2007075 (Refugee) - [2025] ARTA 1307

2007075 (REFUGEE) [2025] ARTA 1307 (12 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2007075

Tribunal:General Member M Brereton
Date:12 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:
·s 36(2)(aa) of the Migration Act.

Statement made on 12 June 2025 at 1:52pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – particular social group – women – victim of domestic violence – mixed religious marriage – pregnant unmarried Muslim woman – engagement to an Australian citizen – physical assault – internal relocation – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 22 March 2018. The applicant claimed to fear harm from her stepfather, including physical violence and theft. The delegate refused to grant the visa on the basis that the applicant can obtain protection from the Malaysian authorities and there is no real chance or real risk that she will face relevant harm.
The applicant applied to the then Administrative Appeals Tribunal (the AAT) for review of the delegate’s decision. On 13 February 2019, the AAT found that the applicant had applied for review outside the prescribed time frame and the AAT did not have jurisdiction to consider the application. The applicant sought judicial review of the AAT decision.
On 23 March 2020, the Federal Circuit Court remitted the application by consent, finding that the AAT’s decision affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 and BMY18 v Minister for Home Affairs [2019] FCAFC 189.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 18 March 2025, the Tribunal sent an email to the applicant requesting prehearing information, including availability. On 25 March 2025, the Tribunal received an email advising that the applicant had appointed a representative. The applicant’s representative advised that the applicant is suffering medical issues and had only just appointed the representative. The applicant requested that the hearing be delayed. The applicant followed up this request with a medical certificate. The Tribunal agreed to the delay and subsequently listed the matter for hearing on 30 May 2025.
Prior to the hearing date, the applicant’s representative contacted the Tribunal and advised that both she and the applicant are in Tasmania. The representative asked the Tribunal to consider changing the hearing type to a video hearing. The Tribunal agreed to this request.
The applicant appeared before the Tribunal by video link on 30 May 2025, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review.
BACKGROUND
Evidence before the Department
Protection visa application
The applicant arrived in Australia [in] December 2017, as the holder of an electronic visitor visa. The applicant applied for the protection visa on 22 March 2018. In her application she stated that her stepfather had inflicted physical violence on her, had taken money from her forcibly, had threatened her with a knife, and had tried to hit her with a car. She provided documents in support of her identity and origin but did not provide any documents in support of her claims.
The applicant was not asked to provide further information or invited to an interview.
Summary of the delegate’s decision
The delegate summarised the applicant’s claims as:
The applicant claims that if she were to return to Malaysia, she fears that her step-father will verbally abuse her and hit her and take her money, as he is an alcoholic and he has financial problems. The applicant claims she was threatened by her step-father not to tell her mother or anyone else about how he has treated her. The applicant claims she made a police report but there was no further action because she could not provide evidence to support her case, and she believes that she cannot get protection from the authorities, if she were to return to Malaysia.
The delegate tentatively accepted that the applicant may be a member of a particular social group, being a woman who would be subjected to domestic violence from her stepfather. The delegate considered country information and found that this indicates that Malaysian law prohibits domestic violence and there are a number of avenues that victims of domestic violence can pursue in terms of reporting and obtaining support. Victims are not limited to reporting incidents to the police. The delegate also found on the applicant’s evidence that she has been able to work and support herself in Malaysia, living away from the stepfather. The delegate was satisfied that the applicant will be able to live away from the stepfather should she return to Malaysia and will not face serious harm. The delegate also found that the applicant 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. The delegate found that the applicant does not satisfy the criteria for the grant of a protection visa.
Evidence before the Tribunal
The Tribunal has before it the Department file and the applicant’s application to the Tribunal. As noted above, the applicant has sought review in the AAT previously, but that application was dismissed for want of jurisdiction. There was no hearing before the AAT and there are no submissions or other evidence on the AAT file.
Pre-hearing submissions
On 26 May 2025, the applicant provided a statutory declaration and the applicant’s representative provided submissions. On 28 May 2025, the applicant provided a further statutory declaration adopting the submissions. The applicant claims that she is now in a relationship and is pregnant and has provided a medical report confirming her pregnancy.
The hearing
The applicant and her representative attended the video hearing on 30 May 2025. At the conclusion of the hearing, the Tribunal invited the applicant to provide further information and written submissions by 6 June 2025.
Post-hearing submissions
On 6 June 2025, the applicant provided post-hearing submissions and information. This comprises two statements from persons who know the applicant and attest to her relationship status, and written submissions.
