2013953 (Refugee) - [2025] ARTA 1153

2013953 (REFUGEE) [2025] ARTA 1153 (7 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Dr Nathan Stephen Willis (MARN: 1467692)
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2013953
Tribunal:General Member K Hoang
Date:7 February 2025

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

Statement made on 07 February 2025 at 11:07am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – ethnically Malay – Religion – Catholic Christian – conversion to Islam – membership of a particular social group – young Christian girls from Malaysia who fear sexual harassment from Islamic members – forcible circumcision – harm from the man whom her stepfather wanted her to marry – not satisfied that the applicant faces a real risk of serious or significant harm – not satisfied the applicants have a well-founded fear – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 351, 367, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
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 14 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 15 January 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 3 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. With the consent of the applicant and the Tribunal, two observers were also present.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee or complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is [age] years old. She was born in Sandakan, Sabah and she is ethnically Malay. She listed her religion as being ‘Islam’ in her protection visa application, however, she confirmed at hearing that her current religion is Catholic Christian.[1] She stated at hearing that she currently practices her religion by doing bible study at home and her father-in-law is a pastor at the church she currently attends.
[1] The applicant also stated in her supplementary declaration of 5 November 2024 that she is a Catholic Christian.
With respect to her family back in Malaysia, the applicant gave evidence at hearing that her biological father left the family when she was [age] old. She has never seen him since. Her mother currently resides in Kuala Lumpur.
The applicant’s mother married her stepfather, Mr [A], ‘on or around the end of 2012’ in Sandakan, after which she and her mother were forced to ‘denounce their Catholic Christian religion and convert to Islam’.[2]
[2] Supplementary statement of the applicant, 5 November 2024, p 1.
At hearing, the applicant confirmed that she moved from Sandakan to Kuala Lumpur when she was [age] years old where she found a job that provided her with hostel accommodation. She said that this was ‘up in the hills’ surrounding Kuala Lumpur. After two years the applicant moved Kuala Lumpur where she worked and rented a place with her friend. The applicant worked as a [occupation] when she moved to the hills, and then worked as a ‘[role]’ until the middle of 2019.
The applicant arrived in Australia on [date] November 2019 on a tourist visa. She said that she travelled to Australia by herself, and she funded the travel by herself. The applicant gave evidence that she used Google Translate to prepare her protection visa application, and that she understood what was in her protection visa application.
The applicant applied for a protection visa in January 2020.
She married an Australian citizen [Mr B] [in] October 2021. They do not have any children.
Based on the oral and documentary evidence before me, I accept the above to be reflective of the applicant’s circumstances.
RELEVANT LAW
The relevant law governing the criteria for the grant of a protection visa are set out in the Attachment.
CLAIMS AND EVIDENCE
Evidence before the Department
In her protection visa application, the applicant made the following claims:
I am making this visa application out of sheer desperation as I fear for my life and syariah (Islamic law) prosecution. I was a born Catholic in Malaysia. My mother brought me up as a single mom. I do not know who my father is. All the while up to the age of [age] we practised our religion freely although we were often discriminated by the majority Malay Muslim community. But it was bearable and we got use it.
However at the age of [age], my mother got married to a man, [Mr A] a Moslem who practised Islam. My mother and me had told this man very clearly that we wanted to remain as Catholic after marriage. This was agreed by the Muslim Imam (the priest in our village). With this agreement my mom agreed to marry him. However within a week after the marriage the Imam together with the village heads summoned our family to the mosque. In this mosque the Imam and elders gave my mother and me an ultimatum to convert to Islam and denounce our religion.
We pleaded but we were threatened with severe Islamic prosecution including physical harm. My mom feared for my safety and was worried that the men would target me for sexual harassment. This is common in the village involving catholic and Christian girls.
My mom then agreed and I had no choice but to agree. My step father did not intervene despite our cries. However we continued to practise our ways under constant threat. We refused to wear the veil and we were always threatened.
