2007871 (Refugee)
[2025] ARTA 1250
•30 April 2025
2007871 (REFUGEE) [2025] ARTA 1250 (30 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2007871
2444350
Tribunal:General Member A Goldsworthy
Date:30 April 2025
Place:Perth
Decision:The Tribunal affirms the decisions under review.
Statement made on 30 April 2025 at 2:55pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity and religion – Punjabi Sikhs – children called names and bullied and father beaten – harassed to convert to Islam – employment and financial discrimination – Arabic and Islamic education and threat of forced conversion – oldest children’s support for LGBT rights – country information – Sikhs’ integration into mainstream society while maintaining identity – family’s limited religious observances and community and cultural activities – young adult child’s vague evidence about LGBT issues – country information – likely bullying, harassment and discrimination not to level of harm – separate application by youngest child – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2Any 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 two decisions made by delegates of the Minister for Immigration and Multicultural Affairs on 5 May 2020 and 15 November 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are nationals of Malaysia and are a [family] comprising of a father (the Primary Review Applicant - PRA), mother (Applicant 1), their [children] ranging in age from [Age] to [Age], and Applicant 1’s mother. They applied for the visas on 16 March 2018 and 2 May 2023 respectively, with the applicant in the latter case being the youngest child of the parents. The delegate refused to grant the visas and the applicants appealed to the then Administrative Appeals Tribunal.
The PRA and Applicant 1 agreed to their hearing and decision being combined with that of their youngest child. Three of the applicants appeared in-person before the Administrative Review Tribunal (the Tribunal) on 20 February 2025 and each gave evidence. These were the PRA, Applicant 1, and their second-eldest [Age]-year-old son (Applicant 2). For ease of reference in this decision, the Tribunal has referred to the PRA’s eldest son who did not attend the hearing, as Applicant 3. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages, but the applicants conversed mostly in English.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his protection visa application the PRA claimed that his family had left Malaysia due to having been bullied by Malay people in their apartment building and at the children’s school, and having had stones thrown at them. The PRA also claimed that his wife’s family background was from India and that he had been beaten by a Malay man. He claimed that if they returned to Malaysia they would be killed and the family would be afraid. He also claimed that it was very hard to find a house in Malaysia.
Each of the other applicants had their own claims that were iterations of the PRA’s claim. Three applicants also referred to a police report the family had made but on which no action had been taken.
The applicants provided the Department with ID including a copy of their passport bio-pages. The applicants were not interviewed by the Department.
The delegate refused to grant the visas on the basis that:
a.they were not satisfied that there was a real chance that the applicants would face serious harm in Malaysia for reasons of their race; and
b.they were not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there was a real risk the applicants would suffer significant harm.
In their pre-hearing form, the applicants wrote that the original decision had been incorrectly based on their having Indian ethnicity, where they should have been recognised as Sikh. They claimed that they were discriminated against because the Malaysian government prioritised Bumiputera for jobs, well-being and financial aid. It also claimed that they were persecuted by having their children be forcibly taught Arabic at school and made to say Islamic prayers without the knowledge of the parents. They wrote that the children would be forcefully converted to Islam and made to do the Hajj pilgrimage, and also claimed that they were unable to freely practice their religion. Because of a lack of protection at school, they claimed that the children faced severe psychological impact.
Another new claim was also put forward in the pre-hearing form, that the children were open to supporting LGBT groups and ideas and that this had led to increased targeting and violence against the family, with stones thrown at them.
At the Tribunal hearing the PRA said that they had paid someone $3,000 per person to compete their forms, having provided the person with their claims, and they had first seen the completed forms when the visas had been refused.
Relevant evidence is included below.
Background
The PRA finished Form 2 at school and then worked as [an occupation 1] in a [factory] for about 6 years, after which he undertook an informal trade as [an occupation 2] and continued to work as [an occupation 2] until leaving for Australia.
The PRA was raised in the Malaysian state of Selangor near Kuala Lumpur and whilst having moved residences after he and his wife married, they remained in Selangor near Kuala Lumpur.
The PRA told the Tribunal that he was not in touch with his parents or siblings as his relationship with them declined sometime after his marriage.
If he was returned to Malaysia, the PRA said that he was not sure where he would live and that he had nowhere to go.
Ethnic Group
The Tribunal noted the PRA’s submission that the family had been refused protection visas by the Department because the decision had been made for the wrong ethnic group. The Tribunal sought to confirm that the family’s religion was Sikh and that their ethnic group was Indian Malaysian, putting the following country information to the PRA.
…of the Indian Community in Malaysia, 90% are made up of South Indians and the remainder are North Indians. The North Indian group comprises Punjabis and others, but Punjabis form the largest number. The majority of the Malaysian Punjabis are Sikhs. The Sikhs have been defined as neither a race, nor a nationality, nor a caste, but primarily the followers of a religion.[1]
[1] David, Naji and Kaur, Language maintenance or language shift among the Punjabi Sikh community in Malaysia? International Journal of The Sociology of Language, 2003, pp2-4.
