led his mother to leave Malaysia and the applicant was left in the care of her sister. However, it was not safe for him to stay with his maternal aunt as she had a good relationship with his father. The applicant then moved in with his sister in Subang Jaya. She was living with her boyfriend at the time but the applicant did not have a good relationship with the boyfriend and decided to move to Australia as there was nowhere safe for him in Malaysia. He was [Age] years old at the time he came to Australia.
24. The applicant asserted that he could not return to Malaysia as his father would kill him and his mother if they went back. His father had threatened to kill them many times and had left messages on the applicant’s Malaysian mobile phone that he would skin the applicant alive if he saw him again. The applicant stated that he could not relocate anywhere in Malaysia because his father would easily find him and he had no family support or protection from the authorities. The applicant’s sister told him that she did not want him to move in with her as she was protected by her husband and his family. She did not want their father to cause problems for her and her husband. The applicant has no ongoing relationship with his sister as a consequence of her unwillingness to assist him if he had to return to Malaysia.
25. The police in Malaysia were ineffective and despite his mother’s many reports concerning his father, they took no action until he smashed her head and she ended up in hospital. The applicant appended a report from [Dr D] from the [Medical Centre] in Petaling Jaya, Selangor dated 27 January 2006. [Dr D] stated that the applicant’s mother was admitted at 8.10 pm on 24 January 2006 and presented with laceration on the left frontal region of her head as well as nasal bleeding. [Dr D] stated that she had told him that she had been repeatedly beaten with a stick by her husband. The applicant’s mother was taken into surgery for the suturing of her wounds which went down to the bone of her skull. Her nose was also broken. Photographs of the injuries were provided to the Tribunal.
26. On the rare occasions when the police would turn up to investigate, they told his mother that it was a family matter that needed to be resolved within the family.
27. The applicant had adapted to life in Australia and had a very close, mutually supportive relationship with his mother. The applicant had completed secondary school in Australia and had completed a Certificate II in [Subject 1]. The applicant is enrolled in [a Subject 2] course at [TAFE] and provided evidence thereof. He hopes to study [Subject 3] in the future.
28. The applicant has caring responsibilities for his mother who requires daily support after she was injured in a fall at her workplace in 2020. The applicant’s mother uses a walking stick and cannot sit, stand or drive longer than 10-15 minutes because of the pain. The applicant provided a medical report from [Dr E] dated 29 February 2024 which stated that his mother suffered from lumbar spine radiopathy, bursitis and pain induced stress and depression as well as medication induced gastric reflux. [Dr E] was of the opinion that the applicant’s mother would continue to suffer ongoing degenerative spinal disease which would limit her mobility. [Dr E] provided a further report dated 21 March 2025 which confirmed that the applicant’s mother continued to have restricted mobility and pain which affected her sleep. He also mentioned that she was undergoing psychological counselling.
Submissions in Response to Tribunal’s Request for Further Information
29. The Tribunal wrote to the applicant’s representative on 2 April 2025 requesting further submissions as to why the applicant was at risk of serious or significant harm given that:
(a)He was now an adult who was last seen by his father and family when he was [Age] years of age, had changed in appearance and acquired skills that would make him employable and able to move away from his family; and
(b)Malaysia appeared to have many medical clinics that treat [condition].
30. The applicant’s mental health was raised as a significant concern and the Tribunal required information as to whether the applicant had received any mental health treatment. The applicant’s legal representative forwarded as response to these matters on 29 April 2025 as well as a further statutory declaration from the applicant made on 29 April 2025.
31. It was asserted that despite the passing of years since he last saw his father and relatives in person, the applicant was still readily recognisable due to his resemblance to his father. The submission pointed out that the AAT had found in his mother’s case that his father had shown a capacity and a willingness to track his mother as well as pursue her after their divorce. It was further asserted that the applicant’s father was irrational and dangerous who would seek to harm the applicant as he had harmed him in the past. Importantly, the submission drew the Tribunal’s attention to the Judicial College of Victoria’s MARAM Risk Guide[6] which stated that a family violence perpetrator’s threats to kill a family member is often genuine and should be taken seriously.