After years of living in fear, my mom and me escaped. She has left and went to the [Country 1] and I came here to Australia. The religious authorities have black listed our names. In the event we return we face the risk of blasphemy, insulting the religion and for not following the Islam way of life. We will be severely punished. Jail/forced into Islamic institution to assimilate us or if we disagree we could face severe punishment. Some say mysterious disappearance.
I just want to be free to practise my god forasaken right to practise my religion as a catholic, be safe as a law abiding person and most of all I want to be alive.
The applicant was not offered an interview by the Department.
The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
The delegate found that the applicant had been practising her Catholic faith for several years despite being a Muslim. The delegate found that the applicant did not indicate that she had been previously harmed or prosecuted for not following the Islam way of life and practising Christianity. Having regard to country information — which suggests that the Federal government does not want to enforce severe punishment such as a death penalty for apostasy, and that Malaysians can practice their religion despite having Islam as the religion of the Federation — the delegate found there is not a real chance will face serious harm if returned to Malaysia.
It was for the same reasons that the delegate found there to be no real risk of significant harm to the applicant as a necessary and foreseeable consequence of removal from Australia to Malaysia.
Evidence before the Tribunal
Prehearing submissions
The applicant’s representative provided the following documentary evidence in his pre-hearing submissions:
·Legal submission to the ART, dated 26 November 2024;
·Copy of a tax return under the name of [the applicant];
·Copy of a joint bank statement account for the applicant and Mr [B];
·Copy of a Queensland marriage certificate issued in respect of the applicant and Mr [B], dated [date] October 2021;
·Superannuation beneficiary form in which the applicant is the nominated beneficiary in respect of Mr [B]’s superannuation, dated 9 June 2024;
·A statutory declaration from Mr [B] in respect of his relationship with the applicant, dated 11 November 2024;
·A statutory declaration from the applicant his respect of her relationship with Mr [B], dated 14 November 2024;
·A ‘supporting statement in relation to a Partner or Prospective Marriage visa application’ (Form 888) from [name];
·A ‘supporting statement in relation to a Partner or Prospective Marriage visa application’ (Form 888) from [name] and a copy of her passport;
·Supplementary statement from the applicant in respect of her claims for protection, dated 5 November 2024;
·A hearing submissions declaration from the applicant, dated 18 November 2024, in which the applicant declared that ‘the written submissions have been explained to me. These submissions accurately and completely represent my claims’;
·DFAT Country Information Report on Malaysia, dated 24 June 2024;
·Open doors International, World Watch Research: Malaysia, dated January 2024;
·USCIRF – Annual Report 2024, Malaysia, Recommended for Special Watchlist; and
·US Department of State, Malaysia 2023 International Religious Freedom report.
In the representative’s submission, it was argued that the applicant has a well-founded fear of persecution in Malaysia owing to her religion as a Christian (Catholic) in Malaysia and her membership of a particular social group being ‘young Christian girls from Malaysia who fear sexual harassment from Islamic members’.[3]
[3] Representative’s submissions, 26 November 2024, p 2.
The submission argued that ‘Malaysia is increasingly unsafe for religious minorities such as Catholic Christians’ and that the increasing Islamisation of Malaysia makes it increasingly dangerous to practise Catholic Christianity’[4] It was submitted that the applicant would face discrimination and be at risk of significant harm, were she to return to Malaysia.
[4] Representative’s submissions, 26 November 2024, p 6.
In respect of her membership of a particular social group, the representative submitted that the applicant was a ‘victim of sexual harassment from her Islamic stepfather, who also attempted to arrange a marriage for her against her will’, and if returned to Malaysia, the applicant ‘would be at significant risk of significant harm from Islamic men in the community’.[5]
[5] Representative’s submissions, 26 November 2024, p 8.
Further, it was submitted that the applicant’s case is appropriate for ‘the Tribunal to make a recommendation to the Department to refer this matter for Ministerial Intervention pursuant to s351 of the Act’. I will return to these submissions later in my decision.
Conversion to Islam
At hearing, I asked the applicant about her mother’s relationship with her stepfather. The applicant gave evidence that her mother was very obedient to him, because they had grown up poor, and her stepfather had money and provided everything for them. The applicant’s stepfather was very wealthy owing to the [business] that he ran.
