2014534 (Refugee)
[2025] ARTA 1700
•2 July 2025
2014534 (REFUGEE) [2025] ARTA 1700 (2 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2014534
Tribunal:General Member B Gogarty
Date:2 July 2025
Place:Hobart
Decision:The Tribunal affirms the decision under review.
Statement made on 02 July 2025 at 2:10pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of forced marriage, abduction and mistreatment because of father’s debt – arrangement between parents and local chief/loan shark to marry disabled daughter – relationship with other woman – kidnapped and held at farm/private detention camp with forced labour and torture – late claim of systematic discrimination because of ethnicity and language – born and grew up in third country to Malaysian father and third country mother – registered at birth and lived in Malaysia for six months to obtain citizenship, then after completing high school – education and official and societal discrimination – not possible to ascertain citizenship status in birth country – vague and inconsistent claims and evidence – passage of time, no further contact and relocation – father now living in mother’s country – English widely spoken – unique and exceptional circumstances – no apparent connection to Malaysia – integration into community, relationship and skilled employment in Australia – request for Ministerial intervention – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5L, 36(2)(a), (aa), (2A), 65, 351
Migration Regulations 1994 (Cth), Schedule 2CASES
DQU16 v MHA (2021) 273 CLR 1
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIMA v Ibrahim (2000) 204 CLR 1
Sami v MHA [2022] FCA 1513
SZSRX v MIBP [2014] FCCA 2447Any 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 10 September 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Malaysia who arrived in Australia on a student visa [in] March 2019, and applied for protection on 10 May 2019 (following the rejection of an earlier invalid application made 7 May 2019). In his application he claimed to fear forced marriage, abduction, mistreatment related to a debt owed by his father, and systemic discrimination due to his ethnicity and language background in Malaysia.
On 10 September 2020 a delegate of the Minister for Home Affairs refused the application for protection pursuant to s65 of the Act. The delegate found that the applicant had effective protection measures, as defined by 5L of the Act, available to him in Malaysia to protect him from the harms he claimed. Consequently, the delegate found that the applicant did not face a real chance of serious harm or a real risk of significant harm as a foreseeable consequence of being returned to Malaysia and did not meet the criteria for either limb of s 36.
The applicant appeared before the Tribunal on 23 January 2025 for directions and subsequently on 5 March 2025 to give evidence and present arguments. The applicant gave the entirety of his oral evidence in the English language.
BACKGROUND
The applicant was born in [a district] in [Country 1]. He grew up and attended school in [Country 1] continuously until 2010. Around that time the applicant travelled to Malaysia, to be with his father, who lived there at the time, for a period of six months so that he could obtain Malaysian citizenship. He then returned to [Country 1] to complete high school which he did in 2017.
The applicant told the Tribunal that, while he was growing up his mother lived in [Country 1] and his father in Malaysia. He told the Tribunal that his father moved to [Country 1] permanently in 2018. Although the applicant said his parents’ relationship is poor, and that in practice they are separated, he explained that, for cultural purposes, they remain married and live in the same house in [Country 1]. The applicant also said that his father’s right to remain in [Country 1] is based on a spousal visa. The applicant supports his mother financially as his father is not working in [Country 1].
The Tribunal has reviewed the relevant identity documents and the evidence of the applicant and accepts he is a Malaysian citizen.[1] The question of whether he is also a [Country 1] citizen was a live issue throughout the course of the matter. The applicant insisted that he is not entitled to [Country 1] citizenship given that country does not permit dual citizenship. Having reviewed [Country 1] citizenship law, the Tribunal has some doubts about the correctness of that submission.[2] However, the Tribunal cannot determine this with any certainty on the evidence before it, and, given that the applicant is unrepresented the Tribunal has accepted that he is not a [Country 1] citizen.
[1] Tribunal file, document IDs 14604866, 14604868. Departmental file, document IDs [1 and 2].
[2] [Country 1 Citizenship Act, sections 1 and 2].
The applicant moved to Malaysia in 2017 and initially attempted to enrol in universities there. He stated his applications were rejected as he did not meet criteria such as proficiency in the Malaysian language and additionally was unable to obtain a student loan because he didn't have the Malaysian high school qualifications and was not considered a local student for those purposes. During this period (2017-2019), he studied English and obtained an International English Language Testing System (IELTS) certificate. He said that he chose English over Malay because he had already studied in English in [Country 1], and a full Malay course up to high school level was required for university.