The PRA said that he was not Indian but Punjabi.
Applicant 1 told the Tribunal that her mother was Malaysian and her father was Indian.
Being Sikh
The PRA told the Tribunal that he and his family were afraid to return to Malaysia because Malay people would kill them. He said that ‘they’ wanted his family to convert to Islam and his family had been verbally harassed about converting. He said that he was not sure what would happen if they returned, but he was afraid that his children would again be bullied or have stones thrown at them. The PRA said that he was unable to seek help from authorities as they had not been listened to the last time they had approached them.
When asked to describe all instances of past harm, the PRA told the Tribunal that nothing had ever happened to the adults but the three eldest children had had stones and wood thrown at them. He said that this had occurred 3 or 4 times in about 2005. The children had been in an alleyway near their apartment building and had had stones and wood thrown at them by a group of more than 20-30 Muslim men that had followed the children home from school. The PRA said that the group consisted of a mix of men below the age of 30, all of whom wore ‘the black Muslim hat’ and white outfits.
The PRA said that most of the men remained at a distance but some would come closer and throw stones. He said he had never seen them before and they did not live there. The PRA said that at that time his family lived in a ground-floor apartment in what was a 5-storey building.
The PRA told the Tribunal that the men had said things like ‘convert to Islam if you want to stay here’. His family had tried to make a police report but he claimed that the police had refused.
The PRA also claimed that the children had been tortured as they had been forced to learn Arabic all throughout school. He said they had also been bullied by Muslim peers who had torn their shirts and thrown ‘colours’ at them. The PRA said that he did not know whether the alleged school bullies had said anything to his children as his children had never told him. He also said that he did not know how many children were involved. When asked whether he had ever approached school officials about the issue, he did not respond directly but said that they had never listened.
The PRA also said that his third eldest child had been pushed by some men when he was in year 4 at school, and that this had happened 3 or 4 times. When asked why he thought similar things had not happened to his other two eldest children, the PRA said that the afternoon shift at school had a lot of torture. When asked for further information, the PRA said that there were many groups who had harmed the children.
When asked if the family could move to a different area in Malaysia, the PRA said that they had tried to do this and had moved about 2 kilometres away to an apartment on level 10 of a building. He said that the same men had found them there, and he could see them from his window in about 2014.
With regards to the PRA’s general claim that his family were persecuted for being Sikhs, the Tribunal put the following country information to the PRA and invited comment.
It is estimated that over 100,000 Sikhs reside in Malaysia. The Sikh population is the largest here among Southeast and East Asia. It is believed that Malaysian Sikhs are more deeply ingrained in Sikh culture than any other Sikh diaspora. They have been intrinsically incorporated into mainstream society while maintaining their identity.[2]
[2] accessed on 7 February 2025.
The PRA did not address the issue directly but said that some Sikhs followed the religion while some did not. He said that he followed it ‘maybe 40 percent’. When asked to describe the 40 percent that he did subscribe to, the PRA said ‘I just do what I do. I pray sometimes’.
When asked how anyone would know that his family were Sikh, the PRA said that he used to wear a bangle. He said he no longer wore it as he drove a truck for work, but that his son wore one.
The Tribunal sought further information about the PRA’s Sikh practices. He said that he was not particularly religious though sometimes he and his wife would go to temple on Sundays and sometimes the children would come along. He said he was not involved in the Sikh community as he had been busy working and did not have time for it. He said he would just work and then go home.
When asked if he had ever been a part of any Sikh group in Malaysia the PRA said he had not, first claiming that it was because he was from a different caste, and then because he was busy working.
When asked whether the PRA had attended a gurdwara in Malaysia, he said he had not as he had no time. I put to him information before the Tribunal that the gurdwara was not only a religious but an important social institution for Sikhs, including one where members sat and discussed grievances and problems arising from the community.[3] I asked whether he had ever shared his problems with the Sikh community and he said he had not because he had been busy working. When asked whether his wife had done so, he said that she was a housewife. He then added that maybe she had gone but had not told him.
[3] David, Naji and Kaur, Language maintenance or language shift among the Punjabi Sikh community in Malaysia? International Journal of The Sociology of Language, 2003, p.6.
The Tribunal noted country information that besides having at least 15 gurdwaras, some important Sikh organisations were headquartered in Kuala Lumpur.[4] The Tribunal asked why the PRA had not attempted to seek assistance at any of these. He said that he had not had any time.
[4] Kahlon, Sikhs in Asia Pacific: Travels among the Sikh Diaspora from Yangon to Kobe (1st ed.), 2016, Routledge, p.68.