The applicant and her mother moved in with her stepfather when she was around [age] years old. I asked the applicant what it was like living with him. The applicant said that they were forced to perform prayers 5 times a day and read the Koran. Her stepfather would beat her with the Koran if she did not pronounce things properly.
The applicant said that she and her mother still considered themselves Catholic and continued to go to church without her stepfather’s knowledge. They would go to their church when her stepfather was busy with his business, such as when he was sorting out stock that had arrived from [overseas].
I referred the applicant to her documentary evidence that her mother and stepfather married at the end of 2012. The applicant said it was a civil marriage. They were married in an office and then registered the marriage. The applicant said her stepfather had agreed that after the marriage, her mother could retain her religious beliefs and there will be no changes. However, sometime after the marriage, her stepfather forced them to become Muslims. When asked why her stepfather changed his mind, the applicant said it was because he is very religious, and he wanted them to be like him. I asked why, if he was very religious, would he agree to her mother keeping her religion. The applicant said it was so she would marry him.
I referred the applicant to her supplementary statement of claims where she stated that they were forced to denounce their Catholic Christian religion and convert to Islam before an Imam. I asked the applicant what that involved, the applicant said it was very nasty and involved cutting her private parts. She said it was a requirement to be Muslim and she was forcibly circumcised. The applicant said that she believed that this is Muslim law when one is a child.
I referred the applicant to the claims in her protection visa application about receiving severe Islamic prosecution and I asked the applicant what she meant by this. The applicant said that they were warned that if they do not follow Islam, they will be stoned and face torture. The applicant said she and her mother ‘agreed’ to be Muslim. The applicant said she and her mother remained Catholic Christian, even though sometimes she did not have the time to practice her own beliefs.
I referred the applicant to the evidence in her protection visa application that her mother moved to [Country 1]. The applicant said her mother had relatives there. I asked the applicant why her mother did not stay to protect her. The applicant said that her stepfather conducted some black magic on her mother as well. The applicant said after her mother ran away to [Country 1], she returned to Sandakan after a few years, and she divorced the applicant’s stepfather. She then moved to Kuala Lumpur. The applicant understands that her mother does not keep in touch with her stepfather. The applicant said her mother remarried to another Muslim person in Kuala Lumpur.
I referred the applicant to her claims that the religious authorities had blacklisted her name. The applicant said that this was in relation to Sandakan only, and her stepfather had paid the authorities. The applicant said that was the reason why she never went back to Sandakan. The applicant said her stepfather said she could not run away anywhere because her ID documents contained his name.
I asked the applicant if anything else had happened between 2012 and 2013 before she left Sandakan. The applicant said her stepfather cut her hair so she was bald and would not run away. The applicant refused to wear the hijab but eventually relented because she was so embarrassed. I asked the applicant if, since leaving Malaysia, she has had any contact with her stepfather. She has not seen her stepfather since she left Sandakan.
I asked the applicant if she was able to practice her catholic religion freely in Kuala Lumpur. The applicant confirmed that she was able to practice freely.
Forced marriage claim and stepfather’s black magic
I asked the applicant about the claims made in her supplementary statement of claims that her stepfather had arranged for her to marry another person on or around the end 2013. The applicant said after her circumcision, her stepfather told her that she is now Muslim and will be married to a man. This man will guide her more to be a perfect Muslim. The applicant told her mother that she did not want to marry this man, she had already converted to Muslim, and it would ruin her life. The applicant said she ran way to Kota Kinablu, and that is when her stepfather started employing black magic. She said this made her feel uneasy and gave her a feeling that she wanted to go back to Sandakan. Her mother advised her to go further to Kuala Lumpur.
I asked the applicant if she recalled the name of the person who her stepfather wanted her to marry. The applicant said she had told her representative his name, but she forgot it. The applicant referred to the name ‘[name]’ at hearing. I asked the applicant if she ever met this person. The applicant gave evidence that he was one of the suppliers of her stepfather’s [business]. He would come frequently to their house, and sometimes he would teach her to read the Koran. The applicant said she could not remember his name even though she met him many times, because it was a long time ago.