Asked about his employment history in Malaysia the applicant said that, while he was applying to various universities to study, he worked for his father selling [products] door to door and in a store. Later he worked in Kuala Lumpur in the [work sector 1] and then [work sector 2]. He said he used this money, and other money from a network of friends in the [work sector 1], to complete his English proficiency studies after which he applied for a visa and came to Australia.
Movement records indicate the applicant arrived in Australia [in] March 2019 and applied for protection on 13 May 2019. He confirmed he completed the application form himself and that the information provided was true and correct.
The applicant has had various jobs in the [work sector 3], most significantly in [Field 1], working as a helper to [an occupation 1]. He obtained a Certificate III in [Field 1] based on his experience, and separately a Certificate II in [Subject], qualifying him to work as [an occupation 2] or in a [workplace]. He recently completed a PTE (Pearson Test of English) because his previous IELTS was expiring.
The applicant stated he is renting the house he lives in in [Suburb] and owns a car. He reported having no other significant assets and no debts, including no student debts from his Australian certificates. He described his financial situation as “safe” and he sometimes sends money to his mother in [Country 1].
Evidence before the Department
Protection visa application (original application)
In his original application, made 8 May 2019, the applicant made the following claims:
“I was venerable and getting threats to be subject to humilition and torture and killing. My father and mother promised with local chief named [Mr A] that when I will grow up I will Marry his abnormal daughter who is nearly 18 years. But nearly two years ago I got up in a relationship with a christian girl in my kualampur. We both wanted to stay together I was very happy with her due to some un known sources [Mr A] come to know that I was in relationship with other girl. He came to my house and threaten my old parents about their and my life.
Even my parents had to say me they have no relation with me.
I am sorry, ever time I remmebr I get aftershocks.
…
[if I return to Malaysia] i will be killed or kidnapped.
[I experienced harm in Malaysia] yes i was being kidnapped and put in private detention camp.
[I sought help from authorities] yes my old parents tried with police and other power.
[I did not try to move to other parts of Malaysia as] i am to young i cannot move to any where even dont have any knowledge
[I will be harmed or mistreated if I return to Malaysia because] i was already put in private jail where i was subject to torture and forceful labour work with any wages.
[I do not think authorities of Malaysia will protect me because] already police and criminal intelligence was fail to crack that gang
[I could not move elsewhere in Malaysia] No, i am only safe in Australia.” [mistakes in original]
On 10 August 2020 a delegate of the Minister requested the applicant provide additional evidence in respect of his claims. The record indicates that the applicant did not respond to the request for further information. The delegate expressed concerns about the applicant’s identity and citizenship but ultimately accepted that he is who he claims to be and is a Malaysian citizen.
The Department did not interview the applicant.
On 10 September 2020 the delegate found that the applicant was not a refugee, nor a person to whom Australia owes complimentary protection. The delegate found that the applicant would receive effective protection from the Royal Malaysian Police against any threats or harm he fears, including for refusing to participate in an arranged marriage. Therefore, the delegate was satisfied the applicant did not have a well-founded fear of persecution and that there was not a real risk he would suffer significant harm if he returned to Malaysia.
Evidence before the Tribunal
The applicant did not make pre-hearing submissions, either in the pre-hearing information form or separately.
Directions hearing
On 23 January 2025 the Tribunal conducted a directions hearing in respect of the matter. At the hearing the Tribunal directed the applicant to provide further records of his citizenship status, along with a statutory declaration attesting to his rights of citizenship and residency. The Tribunal further directed the applicant to produce the police reports referred to in his application for protection along with a statutory declaration relating to his detention in a “private detention camp”. These directions were formalised in orders made on 24 January 2025, that included a direction for the applicant to explain why he was unable to produce the documents or declarations ordered if that was the case.[3]
[3] Tribunal file document IDs 14504225, 14504380, 14504380.
