2013042 (Refugee) - [2025] ARTA 1157

2013042 (Refugee) [2025] ARTA 1157 (20 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2013042
Tribunal:General Member B Gogarty
Date:20 March 2025

Place:Hobart
Decision:The Tribunal affirms the decision under review.

Statement made on 20 March 2025 at 3:15pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – person with a disability – motorbike accident and permanent physical impairment – employment discrimination – emotional and psychological harm – delay in applying for protection – arrived on tourist visa before period as unlawful non-citizen – worked for cash – degree and effect of impairment – limitations not severe – other factors in unsuccessful job applications – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
DCR19 v MICMSMA [2020] FCA 501
MIAC v SZQRB (2013) 210 FCR 505
Morato v MILGEA [1992] FCA 637; (1992) 39 FCR 401
Selvadurai v MIEA [1994] FCA 1105; (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is determined to be a national of Malaysia arrived in Australia [in] March 2016. On 29 January 2019, around three years after his arrival, the applicant applied for a protection visa. At the core of his claim for protection was a risk of serious and significant harm on the grounds of disability discrimination if he was returned to Malaysia. The Delegate determined that the applicant’s claims were not established on the evidence presented and refused to grant the visa on the basis that he was not a person to whom Australia owed refugee or complementary protection obligations under the Act.
The applicant appeared before the Tribunal on 3 March 2025 to give evidence and present arguments. At the hearing the applicant reiterated and expanded on his original claims based on disability discrimination in Malaysia. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. Quotations in this decision attributed to the applicant are those made by the interpreter on his behalf.
BACKGROUND
The Tribunal has accepted the following evidence from the applicant about his personal details and background.
The applicant is, at the time of this decision, around [Age] years old and is a Malaysian citizen. He was born to Malaysian parents who are both still alive and reside together in Malaysia, at the family’s long-term home in the state of Selangor. He has [brothers] who live in the family home with his parents. He has no other nuclear family in Australia. The applicant said he is in a long-term relationship with a Malaysian woman who owns a small business there. They have been together for approximately four years, despite being geographically separated and not having visited each other in either country. He has no children.
The applicant completed his secondary education in Malaysia, attaining the Malaysian Certificate of Education (Sijil Pelajaran Malaysia – known by its initials “SPM”), which is equivalent to a high school diploma. According to his original application the applicant enrolled in a “Diploma in [Subject 1]” at [college] in Perak after finishing high school in 2013. He moved out of the family home at that time and resided in student accommodation.
Some-time in 2013, the applicant was involved in a serious motorbike accident. He was treated in a public hospital for his injuries, which included permanent physical impairment of his leg and arm. The degree and effect of the impairments are, on the evidence, open questions which the Tribunal has made finding on facts of below.
The applicant estimated he was in hospital for 2 or 3 months before being discharged to an extended period of rehabilitation, which he said lasted up to a year. He said this resulted in him dropping out of his diploma.
At the hearing, the applicant told the Tribunal that in 2015 he attempted to resume further education by enrolling in [Subject 2] at a college in [Town], Selengor. Record of this study was not included in his original application. At the hearing he said that he withdrew from the course when a government scholarship was revoked, leaving him unable to afford continued study. His highest formal qualification remains the SPM.
The applicant stated that he attempted to secure employment after his accident while living in Malaysia but was unsuccessful. He applied for three graduate administrative positions within different divisions of [an employer 1] as part of a unified graduate recruitment process, but after attending an open interview round was not recruited to any of the divisions. He separately applied for a [job task 1] at [an employer 2] but was also not successful. The evidence suggests that these events happened some time between 2015 and 2016.
In 2016, he decided to move to Australia after a friend, who was living in the country, told him about work opportunities in [City 1], Victoria. The applicant told the Tribunal he used an insurance payout from his motorbike accident to fund his journey to Australia. Movement records show that the applicant applied for a tourism visa on 6 March 2016 and arrived in the country [in] March 2016. The applicant said he began working in [City 1] with his friend around a week later. On 10 June 2016, the applicant’s tourist visa ceased, and he became an unlawful non-citizen.
The applicant spent his first two years in Australia [doing job task 2] in Australia in return for cash payments. He said this was physically demanding work but allowed him enough money to sustain himself. He subsequently moved to [City 2], NSW, where he stayed for around two years working as [an occupation 1] and [occupation 2 doing job task 3].
In 2019, the applicant applied for a protection visa, granting working rights and the ability to seek formal employment. At some time around 2020, he said that he moved to Victoria and began working in [a workplace 1] performing [job tasks 4] including [specific tasks]. He remained in that job for around three years before taking up his current role as [an occupation 3] in a[workplace 2]. As part of this role the applicant obtained a [vehicle] license in 2024.
The applicant currently resides in Melbourne, where he rents a house with friends. He stated that his financial situation has improved since obtaining employment and that he now sends regular financial support to his family in Malaysia. His sole debt is a student loan in Malaysia which his evidence indicates he has not serviced since his departure from the country.