She recounted in incident where the man visited her stepfather’s house, and she was asked to go to the back [shed]. She claimed the man followed her and into the shed and touched her everywhere. Her stepfather did not do anything to prevent it. She told her mother about the incident and her mother slapped her and did not believe her.
I asked what happened when she refused her stepfather’s request to marry. The applicant said her stepfather sat her down and told her that this person was religious and that he could teach the applicant to be a perfect Muslim. The applicant said the man was very old and she refused to marry him. The applicant said she had no money and could not flee Sandakan until three years later. The applicant said she saved money from working for her stepfather’s business and then fled to Kuala Lumpur.
When she moved to Kuala Lumpur, her stepfather sent her best friend to visit her and to put something around her wrist. She said when she put that on her wrist, she felt as though she wanted to go back to Sandakan. I asked the applicant whether she experienced any harm in the 6 years she resided in Kuala Lumpur before she came to Australia. The applicant said she did not experience any harm, apart of the anxiety she experienced from the black magic spell her stepfather put on her.
I asked the applicant about what ‘black magic’ means to her or her religion. The applicant said she had seen her stepfather perform black magic in the past. She said that her stepfather collected her knickers and he just ‘performed something’. Her stepfather used black magic to ensure she would marry the man he wanted her to marry. She said that the man came into her dreams in which they had physical contact. The applicant also referred to an incident where her stepfather obtained her urine and performed some black magic.
Sexual harassment from Islamic men in the community
I asked the applicant about her claims to fear sexual harassment from Islamic men. The applicant said that she confronted her stepfather about the incident in the shed and asked her stepfather why he did not intervene. Her stepfather said that he will ‘gather more guys’ to do these things to her. She said the older man still visited and continued to try and convince her to marry him, but never physically harmed her. Her stepfather tried to convince her that because the man had touched her already, she should marry him. The applicant did not refer to any other instances or interactions with Islamic men.
Fear of return
I asked the applicant where she would go back to Malaysia if she were to return. She stated she would return to her mother’s house in Kuala Lumpur. When asked what she thinks might happen upon return, the applicant said she would still be living in fear. The referred to having a family here and being able to practice her religion, which she does not believe she can do in Malaysia. The applicant said she will not be able to go to church because her ID documents states she is a Muslim, and the ‘black magic’ might be still there. I asked the applicant if her husband would go back to Malaysia, and she said she was not sure.

I asked if there were any other reasons why she cannot go back to Malaysia. The applicant said that ‘Kuala Lumpur is ok’, but Sandakan is where she got her fear from.
Post hearing submissions
The applicant’s representative provided post hearing submissions to the Tribunal on 17 December 2024.
The submission contends that the Tribunal ought to take into consideration the applicant’s ‘status as a vulnerable person in assessing her credibility’[6], and attached a GP Patient Health Summary dated 5 December 2024. The submissions also refer to the AAT – Migration and Refugee Division’s Guidelines on the Assessment of Credibility. The representative submitted that the Tribunal should consider the ‘significant impact of trauma on her memory and cognitive functioning, consistent with her being a person who has fled persecution’ and that ‘any credibility concerns are adequately explained by the applicant’s medical conditions and her prior traumatic experiences’.[7]
[6] Representative’s submissions, 17 December 2024, p 2.
[7] Representative’s submissions, 17 December 2024, p 3.
As noted above, the submission attached a letter from a GP. Relevantly, the letter states ‘she alleges she has had FGM (female genital mutilation) forcibly performed on her at age of [age] in Malaysia. My findings are consistent with historic FGM’.[8]
[8] Letter from Dr Nicholas Buggins, dated 5 December 2024.
COUNTRY INFORMATION
I have considered the country information submitted by the applicant, along with relevant information outlined in the report from the Department of Foreign Affairs and Trade (DFAT).