On 9 June 2025, the applicant provided additional information as proof of her relationship status in Australia.
The applicant’s evidence and submissions are considered below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is the applicant’s fear of harm in Malaysia arising from her stepfather’s abuse, and her profile as an unmarried Muslim woman who is in an interfaith relationship and is pregnant. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant claims to be a citizen of Malaysia. She has provided documents in support of the claim, including a copy of a Malaysian passport (expired). She does not claim to have a right to enter or reside in any other country. The Tribunal finds that she is a citizen of Malaysia, and that Malaysia is the receiving country and country of reference for the purposes of this review.
Claims
The applicant’s personal circumstances have changed since the original application for the protection visa. The applicant still fears harm from her stepfather but has provided evidence that she is now in a relationship. They are not married but intend to do so. The applicant’s fiancé is an Australian citizen of Indo-Malaysian descent and is a member of the Hindu religion.
The applicant claims to be engaged to an Australian citizen who is not a Muslim. She has recently become pregnant and is expecting her child in [month]. The applicant claims that in addition to her original claims, she fears returning to Malaysia because she will be an unwed Muslim woman, involved in an interfaith relationship, a single mother, and, by implication, a Muslim woman who has engaged in pre-marital sexual relations. This profile has arisen since the delegate’s decision was made and the Tribunal is satisfied that the claims could not have been made at the time of application or before the delegate made the decision. The Tribunal does not draw any inferences adverse to the credibility of the claims.
Section 5J(6) of the Act provides that:
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.
The applicant’s evidence is that the relationship with the fiancé is a real and genuine relationship. She has provided statements from two independent witness that attest to the relationship and has also provided documentary evidence of her pregnancy and the couples’ shared finances. The Tribunal asked if the pregnancy was planned, and the applicant said yes. She said that she wants more children, and her fiancé has stated that he would like to have four children. The applicant and her fiancé are living together and intend to raise the child together (subject to the outcome of this review, discussed further below). The Tribunal is satisfied that the applicant has not entered the relationship to strengthen her claim to be a refugee. The Tribunal is satisfied that the applicant is in a genuine relationship.
Personal Profile
The applicant claims to be a Muslim woman who is in an interfaith relationship and is pregnant. She has provided evidence of her pregnancy. She told the Tribunal that her partner is not a Muslim. In her submission she states that she does not wear a hijab. She told the Tribunal that her mother is aware of the relationship and the pregnancy and is supportive; however, other members of the extended family are more religious and have expressed anger towards the applicant because of the relationship.
The Tribunal asked whether her fiancé will accompany her if she returns to Malaysia. She said that her fiancé is an Australian citizen and is employed here as [an occupation 1]. He has said that that he will not return to Malaysia with the applicant. The applicant became visibly distressed as she told the Tribunal that her fiancé will prefer that the child to remain in Australia, but the applicant herself does not want to be separated from the child.
Harm from the stepfather
The applicant has been consistent in her claims of mistreatment, abuse, and harm from her stepfather. Some additional detail was provided at the hearing, but the Tribunal takes into account that the applicant was not invited to an interview or asked to provide further information prior to the delegate’s decision. The Tribunal does not draw any adverse inference from the presentation of new information.
The Tribunal found the applicant to be an open and honest witness. She had some difficulties remembering some specific dates, but her recollections were consistent with the written claims. She responded to questions and engaged with the Tribunal. The Tribunal takes into account the claimed history of trauma and the effect this may have on the applicant’s recollection. The Tribunal also takes into account the applicant’s concern for her future and the future of her unborn child. Having regard to these factors, the Tribunal finds that the applicant is a witness of truth and accepts her claims in relation to events in Malaysia. The Tribunal does not need to set out the detail of these claims but for the purposes of this review the Tribunal accepts the following:
a.The applicant is a Muslim woman from Sabah in Malaysia;
b.The applicant lived with her mother and stepfather in Malaysia;
c.Her stepfather is a drinker;
d.The stepfather demanded money from the applicant on multiple occasions;
e.The stepfather has borrowed money from other people (including loan sharks) and has pressured the applicant and her stepmother to pay this back;
f.The applicant has been threatened with a knife and attacked with a car by the stepfather;
g.The stepfather has assaulted the applicant on other occasions in the family home. Some of these assault were sexual assaults;
h.After the applicant left home in 2013 to work in Sandakan, the stepfather came to Sandakan without the mother’s knowledge. He assaulted the applicant there;
i.The applicant believes that the authorities will not act to protect her from the stepfather; and
j.The stepfather remains with the applicant’s mother.