The PRA said that he had been baptised into Sikhism but could not recall when. He then said that it was when he had been born. He said that he did not wear the turban as he did not have long hair. He explained that his parents had not grown his hair long. The Tribunal noted that the PRA was now an adult and could do so if he wished. He clarified that he chose to have short hair.
The PRA said that while he did not celebrate the Sikh cultural ceremonies, his wife and children did observe them at the gurdwara. When asked if his wife had known any other Sikhs there the PRA said that he had never gone so deep as to ask. I put to him that it was hard to believe that he did not discuss aspects of their religious practice with his wife given that it was the primary reason he claimed they had fled Malaysia. The PRA said that he just listens to his wife and then they talk about it.
When asked whether he had ever observed the five Sikh conventions, being keeping hair long, wearing a metal bracelet, a small sword, a comb in the hair, and special undershorts, he said that he had when he was about 15 years old. The PRA said that he had gone to a Malay school and had been bullied by having his bun pulled, and he had been tortured. When asked why he had not returned to the five conventions as an adult, he said that his time had passed.
The Tribunal put to the PRA information before it, that wearing the turban was compulsory for a Sikh.[5] The PRA agreed that it was, but that he never wore it.
[5] Zain and Ismail, Sikhism’s Identity and Challenges in Malaysia: A literature review, International Journal of Academic Research in Business and Social Sciences, Vol 8, No. 7, July 2018, p991.
The Tribunal invited comment on the following information before it:
Although the Sikh Punjabi community was different from the ethnic Indians, the general public did not understand the significance of using the 5K symbols, which was the main trademark of Sikh Punjabi identity. Inadvertently, these symbols were mistaken as a type of fashion, with its use being flexible and bearing no significance.[6]
[6] Ibid.
The PRA said that his family only had the Sikh names but apart from his grandfather, were not Khalsa.
The Tribunal put further information to the PRA and invited comment, that according to the Shiromani Gurdwara Parbandhak Committee (SGPC), which is the highest body in Sikhism, in order to become a Sikh a person has to embrace Sikhism and undergo the amrit sanskar (baptism) ceremony to become a Khalsa.[7]
[7] Zain and Ismail, Sikhism’s Identity and Challenges in Malaysia: A literature review, International Journal of Academic Research in Business and Social Sciences, Vol 8, No. 7, July 2018, p992.
The PRA agreed with this but said that his family were not Khalsa – they only had the Sikh names and were Punjabi. The PRA explained that in order to be a Sikh one needed to ‘follow 100 percent’ and he said that he could not do that. When asked what made him Sikh if he did not subscribe to the requirements, he said that he had been born into a Sikh family.
Applicant 1 told the Tribunal that to her, following Sikhism meant teaching her children to be kind and good, reading the sacred text, and praying at a gurdwara. She said that she only attended a gurdwara 3 or 4 times per year.
When asked how strangers would know that the family were Sikh, Applicant 1 said that they wore the bangle and Malay people knew its relevance. She said that the family looked like Sikhs and Malays knew they were Sikh because of the bangle, their speaking Punjabi, and because of their surnames.
Applicant 1 claimed that they had not been involved in the Sikh community in Malaysia because the other community members were rich and her family was middle-class and would be laughed at for this reason.
Non-Muslim and not Bumiputera
The PRA told the Tribunal that his family also required protection as his children had been forced to learn Arabic at school in Malaysia.
When asked why he was so opposed to his children learning the language, the PRA said it was because they were forced to do so and they were not Arabic. I put to him that he had learned English and he was not English. The PRA explained that this was a language that had global utility. The Tribunal put to him that Arabic was also a useful language but he said his children did not want to learn it. The PRA said that his children had been forced to learn the language because the class had been told they would need it when they went to Mecca. When asked further about this, the PRA said that he had no details.
I asked why it was a problem if it was part of the school’s curriculum. The PRA said it was a problem as they always started the class with prayers and then tortured the children by telling them to convert and, when the children said no, bullied them. He said that he could not afford to send them to a private school where they could choose not to learn Arabic. The PRA confirmed that it was this that he was referring to in his written submission when he wrote that attending a normal Malay school resulted in a lack of protection for minorities, and severe psychological impact for his children.
The Tribunal asked whether his children had learned any languages in Australia and he said that his youngest had learned Italian because it was compulsory.
The Tribunal asked whether the PRA had sought to speak to the teachers about the issues he had with the course. He said he had not but that maybe his wife had. I put to him that this seemed like something he would know if the issue was so important. He said that he just listened to his family and that he was otherwise busy working.
The PRA told the Tribunal that his children had told him and his wife that they were being forced to learn Arabic and that the Imam who taught them had told them that he would forcefully convert them. I put to him that I found this to be doubtful and asked how the Imam would forcefully convert them. The PRA said that he would do it by teaching them Arabic and brainwashing them, and that the children came home crying and had mental issues.