Violence against women and girls
DFAT advises in relation to female genital mutilation (FGM) that:[9]
3.124 Girls are routinely subjected to female genital mutilation/cutting (FGM/C) in Malaysia, although no official prevalence rates are available. FGM/C is a religious requirement under Islam in Malaysia, as Malaysia's National Fatwa Council (council of Islamic leaders) issued a fatwa making ‘female circumcision’ mandatory, so the practice is very common among Malays and Muslim ethnic minorities. According to Orchid Project, an international NGO, FGM/C procedures in Malaysia include Type I (total or partial removal of the clitoris) and Type IV (‘pricking’ or cutting of the genitals). The conditions under which procedures occur range widely, from FGM/C practiced on babies in unregulated, unhygienic clinics to FGM/C provided in government healthcare facilities. According to in-country sources, the procedure has been described as an ‘incision of about one millimetre’. Families sometimes pressure new mothers to subject their daughters to FGM/C.
3.125 DFAT assesses that women and girls in Malaysia face a moderate risk of GBV in the form of domestic violence, and in the case of Muslim girls, also face a high risk of GBV in the form of FGM/C. State protection is available but often inadequate or ineffective in practice. Family, economic, and societal pressures often act as barriers to leaving abusive relationships. For information on child marriage see Children.
Religion and Christianity
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 24 June 2024, p 31.
In respect of the religion and the position of Christians, DFAT advises:[10]
[10] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 24 June 2024, pp 19, 25.
3.35 According to the US State Department, 63.5 percent of the Malaysian population practices Islam; 18.7 per cent Buddhism; 9.1 per cent Christianity; 6.1 per cent Hinduism; and 9 per cent other religions, including animism, Confucianism, Taoism, Sikhism and Jehovah’s Witnesses. Rural areas, especially on the east coast of peninsular Malaysia, are predominantly Muslim, while Sabah and Sarawak are predominantly non-Muslim. Approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak, around 65 per cent of whom are indigenous.
3.36 The government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim. Some indigenous Malaysians have adopted Islam, however many practise traditional spirituality or Christianity. Chinese Malaysians generally follow Buddhism, Christianity or Taoism, practise traditional Chinese folk religion and ancestor worship, or do not follow a religion. Most Indian Malaysians are Hindu, although a significant minority practise Christianity.
3.37 Despite formal protections in the constitution for freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. Article 3(1) of Malaysia’s Constitution states ‘Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation’. Article 11(1) states every person has the right to profess and practise his religion and, subject to clause (4), to propagate it. Clause 4 states: ‘State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.’ In practice, this clause severely restricts the capacity of religions other than Islam to proselytise
….
Christians
3.75 According to the US State Department, Christians account for approximately 10 per cent of the Malaysian population. Most live in Sabah and Sarawak. Christian politicians are present in most political parties, although they tend not to represent Christian interests specifically.
3.76 Christianity attracts few converts, as it is very difficult to convert from Islam (the religion of most Malays) and illegal to proselytise to Malays (see Religious Conversion and Apostasy). Christians of Malay background are sometimes forced to hide their faith from family, friends and colleagues. Christianity is portrayed by some Malay Muslim political parties as a threat to Islam. In-country sources told DFAT some Christians felt pressure to convert to Islam.
3.77 Although Christians say they have used the word ’Allah‘ (Arabic for God) for centuries in their religious practice in Malaysia, official impediments are in place to their use of the word. In 2008, the Home Affairs Ministry banned The Herald, a Catholic newspaper, from using the word ’Allah‘ under the Printing Presses and Publications Act (1984). The Malaysian Court of Appeals and Federal Court upheld the ban. Religious tensions including attacks on churches followed an October 2017 decision by the High Court of Kuala Lumpur to reject a Sabah church’s request for a judicial review of the ban on Christians’ use of the word ‘Allah’. In March 2021, the High Court of Kuala Lumpur ruled that Christians could use ‘Allah’ with the judge calling the ban unconstitutional. In 2023, the government discontinued its appeal.
3.78 Three Christian pastors (and a Shi’a convert, Amri Che Mat) suspected of proselytising disappeared between 2016 and 2017, with probable state involvement. SUHAKAM investigated the disappearances and concluded, in the cases of Amri and Pastor Raymond Koh at least, that they were conducted by RMP Special Branch. Despite the findings by SUHAKAM of direct police involvement in the disappearance of Pastor Koh and some involvement in the disappearances of Hilmy and Sitepu, there had been no response by the Malaysian state at the time of publication. DFAT is not aware of any disappearances of Malaysian Christians since 2017.