[6] Multi-Agency Risk Assessment and Management Framework
32. The legal representative stated that the applicant’s adult status and legal autonomy did not deter his father from inflicting harm in the future because he was motivated to harm the applicant directly as well as indirectly in order to inflict punishment on his mother for leaving the marriage and the country. The applicant’s father had managed to find his mother and the applicant and his sister when they moved from Shah Alam to Subang Jaya. He also continued to threaten the applicant after his arrival in Australia. Moreover, the applicant would not have effective protection from the Malaysian authorities as he is an adult male in a patriarchal society with entrenched gender norms who would be expected for fend for himself.
33. The submission referred the Tribunal to a decision of the AAT in the case of 1811319 [2024] AATA 3026 in which the Tribunal noted that while reasonable effectiveness does not guarantee safety, the country information demonstrated that the Malaysian police had a pattern of unresponsiveness to domestic violence despite the existence of legislation designed to punish such conduct. The submission also referred to the Department’s Refugee Law Guidelines in relation to section 5LA(1)(b) of the Act which required consideration as to whether the State “turned a blind eye” to certain actions.
34. The submission referred to the Federal Circuit and Family Court of Australia publication “The Impact of Family Violence on Children” factsheet [7] which stated that a child’s resilience to the impact of family violence depends on a number of protective factors such as having a supportive non-violent parent, positive support from other adults outside the family, the child’s individual personality and the ability to maintain regular routines such as school attendance and extracurricular activities. The submission stated that family violence can continue to have an impact long after it has taken place. It was submitted that the applicant was able to demonstrate strong resilience because he had a safe and supportive home environment and the friendships and social networks he has been able to develop. The applicant would not have these supportive structures if he were required to return to Malaysia.
[7] Issued in September 2021
35. The submission also asserted that as a Tamil Malaysian, the applicant would face discrimination in employment and in Malaysian society generally due to increasing conservative polices favouring Muslim, ethnic Malays. The submission conceded that the applicant’s atheism is not prohibited in Malaysia but Malaysia’s Constitution expressly states that Islam is the religion of the Malaysian Federation. The submission noted that proselytization of atheism or any other religion apart from Islam would lead to adverse attention from the Malaysian authorities.
36. In relation to the applicant’s [condition], it was submitted that he had [type of condition], a rare type of [condition]. While there were [condition] treatment centres in Malaysia, the cost of such treatment was prohibitive for many Malaysians.
37. The applicant submitted a report from [Dr C], [specialist], dated 11 April 2025 which stated that the applicant has [condition] which is [related detail]. She described the condition as extremely rare in comparison to the usual types of [condition]. The applicant’s medication consists of prednisolone 15mg daily, methotrexate 20 mg weekly and a biologic treatment called adalimumab (Humira). She states that these medications are available outside Australia but Humira has proven to be very effective and it is hoped that the aforementioned steroidal medications can be discontinued as prolonged use leads to weight gain, bone thinning, diabetes and hypertension. She expressed the view that it was her limited understanding that it would be difficult for the applicant to access Humira in Malaysia.
Applicant’s Statutory Declaration of 29 April 2025
38. The applicant provided a further statutory declaration concerning the matters raised by the Tribunal in its request for further information.
39. The applicant stated that he still looked much the same now as he did seven years ago and would be recognised by his family if he returned to Malaysia because he closely resembles his father in appearance. The applicant asserted that his adult status would not deter his father from harming him. His father had harmed his mother who was an adult and the police would not do anything to assist just as they did not assist his mother.
40. The applicant also stated that he would have no support from family or friends if he had to return to Malaysia and would be left to fend for himself. His father continued to enquire after him and his mother to find out where they were living and when they would be returning to Malaysia. Members of the applicant’s extended family had tried to reach out to his sister on social media to ascertain their whereabouts.
41. The applicant asserted that it would not be easy for him to find employment in Malaysia as his courses were not at an advanced level. He would have to start from nothing and try to continue his studies if he managed to find employment. The applicant stated that he was traumatised by his previous experiences and that this would be triggered again if he had to return to that country. He would be living in constant fear of being recognised by someone in his family or the community who would report back to his father. The applicant also stated that he did not speak Malay well which would also make it difficult to secure employment.
42. The applicant confirmed that he had not accessed mental health treatment in Australia beyond consulting with his general practitioner because he felt safe in Australia and his mother had told him to leave those bad experiences in the past. He also did not have access to Medicare for a long period of time which made getting mental health treatment unaffordable for him. The applicant stated that he works two jobs to support himself and his mother which does not leave time for him to consult a mental health professional. If he were to return to Malaysia he would not have his mother’s support or the support of his friends. His mother assists him when his [condition] flares up and he cannot [function] properly.