The Tribunal put the following country information to the PRA and invited comment.
As at 2019, Arabic is taught in 1,187 schools in Malaysia. However, the number of Malaysians learning Arabic remains limited as many Malaysians (including students) are more interested in learning English for today`s Malaysian job market prefers graduates and experts who are proficient in the English language which is widely spoken in Malaysia besides Bahasa Melayu.[8]
[8] accessed on 7 February 2025.
The PRA said that the area in which they lived was Muslim and that was why they were forced to learn Arabic. The Tribunal put to him that Malaysia was a Muslim country, but he emphasised that his suburb was Muslim.
When asked what the PRA had meant by claiming that his children faced ‘cultural isolation’ at school, he said that ‘after they finished school they tried to do another activity and the problem would come from there sometimes’.
The Tribunal told the PRA that his evidence had been vague and he had not seemed to have many details about the claims he had sought protection for. The PRA repeated that he just listened to his family.
When asked to describe the persecution that his family faced as a result of not being Bumiputera, the PRA said that ‘if you want anything you won’t get it, like working in the government.’ The Tribunal acknowledged supporting country information and referenced the Malaysian Constitution forbidding discrimination against citizens based on religion or race, as well as according a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’. The Tribunal noted that these elements of the constitution permitted affirmative action policies[9] and some such policies favoured Bumiputera over other ethnicities in business, higher education, property ownership, government contracts and civil service jobs.[10]
[9] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Malaysia, 24 June 2024, p.14
[10] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Malaysia, 24 June 2024, p.8
Having had regard to the PRA having had a job and a home, the Tribunal asked why the PRA sought protection. He said that ‘they’ preferred ‘their’ community and ‘we don’t have a chance’.
The PRA told the Tribunal that he was only here for his children and he did not fear harm for himself.
Applicant 1 told the Tribunal that she was afraid that if they were returned to Malaysia her children would be killed by those who wanted them to convert to Islam. She said that knowledge of forced conversions was not known publicly as the Malaysian government kept these missions secret. The Tribunal expressed doubt about such forced conversions.
When asked to expand on the details of her own claim that she had been bullied, that she and her children had been scared to go out and had been mentally tortured by Malay people, Applicant 1 said that when her children had started pre-primary school they had come home asking why the school told them to pray the Quran and learn Arabic. She claimed they had told her that they had to learn Arabic because when they went to Mecca for the Hajj they would need it. The children had told her that the school taught that there was one God and no other religion but Islam. Applicant 1 told the Tribunal that while the children had to sit through classes in which the Quran was taught, they were not required to sit the exams.
The Tribunal put to Applicant 1 that it was not unusual for followers of Islam to say such a thing because it was asserted in the Quran. Applicant 1 said that they should respect others as she did and that she did not like having Islam forced on her family. She confirmed that having it forced on them meant being told that Islam was the true religion. She added that her children were not allowed to eat or drink at school during Ramadan.
When asked if Applicant 1 had raised her concerns with the school’s teachers or principal, she said that she had spoken to a teacher once or twice and she believed that the teachers had told the Malay students to bully her children. She said that she had been too scared to talk to the principal. She said she had tried to write a letter but had never finished it. She then claimed to have put it in a box but had never received a reply.
Applicant 1 asserted her family’s right to follow another religion. When asked how they were prevented from practicing Sikhism, she claimed only that her children had been told to learn about Islam.
When asked again about the bullying she had claimed to suffer, Applicant 1 said that she had been told to go back to her country or to convert to Islam. She claimed to have heard this from ‘groups’ when she was out shopping.
Applicant 1 also referred to stones being thrown at her children by a group of about 5 people once sometime between 2013 and 2015. She said that she had been there too and had ushered her children inside. Applicant 1 said that the group that had thrown the stones had been a very religious group and they had known that the family were Punjabis and had targeted them because they were Sikh. She confirmed that she had not recognised anyone in the group.
The Tribunal put to Applicant 1 that her evidence on the issues raised had lacked detail and was vague. Despite having been offered every opportunity to provide further details, she did not, but she summarised her fears of returning as being that her children would have to convert to Islam and they would be killed or kidnapped by ‘people’.
Applicant 2 told the Tribunal that the bullying referred to in the protection visa application had mostly occurred when he was in primary school between 2010-2015. He described one of what he claimed were three notable instances, saying that it was about racial hatred. He explained that this was mostly about him having had an opinion about Sikhism and the group of school bullies telling him that he was wrong and that he should convert to Islam so that he could attend the Hajj. When he refused to repeat a particular phrase he said he was punched, and the perpetrator had been suspended from school.
