2007711 (Refugee) - [2024] AATA 3165

2007711 (Refugee) [2024] AATA 3165 (31 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2007711

COUNTRY OF REFERENCE: Malaysia
MEMBER:Matthew Tubridy
DATE:31 July 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 July 2024 at 4:14pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – demonstration – detention – employment – economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 June 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
In his Protection visa application form the applicant has indicated that he is a citizen of Malaysia from birth, and that he was born in Malaysia (in Melaka) to parents who were both citizens of Malaysia. I note that Article 14 of the Federal Constitution of Malaysia provides that a person is a citizen of the Federation of Malaysia by operation of law if they were born on or after 16 September 1963 within the Federation of Malaysia to parents of whom at least one was a citizen or a permanent resident at the time of birth.[1] The applicant has submitted his [2020] issued Malaysia passport which presents him as a national of Malaysia who was born in Melaka in [specified year]. I accept that the applicant is a citizen of Malaysia, and I find him to be a national of Malaysia, and I find Malaysia to be the applicant’s receiving country for the purpose of this review.
[1] 'Federal Constitution of Malaysia', Government of Malaysia, 01 November 2010, 20191128113408; Canada IRB, ‘Malaysia: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognized and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship, 16 November 2007, MYS102621.E.
Protection claims
In April 2016 a protection visa was lodged in the applicant’s name. In this, it was submitted that the reason the applicant had left his country was because of his involvement in a Malaysian political party (which was against the current government), and he had attended a demonstration. The delegate considered this was plausible but was not satisfied that the applicant was of interest to the Malaysian authorities in this regard. The applicant’s April 2016 protection visa application also submitted that in Malaysia it would be hard for him to live in economic and social terms, and impossible to get a job to support his family, and in the worst case he would be held in jail. The delegate considered that the applicant had given no indication that such an outcome would occur for one or more of the reasons required (race, religion, nationality, membership of a particular social group or his political opinion) for the applicant to be a refugee as defined by the Act). Neither was the delegate satisfied that the applicant would face a real risk of significant harm were he to be removed to Malaysia.
On 1 May 2020 the delegate applied to the Tribunal for review of the delegate’s 1 June 2016 decision to refuse to grant him a protection visa. The Tribunal replied by email that same day, acknowledging his application and providing the applicant with advice about the review process, including that if he wished to provide the Tribunal with material or written arguments for the Tribunal to consider, he should do so as soon as possible. Nothing was received from the applicant in response to this invitation, though the applicant did subsequently email the Tribunal on several occasions to request a letter from the AAT to enable him to obtain access to Australia’s Medicare universal health insurance scheme (by way of confirming that he had a matter before the Tribunal), though he gave no indication that he had any health issues that might be relevant to the review of the decision to refuse him a protection visa.
On 23 April 2024 the Tribunal emailed the applicant and advised him that his file was now being prepared to be given to a Tribunal Member. He was asked to assist the Tribunal by completing a ‘pre-hearing information form’ and to return this to the Tribunal within seven days. The Tribunal received no response from the applicant in this regard. On 27 June 2024 the Tribunal emailed the applicant and advised him that it had considered the material before it but was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal on 19 July 2024 to give evidence and present arguments relating to the issues arising in his case. The applicant was advised that his hearing was scheduled to start at 2:00PM and would be one of several cases to be heard in the following three hours. He was told to read and complete an enclosed ‘Response to hearing invitation’ form and return it to the AAT within seven days. He was told to provide all documents he intended to rely on to support his case by 12 July 2024. But no response was received from the applicant, and he gave no indication that he would attend the hearing scheduled for 19 July 2024.
On 19 July 2024 the applicant presented at the Tribunal. The hearing did not commence until 5:06PM because another applicant’s hearing had taken longer than anticipated. I apologised to the applicant for this, and I explained that the Tribunal had received no indication from him that he would take part in the 19 July 2024 hearing. I explained that I would adjourn the hearing and resume it at a future date, and that depending on the availability of a hearing room and an interpreter, this might be in a few days or a few weeks, and so he should monitor his email closely for information about these arrangements. I told the applicant that when he received his emailed invitation to the resumed hearing, he should reply to it so that the Tribunal could plan accordingly. The applicant said that he would do so.