43. In relation to his ability to seek treatment for his [condition], the applicant stated that he had an allergic reaction to the [related detail] and this inflammation made his [condition] worse. He also pointed out that [related detail] and would be regarded adversely by clinicians there. It would take six months to see a specialist and it is doubtful that they would have any experience with [detail form of condition]. The applicant also stated that even if he could access Humira in Malaysia, it was very expensive, costing US$6922 per month. He would not get subsidised medication like he does in Australia. Importantly, the National Pharmaceutical Regulatory Agency in Malaysia states that Humira can only be injected at 40 mg which is half his current dose and does not permit use of the medication for treatment of [condition].
44. The applicant stated that his atheism could lead to discrimination and ostracization as Malaysia is a religious country that expects every citizen to have a religion. He was also ethnically Indian and recalled that his teachers treated him differently because he was a Tamil. Government policies and access to government services favoured ethnic Malay Muslims. The applicant stated that the aforementioned considerations would make it unreasonable and impractical for him to live anywhere in Malaysia.
PROTECTION VISA CRITERIA
45. The criteria for a protection visa are set out in section 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 sections 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.
46. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: section 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: section 5H(1)(b).
48. Under section 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. A real chance is one that is not remote, insubstantial or far-fetched: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279 at p.389 per Mason CJ; at p. 398 per Dawson J; at p.407 per Toohey j and at p. 429 per McHugh J. A fear can be well founded even if the possibility of persecution or serious harm occurring is less than 50%: at p. 398 per Dawson J.
49. The concept of well-founded fear has subjective and objective elements. “Fear” refers to the applicant’s feelings and “well-founded” connotes that the fear has a rational basis that is supported by independently verifiable objective facts concerning the situation in the applicant’s home country.[8]
[8] Refugee Law Guidelines at paragraph 3.4.2
50. Persecution must involve serious harm to the person and systematic and discriminatory conduct. Serious harm includes threats to a person’s life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where that denial threatens the person’s capacity to subsist and denial of the capacity to earn any kind of livelihood where that denial threatens the person’s capacity to subsist: section 5J(5). Any of the aforementioned reasons must be an essential and significant reason for the serious harm being inflicted: section 5J(4).
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 sections 5J(2)-(6) and sections 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in section 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: section 36(2)(aa) (‘the complementary protection criterion”). The Full Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) FCR 505 at [246] held that the real risk test was the same as the real chance test.
53. The meaning of significant harm is exhaustively defined in section 36(2A) of the Act, meaning that the person will be arbitrarily deprived of their life, be subjected to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The terms cruel and inhuman treatment and punishment or degrading treatment or punishment are further defined in section 5(1) of the Act and the definitions are included in the legislative extracts appended to this decision as attachment A.
54. Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that they could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [36]-[40].
55. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11 at [60]–[61].
CONSIDERATION OF CLAIMS AND EVIDENCE
56. The Tribunal is required to make findings of fact on relevant matters in determining whether an applicant is owed protection obligations. This will often involve an assessment of an applicant’s credibility. The Australian courts have made a number of observations concerning credibility assessment in the protection visa application context and the Tribunal is mindful of the difficulties faced by applicants in a foreign legal system and culture. Such difficulties can be compounded by an applicant’s experiences of trauma, their level of education and state of physical and mental health.[9] However, this does not mean that the Tribunal is obliged to accept what an applicant says uncritically.[10]
[9] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30]; Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45 at [30] and [34] per curiam; Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 per Gray J
[10] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J
57. Section 5AAA of the Act makes it the applicant’s responsibility to specify all the particulars of a claim and provide sufficient evidence to substantiate any claim that enlivens Australia’s protection obligations. The Tribunal does not have any responsibility or obligation to specify or assist an applicant in specifying or establishing any particulars of their claims. This reflects the long-established legal principle in Australia for that it is up to the applicant to make out their own case[11] and that the Tribunal is not in the position of contradictor or cross-examiner. It is not required to have evidence rebutting an applicant’s assertion in order to find that an applicant’s assertion is not made out.[12]
[11] Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 per Gleeson CJ, Gummow, Callinan and Heydon JJ at [57]; Luu v Renevier (1989) 91 ALR 39 at p. 45 per coram; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p. 170 per Wilcox J
[12] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437at [57] per Gummow and Heydon JJ; Gleeson CJ agreeing and [85] per Kirby J; Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576[187] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [18] per curiam.