3.79 DFAT assesses that Christians are generally not at risk of societal discrimination. Christians who proselytise or promote Christianity to Muslims face a moderate risk of harassment by state authorities, potentially including violence or abduction.
Islamisation
DFAT advises in respect of Islamisation that:[11]
3.49 In recent decades, local and international observers have noted the increasing influence of conservative Islamic ideas in Malaysian politics and society, a phenomenon described as ‘Islamisation’. The influence of conservative Islamic parties on Malaysia politics has been especially prominent since the defeat of the BN coalition in 2018 and the electoral success of the PAS.
3.50 From the 1990s onwards, PAS has established several thousand kindergartens and Islamic schools called tahfidz (Quran memorisation schools), which has increased grassroots support for PAS (though this is not the only factor). A 2022 Muslim Youth Survey by Merdeka Center, an opinion research firm, found that 82 per cent of Muslim youths aged 15-25 agreed that the Quran should replace Malaysia’s current Constitution, up from 72 per cent in 2010. The survey also found the proportion of Muslim youths attending religious schools had increased from 48 per cent in 2010 to 60 per cent in 2022.
3.51 Local media has reported rising conservatism amongst Malays, especially young people. There is also evidence of decreasing tolerance towards sexual and religious minorities on religious grounds (see LGBTQIA+ community). International media reported in 2022 that despite the progressive tendencies of the multi-ethnic coalition of the Anwar Government, it was under pressure to respond to the values of conservative Islamic voters and parties.
3.52 Malaysia restricts the rights of followers of any branches of Islam other than Sunni, with those following Shi’a or other branches subject to arrest for deviancy. Shi’a Islam, Ahmadiyyah and other non-Sunni sects are considered illegal in Malaysia.
3.53 In-country sources reported that Islamic religious and political NGOs financed by JAKIM have paid staff to attempt to convert poor people to Islam, incentivising potential converts with money, food and government welfare available to Muslims. However, it is not clear how widespread this practice is. In 2018, in-country sources told DFAT that Christians from the southern Philippines and Indonesia had been approached to convert to Islam in return for residency in Sabah (red identification card), with a view to applying for citizenship (blue identification card, only available to Bumiputera). Also in 2018, in-country sources told DFAT that some university students conducted home stays with Orang Asli to teach them about Islam and encourage them to convert, incentivising them with financial benefits, the promise of housing, and welfare available to Muslims.
3.54 Local media reported in June 2019 that the Kelantan Islamic Religious and Malay Customs Council (Maik) stated it intended to convert all Orang Asli within its state borders to Islam by 2049. In July 2019, local media reported that the Temiar Orang Asli in Gerik, Perak, had ‘Islam’ added to their MyKad identity cards without their consent, and that the villagers had never actually converted to Islam.
ANALYSIS, REASONS AND FINDINGS
[11] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 24 June 2024, p 21.
Applicant’s identity and country of reference
Based on a copy of the applicant’s passport available on the Department’s file, I find that Malaysia is her country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.
Credibility and findings of fact
In assessing the applicant’s case, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of an applicant’s claims,[12] and nor does the Tribunal require rebutting evidence before it can find that a particular assertion by an applicant has not been made out.[13]
[12] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
[13] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547.
As discussed with the applicant at hearing, s 367A of the Act governs circumstances where an applicant presents new claims not raised before the primary decision was made or presents evidence on review that was not presented before the primary decision was made. The provision requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
In this case, the applicant presented new claims and evidence regarding her stepfather’s attempts to force her to marry another man, his use of black magic, her forcible circumcision (FGM) and harm from the man whom her stepfather wanted her to marry. I note that her claims about forced marriage and black magic were first raised in her pre-hearing submissions, and the latter two claims were first raised during the hearing. The applicant provided an explanation at hearing that she did not raise the latter two claims because it was ‘her mistake’ and she did not tell her lawyers.