I then explained that, before I adjourned the hearing, I would ask him some questions to confirm the particulars of his case. Asked to explain why he had left his country, the applicant said that initially he had come to Australia for a holiday, and after arriving in Australia he had met some people who invited him to work, and he had been able to support his family back in Malaysia who were very poor and for whom things were very difficult. He said that he did not have much education and that in Malaysia it was hard to find employment if you did not have a good education, and the cost of living in Malaysia was very high. The applicant said he wanted to remain in Australia for another one or two years and then return to Malaysia, but he wanted first to see what the situation was like in Malaysia and whether he would be able to get a job. Asked if this was his only reason for not wanting to return to Malaysia, the applicant said that it was; because he did not study much and would not be able to get a job and support his family. He said that he was one of [number] siblings, but he was the only one who was supporting the family, because the others did not care. Asked if both of his parents were still alive, he said they were and that he was helping both parents and he was the only one who was helping his family.
Asked what his highest level of education was, he said that he had completed up to [grade], at which time he was [age] years old, but he had not had any further education such as university because he had not done well at his studies and so had not met the eligibility requirements. Asked what paid employment he had had before he arrived in Australia, he said that he had worked at a [business 1]. Asked if that was the only paid employment he had had in Malaysia, he said that it was. Asked if he was married, he said that he was not, but he planned to marry a woman in his village and have a family with her.
When I asked the applicant whether he had ever been involved in a political party he said that he had not, and that a friend had put down this claim for him because he needed to get a visa to stay in Australia. The applicant thus resiled from his April 2016 claim to have been involved with a political party in Malaysia and to fear harm on the basis of his past political activities and his political opinion. I then noted that the applicant had also made an earlier invalid protection visa in March 2016 which was found to be invalid, and that in this earlier application he had claimed that he was homosexual. Asked if this was correct, the applicant said that it was not, and that his friend had put this down. Thus, the applicant also resiled from his March 2016 claim to be homosexual and to fear harm on this basis.
I then explained to the applicant that, when we resumed the hearing, he would have the opportunity to say more about his claim to fear he would be unable to earn a livelihood in Malaysia because of his level of education. I reminded him again to closely monitor his email for the invitation the Tribunal would send to him about the resumed hearing. I advised him that if he wished to provide any evidence for the Tribunal to consider in support of his case – for example if he was aware of any news reports which indicated that it was difficult for people with only a school education to find employment in Malaysia – he should provide this to the Tribunal, and I would have regard to it before the hearing resumed. I asked the applicant if he had any questions for me and he said he did not. I reminded the applicant again that he should reply to the invitation the Tribunal would be emailing to him about the resumed hearing, and in doing so he should advise the Tribunal as to whether he would attend. I then adjourned the hearing.
On 22 July 2024 the Tribunal emailed the applicant and advised him that his hearing would resume on 26 July 2024 at 2:00PM. He was also asked to complete and return an attached form as soon as possible to confirm his attendance, or to advise the Tribunal if he was unable to attend the hearing on this date, but nothing was received from the applicant in response to this invitation and, on 26 July 2024, the applicant did not appear before the Tribunal at the scheduled time and place. It is now 31 July 2024, and the applicant has still not provided a response to the Tribunal’s invitation of 22 July 2024 to the resumed hearing of 26 July 2024. He has not provided any documentary evidence in support of his claims. He has not made a request for a further opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case, or for additional time to provide documents or country information that might support his claim to fear that (because of his level of education) he would be unable to earn a livelihood in Malaysia. He has not sought to contact the Tribunal about pursuing his case further in any way, and overall he had shown little interest in providing further evidence to the Tribunal about his case. I have therefore proceeded to make a decision on the information before me.
The applicant claims to fear that, if he were to return to Malaysia, he would be unable to find employment because of his limited education (limited to school and [grade]), and that he would be unable to meet the cost of living in Malaysia because this is high in Malaysia and he is the only one of his parent’s [number] children who is doing anything to support the family, and because without a good education you cannot find well paid work. The applicant claims that while he was in Malaysia his only paid employment was at a [business 1].
The applicant’s 19 July 2024 statements about his education and employment history in Malaysia are consistent with the information he has provided in his April 2016 protection visa application (where he indicated that he completed his high school education in [specified year], and that he subsequently worked as a waiter in a restaurant between June 2013 to August 2015). I accept that in Malaysia the applicant’s education ended when he completed [grade] of high school (in [year] when he was [age] years of age), and I also accept that in Malaysia his only paid employment was a service industry job between June 2013 to August 2015. In his Protection visa application, the applicant did not indicate that he had any family in Malaysia, but he did indicate that he was in contact with relatives outside Australia once a week. Given this, I am willing to accept that applicant has [number] siblings and that these siblings and the applicant’s parents are all in Malaysia. Given that the applicant is [age] years old it is possible that his parents have reached an age where they may receive some support from the applicant, and although the applicant has provided no documentary evidence of his having sent any financial support to his family in Malaysia, I am willing to accept that he has provided some support in this regard. But I find it difficult to believe that of his [number] siblings, none of these persons has been providing any help to the family, such that the applicant is the applicant’s family’s only provider. I do not accept that this is the case.