58. The Tribunal finds that the applicant’s claims have been consistent from the time of initial application. The claims in the protection visa application were not as detailed as those made before the Tribunal but the applicant has had the benefit of competent and diligent legal representation from Ms Partington. Section 367A of the Act requires the Tribunal to draw an adverse inference to the credibility of an applicant’s claim or evidence if that evidence was not placed before the primary decision was made if the Tribunal is satisfied the applicant does not have a reasonable explanation for why that claim or evidence was not provided earlier.
59. The applicant provided a copy of his birth certificate when he applied for protection. The Tribunal finds that the applicant is the son of a person who has been recognised as being owed protection obligations under the complementary protection provisions.
60. The applicant and his mother both suffer from physical and mental health conditions which is confirmed by the medical evidence provided. The medical evidence states that their mental health conditions arise out of the domestic violence they experienced in Malaysia. The applicant has been diagnosed as suffering from PTSD. The Tribunal notes that this assessment was made by the applicant’s General Practitioner rather than a mental health professional but is prepared to accept that the applicant would have suffered great distress from the violence he experienced as well as the violence he witnessed his mother was subjected to. It is difficult to have to revisit those memories. English is not the first language of the applicant and his mother. The applicant did not have legal representation before the Tribunal review. It is evident that Ms Partington was able to elicit the details of the applicant’s experiences and obtain evidence in support thereof.
61. The Tribunal is cognisant applicants are retraumatised by having to repeat the details of their past experiences of domestic violence and this consideration was taken into account in the Tribunal’s decision to proceed to a decision without a hearing. The Tribunal is satisfied that there is a reasonable explanation for why the details of the claims and supporting evidence were not provided before the primary decision was made.
Does the applicant satisfy the refugee criterion for protection?
62. The Tribunal finds that Malaysia is the receiving country for the purpose of assessing Australia’s protection obligations based on the applicants’ Malaysian passports and there is nothing before the Tribunal to cast doubt on the authenticity of those documents or to suggest that the applicant has any other citizenship or right to enter and reside in any other country apart from Malaysia. Consequently, section 36(3) of the Act does not apply.
63. The Tribunal accepts the details of the applicant’s claims of abuse as true because they are internally consistent and consistent with the evidence given by his mother in her review application. In addition, corporal punishment of children is permitted at home and in schools in Malaysia.[13] Research into the practice of corporal punishment as a method of disciplining children in Malaysia revealed that 60% of parents who took part in a research survey believed in the need for physical punishment.[14] In this context, the Tribunal accepts that the police would be unlikely to investigate the applicant’s father while the applicant was a minor.
[13] “Corporal punishment of children in Malaysia” – August 2024
[14] “Practice of Disciplinary Methods and Factors Associated with Belief for Physical Punishment Among Malaysian Parents: Findings from NHMS 2016” –Drs S. S. Ganapathy, R. Sooryanrayana, N.Mohammad and R. A. Manaf, Global Pediatric Health, Volume 9, 1-9, 2022
64. The applicant fears being seriously harmed by his father if he were to return to Malaysia. The applicant and his mother are members of a particular social group consisting of the same family. Section 5K of the Act provides that a person who is pursued because they are a relative of a person who is targeted for a non-refugee reason will not have a well-founded fear of persecution. The applicant’s mother was found to be owed protection under the complementary protection provisions.
65. The fact that the serious harm is personally motivated by a non-State actor does not take it out of the ambit of refugee protection because it arises out of a personal relationship.[15] The applicant himself was pursued and harmed by his father. The evidence suggests that the father was a very violent, authoritarian man who expected to be obeyed by his wife and children, and whose violence was aggravated by the consumption of alcohol. The Tribunal accepts the applicant’s evidence that his father was violent with all his children, not just his wife. The Tribunal finds that the violence perpetrated on the applicant included physical and emotional abuse as well as coercive control throughout his childhood.