I have had regard to the applicant’s circumstances, and I accept that her explanation as being a reasonable one. I note that in her supplementary statement the applicant had foreshadowed that her statement ‘is not an exhaustive statement of the reasons why I cannot return to my country. I will provide further information in relation to my protection claims during my interview with the Administrative Review Tribunal’.[14] I also note that this is somewhat at odds with a declaration signed by the applicant on 18 November 2024, in which she declared ‘the written submissions to the Administrative Review Tribunal have been explained to me. These written submissions accurately and completely present my claims’.[15]
[14] Applicant’s supplementary statement, 5 November 2024, p 1.
[15] Applicant’s hearing submissions declaration, 18 November 2024.
I have considered the nature of the new claims and evidence presented by the applicant. I am informed by international[16] and national guidelines[17] which make clear that asylum-seekers may be reluctant to disclose sexual violence or gender-based violence for a range of reasons. I also accept that applicants who have suffered trauma in the past may have trouble recalling specific events and dates. Given the sensitive nature of her claims, I am satisfied that the applicant has a reasonable explanation for why the claims and evidence were not presented before the primary decision was made. Accordingly, I am not required to draw an inference unfavourable to the credibility of her claims, and I have not done so.
[16] See, for example, United Nations High Commissioner for Refugees, Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/01, 7 May 2022.
[17] Administrative Appeals Tribunal, Migration and Refugee Division: Guidelines on the
Moreover, I consider the applicant to be a generally credible witness at hearing, who was able to articulate her past experiences spontaneously. Accordingly, for the purposes of the decision, I make the following findings of fact:
·the applicant and her mother were forced to convert to Islam on or around 2012 after her mother and stepfather were married;
·the applicant was subjected to FGM shortly afterwards;
·the applicant and her stepmother continued to practise their Catholic Christian religion without the knowledge of her stepfather;
·the applicant’s stepfather attempted to force her to marry another man, but she relented;
·the applicant was touched by the man whom her stepfather wanted her to marry;
·the applicant relocated from Sandakan to Kuala Lumpur where she resided for 6 years prior to her departure in Australia;
·the applicant’s stepfather performed ‘black magic’ in attempts to lure her back to Sandakan;
·the applicant was able to freely practise her religion while she lived in Kuala Lumpur;
·her mother and stepfather have separated, and her mother has no ongoing contact with him; and
·the applicant has not been in contact with her stepfather since she left Sandakan.
Does the applicant satisfy the refugee criterion for protection?
Consistent with the applicant’s evidence at hearing, I find that the applicant would likely return to Kuala Lumpur, if she were to go back to Malaysia. I will now assess whether she faces a real chance of harm in that place, in the reasonably foreseeable future.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Catholic Christian claims
I have considered the country information and arguments made by the representative in the submission dated 26 November 2024.
I have accepted above that the applicant was forced to renounce her Catholic Christian religion following her mother’s marriage. The applicant’s evidence was that she continued to practice Christianity in Sandakan without the knowledge of her stepfather, and that she freely practised her religion in Kula Lumpur for 6 years prior to arriving in Australia. On the country information above, I find that the applicant can continue to practise her Christian religion upon return to Kuala Lumpur, as she has done in the past. While the applicant claimed that she would not be able to attend church because her ID documents states that she is Muslim, this would appear at odds with her past experiences in Kula Lumpur. I consider the applicant’s circumstances upon return, are akin to ethnic Malays who are classified as Muslim at birth by the government, but whom according to the country information, may practise other religions subject to certain constraints, such as proselytization.
While I accept that the applicant’s submissions that she would return to Malaysia where there have been increased ‘Islamisation’ — generally understood as the increased influence of conservative Islamic ideas in Malaysian politics — particularly through social media, I do not consider that this, in and of itself, gives rise to a real chance that the applicant will face harm. Indeed, I have weighed this against DFAT advice above that Christians are generally not at risk of societal discrimination.
For completeness, I note that applicant has not claimed before the Department, nor at any time during the review process, that she would undertake proselytization were she to return to Malaysia. Nor has she claimed that she would take formal steps to renounce or leave Islam, and thus be considered as an apostate. In this regard, I note that Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Having considered the applicant’s particular circumstances against the country information, I find it remote — and therefore not a real chance — the applicant will be harmed on the basis of her Christian (Catholic) religion were she to return to Kuala Lumpur, in the reasonably foreseeable future.