The delegate’s findings were based on the applicant’s profile at that time, which was before her relationship and pregnancy. As noted above, the Tribunal finds that the applicant has been a witness of truth and accepts the following:
a.She is engaged to an Australian citizen;
b.She is pregnant and due to give birth in [month];
c.Her partner is a Hindu and the relationship is an interfaith relationship;
d.The couple are not married, although this is their longer term desire;
e.The fiancé does not wish to go with the applicant should she return to Malaysia.
The Tribunal has considered the applicant’s evidence that her fiancé will want the child to remain in Australia. The Tribunal takes into account that the child is not due to be born until [month] and finds that if the applicant returns to Malaysia before that date, she will be returning as an unwed and pregnant Muslim woman. The Tribunal acknowledges the uncertainty around what may happen if the child is born before any return date but considers it more likely that a newborn child will remain with the mother and finds that, for the purposes of this review, the child will return to Malaysia with the applicant should she return. The Tribunal finds that in that case, the applicant will be returning to Malaysia as a Muslim woman who is a single mother with a child born of an interfaith relationship.
The Tribunal has considered the applicant’s cumulative profile when considering the chance or risk of harm she may face if she returns to Malaysia.
Refugee consideration
The applicant’s evidence is that the stepfather continues to drink, act violently towards the applicant’s mother, and incur debts that he expects the mother to pay. The applicant also said that he believes she has money here in Australia and harasses her mother about this. The applicant told the Tribunal that her stepfather did not know she was leaving Malaysia and is angry at her for leaving. He is also angry with her because she has entered a relationship here and is with a non-Muslim. The applicant claims that if she returns to her home, her stepfather will resume his threatening and abusive behaviour. The Tribunal has considered the stepfather’s history of ongoing abuse when the applicant was living in Malaysia and accepts that there is a real and not remote chance that he will continue to harass, threaten, and harm the applicant should she return to Malaysia. The Tribunal has also considered her cumulative profile as an unmarried Muslim woman who has been in an interfaith relationship and who will be either pregnant or a single mother. The Tribunal finds that such a profile will add to her vulnerability with her stepfather and increases the real chance of harm.

The Tribunal has found that the applicant faces a real chance of harassment, threats, and harm from her stepfather. This is not of itself harm directed at her for one of the reasons in s 5J (1)(a) of the Act and as such, the Tribunal finds that she does not have a well-founded fear of persecution for this reason. The Tribunal will consider this further in relation to complementary protection.
The Tribunal accepts the applicant’s evidence that her fiancé will not return to Malaysia with her. This means that depending on the time she returns to Malaysia, she will be either an unmarried Muslim woman who is pregnant, or an unmarried Muslim woman and a single mother. The Tribunal has considered the most recent report from the Australian Department of Foreign Affairs and Trade (DFAT), which states that although discrimination against women is banned under the Constitution, discrimination on the basis of sex, and inequality, persist for women and girls in Malaysia. In addition, there is strong social stigma attached to pre-marital sex and pregnancy.[1] DFAT also indicates that Malaysia has a two-track legal system which comprises common law at the federal level, and Islamic religious law (Syariah), which is administered at a state level. All family and personal law, including laws relating to religious offences, are promulgated at the state level. Pregnancy and birth outside of marriage are offences under Syariah law in much of Malaysia, including Sabah.[2]
[1] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Malaysia’, 24 June 2024, at [3.111], [3.113].
[2] Section 79(1) Syariah Criminal Offences Enactment Sabah 1995: Any woman who becomes pregnant or delivers a child out of wedlock shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six
The Tribunal also notes and accepts the applicant’s claim that she will not wear the hijab if she returns to Malaysia. There does not appear to be any laws that require the wearing of the hijab, and the Tribunal has seen information indicating that some women choose not to.[3] However, this information also indicates that religious authorities were critical of this at the time (2019). A more recent article written by a postgraduate student in gender studies at the University of Malaya in Malaysia agrees that while there is no legal basis to enforce the hijab, social pressure and conformity remains. The author (who chooses not to wear the hijab) has faced community pressure, online threats, and confrontations. She also notes that in schools:
… students are being subjected to pressure by teachers and classmates to put it on or else face mockery and mental torment. The consequences of breaching social norms can be oppressive, including denied access to classes and even expulsion.[4]
[3] Reuters, ‘Malaysia probes book on Muslim women who refuse to wear headscarves’, 17 April 2019, accessible at Malaysia probes book on Muslim women who refuse to wear headscarves | Reuters.