On 9 February 2025 the applicant provided a certified translation of a Malaysian birth certificate of registration for a child born outside Malaysia.[4] He provided a separate statutory declaration answering the Tribunal’s questions about his understanding of his citizenship rights in Malaysia, [Country 1] and elsewhere.[5] In a separate statutory declaration, the applicant provided a general location (Selangor), for the private detention camp but stated that he was not able to provide copies of police reports referred to in his original application because “I was unable to formally report the incident or obtain any official documentation regarding my complaint”.[6] The Tribunal takes this to mean that a police report was not made. The statutory declarations additionally repeated and expanded upon the claims made in his original application.
[4] Tribunal file document ID 14604866.
[5] Tribunal file document ID 14604868.
[6] Tribunal file, document ID 14604869.
The Tribunal read and considered all the applicant’s pre-hearing submissions.
Substantive Hearing
At the hearing the applicant was asked about his background which is set out above. In respect of his claims the applicant said that he fears returning to Malaysia for the following reasons:
·He would be tortured or kidnapped.
·He would be subject to forced marriage.
·He would be subject to systemic discrimination due to his ethnicity and background.
Claims a & b: Fear of Torture/Kidnap and Forced Marriage
The applicant dealt with his first two claims together as interlinked fears arising from the same experiences and circumstances in Malaysia. They are subsequently addressed together here.
The applicant explained that his fears of torture, kidnap and forced marriage arose from a promise his father had made to a "loan shark" named [Mr A – spelling 1] (sometimes spelled “[spelling 2]” or “[spelling 3]”, across his submissions) that the applicant would marry [Mr A]'s daughter. This promise was apparently made in 2010 when [Mr A] first saw the applicant, who was then about [Age] years old, while he was visiting his father for six months. The applicant said that his father did not tell his mother or him about the arrangement and the first he heard about it was when he returned to Malaysia in 2017. He said his father explained that he owed [Mr A] a lot of money and had given his word, so it was the applicant’s duty to honour the arranged marriage. The applicant said he was not interested in the marriage because [Mr A] 's daughter was disabled and he thought he should have his own choice about who he would marry.
At the hearing, the applicant testified that his mother only became aware of the arranged marriage after he told her about it in around 2018. He did not tell her immediately when he found out in 2017 because he felt it would add more stress to her. He stated that culturally, parents arrange marriages, and children often have no say, but his mother disagreed with this specific arrangement due to its gang-related nature and [Mr A]’s daughter being a "special person”. He said that the arrangement became a further source of tension with the applicant’s father.
Initially, the applicant stated his father kept the refusal to himself and did not share it with [Mr A] but continued to try to convince his son to commit to the arranged marriage. He said that, eventually, [Mr A]'s family invited the applicant and his father for dinner, where the applicant directly expressed his reluctance to marry [Mr A]’s daughter. The applicant said that [Mr A] reacted angrily and his father defused the situation and said that he would ensure the marriage went ahead. For the next few weeks [Mr A] and his associates would visit the father's store, have coffee or tea, and speak to the father who would find ways to “buy some time for me”. However, [Mr A] began to lose patience and began to take actions which the applicant said were common for loan sharks —including splashing red paint on the family car and taking goods from the shop without paying. The applicant said that this period of aggression and intimidation lasted for about a month during which time he continued to refuse to marry [Mr A]’s daughter.
The applicant said that eventually men associated with [Mr A] came to his father’s store one evening and took the applicant to a farm far away. He was forced to work there for almost 11 days under harsh conditions, which he described as "more like a labour force" with inadequate food, water, and sleeping arrangements. The work involved clearing space and digging for new palm tree plantations. While he was not physically confined, he said that he was watched and not permitted to leave by the people operating the farm. The applicant said that his father eventually convinced [Mr A] to let him go, and [Mr A]'s men drove him back. Upon his return, his father asked him to agree to the marriage, telling him no one would help them against [Mr A] who had connections to "high authorities". The applicant said he was scared and remained quiet, asking his father for time to think, while preparations for an engagement began. He stayed there for almost two months, helping his father at the store, before taking a bus early one morning to Kuala Lumpur.
The applicant described Kuala Lumpur as "the best place I could go and hide myself," but expressed ongoing fear that [Mr A]’s network was extensive and could locate him anywhere. He said that he stayed in the city for around 1.5 years before departing to Australia, but did not contact [Mr A], his daughter, or associates during that time or since leaving Malaysia.