Evidence before the Department
In the applicant’s original application for protection, made on 29 January 2019, he made the following claims:
“I am physically disabled. I had a motorbike accident on 22 February 2013.1 was injured and my [hand] and [leg] was broken. I had metal bars put in my [arm]. This has been removed. I currently have a titanium rod in my [leg]. It took me 2 years to recover fully. I walk with a limp. I was entitled to and granted a Malaysian disability card. I tried to look for work after I was fully recovered and due to my disabilities I was not able to find work.
I went to several places to ask for work. They asked if I had any disabilities, and I provided my disability card. They refused my applications. I was discriminated against due to my physically disabilities. In my country disabled persons are stared at in the streets. People stare at me by the way I walk and look at me up and down as if something is wrong with me. I feel ashamed and afraid that people do not think lam a normal person because of my physical disabilities. I feel that I am a normal person.
Discrimiation due to disabilities is rampant in my country. I will continue to be discriminated against and employment will be difficult to obtain. I have no qualifications. I was studying [subject 1] at the [college] when I was involved in my motorbike accident. Thereafter I did not continue. Due to my unfortunate circumstances I have no qualifications to fall back on and therefore I am unable to find work with no qualifications. I will continue to encounter discrimination.
I did not endure physical harm, but I had to suffer emotional and psychological harm. I was constantly teased and always depressed because I felt I was not normal as I cannot find work because of my disabilities. This was especially the case when I went to look for work. So I suffered psychological harm due to the fact that no one will hire me as I have a disability card and am physically disabled
Discrimination due to disabilities is quite common in Malaysia and the authorities do not do anything to help those who are disabled. The infrastructure in Malaysia does not cater to disabled people. Also the mindset of people are backwards in that people in our class are not accepted as normal people. I feel at times like 1 am an outcast. I feel like I belonged to a class of people who are not accepted by the wider community. I am not the only person who feels this way.
After suffering discrimination in Selangor in trying to find work I moved to Kuala Lumpur. But the situation was still the same. I was discriminated against due to my disability. I believe this would be true for the whole of Malaysia.
I believe the mistreatment would continue, if I were to return. The same thing would happen. I will suffer emotional stress and hardship and also suffer mental harm due to the stress and I strongly believe that! will not be able to find work. There is also no social welfare system in Malaysia and so if! do not work I am unable to fend for myself. I am the eldest son in my family. I need to be able to find work. Australia is a country that accepts disabled people. That is why I chose to come here.
As I said discrimination against disabled people is engraved in Malaysian society. The authorities I believe will not do anything to help us. It was a government department that actually discriminated against me when I applied for a position in their [department]. It was the [Employer 1]. So I do not believe the authorities can help given that they also are part of the systemic discrimination.
I believe and from my experience moving from one state to another, that discrimination will occur and has occurred to me. Relocating will not change the mindset of the wider Malaysian community against my class of persons.” [mistakes in original]
The Department did not interview the applicant.
On 20 August 2020, the delegate determined that the applicant’s claims and evidence did not meet the criteria for refugee status or protection under the Act. Specifically, the delegate found that the circumstances which the applicant described as discriminatory did not meet the threshold for serious harm under s5J(h) of the Act. The delegate considered that the provision of a disability card by Malaysian authorities amounted to official recognition of his disability and the existence of support mechanisms for it. The delegate relied on country information to determine that people with disabilities are supported in a range of ways in Malaysia. The delegate also considered that the applicant had been able to live for three years with a disability in Malaysia following his accident and there was no evidence to indicate he suffered harm as a result. Consequently, the delegate found that the applicant was not at risk suffer serious harm amounting to persecution because of his disability for the purposes of 5H of the Act. For similar reasons the delegate did not consider that the applicant was at risk of significant arm under section 36(3)(aa) of the Act and determined he did not satisfy the criteria for complementary protection.
The applicant applied for a review of the delegate’s decision on 20 August 2020.
Evidence before the Tribunal
The applicant did not add to or amend his claims in his pre-hearing form.
At the hearing on 3 March 2025, the Tribunal had before it:
1.The Departmental file related to the original application for protection, which included the original application for protection and delegate’s decision.
2.The Tribunal file including all communications, submissions and information exchanges with the applicant following his application for review.
3.The Tribunal file which included the applicant’s ‘pre-hearing information’ form.
4.Country Information Report for Malaysia, issued by the Department of Foreign Affairs & Trade (DFAT);[1] and
5.DFAT ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.[2]
6.Other country information about Malaysia, relevant to the applicant’s claims, some of which is extracted below, and which is otherwise footnoted through this decision.
Country information
[1]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.
[2] Ibid.
Information about disability discrimination and support in Malaysia before the Tribunal contained, inter alia, the following extracts.