Fear of the applicant’s stepfather and black magic

I accept that if returned to Malaysia, the applicant has a subjective fear of her stepfather and his ‘black magic’. However, and as discussed with the applicant at hearing, she has not seen her stepfather since she left Sandakan, and her mother who resides in Kula Lumpur does not have contact with him either.
While the applicant claimed at hearing that her stepfather will harm her, I find there to be no objective basis for this fear. On the evidence before me, I do not accept that her stepfather would find her if she were to return to Kuala Lumpur. I do not accept that he would perform ‘black magic’ in any way that would harm the applicant in the reasonably foreseeable future.
Particular social group — ‘young Christian girls from Malaysia who fear sexual harassment from Islamic members’
I have accepted that the applicant was touched by and harassed by an Islamic man whom her stepfather wanted to marry in the past. I have accepted that she has suffered FGM when she was younger. These claims are consistent with country information noted above.
However, I find that these events occurred some years ago. On the applicant’s own evidence, she was able to reside in Kuala Lumpur for 6 years prior to coming to Australia without facing any harm from Islamic members. The applicant is now [age] years old, and nothing on the evidence or country information before me suggests there is a real chance the applicant will be harmed by other Islamic members, in the reasonably foreseeable future.
Refugee findings: conclusion
I have considered the applicant’s claims, individually and cumulatively, and I am not satisfied that the applicant faces a real chance of persecution upon return to Malaysia under s 5J(1). I find that the applicant is not a refugee under s 5H and I am not satisfied that she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). That is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that she will suffer ‘significant harm’ as set out in s 36(2A).
The courts have held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee criterion’.[18] I have considered the applicant’s claims individually and cumulatively against the complementary protection criterion. Having regard to my findings of fact, and for the same reasons given above, I do not accept there to be a real risk the applicant will face significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
[18] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Accordingly, I find there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that she will suffer ‘significant harm’. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
MINISTERIAL INTERVENTION REQUEST
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The representative’s initial submission of 17 November 2024 referred to applicant’s circumstances as being appropriate for referral to the Minister for intervention under s 351 of the Act. It was argued that the applicant’s husband [Mr B], an Australian Citizen, would ‘suffer serious, ongoing and irreversible harm and continuing hardship if the Applicant were returned to Malaysia’.[19] It was submitted that ‘applicant currently financially supports her husband while he is unemployed’.[20]
[19] Representative’s submissions, 26 November 2024, p 11.
[20] Representative’s submissions, 26 November 2024, p 12.
At hearing, the representative asked if I had considered the issue of Ministerial Intervention. I informed the representative that I will consider the submissions closely. I referred the representative to the Ministerial guidelines, in which it stated that ‘if a person has a visa pathway available to them, including an offshore pathway, it is generally not appropriate for me (the Minister) to intervene’. I invited the representative to make submissions on that point.
In their submission of 17 December 2025, the applicant submitted that due to her circumstances, she cannot apply for a partner visa onshore due to the application of criterion 3002 in Schedule 3 to the Regulations, and therefore Ministerial intervention is required.
It was further submitted that the applicant’s circumstances should be referred to the Minister because of the ‘exceptional economic, scientific cultural or other benefits would result from the person being permitted to remain in Australia’[21] The applicant submits that her occupation as an [occupation] puts her ‘in a position to provide significant benefits to Australia’, having had 2 years of experience. In support of this, information about the shortage of [occupations] from [specified] Report [in] 2011 were provided. It was submitted that [people in occupation] who speak languages other than English provide exceptional benefits.
[21] Representative’s submissions, 17 December 2024, p 6.
I have considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers’ but have decided not to refer the matter.
I note that the applicant can still make a request directly to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Dates of hearing(s): 3 December 2024
Representative for the Applicant: Dr Nathan Stephen Willis
ATTACHMENT
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.
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.
…

Assessment of Credibility, July 2015.