The applicant has also not provided any evidence (beyond his own assertions) to establish that he would face a real chance of being unable to find employment in Malaysia for reason of having only completed up to [grade] of high school, and I consider that the possibility that he would be unable to find such employment is remote given that it is currently being reported that Malaysia’s labour market is hovering around “technically full employment” as its unemployment rate has held steady at 3.3% in February 2024 for the fourth consecutive month, with financial forecasters projecting that the situation was likely to remain the same for the remainder of 2024, and with such downside risks as there were being yet to pose any material change to the labour market outlook.[2] In March 2024 one such forecaster also noted that: the number of employed persons in the service sector (the applicant’s previous sector of employment) remained upward, particularly in the wholesale and retail sector, food and beverage services, and transportation storage activities.[3] Moreover, in recent years it has been reported that 72.1% of Sijil Pelajaran Malaysia (SPM) graduates (that is, students who have completed [grade] of high school in Malaysia)[4] do not want to continue their studies after secondary school; and that most such SPM candidates were interested in joining the workforce immediately after the exam because of the availability of job opportunities, and the belief that furthering their studies did not guarantee better jobs.[5]
[2] Tan, J. ‘Malaysia nears “full employment” as job market stays strong in 2024’, hrmasia, 11 April 2024, ; ‘Kamaruddin, F. ‘Economists expect Malaysia to remain in a state of full employment this year’, Business Times, 10 May 2024,
[3] Bernama, ‘Malaysia’s Unemployment Rate Remains at 3.3 Pct in Jan 2024’, 8 March 2024,
[4] Clark, N. Ed, 'Education in Malaysia', World Education News & Reviews, 2 December 2014, CISEFCB23F6863.
[5] Ang, M.V. ‘Survey: 72.1% Of Malaysians Do Not Want To Further Their Studies After SPM’, SAYS, 2 August 2022,
Given all this, I am not satisfied that the applicant would, for the foreseeable future, face a real chance of being unable to find employment in Malaysia, or of his being denied the capacity to earn a livelihood of any kind, whether for reason of his education being limited to [grade at] school or for any other reason.
There is, on the other hand, reporting to indicate that in recent years there have been concerns in Malaysia about the rising cost of living; and that several groups have called for the Malaysian government to raise the minimum wage;[6] with it being reported that a monthly basket of essential food goods costs RM437.58 for Malaysians at the minimum salary of RM1,500 per month,[7] and that many Malaysian households were struggling to keep expenses between the RM2,000-RM3,999 range.[8]
[6] Aun, L.H. ‘Malaysia’s Progressive Wage Policy: Looming Questions for the Pilot Project’, ISEAS, 3 July 2024, ; The Sun, ‘Malaysia’s minimum wage should be RM2.1k, says UNICEF’, 9 May 2024,
[7] Zailani, S.H.M. ‘Stagnant minimum wage in Malaysia needs urgent reforms’, Yahoo News, 1 May 2024,
[8] Chee, J.E. ‘What Is The Average Household Expenditure In Malaysia?’, Dollars & Sense Malaysia, 5 March 2024,

This noted, it is also the case that the Malaysian government is responding to this. It is bringing to an end subsidising the cost of essential items (foodstuffs, electricity, fuel, etc) for all Malaysians, and that it will instead provide ‘targeted subsidies’ to those most in need via the increased use of cash transfers. This will also involve an alteration of the manner in which those most in need are identified. Formerly, this was based on a system wherein households were identified within the bottom 40 percent (the B40), the middle 40 percent (the M40), and the top 20 percent (the T20), by means of their total household income. This is now being replaced with a system wherein households are categorised on the basis of ‘household net disposable income’; which will take into account such factors as a household’s location and the number of dependants relying on the total household income. To assist with this, a new system is also being implemented to more effectively measure the prices of essential items in different locations, and this system will also assist the government in determining the need for wage increases (with such an increase being expected later this year).[9]
[9] Ayamany, K. ‘No more B40, M40, T20? Economists welcome govt’s move to “household net disposable income” for targeted subsidies’, Malay Mail, 8 June 2024, ; Bunyan, J. ‘All you need to know about: Malaysia’s new cost-of-living benchmark’, Malay Mail, 3 July 2024, ; Keong, L.M. ‘Reducing cost of living a national priority’, Free Malaysia Today, 25 January 2024,
The applicant has indicated that he is a Malay Muslim, and I note that Malay Muslims are predominant in Malaysia and that they and other indigenous groups (such as the Anak Negeri and the Orang Asli) are given special status as ‘Bumiputera’ in terms of affirmative action style preferential programs to boost the economic position; and DFAT assesses that ethnic Malays do not face negative official discrimination on the basis of their ethnicity.[10] Even so, it is nonetheless also the case that despite their constitutionally privileged position, Bumiputera households are reportedly over-represented in the bottom 50 per cent of Malaysian households by income;[11] though ethnic Malays are not affected by the kind of marginalisation and persistent inequality that affects the Anak Negeri and the Orang Asli indigenous communities.[12] Moreover, Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Households living below the national poverty line of MYR 2,589 (AUD 864) fell from over 50 per cent in the 1960s, to less than less than 6.2 per cent in 2022.[13] Additionally, Malaysia has a well-established universal health care system which is accessible to most of the population; and which is generally affordable: in-country sources reported that Malaysians can pay as little as MYR 1 (AUD 0.33) for a doctor’s visit and MYR 1.5 (AUD 0.50) per day to stay in a hospital.[14]
[10] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.7.