In the June 2024 DFAT Country Information Report for Malaysia the Department reported the following:[3]
Health
Malaysia has a well-established universal health care system which is accessible to most of the population. Health facilities are generally available within a five kilometres radius in urban centres. Healthcare is less available outside major cities, especially in Sabah and Sarawak. Healthcare for Malaysians is generally affordable: in-country sources reported that Malaysians can pay as little as MYR 1 (AUD 0.33) for a doctor’s
…
People living with disabilities (PLWD) in Malaysia often face challenges in daily life. UNICEF reports that PLWD, especially children, are often hidden, portrayed negatively or excluded from society, face daily stigma and discrimination, and are prevented from accessing their rights due to gaps in legislation.
…
Malaysia is party to international human rights instruments including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD).
[3] June 2024, 2.11-2.13,
The 2024 DFAT country report for Malaysia did not contain any information on public welfare. This can be found in the department’s December 2019 report, extracted as follows:[4]
The Department of Social Welfare, Ministry of Women, Family and Community Development, provides financial support to … the economically disadvantaged, children, people living with a disability … and the otherwise vulnerable.
According to media reporting, the government approved the introduction of unemployment benefits including allowances and support for training in October 2017. Businesses and NGOs also have various programs to support the poor; the ‘Mykasih program,’ a private sector program which is assisted by the government, also provides a platform to give food aid to the poor through a centralised system (the platform allows people to use their MyKad for payment at selected supermarkets). Malaysian culture places significant emphasis on family support. Food kitchens are available within large cities to alleviate urban poverty and homelessness. Government-provided shelters are also available.
[4] 3.149-3.150
In the 2023 US Department of State Country Report for Malaysia (published in 2024), the following was stated about disability in Malaysia:[5]
PERSONS WITH DISABILITIES
Some persons with disabilities could not access education, health services, public buildings, and transportation on an equal basis with others. The law, however, promised persons with disabilities the right to equal access and use of public facilities, amenities, services, and buildings open or provided to the public. The Ministry of Women, Family, and Community Development was responsible for safeguarding the rights of persons with disabilities.
New government buildings generally had a full range of facilities for persons with disabilities. Authorities retrofitted few older public facilities to provide access for persons with disabilities.
The government did not mandate accessibility to transportation for persons with disabilities. Recognizing public transportation was not “friendly” to persons with disabilities, the government maintained a 50 percent reduction of excise duty on locally made cars and motorcycles adapted for such persons.
Employment discrimination occurred against persons with disabilities. Disability-rights NGOs reported that employers were reluctant to hire persons with disabilities.”
[5] USDOS - US Department of State: 2023 Country Report on Human Rights Practices: Malaysia, 23 April 2024 [accessed 4 March 2025]
On an official Malaysian Government website from 2025 lists the following services available to “persons with disabilities” in Malaysia:[6]
[6] MyGOV (Malaysia) “FACILITIES, WELFARE & HEALTH CARE | Getting Welfare Assistance | Applying Financial Help | Acquiring Support for Disabled” [accessed 4 March 2025]
Education
§CBR [Community-Based Rehabilitation] trainee allowance
§IPTA (Public Universities) and IPTS (Private Universities) financial assistance
§PPKI allowance
Exemptions
§Medical fee
§Road tax
§Identity card document replacement fee
§Tax exemption for disabled people
§Home line phone
§Zoo Negara tickets
Welfare
§Financial assistance for artificial aids and assistive devices
§Financial assistance for carers of bed-ridden disabled and chronically ill
§Financial assistance for persons with disabilities who are incapable of working
Job Support
§Disabled worker allowances
§Launching grants
§1% PWD policy
§PWD placement system
§Business scheme financial support for disabled
Discount
[various discounts for public and private transportation, utilities, goods and services]
Hearing
At the hearing, the applicant gave evidence about his background in Malaysia and Australia. The Tribunal considers the applicant to have been a generally honest and reliable witness in respect of that evidence, which is set out in the background section above (paragraphs ‎4. - ‎14.).
The applicant described his disabilities to the Tribunal and sought to show evidence of limited movement to his arm and wrist. He explained that he has a plate in his [leg], although the plate in his arm has been removed. He said that this means that he cannot “straighten up like normal people” and compared the movement in his left hand to his right. The Tribunal observed that the applicant had more limited movement in [one] hand than [the other] but was still able to move that hand up and down on the camera. The Tribunal does not consider that an ordinary person would detect the level of limited movement presented as being substantial, much less associated with a disability, unless it was pointed out to them.
The applicant said that, following the accident, the doctor told him that he “might be walking limping and that my arms will not be as strong as before and that I’m no longer normal”. Asked what his current physical limitations are he said that “I can't do anything that involves running [and] I can only do lifting because my leg isn't perfect anymore and I couldn't lift anything too heavy with my arms”.

In respect of the applicant’s claims, he reiterated that he fears returning to Malaysia due to discrimination in employment, and by consequence not being able to support himself or his family. He maintained that his disability was the primary reason he was unable to secure work in Malaysia before leaving and that this situation would persist if he was forced to return.