He said that his experiences in Malaysia gave rise to an ongoing fear that, if he returned to the country, he would be subject to the same treatment again (torture, kidnapping, and forced marriage), because he has refused marriage and is unable to repay his father’s debt. He fears [Mr A]'s people would find him easily due to his appearance. The applicant insisted that the marriage arrangement still stands, and that his father still expects him to honour the arrangement. The applicant acknowledged that he personally feels no cultural or religious obligation to comply, but feels pressured to obey the demands of his father and [Mr A]. Asked if the woman he was arranged to be married to is married to someone else now he said he didn’t know. When asked explicitly if repaying the debt would resolve the threat from [Mr A], he replied, "I have to marry the person; there [is] no other instrument”.
The Tribunal raised concerns with the applicant about the inconsistencies between his oral evidence and his written claims in his original application. It was first put to the applicant that while he testified his mother was entirely unaware of the marriage promise until 2018 and resided exclusively in [Country 1], his application stated that both his "father and mother" had made the promise. In response, the applicant explained that his father, as the head of the family, made such decisions and he was "mostly referred to my father".
The Tribunal questioned the applicant about the two different catalysts he had provided for the conflict with [Mr A]. It was highlighted that his hearing testimony cited his initial refusal in 2017 as the trigger, while his application attributed the conflict to [Mr A]'s later discovery of his "relationship with a Christian girl in my Kuala Lumpur." When asked to reconcile this, the applicant stated that [Mr A] was already aware he was unhappy with the arrangement, but that the situation became "worse" after [Mr A] later learned of the new relationship. Finally, he was asked about the claim in his application that his parents had disowned him, which seemed to contradict his testimony of a supportive father who negotiated his rescue. In response, the applicant spoke about general cultural norms regarding the responsibilities of the head of the family and the responsibility of the children to obey their father’s directions.
The Tribunal also explored the currency of the alleged risk from [Mr A]. A concern was raised that a significant period of eight years had passed since the events of 2017, potentially diminishing the threat. The applicant’s response was that he had "no news" of [Mr A] or his family and therefore could not know their current intentions. The related issue of his demonstrated ability to live and work in Kuala Lumpur for approximately 1.5 years without being harmed was also raised as a potential indicator of a safe internal relocation option. The applicant replied that he was "always in fear" during that time and had to keep moving between different jobs and places of study to avoid being found.
Claim c: Fear of Systematic Discrimination in Malaysia
The applicant claimed he fears returning to Malaysia due to systemic discrimination based on his ethnicity and background. He explained this became apparent when he started dealing with official places. He recounted an incident while with his driving instructor: police stopped their vehicle, questioned the Chinese Malaysian instructor, and then targeted the applicant. Upon seeing his Malaysian ID, officers were shocked and questioned its authenticity, asking why he did not speak Malay or have ethnically Malay features. They checked his identification with their main office for about half an hour, asked him to sing the national anthem, and bullied him in front of other students. His instructor told him that unless he was "Malay Malay," he would face this form of discrimination daily.
The applicant also recounted discrimination while renewing his passport in Kuala Lumpur. He said that officials were welcoming until they saw his Malaysian passport; their behaviour then changed, and they asked intrusive questions about how he obtained his citizenship. The applicant stated this discrimination occurred despite officials being aware he was a Malaysian citizen via his ID card, which he said only citizens can hold. The discrimination, he explained, was because he is a Malaysian citizen but does not have the expected characteristics of a Malay person (e.g., appearance, fluency in Malay). He also mentioned facing similar issues at random checkpoints, where his identity would be questioned, leading to long delays or being taken to a station unless he offered money. This discrimination also affected his ability to get into university, obtain student loans, find jobs and be paid as well as ethnic Malays who are fluent in the Malay language. He stated that police would not take his case seriously if he had a complaint against a "Malay Malaysian". He fears this discrimination would prevent him from securing jobs and force him to bribe officials if he returned.
The Tribunal noted that this claim of systemic discrimination was a new claim that was not contained in his original application for protection. The applicant responded that "I just submitted my application that time, and now, when I have the chance to explain all the things … I explained it," and later agreed that discrimination "wasn't my main concern” at the time he applied for protection. The Tribunal raised a concern that the evidence provided might not meet the threshold of "really serious or significant harm" required for protection. The applicant did not offer a further submission or say anything more in response to this specific concern when invited.