[4] Aliran, ‘A young woman’s thoughts on the hijab’, 9 July 2023, accessible at A young woman's thoughts on the hijab - Aliran.
DFAT’s most recent report also identifies perceptions of increasing “Islamisation” in Malaysia and Malaysian law, with increasingly conservative Islamic parties pushing for the government to adopt policies and enforce conservative Islam.[5]
[5] DFAT, at [3.49]-[3.54].
The Tribunal accepts that there is increasing religious conservatism in Malaysia and that people may be charged with offences under Syariah law. However, the information before the Tribunal does not indicate that religious prosecutions have been pursued on any systematic or targeted basis, particularly in relation to pregnancy/childbirth, or the refusal to wear a hijab. The Tribunal is not satisfied that the applicant will face prosecution or other adverse official actions should she return to Malaysia.
Nevertheless, even if the applicant is not prosecuted for pregnancy/childbirth outside wedlock other or perceived noncompliance with Islam, or subjected to other official discrimination for those reasons, the Tribunal is satisfied that her ability to access family or community support will be compromised by her interfaith relationship and her perceived noncompliance with Islamic norms, as well as the malign influence of her stepfather. If the applicant is unable to access family support or is actively rejected by her family and her broader community, the Tribunal finds that she will have nowhere to live, no support raising her child, and no ability to earn an income. The Tribunal finds that this is likely to impact her ability to subsist.
The Tribunal accepts that the applicant faces a real chance of harm that can be considered serious harm, as contemplated by the Act, because of her profile as an unmarried Muslim woman who is pregnant or who will be an unmarried mother, and as a woman who is perceived to be noncompliant with Islam. The Tribunal finds that this is serious harm inflicted because of her membership of a particular social group and that therefore, there is a real chance of persecution in her home area (Sabah).
The Tribunal must next consider whether the real chance of harm relates to all areas of Malaysia (s 5J(1)(c). The Tribunal takes into account that her experience in her local area will be exacerbated by the presence and influence of her stepfather. The Tribunal is satisfied that she may experience some harassment and ostracism in other areas of Malaysia outside Sabah but considers this will be of a significantly lower level, particularly in larger cities such as Kuala Lumpur. She may experience difficulties finding work, housing, and childcare outside Sabah but the Tribunal does not accept that such difficulties would arise from the community actively ostracising or harassing her or otherwise targeting her because of her cumulative profile, as would be the case in Sabah. For these reasons, the Tribunal finds that the real chance of persecution does not relate to all areas of Malaysia.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection
The Tribunal has found above that the applicant faces a real chance of harassment, threats, and harm at the hands of her stepfather. For the same reasons, the Tribunal is satisfied that the applicant faces a real risk of harassment, threats, and harm at the hands of her stepfather now or in the reasonably foreseeable future if she returns to Malaysia.
Section 36 (2A) of the Act provides that:

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.
The applicant claims, and the Tribunal accepts, that she has suffered physical and sexual assaults, threats, assaults with weapons, and ongoing harassment from her stepfather. These have occurred on a regular basis over an extended period of time and the Tribunal is satisfied in this case that past conduct provides a reasonable indicator of future conduct by the stepfather. The Tribunal finds that the harm the applicant has experienced, and may experience should she return, is harm of a type that may be considered cruel and inhuman, or degrading, treatment or punishment, and that it will be inflicted intentionally. The Tribunal finds that this is significant harm as defined by the Act.
The Tribunal has also accepted above that depending on the timing of any return, the applicant will be identified as a single pregnant Muslim female, or an unmarried Muslim mother. The Tribunal also accepts the applicant’s claim that she will not wear the hijab if she returns to Malaysia and may be perceived as noncompliant with Islam. The Tribunal has found above that she faces a real chance of harm in her home area because of this profile. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[6] the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[7] The Tribunal finds that for the same reasons as considered above, the applicant faces a real risk of harm as a single pregnant Muslim female, or an unmarried Muslim mother, who does not wear the hijab, if she returns to Sabah. The Tribunal also finds that this harm may include ostracism, confrontation, abuse, physical mistreatment, and rejection, and that this is harm that can be considered degrading treatment or punishment and is therefore significant harm as defined by the Act.
[6] (2013) 210 FCR 505.
[7] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
The Tribunal finds that the applicant faces a real risk of significant harm should she return to her home area of Malaysia (Sabah), now or in the reasonably foreseeable future.