Consistent with his claims in his original application the applicant told the tribunal he had applied for “a few jobs through different companies before [in Malaysia] but didn't end up getting employed”. After the questioning of the Tribunal, the applicant clarified that he had only made two separate job applications: one as part of a graduate intake of [job roles] at [an employer 1] (of which three graduate positions were on offer) and another for a [job task 1] role at [an Employer 2].
With respect to the graduate public service roles the applicant said that “out of thousands of candidates, they contacted me for an interview, but I was upfront with them about my disability during the interview, so they told me that they'd get back, but I've never heard back from them since, even until now.” When asked what that interview process involved, the applicant described an interview process where multiple graduate candidates were assessed together in a group setting by division representatives for each available role. He said that he was told he would be informed about his application but complained no one has contacted him about it to this day.
The Tribunal highlighted to the applicant that he had no experience relevant to the graduate roles he had applied for, having only partly completed [a subject 1] diploma before dropping out. The Tribunal noted that, as all three roles were for the same organisation’s graduate intake process, they were likely to have similar selection criteria, and he may have not been the most qualified candidate. The applicant was asked if this could have been a factor which led to him not being selected. The applicant’s response was that the only requirement for that role was an SPM (high school diploma), which he held. The Tribunal later pointed out to the applicant that it was pointed out that being eligible for a job is not the same as being the most qualified for the job. The applicant accepted this but insisted that his disability was a factor in his rejection, stating, “the government says they have a quota for disabled people, but it’s not happening in real l life. If we don’t get those jobs, is this not discrimination?”.
The applicant was asked why he believed he was discriminated against in respect of the graduate role he applied for when it would not have required him to run or lift heavy objects. The applicant’s answer to this question was, at first, confusing, in that he stated (or was interpreted to state) that he had been the only person “called into an interview”. After questioning as to whether this could be correct, or he could know he was the only one interviewed he stated, “I'm the only person being shortlisted for an interview for all the [graduate] positions offered by the [employer 1] … but when I speak about my disability, they didn't dare to hire me … that’s my opinion”. The applicant did not otherwise indicate how he knew that his disability had been a factor in his not being selected for the graduate role.
Regarding the [Employer 2] job, the applicant stated that he was contacted for an interview but was not selected. Asked why not being offered this job revealed discrimination against him he stated “because I could see a lot of people with a disability asking for money on the street and I could see a poster near Metro News indicating that people in this category are still discriminated [against]… I read from news, and I could see when I was on trains in Kuala Lumpur that people in this group were asking for money”. Asked why he thought he was within a category of people who would have to beg for money because of their disability, the applicant responded, “I didn’t want to ask for money, that’s why I came to Australia”. At another point in the hearing, the applicant highlighted the plight of persons with hearing impairment and autism in Malaysia as evidence that he would be discriminated against on his return. The applicant did not otherwise address the question of how he knew his disability contributed to his not being selected for the [Employer 2] job.
The Tribunal noted that the applicant that he had not been employed in any clerical or administrative jobs in Australia only physical ones. The Tribunal put to the applicant that the work he has managed to secure in Australia does not serve to prove he was discriminated against in the graduate positions he applied for in Malaysia. The applicant was asked why he thought that could not obtain similar work in Malaysia to the work he has being doing in Australia. The applicant said that there were no such opportunities in Malaysia, and that even if there was “the pay would be very low and the companies there tend to hire people from overseas like Indonesia and Bangladesh”. The Tribunal asked whether this indicated that his concern was more about lower earnings rather than an outright inability to find work, to which the applicant responded, “No, I just couldn’t get a job at all.”
The Tribunal also explored how the applicant supported himself in Malaysia before leaving. He stated that he was financially supported by his family while recovering from his accident and during his unemployment. He stated, “Because I’m getting older, I can’t just keep taking money from my family anymore.”
The Tribunal asked the applicant about his delay in applying for protection in Australia, as he had arrived in 2016 but only lodged his application in 2019. The applicant responded, “When I came here, I was very young and naïve. I didn’t know what Australia was offering. I just wanted to forget about the accident and bring back my mental state. I only found out about this opportunity later on. If I had known earlier, I would have applied then.”
The Tribunal put to the applicant that Malaysia has various disability support programs, including training programs, disability allowances, and public transport subsidies. The applicant stated that he was not familiar with these initiatives but believed that they were not effective in practice. He added that, as the eldest child, he was responsible for supporting his parents, siblings, and future wife and that financial assistance alone would not be enough. He stated, “All I’m asking for is actually a job. That is better than any support I can get. I would like for a job.”
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). In MIAC v SZQRB,[7] the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition, namely ‘one that is not remote or insubstantial or a far-fetched possibility’. However, unlike the refugee criterion, the Act only requires that a real risk exist, and not that the applicant have a subjective fear of that risk occurring.[8] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
[7] (2013) 210 FCR 505.
[8] DCR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 501 (17 April 2020) [278]).
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Having reviewed all the claims and evidence presented the Tribunal makes the following findings.