Open to supporting LGBT groups and ideas
When asked to tell the Tribunal about his claim relating to his children being open to LGBT groups and ideas, the PRA said that his two eldest sons supported ‘them’ online by saying that they were good people but he did not know what else it meant for them to be open to it. He said that when they had tried to support ‘them’, Malay people had tried to bully them. He said that it was the same group of 20 to 30 men that had thrown stones at his children, and it was because they knew that the boys supported LGBT that they told them they had to convert to Islam.
I put to him that he had previously told the Tribunal that the group had only bullied the children for being Sikh. The PRA said that this issue had arisen and so they bullied the children in 2012 or 2013 for that also.
When asked again what the PRA meant by his claim that his children were ‘open to supporting’ LGBT groups and ideas, he explained that it was ‘boy and boy, and girl and girl’, and that they could keep friendships that ‘they’ did not like. When invited again to explain what he meant by his claim, he said it was because they support ‘things’.
The Tribunal highlighted the PRA’s claim that there had been increased targeting and violence against the family as a result of the support, and asked whether he had been referring to the throwing of stones. The PRA said that when the children went out ‘they’ tried to do something or throw something.
The Tribunal asked the PRA why allowing his children’s online support of LGBT groups and ideas was so important to him. He said that it was not important to him but to his children.
Applicant 1 was unable to provide further details about her children being open to LGBT groups and ideas, saying only that she gave them freedom and that they were human and could support such groups if they wanted to. She did not know what kind of support her children gave.
Applicant 1 said that in response to her children’s support, some people had thrown stones at her two eldest sons. When asked how anyone would know about her sons holding such views she did not know but assumed that her son had spoken to people about it.
The Tribunal put to Applicant 1 that her evidence was vague and without further detail, little weight would be given to it.
Applicant 2 told the Tribunal that his support for LGBT groups and ideas consisted of supporting freedom of expression to ‘love who you love’ and having an opinion online that consisted of ‘liking’ Facebook posts on ‘parades and stuff’ between the ages of 6-12. He said that word had gotten around that he had such views, and that school children had called him names.
When asked why it was so important for him to support LGBT groups and ideas, Applicant 2 said that he did not support them openly but only if he was asked. He added that if a friend was gay they could remain friends.
Applicant 2 then recalled that his employer celebrated Pride month and said that he wore the relevant colour shirt to show his support, though he could not recall the colour as he said he was not well-informed and only worked part-time. The applicant then clarified that he had never actually worn the coloured shirt.
The Tribunal asked Applicant 2 about the increased targeting and violence against the family that had taken place as a result of the LGBT support. He said that he did not know of any against the family but he had been belittled. The Tribunal noted that his parents had referred to stones being thrown and asked how often this had happened. Applicant 2 said this happened approximately every weekend.
Findings of fact and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The PRA said that he was not sure where they would live if returned to Malaysia. Based on them having lived in Selangor near to Kuala Lumpur, I find that the applicants would return to the same area.
The question of whether the applicants meet the criteria for protection is not influenced by whether they are Indian Malaysian or Punjabi as the PRA claimed. None of the applicants claimed to be Pakistani Malaysian. While Applicant 1 told the Tribunal that her father was Indian and her mother was Malaysian, I acknowledge that the upheaval following the division of the Punjab between Pakistan and India in 1947 can make ethnic lines difficult to chart.[11] For the purposes of this decision, the Tribunal finds that the applicants are Malaysian Punjabis who are Sikh. Whether the Punjabi ethnicity arises from India or Pakistan is not determinative of them being Sikh, non-Muslim and not Bumiputera.
LGBT support
[11] accessed on 9 April 2025.
Despite having been given every opportunity to describe what it meant that their children were open to supporting LGBT groups and ideas, the PRA and Applicant 1’s evidence lacked detail and was vague. It was also second-hand based on what their sons had told them. I therefore place little weight on their evidence and turn to Applicant 2’s evidence for further consideration, given that he was one of the two applicants purportedly open to the support.
Applicant 2 also provided limited evidence that I found to be both vague and lacking in detail. I accept that he supports freedom of expression including to ‘love who you love’. I also accept that he ‘liked’ Facebook posts of parades when he was under the age of 12. I accept that other school children had become aware of his stance on this issue and had called him names and belittled him. I also accept that Applicant 2 chooses not to openly share his support for the LGBT cause in Australia where he is free from fear.
When told that his parents had said that stones had been thrown in response to his LGBT support, the applicant claimed that this happened every weekend. None of the applicants contended that the stones were solely thrown at him, nor that he had been injured. Nor did Applicant 2 contend that anything had been said in conjunction with the stones being thrown. Without further evidence, my reading of the situation is that as a child Applicant 2 played in an area outside his apartment building on weekends and that stones were spitefully thrown by children at play.