The Tribunal has then considered whether the applicant can relocate to another part of Malaysia to avoid the risk of harm and whether that relocation is, in all the circumstances, reasonable (s 36(2B)(a)).
The applicant has expressed a concern that her stepfather will be able to find her anywhere in Malaysia because members of her family may feel compelled to tell him where she is. This is not implausible, and the Tribunal finds that there is a very low, but not remote, risk that the stepfather will be able to find her if she relocates. However, even if she was able to avoid his detection by relocating, the Tribunal must be satisfied that relocation is reasonable in the circumstances.
The applicant’s evidence is that she has no extended family or friends outside Sabah who would be willing or able to offer support or help. If she was to relocate, she will be moving to an unfamiliar area, on her own, with the added concern of a newborn child. The applicant’s post hearing submissions also state:
It is agreed with the Member that the accumulative risk-factors in relation to risk of harm if returned to Malaysia, since the Applicant arrived in Australia, are the factors for primary consideration as to whether or not the Applicant be granted a Protection Visa. The risk-factors since the Applicant’s arrival put to the Member as primary concern are cohabitating with a non-Muslim in a de facto relationship, pregnancy whilst unmarried, pre-marital sex, deteriorating mental health, and no longer wearing hijab.
The Tribunal considers that these factors are relevant to any assessment of the reasonableness of relocation in the applicant’s circumstances.
DFAT has, in an earlier report, assessed that mothers in Malaysia may not be able to work due to costs associated with childcare, or the additional burden of caring for extended family members, and thus rely on modest government assistance to support their families.[8] This is not reproduced in the more recent DFAT report but neither is there anything in the more recent report indicating that access to childcare in Malaysia has improved. The more recent report does state, in relation to gender-based violence (GBV):
A requirement to deal with the closest police station to the incident can make it difficult for women who experience GBV to relocate. Other barriers include financial costs of living alone and/or paying for additional childcare, especially where family may have previously provided childcare.[9]
[8] DFAT, 29 June 2021, at [3.122].
[9] DFAT, 2024, at [3.119].
Although this is not directly on point, the Tribunal is satisfied that as the applicant would be relocating because of violence from her stepfather, she will face the same circumstances and hurdles as other women who relocate because of GBV. The Tribunal is satisfied that she will face significant problems trying to find and maintain work at the same time as raising a newborn, problems in obtaining suitable housing, financial problems including accessing childcare, and problems supporting herself and her child. She will also face significant emotional distress because of her separation from her fiancé and her fear (whether or not objectively real) that her stepfather will find her and harm her and her child.
The applicant’s post hearing submission further states:
Whilst the Applicant is eligible for a Partner Visa, the process is not free from doubt and eligibility does not guarantee a favourable decision. Mistakes by both delegates of the Minister and Applicants can be made leading to distress, delayed processing, or unfair refusal. Current processing times can exceed 26 months according to data available on the Department of Home Affairs website, today 6th June 2025. We humbly request that the Member consider then adverse mental condition of the Applicant, the effect of any further uncertainty (in relation to visa processing) upon her ability to raise a child after the expected birth in [month]. The Applicant has been highly distressed since the violence was perpetrated against her whilst residing in Malaysia. The recently submitted Statutory Declaration by the Applicant (signed 23rd May 2025) shows repeat reference to mental anguish, fear and having felt similarly as ‘people in this situation do not want to live anymore.’ We are deeply grateful for your further consideration of this submission. A favourable decision would relieve the Applicant of such anguish, and enable her to gradually improve her mental health, with priority being upon being able to raise her child in the near future.
The Tribunal accepts that the applicant’s eligibility for the partner visa is not a factor that will mitigate any mental anguish, or anxiety should she return to Malaysia. The Tribunal accepts that in these particular circumstances, the uncertainty surrounding the possibility of a future visa and the applicant’s personal situation would exacerbate the fears, depression, and anxiety she will face if returned to Malaysia, even for a temporary period. This will be further exacerbated if that period coincides with the birth of her child.
Having regard to all these factors and in particular, the applicant’s personal profile and characteristics, the Tribunal is not satisfied that it is reasonable for the applicant to relocate to avoid the real risk of significant harm in Malaysia.
Having regard to all the reasons and circumstances set out above, the Tribunal is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date(s) of hearing:  30 May 2025
Representative:  Mrs Jennifer Claire Bardenhagen Boulebtateche (MARN: 1278277)
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.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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months or to both.