Disability and functional capacity
The Tribunal accepts the applicant’s evidence that he has a permanent physical disability, which is documented in Malaysian official records and has been the basis for his receipt of a disability card and financial compensation for injuries.
The Tribunal accepts that persons who live with disabilities may be members of a social group for the purposes of 5J(1) of the Act. However, the Tribunal does not – to the extent the applicant’s claims and evidence may have suggested it – accept that all people who live with disabilities are a homogeneous social group. To be more specific, the Tribunal does not accept the applicant’s attempt to prove discrimination against him by reference to people who live with different forms of disability; for instance, comparing his experiences and risk profile to persons who live with visual impairment or autism.
It is, in the Tribunal’s view, wrong and, indeed, discriminatory to treat all disabilities as being the same or being subject to the same physical, mental, or social impairments for those who live with them. As the World Health Organisation explains in the World Report on Disability:[9]
The disability experience resulting from the interaction of health conditions, personal factors, and environmental factors varies greatly. Persons with disabilities are diverse and heterogeneous, while stereotypical views of disability emphasize wheelchair users and a few other “classic” groups such as blind people and deaf people…. Generalizations about “disability” or “people with disabilities” can mislead. Persons with disabilities have diverse personal factors with differences in gender, age, socioeconomic status, sexuality, ethnicity, or cultural heritage. Each has his or her personal preferences and responses to disability. Also while disability correlates with disadvantage, not all people with disabilities are equally disadvantaged.
[9] World Health Organisation, World Report on Disability(Report, 2011), 7-8.
This is also true at a country level in Malaysia, with a study of Malaysian employers’ attitudes to disability concluding that, based on a meta-analysis of the available literature, and specific qualitative research “the type and severity of disability may affect the extent to which persons are hired” with the data showing that employers in that country were more reluctant to hire individuals with mental than physical impairments.[10] Similar observations were made by the UNDP in its review disability discrimination data for the Asia-Pacific region finding that “the disability gaps generally widen as the severity of disability increases”, meaning persons with more severe disabilities are significantly less likely to be employed in the labour forces of countries such as Malaysia compared to persons with less profound disabilities.[11]
[10] Zam, et al. “Employers’ Attitude Towards Hiring Disabled Persons” (2009) 6:1 Journal of Administrative Science,
[11] United Nations Development Program, Fostering Disability Inclusion and Business Integrity in ASEAN (UNDP, 2023).
This is particularly relevant because, the applicant’s claims are, by virtue of the nature of the application, addressed not only to his grouping, but his particular social grouping to the extent that group shares a particular experience of social persecution in respect of a shared attribute. As Lockhart J explained in Morato:[12]
In my opinion for a person to be a member of a “particular social group” within the meaning of the Convention and Protocol what is required is that he or she belongs to or is identified with a recognizable or cognizable group within a society that shares some interest or experience in common.
[12] Morato v Minister of Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at 416, emphasis added.
In Re Gustavo Black CJ explained:[13]
The word "social" is an essential part of the definition and cannot be ignored as mere surplusage. At the very least, a particular social group connotes a cognisable group in a society, and cognisable to the extent that there may be a well-founded fear of persecution by reason of membership of such a group.
[13] Re Gustavo Carlos Saavedra Morato v Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 637, [20] (Black CJ).
Given that a principal integer of the applicant’s claim centred upon discrimination, and noting that discrimination will vary depending on the character and severity of a disability it is the Tribunal needs to identify with some precision, or more appropriately “particularity”, what the disability is and the level of impairment it generates for the applicant before determining what, if any, social class they are in.
The Tribunal observed some limitations to the applicant’s movement but does not consider these were profound or severe. In the original application, the applicant stated that his rehabilitation had taken two years but stated that rehabilitation had allowed him to “recover fully”. While he stated in that application that he walked with a limp, he did not make that claim at the later hearing and only said that the treating doctor told him he might walk with a limp and that his leg isn’t perfect anymore. The applicant also gave evidence about undertaking a wide range of physically demanding jobs since arriving in Australia, including [job tasks 2-5]. All these jobs involve strenuous exercise, and require upper and lower body mobility, dexterity, and strength. The applicant agreed that this was the case and did not provide any documentary or other evidence to suggest that undertaking those activities had been beyond his physical ability or had harmed him in any way.
The Tribunal finds that the applicant has some mild physical impairments which do not significantly restrict his mobility, require medical assistance, or affect his capacity for employment, or independent living. On that basis, the Tribunal accepts that the applicant is a member of a particular social group of Malaysians living with a mild physical disability. For the avoidance of doubt, that means the Tribunal does not consider the applicant to be a person living with severe or profound disability, developmental delay, cognitive impairment, or any other type of disability defined by substantial functional impairment or systemic social marginalisation in Malaysia or elsewhere.
Finding in relation to delay seeking and applying for protection
While the Tribunal accepts the applicant has a disability, it considers the significant delays taken to seek protection in Australia to be relevant to the weight given to his claims and evidence. The applicant remained in Malaysia for over a year after fully recovering from his accident. After arriving in Australia, the applicant waiting another three years before applying for protection.