I find that his conflicting evidence on wearing or not wearing a particular-coloured shirt to work for Pride month, as well as his claim to not be well-informed on the issue, speak to a low level of commitment to the cause. Because of this, I find that Applicant 2 will continue to not be an open supporter of the LGBT cause if returned to Malaysia.
Having accepted a degree of support for the LGBT cause by Applicant 2, I nonetheless find that because he will not be an open supporter of the LGBT cause if returned to Malaysia, he does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal, for reasons of such support.
The only other claim of support for the LGBT cause was on behalf of Applicant 3 who did not attend the hearing. The only evidence submitted of his support was Applicant 2’s comment that his brother supported it, and the PRA’s comment that he provided some online support by saying that ‘they’ were good people. The PRA did not indicate how regularly Applicant 3 posted such support, nor in which forums, nor that he was concerned of such support being brought to the attention of authorities in Malaysia, nor that he was concerned of it raising the ire of the general public.
Based on the evidence before the Tribunal, I find that Applicant 3 provides a low level of support to the LGBT cause in the form of sometimes commenting online that they are good people. I also find that he would continue to offer such support if returned to Malaysia. Further, I find that Applicant 3’s support is not of the level or kind that would bring him to the attention of authorities in Malaysia, nor that would raise the ire of the general public.
Having had regard to all of the evidence before the Tribunal, I find that Applicant 3 does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal, for reasons of supporting the LGBT cause.
As I have found that the applicants who were claimed to have supported LGBT groups and ideas do not face serious or significant harm, I also find that the other applicants do not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal, for reasons of support of the LGBT cause by Applicants 2 and 3.
Harm from Muslim Malays at school
I accept that the PRA’s eldest children including Applicant 2 faced some bullying at school because they were not Muslim. I find that some of the bullying was verbal and that there were three instances of minor physical harm. Based on Applicant 2’s evidence, I find that the bullying was intermittent and was appropriately addressed by school staff.
The PRA also claimed that one of his children was pushed by 3 or 4 men when his child was in year 4 in about 2014. His subsequent evidence placed the pushing incidents at school during the afternoon shift. He did not contend that his child had been physically hurt. Without further detail from the PRA the Tribunal is left to consider the likelihood of this having taken place. The PRA did not claim to have been present when these incidents occurred. I find that the PRA was told about the incidents by his child, who had been upset in the moment. I further find that the PRA’s child was pushed not by a group of men, rather a group of older children at school.
I accept that the children were made to sit in classes where Arabic was taught and that part of the curriculum included learning Muslim prayers in Arabic. I see the situation as being one in which the children attended a government school in Malaysia, a country which has Islam as its official religion, and their school made Arabic a compulsory subject while allowing non-Muslims including the applicants to avoid exams on it.
I do not accept the claim that the children were or would be forcefully converted to Islam or made to do the Hajj pilgrimage and I find the claim to be fanciful. The applicants did not provide any supporting evidence of this and the country information before the Tribunal does not identify this as a known practice. DFAT reporting does indicate some attempts at conversion to Islam, but this specifically targeted the poor for whom it was incentivised, indigenous Orang Asli, and non-Malaysians seeking residency in Sabah.[12] Some reporting also indicated that some Christians felt pressure to convert to Islam, though there was no suggestion of being forced.[13] Because of the indication that some Christians felt pressure to convert, I find that the applicants will also face a degree of pressure to convert to Islam in order to align with the Malay majority.
[12] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Malaysia, 24 June 2024, p.21.
[13] Ibid, p.25.
100. I reject that the children faced severe psychological impacts because of a lack of protection at school. I find that the bullying and the compulsory study of Arabic in their government school does not amount to severe psychological harm, nor to torture as claimed by the PRA.
101. Based on the collective evidence from the applicants, I further find that if returned, the PRA’s youngest children who are school-aged or below, will also face a degree of bullying and pressure to convert at school for reasons of being different in ethnicity and religion from what will likely be most of their peers. I find that the bullying and pressure will be of the type that children routinely carry out and place on one another, being verbal harassment along with a low level of physicality including pushing and stone-throwing. I find that such bullying and pressure does not amount to the level of harm envisaged by the non-exhaustive examples of serious harm in s5J(5), nor does it amount to significant harm as exhaustively defined in s36(2A).
102. Having had regard to all of the evidence before the Tribunal, and to country information, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal, for reasons of harm by Muslims at school.
Other harm from Muslim Malays outside of school
103. I reject the claim in the protection visa application that the PRA had been beaten by a Malay man. This is based on the PRA having said that he had not seen the forms until after the visa had been refused, as well as his oral evidence that no harm had ever come upon the adult applicants, whom the Tribunal infers to have been the PRA, Applicant 1 and Applicant 1’s mother. This inference is based on the eldest children who are now adults, having been children at the time of departure from Malaysia, as well as on some of the claims of harm relating directly to them. I find that the claim to have been beaten was added to the application by the agent who the family had paid to complete the forms in a false attempt to strengthen their claim.