[15] See Flawed Foundations: An Historical Evaluation of Domestic Violence Claims in the Refugee Tribunals” – Adrienne Anderson, Melbourne University Law Review, Vol 45(1):1 at pp 6-7
66. The Tribunal finds that the applicant suffered serious harm within the definition of sections 5J(5)(b) and (c) of the Act in the form of significant physical harassment and significant physical ill-treatment, respectively. The Tribunal finds that the essential and significant reason for the serious harm was due to the applicant being the perpetrator’s child and hence due to his membership of the particular social group of family. The harm was systematic. It was also discriminatory in that it was directed at the applicant because he was part of the perpetrator’s family. The applicant satisfies sections 5J(1)(a) and (4).
67. The Tribunal has found the MARAM Risk Factor Guide helpful in its assessment of the likelihood of future harm to applicant. The father’s persistent telephone calls to the applicant and his relatives also demonstrate conduct that is consistent with his authoritarian and vindictive disposition which falls within the MARAM Risk Factor Guide of controlling or obsessive behaviours where the perpetrator displays an attitude of ownership of family members. Further, the MARAM Risk Factor Guide indicates that threats to kill a person should be taken seriously where the victim has been specific and detailed about the family violence experienced. The father’s threat to skin the applicant alive if he ever sees the applicant again, when taken within the context of the types of physical abuse perpetrated on the applicant, leads the Tribunal to conclude that there is a real chance that the applicant’s father will seek him out and subject him to serious harm if the applicant were to return to Malaysia.
68. The father has been persistent in pursuing the applicant and his mother when they moved away to a different city, albeit that city was around only 12 kilometres away from their former home city of Shah Alam.[16] The Tribunal notes that Subang Jaya has a population of around one million people[17] and the applicant’s father was able to find the applicant and his mother there. The fact that the applicant is legally an adult does not negate the real chance of future harm from his father.
[16] “Subang Jaya Voluntary Local Review,” Urbanice Malaysia 2021 at p.14
69. The applicant is a young man who is rendered particularly vulnerable by his past trauma and medical condition which does not appear to be readily treatable in Malaysia. The Tribunal accepts the evidence of [Dr C] in that regard. The applicant is highly likely to have to rely on the support of family members which would magnify the risk of future harm from his father.
70. The applicant is outside his country of nationality owing to a well-founded fear of serious harm for reason of his membership of a particular social group and the Tribunal accepts that real chance of serious harm applies throughout Malaysia. Hence, the applicant satisfies section 5J(1)(a)-(c) of the Act.
71. The Tribunal has found that section 5H(2) of the Act does not apply because Malaysia does not have effective and durable protection measures for victims of family violence. The Tribunal notes the DFAT advice that the Royal Malaysian Police is considered by local and international sources to be a professional and effective police force, although the quality of its members varies depending on levels of training, capacity and engagement in corruption.[18]
[18] DFAT Report at paragraph 5.5
72. Family violence is a major problem in Malaysia. In a survey done by the Women’s Aid Organisation (“WAO”) in 2021, 53% of Malaysians considered that domestic violence against women was a normal reaction to everyday stress and frustration.[19] DFAT assesses that females in Malaysia face a moderate risk of gender-based violence in the form of domestic violence and that State protection is not consistently reliable in that not all police stations have female officers and police often fail to follow up reports of gender-based violence, believing it to be a “family matter”.[20] There is a dearth of reliable information about male victims of family violence or child victims of family violence in Malaysia.[21] What little research there is on this topic is focussed on adult male victims of female perpetrators.
[19] [19] Women’s Aid Organisation – A Study on Malaysian Public Attitudes and Perceptions towards Violence Against Women November 2021 at pp 39-40.
[20] DFAT Report at paragraphs 3.117-3.118 and 3.125; “Women’s minister says aware some cops refuse to accept domestic violence reports, will bring this up with Home Ministry”, Malay Mail, 28 March 2022.