The applicant explained his delay in applying for protection was on the basis that he was initially unaware of the protection visa process, that he wanted time to mentally recover from his accident, and that he only later came to understand the process. The Tribunal has considered that explanation but finds it unreasonable in the circumstances of such a prolonged delay. The applicant admitted that his departure from Malaysia was enabled by a financial payout and job opportunities from a friend in Australia, rather than an urgent need to escape harm. Likewise, his decision to remain unlawfully remain in Australia for several; years without regularising his status further undermines his claim that he feared returning to Malaysia. The Tribunal considers that, given his prolonged unlawful presence, integration into the community and connection to social and work networks, he had ample opportunity to become aware of and seek protection if that had been his genuine intention.
The Tribunal finds that the applicant’s explanations do not adequately account for the extent of his delay, and that his overall conduct is inconsistent with someone seeking urgent protection from persecution or significant harm. The Tribunal gives limited weight to the depth and genuineness of the applicant’s claims to fear serious or significant harm in Malaysia or the evidence he has presented to support those claims.[14]
Disability discrimination in employment
[14] Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347, 349 (Heerey J).
The applicant claims to have applied for “several” and “a few” jobs in Malaysia and was consistently denied employment because of his disability. While it is not technically untrue that there were numerous jobs applied for, the Tribunal considers the applicant to have overstated his job seeking efforts. Specifically, the Tribunal finds that the applicant responded to two separate recruitment opportunities, one which was a graduate intake with three clerical placements on offer; the other which was a shop assistant role.
In his original application, the applicant acknowledged that he had “no qualifications” in Malaysia, other than his high school certificate (SPM). The applicant’s evidence also indicates at that time the applicant had no experience in administrative/clerical work or shopkeeping when he applied for each respective job opportunity. He had studied and not completed a course in [subject 1], something unrelated to the roles he applied for. While the Tribunal accepts that those roles required very basic qualifications, it considers that relevant experience, skills, and qualifications would still be influential in the employer decision of which candidate (if any) to hire. The applicant agreed that there were other candidates for the roles and there is no objective evidence before the Tribunal that other candidates were not more suitable or professionally preferable.

The Tribunal did not find that the applicant’s assertions that discrimination was the reason he was not recruited to the roles he applied for in Malaysia to be compelling. His responses to the Tribunal’s concerns on this point were generalist and abstract, referring to broad government policy, inapt comparisons, and general social observations without reference to the specific events he complained about. In the case of the shopkeeping role, the applicant chose not to respond to the Tribunal’s concerns about this issue at all.
The Tribunal also does not accept that the applicant’s ability to secure work in Australia is comparative evidence of discrimination in Malaysia. His initial work in this country involved unskilled (cash) physical labour, which is a different category of work than what he had applied for in Malaysia. Over time, as he developed experience and skills, the jobs the applicant secured became more complex. However, even after he secured a legal entitlement to work in Australia, he continued to be employed in unskilled employment of a different category to the graduate roles he applied for in Malaysia. While the applicant’s more recent employment has become more specifically skilled and complex, that is only after substantive work experience and career development. So much is to be expected, as is the inverse – that when the applicant had few skills, little experience, and no career development, he would not have been as attractive to employers in either country as he is now. Indeed, given he says discrimination does not affect his employment in Australia, but that he was unable to find anything but unskilled jobs in his early career here, it can be said that it is his experience and skillset which influence his ability to secure work, not his disability.
Finally, having found that the applicant only applied for two recruitment offers in Malaysia, it is not satisfied that, when all the other factors are considered, this constitutes proof of systematic discrimination. The applicant’s claims rest on an extremely limited sample of job applications, unsupported by any compelling evidence that even these applications were specifically affected by discrimination. Employment decisions, particularly graduate intake positions, are influenced by multiple factors used to determine candidate suitability that are unrelated to disability. While the applicant nominally accepted that suitability might play a part in recruitment, he continued to argue that, because he did not receive an offer of employment, and because he has a disability, these two things must be related. The Tribunal does not accept that. Similarly, recruiters notoriously fail to inform or “ghost” candidates they have not been recruited, for various reasons (and largely because of poor practices), of which discrimination is not identified as a common factor.[15] The Tribunal is not satisfied that there is any other evidence that might suggest the lack of communication about a graduate recruitment process many years on is anything other than poor practices as opposed to evidence of discrimination.
[15] Connie Zheng “Recruiters and Jobseekers are ‘ghosting’ each other. Why” (2024) The Conversation (5 March 2025)
The Tribunal considers the most plausible reason the applicant was not employed in Malaysia because of a combination of the very few roles he applied for, his unsuitability of those roles, competition, and potentially other employer or market factors which do not relate to his disability. The Tribunal finds there is insufficient objective evidence before it that the applicant was personally or systemically discriminated against in employment in Malaysia.