104. Whilst having claimed to fear being killed or kidnapped, none of the applicants provided compelling evidence that anyone had wanted to or attempted to kill or kidnap them, or would attempt to do so in future. There is also no country information before the Tribunal to suggest that the targeting for murder or kidnapping of Punjabis or Sikhs is a known threat in Malaysia for reasons of refusing to convert to Islam or any other reason. Because of this, I reject the claim that the applicants will be targeted to be killed or kidnapped for reasons of their ethnicity or religion.
105. The applicants gave evidence of instances of bullying and stone-throwing, with the PRA having clearly stated that no harm had ever come to the adults in the family, just the children.
106. The 3 or 4 instances of stone throwing that the PRA referred to in 2005 was more than 10 years before the applicants left for Australia. Based on their passports, the eldest children we still very young at that time. The PRA claimed the stone-throwing culprits to have been a group of 20-30 religious men – none of whom he recognised - who also told them to convert to Islam, but he did not contend that any of the children had been physically harmed.
107. I accept that the children had stones thrown at them 3 or 4 times in 2005. Based on the PRA’s evidence of all instances occurring only in 2005, I find them to have been isolated. I also find that the men had not intended to seriously harm the youngest applicants. This is because based on the age differential with the children having been around 4 years old and the perpetrators around 30 years old, if they had wanted to they would have easily done so. I find instead that the men had taken a degree of pleasure in frightening the young children on the basis of their ethnicity and assumed religion.
108. I acknowledge the PRA’s claim to have seen the same group of men from his window about 9 years later. The PRA’s apartment was at that time on the tenth floor and I find that he did not see facial details such that he could make out their identity nor match them to the same group from 2005. The PRA did not claim that the group harmed his family. I find that the group standing outside his building in 2014 were not the same group of individuals who had thrown stones at his children in 2005. I find that they were not targeting the applicants at all and were simply gathered near his building.
109. Applicant 1 told the Tribunal about a single instance somewhere between 2013 and 2015 in which stones had been thrown at her children by a group of about 5 people who appeared to be religious. She had been present but was not targeted. The Tribunal found her evidence to be unclear and despite being given every opportunity to clarify, the picture became no clearer. Applicant 1 indicated that the same group of about 5 people had thrown stones at the children a few other times at school.
110. I accept that the children had stones thrown at them once near their apartment building between 2013 and 2015 and that Applicant 1 had ushered them inside. I find that the same small group had thrown stones at the children at school. Based on Applicant 1 having not been targeted, and also on her evidence indicating it was the same group of people, I find that the culprits on these occasions were peers from the children’s school who were wearing Muslim attire.
111. The applicants claimed that ‘they’ wanted the family to convert to Islam. They evidenced this by variously claiming to have been told this on occasion by students, teachers and unknown males near their apartment building. Applicant 1 also claimed to have been verbally harassed about going back to her country or converting to Islam, at times whilst shopping. While their evidence lacked detail and was vague, despite having been given every opportunity to provide clarity, I accept that some people wanted the family to convert to Islam and intermittently made this known to them. Based on information before the Tribunal, there is no evidence to suggest a pattern of targeting Indian Malaysians, Punjabis, or Sikhs in Malaysia for conversion. I therefore find that the comments directed toward the applicants by adults were rare. I find that while the comments by children happened more often, they were nonetheless not persistent. I also find that such comments led to a degree of psychological distress.
112. I have accepted a number of instances of stone-throwing and verbal harassment faced by various applicants, including comments that instil a degree of pressure to convert to Islam in order to align with the Malay majority. Based on information before the Tribunal, I find that the applicants will face a similar kind and degree of stone-throwing and verbal harassment if returned to Malaysia. Having considered all of their evidence, and their individual circumstances, as well as country information, I find that these do not individually or collectively amount to the level of harm envisaged by the non-exhaustive examples of serious harm in s5J(5), nor to significant harm as exhaustively defined in s36(2A).
113. To avoid doubt, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal, for reasons of harm by Muslims outside of the school system.
Harm from the government
114. The applicants claimed that they were discriminated against because the Malaysian government prioritised Bumiputera for jobs, well-being and financial aid.
115. DFAT reporting confirms the existence of affirmative action policies that include access to higher education, careers in the civil service, commercial opportunities and housing.[14] However, the Tribunal notes that not all discrimination amounts to persecution. Having had regard to all of the applicants’ evidence and their individual circumstances, I find that this discrimination does not have such an adverse or detrimental impact on the applicants so as to amount to the level of harm envisaged by the non-exhaustive examples of serious harm in s5J(5).