Third Country Protection - [Country 1]
The applicant was asked why he did not return to [Country 1] instead of coming to Australia or why he could not go there now. The applicant responded that he was and is a Malaysian citizen, and at the time of the troubles with [Mr A] he was in a state of confusion and did not know what to do and “the only thing I could I could think of to know to flee from this place … the best place I could see was like, you know, at that time and I thought like easy to go to was Australia, not [Country 1].” He stated he chose not to return to [Country 1] because "my father is there now, and he's forcing me [into] this marriage" and he believes he "wouldn't be offered any state protection … against my father … that’s why I chose not to go there". The Tribunal presented information from the [Country 1 Citizenship Act], specifically Section [1] (citizenship by birth in [Country 1] after [Year]) and Section [2] (noting the loss of [Country 1] citizenship upon acquiring foreign citizenship does not apply to persons under 21 which he was at the time he was made a Malaysian citizen). Given the applicant obtained Malaysian citizenship at age 12, the Tribunal suggested he might still be a [Country 1] citizen, as he also stated in his statutory declaration that he never renounced his [Country 1] citizenship. The applicant acknowledged the issue but was unable to address the question of citizenship status. The Tribunal invited him to make further post hearing submissions.
Post-hearing submission
Following the hearing the applicant made further submissions in the form of a statutory declaration about the risks he faces if he were to be returned to [Country 1] should the Tribunal find that he is a [Country 1] citizen.
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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. 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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Claims a & b: Fear of Torture/Kidnap and Forced Marriage
The Tribunal has carefully considered the applicant’s claims that he fears torture, kidnapping, and forced marriage upon return to Malaysia, arising from an arrangement purportedly made by his father with a loan shark named [Mr A]. In the Tribunal’s view, inconsistencies between the applicant’s testimony at hearing and his original 2019 protection application affect the credibility of his claims. The following issues, individually and collectively contribute to that finding:
·The applicant’s evidence regarding the role of his parents contains substantial and unaddressed inconsistencies. The original application explicitly states that both his “father and mother promised” him to [Mr A]’s daughter. This directly conflicts with his detailed hearing testimony that his mother was unaware of the arrangement until 2018 and disagreed with it. The written claim that his parents had to “say … they have no relation with me” is irreconcilable with his testimony that his father negotiated his release from captivity and that his mother was consistently supportive. The Tribunal was not satisfied with the applicant’s attempt to explain this inconsistency as reflecting cultural or social differences about gender and family roles. The written claims clearly suggest his mother was aware of and consented to the arranged marriage; the oral evidence indicates the opposite, constituting a substantial internal inconsistency affecting the weight given to the applicant’s account.
·The applicant originally stated that his “old parents” (plural) were threatened by [Mr A] in Malaysia after [Mr A] discovered the applicant’s relationship in Kuala Lumpur. However, the applicant later testified that his father had already fled to [Country 1] before [Mr A] learned of the new relationship. When confronted, the applicant sought to reorder events without clearly resolving this contradiction. The Tribunal was not satisfied with his explanation. His claim was further diminished by his admission that his mother, who resided permanently in [Country 1], was never threatened by [Mr A]. His attempt to explain this as a linguistic or cultural misunderstanding did not resolve the explicit contradiction. The Tribunal does not accept that explanation and finds his evidence about threats to his parents to lack credibility.
·In the original application the applicant claimed that the conflict with [Mr A] arose after [Mr A] discovered the relationship with a Christian girl while the applicant was in Kuala Lumpur. At the hearing, however, his primary account was that the conflict began when he refused the marriage during a dinner—prior to his move to Kuala Lumpur. When questioned about the inconsistency, the applicant offered a complex explanation suggesting that [Mr A] became “worse” after learning about the relationship via social media. This created ambiguity about the trigger of [Mr A]’s aggression, weakening the plausibility of the narrative. The Tribunal is not satisfied that there was a dispute about an arranged marriage in the manner described.