Having found that there is no history of past discrimination against the applicant in relation to employment in Malaysia the Tribunal considers he faces a future risk of that form of discrimination. The Tribunal acknowledges the country information does indicate that people living with disability may face certain social and structural barriers, including in employment. However, the Tribunal does not interpret this information to suggest that all disabled persons experience the same level of discrimination or are systematically excluded from the workforce. The Tribunal finds the evidence to be that experience and treatment varies as a result of the nature and severity of the disability.
The Tribunal finds that the available country information indicates that the degree of disadvantage faced by persons disabilities varies depending on the nature and severity of the impairment. Reports indicate that persons with severe or profound disabilities that materially impair functional capacity face significant barriers to employment. The Tribunal has found that the applicant is not a member of that particular social group. Even acknowledging that he has a mild physical disability, the applicant has demonstrated that he is highly functional and physically capable of performing demanding physical labour using his whole body. In the Tribunal’s view, the country information does not support a contention that the applicant would face systemic discrimination in employment based on his disability label or because of the minor impairments it produces.
The Tribunal notes the wide range of vocational training and employment assistance programs for persons with disabilities in Malaysia. They include financial allowances, workplace integration initiatives, and priority access to vocational training (see paragraph ‎24.). While the Tribunal does not find it necessary to determine whether the applicant would require access to such programs – not least because of the skills and experience he has developed while working in Australia – it does find that he has not demonstrated that these protections and programs would be unavailable to him or insufficient to enable him to secure work if he did need them.
The Tribunal finds that the only identifiable limitation on the applicant’s ability to secure work in Malaysia, specific to him, is his educational background (which the Tribunal addresses below from paragraph 74). The Tribunal is not satisfied that the applicant would face systemic barriers to employment in Malaysia because of his disability.
General disability discrimination
While the applicant did not press his broader complaint about general stigmatisation and discrimination from his original application in the hearing, the Tribunal considers it here for completeness. The applicant claimed that people in Malaysia viewed him as abnormal due to his disability, that he was stared at in public, and that he experienced emotional distress.
The Tribunal acknowledges the perceptions of the applicant and others and the distress he experienced. However, it does not accept that the applicant’s evidence establishes he faces a real risk of facing future societal discrimination to a degree that would materially affect his living experience, rights, or otherwise ability to function in Malaysia in comparison to people who are not members of his particular social group.
The Tribunal considers the applicant’s significant delay in seeking protection limits the weight that can be placed on his evidence regarding the severity and effect of societal discrimination. If the applicant had been so profoundly affected by discrimination that he feared returning to Malaysia, it is reasonable to expect that he would have sought protection when or soon after he arrived. His three-year delay in making an application is taken by the Tribunal to mean that, what stigma he did experience did not have a lasting or overriding effect on his ability to live in Malaysia or weigh on his mind after he left such that he made serious efforts to obtain protection from return. That satisfies the Tribunal that the harm or threat of harm the applicant faced from perceived or actual prejudice in Malaysia was not “so oppressive or recurrent that a person cannot be expected to tolerate it” as expected by the Convention and therefore Act.[16]
[16] Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, 20 (McHugh J)
The Tribunal has also carefully considered the applicant’s disability and its impact on his daily functioning. The applicant was injured in a motorbike accident more than a decade ago from which he says he is “fully recovered”. The Tribunal observed that the applicant is independently mobile, cognitively unimpaired, and has no discernible characteristics which might visibly single him out for systemic stigmatisation. The applicant identified that he is socially competent and has an active friendship network in Australia and Malaysia and close connections with his family. The applicant’s observed characteristics, as well as his own evidence about his impairments, are not of the type that are associated with systemic general disability discrimination in Malaysia.[17] As with the country information on employment, the applicant is not part of the particular social groups which are associated with structural or social barriers because of discrimination in Malaysia.
[17] United Nations Malaysia, Policy Context Around Disability in Malaysia (Issue Brief, December 2019), 2; Zam, et al. “Employers’ Attitude Towards Hiring Disabled Persons” (2009) 6:1 Journal
There is no objectively compelling evidence before the Tribunal to indicate the applicant was subject to mistreatment, harassment, or exclusion beyond his perception of how others viewed him. Nor is there any objectively compelling evidence that he was prevented in participating in society, accessing services, or engaging in daily life. The evidence does indicate that the applicant was able to live independently in Malaysia for several years after his accident, move states, engage in education, receive comprehensive health care, rehabilitation, legal compensation, and engage in normal social and economic activities. The Tribunal is not satisfied the applicant was deprived of access to essential services, treated differently by authorities, or denied necessary support. Nor is the Tribunal satisfied that the country information, or any other evidence, indicates a risk of these things happening to the applicant in the future because of his disability.
The Tribunal finds the applicant is not at risk of systemic general discrimination in Malaysia because of his disability now or in the reasonably foreseeable future.