[14] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report Malaysia, 24 June 2024, p.14.
116. The PRA claimed that it was very hard to find a house in Malaysia. He did not contend that they were discriminated against in this regard, but that it was simply hard to find housing. Nonetheless, because of DFAT reporting that Indian Malaysians suffer some discrimination in obtaining rental accommodation[15] I have had regard to his claim in this light, despite the PRA being adamant that they were not Indian Malaysian but Punjabi.
[15] Ibid, p.16.
117. The applicants did not contend that they would be unable to find somewhere to live, but that finding a house was hard. I have had regards to the DFAT information above pertaining to discrimination against Indian Malaysians obtaining rental accommodation, as well as to the applicants not having contended to have ever had trouble finding housing in Malaysia previously. I have also had regard to Applicant 1’s comment that they had been ‘middle-class’ though I place only moderate weight on this as their financial situation may have changed. Based on the above, I find that the applicants will face some discrimination in accessing housing but that they will find housing if returned to Malaysia.
118. I reject the applicants’ claim that they were unable to freely practice their religion. Applicant 1 presented evidence on this, saying that they were prevented from practicing Sikhism through her children having been told at school to learn about Islam. The Tribunal rejects the assertion that this amounts to being prevented from practicing their religion. The Tribunal finds that learning about Islam at school does not negate the freedom to practice Sikhism – they are not mutually exclusive. Nor does being told on occasion by strangers to go back to one’s country or to convert to Islam prevent the practice of Sikhism, though I acknowledge that it would be painful to hear.
119. DFAT reporting states that the practice of religions other than Sunni Islam is subject to some constraints but this relates mostly to propagating and proselytising,[16] neither of which the applicants contended that they wished to do, or ever did. The applicants did not contend that gurdwaras have been targeted in any way by the government.
[16] Ibid, p.19.
120. The Tribunal has had regard to the applicants’ practice of Sikhism in Australia where they are free from fear and has found it to be limited to being kind and good, reading the sacred text, attending a gurdwara a few times per year and wearing of the bangle. I find that if the applicants were returned to Malaysia they would continue with this same level of practice. There is no evidence before the Tribunal to suggest that such practices are denied or in any other way prevented.
121. Having had regard to the cumulative harm from the government that I have accepted, I nonetheless find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal, for reasons of harm from the government.
Cumulative harm
122. Having considered harm faced by the applicants from individual factors, I now turn my mind toward whether risks and harm that I individually found did not amount to serious or significant harm may cumulatively lead to such harm. In doing so I consider the evidence from the applicants that I have accepted, the individual circumstances of the applicants, and relevant country information.
123. I have considered whether Applicant 2’s [Social media] posts from when he was a child may amplify the risk faced by Applicant 3 in his low-level support for LGBT groups and ideas. I find that even if Applicant 2’s [Social media] posts from over 10 years ago when he was under the age of 12 resurfaced and the family were collectively seen by society to have a low level of support for the LGBT cause, neither Applicant 2 or 3’s support of the LGBT cause would be such as to attract attention from authorities or raise the ire of the general public. I therefore find that neither Applicant 2 nor Applicant 3 – and by extension the rest of their family - will face a degree of risk that amounts to the level of harm envisaged by the non-exhaustive examples of serious harm in s5J(5), nor that amounts to significant harm as exhaustively defined in s36(2A).
124. In making this finding I have considered whether they would face increased discrimination by the government’s policies favouring Bumiputera, or whether they would face greater challenges in finding housing. As I have found that neither Applicant 2 or 3’s support of the LGBT cause will attract attention from authorities, I find that the risk from the government will not increase. I also find that the discrimination they will face in finding housing, whether by the government or private individuals whom I have found will not have had their ire raised by the LGBT support, will not change in any meaningful way.
125. I also turn my mind to whether the youngest children, whom I have accepted will face a degree of bullying at school due to their ethnicity and religion, will suffer a higher degree of harm if their eldest brothers’ support of the LGBT cause were known. I find that while the bullying would increase it would nonetheless not amount to the level of harm envisaged by the non-exhaustive examples of serious harm in s5J(5), nor to significant harm as exhaustively defined in s36(2A).
126. Finally, I have considered whether the level of psychological distress that I have accepted the applicants faced by being told to convert to Islam or to go back to their country, will rise to the level of serious or significant harm when taken cumulatively with my finding that the youngest children will face a degree of bullying for their ethnicity and religion at school if returned. Based on the comments having been intermittent, the family having the support of one another, and there being no supporting evidence of the applicants being mentally vulnerable, I find that it will not.
127. To avoid doubt, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal, for reasons of cumulative harm.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
129. The Tribunal affirms the decisions under review.
Date(s) of hearing: 20 February 2025
Representative for the Applicant: N/A
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.
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