[21] “Intimate partner violence within the frame of Malaysian laws” – M.S.M Na’aim, R. Rajamanickam, R. Nordin – UUM Journal of Legal Studies, Vol 13, Number 1, January 2022 at p. 134.; see also “Profiles of Male Domestic Violence Survivors in Malaysia: A Qualitative Research Perspective – K. Lokithasan and P. L. Lau – International Journal of Education, Psychology and Counselling, Volume 8, Issue 52 (December 2023 at 37
73. The Malaysian Domestic Violence (Amendment) Act 2017 is gender neutral and offers protections to victims harmed by spouses or family members regardless of the victim’s sex. Malaysia’s domestic violence legal framework also requires police to investigate reports of domestic violence against males. Malaysia is a patriarchal, Islamic and socially conservative country. Many males are reluctant to report domestic violence out of embarrassment or because they fear the police will not take them seriously.[22] There have been reports concerning male victims of domestic violence in Penang[23] and Selangor.[24]
[22] “Intimate partner violence within the frame of Malaysian laws” – M.S.M Na’aim, R. Rajamanickam, R. Nordin – UUM Journal of Legal Studies, Vol 13, Number 1, January 2022 at p. 134.; see also “Profiles of Male Domestic Violence Survivors in Malaysia: A Qualitative Research Perspective – K. Lokithasan and P. L. Lau – International Journal of Education, Psychology and Counselling, Volume 8, Issue 52 (December 2023 at pp 36-37
[23] “Husbands are also victims of domestic violence,” Bernama, 28 November 2023;
[24] “Selangor records increase in domestic violence cases since 2017 – Police”, Bernama, 13 September 2023.
74. The Malaysian Constitution bans discrimination against women but nevertheless such discrimination continues to persist and violence against females is significant and under-reported.[25] The Malaysian authorities have introduced initiatives such as the Domestic Violence (Amendment) Act 2017, women’s shelters, specialised One Stop Crisis centres in hospital emergency apartments, Emergency Protection Orders and specially trained female police officers. However, the requirement to report family violence to the nearest police station to the incident can make it difficult, especially for women, because the perpetrator may be on friendly terms with the police and most women’s shelters are under-resourced to meet the demand.[26]
[25] DFAT Report at paragraphs 3.11 and 3.15
[26] Ibid.at paragraphs 3.119-3.123.
75. There is no evidence before the Tribunal concerning the existence of shelters for male victims of family violence. As stated above, the existing research is focussed on violence from women against their husbands. In that regard, male victims are less likely to get a protection order against their partners.[27] As young adult male, the Tribunal accepts that the country information raises a strong inference that the applicant is not likely to be given durable, effective State protection from his father within the terms of section 5LA of the Act.
[27] “Profiles of Male Domestic Violence Survivors in Malaysia: A Qualitative Research Perspective – K. Lokithasan and P. L. Lau op. cit at p.37.
76. The Tribunal has considered whether the applicant’s atheism would expose him to any harm in Malaysia. The Tribunal accepts that being persecuted for having no religion constitutes persecution for the essential and significant reason of religion: Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 57 at [19] per Madgwick J. However, in the absence of any evidence that the applicant intended to proselytise atheism, the Tribunal has concluded that there is no real chance or real risk that the applicant would face any harm for this reason.
77. The applicant has raised the issue of his Indian ethnicity as another reason that he would face harm in Malaysia. Article 8(2) of the Malaysian Constitution forbids discrimination against Malaysian citizens on the basis of religion or race. DFAT advises that Indian Malaysians comprise 6% of Malaysia’s population and are the third largest ethnic group.[28] DFAT notes that there are few Indian Malaysians in the civil service or the police force and very few occupy senior positions although there are a few Malaysian Indian cabinet ministers. [29] Lack of fluency in Malay is a major factor as are affirmative action policies favouring ethnic Malays.[30] Lack of fluency in Mandarin also acts as a barrier to Malaysian Indians obtaining employment in the Chinese Malaysian dominated corporate sector.[31] According to DFAT, Indian Malaysians comprise a large proportion of prison inmates, often associated with gangsterism caused by economic disadvantage and social alienation.[32] DFAT assesses that Indian Malaysians face moderate levels of official discrimination.[33]
[28] At paragraph 3.16.
[29] Ibid. at paragraph 3.18
[30] Ibid.
[31] Ibid.
[32] Ibid. at paragraph 3.20
[33] Ibid. at paragraph 3.22
78. The Tribunal accepts that the applicant’s ethnicity combined with his lack of fluency in Malay, low level educational qualifications and personal history of trauma would create a real chance of him facing significant economic hardship that could threaten his capacity to subsist.
79. Consequently, leaving aside the issue of the applicant’s atheism, the cumulative effect of the Tribunal’s findings leads it to conclude that the applicant faces a real chance of serious harm in relation to all areas of Malaysia in the reasonably foreseeable future.
DECISION
80. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act.
Hearing Date: Not applicable
Representative: Ms Brianna Partington, Refugee Legal
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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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