Economic Hardship
Having found the applicant will not be systemically discriminated against in employment in Malaysia the Tribunal considers the residual claim that the applicant will experience economic hardship upon return. The applicant has identified his lack of qualifications, lack of professional networks, and competition in the low skilled job market. He also said variously and inconsistently that these factors would mean he would not be able to get “any work” as a result and the wages he would be paid are “not enough to live on”.
The Tribunal accepts that the economy in Malaysia may not be as strong as Australia, and that employees there may not receive the same level of compensation for their work. However, the Tribunal does not accept that the applicant will not be able to find employment or subsist in Malaysia on the evidence before it. The most recent DFAT Country report on Malaysia states relevantly:[18]
The World Bank classifies Malaysia as an upper middle-income, export-oriented economy. In 2022, real GDP growth was 8.7 per cent and per capita GDP was USD 11,993 (AUD 18,000). Since Independence, Malaysia has transformed from a commodity-based economy … to a leading producer of electronic parts and electrical products, oil and natural gas, and a variety of other manufactured products. Malaysia has also developed its service sector, which now contributes half the country’s economic growth. … …In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic. There are labour shortages in many sectors …
[18] Department of Foreign Affairs and Trade Country Information Report Malaysia – June 2024, 2.14-2.9.
The Tribunal does not consider the country information supports the applicant’s claims that he will be totally and persistently unemployed or so poorly paid that he will not be able to subsist. The applicant is relatively young, physically fit, and capable of working in mentally and physically demanding work. He has much more work experience in diverse fields to rely on, compared to no experience at all when he left Malaysia. This places him in a strong position to obtain employment in a strong economy experiencing labour shortages. The Tribunal does not accept that networks are the only way to obtain work in an economy like Malaysia based on the country information before it. Regardless, the applicant lived in the country for most of his life, has permanent family and friends there and as such the Tribunal finds the applicant does have an in-country network.
The Tribunal considers that the applicant’s current skillset does make him competitive in a job market with labour shortages. While he may not obtain work immediately, the evidence is that he has support networks in place in Malaysia. While nominal wages in Malaysia are lower than in Australia, there is a substantial difference in the price level indices[19] and costs of living in each respective country (Australia is approximately 135.5% more expensive to live in than Malaysia accounting for a 267% difference in rental costs).[20] The Tribunal does not accept that there is a lack of work opportunities in Malaysia, nor that the work available would provide insufficient compensation to allow the applicant to subsist. The applicant may feel uncomfortable relying on his family, but they have proven themselves able to support him through challenging times and there is no compelling evidence before the Tribunal to indicate they would not be able to do so in the future. As set out above there are public assistance in place in Malaysia to assist the applicant to re-enter the workforce.
[19] Organisation for Economic Co-operation and Development Price Level Indices (OECD Data Explorer) Cost of Living Comparison Between Malaysia and Australia, as at 7 March 2025, < > (6 March 2025); Data source for each respective country at OECD Data Explorer (note 19).
The Tribunal is satisfied that the applicant would have work available to him. The Tribunal finds that the applicant can undertake a wide range of work in Malaysia, including, but not limited to, the types of jobs he has undertaken in Australia. The Tribunal considers that the applicant would be able to subsist on the work available and, until he is able to obtains it, access suitable alternative financial supports. The Tribunal is not satisfied the applicant will face serious or significant economic harm as a foreseeable consequence of being returned to Malaysia.[21]
[21] Act, 5J(5)(f); SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 143.
Conclusions about real chance/risk of harm
While the Tribunal has accepted the applicant is a member of a particular social group which falls within the remit of the Convention and therefore refugee criteria of the Act, it has not found the applicant faces a real chance of being harmed because of systematic and discriminatory conduct towards that attribute. The Tribunal does not consider that, on the totality of the materials before it, and the weight given to the late claims made and evidence presented, there is evidence the applicant would face a real chance of harm for a convention reason, as a foreseeable consequence of being returned to Malaysia.
The Tribunal is also not satisfied on the all the evidence before it that the applicant would face a “real risk” (being definitionally equivalent to real chance) of experiencing the specific types of significant harm that are exhaustively defined in s 36(2A) of the Act,[22] if he is returned to Malaysia.
[22] Act, 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.
FINDINGS AS TO REFUGEE AND COMPLEMENTARY PROTECTION
The Tribunal has found there is no real chance the applicant will face serious or significant harm in the reasonably foreseeable future if he is retuned to Malaysia. Given satisfaction about each respective form of harm are separately necessary criteria for the establishment of refugee and complementary protection, the Tribunal finds that the applicant is not a person to whom Australia owes protection obligations under s 32 of the Act.
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of Hearing: 3 March 2025.
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.
…

of Administrative Science; Nadzirah Abdullah et al “The Rights of Persons With Persons With Disability in Malaysia : The Underlying Reasons for Ineffectiveness of Persons with Disabilities Act 2008” (2017) 1 International Journal for Studies on Children, Women, Elderly and Disabled 127, 129; UNDP, Fostering Disability Inclusion and Business Integrity in ASEAN (2023).