[11] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.4-3.6; and see: Chee, J.E. ‘What’s The Median Salary In Malaysia (At Every Age, Gender, Race And State)?’, Dollars & Sense Malaysia, 23 July 2024,
[12] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.8.
[13] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.8.
[14] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.11.
Given the applicant’s having no more than a [grade] high school education, it is not impossible that upon return to Malaysia he might find that he is unsuccessful in finding higher paid employment, and that the only work he can obtain is of a kind like that which he formerly had in Malaysia in the service industry, and wherein he might earn no more than Malaysia’s minimum wage or slightly above this.[15]
[15]
Even so, the minimum wage in Malaysia remains three times greater than the estimated cost of essential food goods (and I am not satisfied on the evidence that there is a real chance that the applicant would earn less than minimum wage), and as noted above Malaysia’s government provides targeted subsidies to households with a low household net disposable income, and Malaysia’s government has kept the level of poverty very low, and it provides other forms of assistance such as universal health care. I accept that the applicant feels obliged to provide some financial assistance to his family, and I also accept that he intends to marry and have children of his own. Given this, I accept that there may be times in the foreseeable future when the applicant will face some difficulties in terms of meeting the cost of living for himself and his dependants. But I am not satisfied on the evidence before me that the applicant would for the foreseeable future face a real chance of suffering such significant economic hardship as would threaten his capacity to subsist or as would otherwise amount to serious harm (whether for reason of his having only a [grade] high school education, or for any other reason).
Moreover, I am not satisfied that the essential and significant reason or reasons for such difficulties as the applicant might face in meeting the cost of living would (in the sense intended within s.5J) be his having only a [grade] high school education, or his being a person without a tertiary qualification, or his having only a limited education. For, and even if such a shared characteristic as level of education was accepted as the basis of a particular social group in the context of Malaysia (and I am not satisfied that such a shared characteristic would meet any of the s.5L(c) requirements) it is not apparent from the evidence (whether from the country information before me or that given by the applicant himself), that the reason the applicant would face a real chance of being unsuccessful in finding higher paid employment in Malaysia would be because employers would be motivated to deny him this because of his level of education, or on the basis of some other factor such as his being ethnic Malay. Instead, the reason the applicant would face a real chance of being unsuccessful in finding higher paid employment would be because of the existence of other job candidates with better qualifications and/or greater experience which would make them more attractive to employers because of their perceived greater potential as employees. Moreover, to the extent that his being unsuccessful in finding higher paid employment might cause him difficulties in meeting the cost of living for himself and his dependants, the reason for this would be the extent to which he felt responsible for a larger number of dependants than could most readily be supported by his level of income.
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). But as I am not satisfied that there is a real chance that the applicant would be denied the capacity to earn a livelihood of any kind, I am also not satisfied that there is a real risk that this would occur; and while I accept that the applicant may sometimes face difficulties in meeting the cost of living, I am not satisfied that there is a real risk that that he would suffer significant harm in this regard, since I am not satisfied that there is a real risk that this would involve anyone intentionally causing the applicant harm, let alone harm that would be: extreme humiliation in such a manner as would amount to degrading treatment or punishment; or: pain or suffering, whether physical or mental, in such a manner as would amount to torture, or cruel or inhuman treatment or punishment. Neither am I satisfied that there is a real risk that such difficulties would result in the death penalty for the applicant, or in the applicant being arbitrarily deprived of his life. I am therefore not satisfied 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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Matthew Tubridy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Aun, L.H. ‘Malaysia’s Progressive Wage Policy: Looming Questions for the Pilot Project’, ISEAS,
3 July 2024, p.4,

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2007711 (Refugee) [2024] AATA 3165

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