·In his original application, the applicant stated that he could not move elsewhere in Malaysia because he was “too young” and lacked knowledge of the country. This is self-evidently contradicted by his hearing testimony, which described how he successfully relocated to Kuala Lumpur, found accommodation, worked multiple jobs, and supported himself for a significant period. This undermines his assertion that he faced a countrywide risk from which he could not relocate.
·The applicant also claimed that he or his parents sought help from “police and other power” in Malaysia. However, in his hearing evidence and statutory declaration, he said he “was unable to formally report the incident” because gangs were connected to authorities and he feared retaliation. This inconsistency further diminishes the credibility of his narrative about threats and harm from [Mr A] and his associates.
These credibility issues separately and collectively affect the underlying structural elements of the applicant’s narrative of claims; that is, what occurred, when it occurred, who was involved, and what happened as a result. The Tribunal does not consider the inconsistencies trivial or explained by the stress of the hearing or the passage of time. They are substantial and relate to matters which the Tribunal considers that the applicant should reasonably have been able to explain clearly and consistently in the circumstances and given the seriousness and significant of the claimed events.
Having considered evidence as a whole, the Tribunal is not satisfied that the applicant’s parents arranged a marriage on his behalf, that he was forced into the marriage in the way claimed, or that he suffered harm as a result of refusing it.
The Tribunal is also not satisfied that the applicant was placed in a detention camp. He said [Mr A]’s associates took him there because he refused the marriage—a premise the Tribunal has rejected. Accordingly, the claim of detention falls away. The Tribunal finds no other credible or objective evidence that he was ever lawfully or otherwise detained. Although the applicant said he was transported to and from the facility by car and that his father negotiated his release, he could identify no location or features beyond naming the entire state of Selangor. He said he resumed working with his father in the family store after his release and later moved to Kuala Lumpur. The Tribunal accepts that, if the claimed detention occurred, it may have been a one-off act intended to pressure him into the marriage. However, even accepting his claim that he was “hiding” in Kuala Lumpur, his ability during that period to work, undertake studies, and prepare for international travel is not consistent with having been recently abducted, mistreated, and in fear of renewed harm. His conduct instead suggests sufficient personal freedom and stability to save, plan and prepare for the next stages of life.
While the applicant’s written claim referred generally to his parents reporting his abuse to police, he later clarified that no formal complaint or report was lodged by him or on his behalf. He also provided no medical evidence, despite claiming to have been physically mistreated during the alleged detention. In the Tribunal’s view, a person subjected to such abuse might reasonably be expected to seek treatment or retain some record of injury. While documentation may not always be feasible, the complete absence of any evidence — considered considering the broader deficiencies in his account — further weakens his claim.
For these collective reasons, the Tribunal does not accept the claim that the applicant was placed in a detention camp as credible.
These findings, along with the significant lapse of time since the alleged events, mean that even if a person named [Mr A] exists, the Tribunal is not satisfied that any real risk to the applicant persists. The applicant gave evidence that his father – who apparently made the arranged marriage promise – lives in another country, away from the reach, contact and influence of [Mr A]. He stated that he has no news of [Mr A] or his family and remained in Kuala Lumpur for approximately 18 months without any contact or harm from them. There is no indication he was pursued during that time. He has subsequently been in Australia for six further years without contact or evidence of pursuit of any kind. In these circumstances, and absent any current or specific evidence of a present or future threat, the Tribunal finds that any real chance or real risk of harm to the applicant from [Mr A], if he does exist, is so minimal that it is speculative and unsubstantiated.[7]
[7] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 572 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ); Sami v Minister for Home Affairs [2022] FCA 1513, [157] (Mortimer J).
The Tribunal is not satisfied that the applicant’s claimed fears of torture, kidnapping, or forced marriage are persuasive or credible. These claims are fundamentally undermined by the inconsistencies and speculative elements identified above. On the evidence, the Tribunal finds that the applicant has not demonstrated any real chance or these things occurring if he returns to Malaysia. The narrative is not credible, and there is no objective basis for finding any foreseeable risk of harm, simpliciter, on these grounds.
Claim c: Fear of Systematic Discrimination in Malaysia
The applicant claimed he fears systemic discrimination in Malaysia due to his ethnicity and limited proficiency in Malay, describing incidents involving police harassment and bureaucratic discrimination.
The Tribunal acknowledges the individual discriminatory incidents experienced by the applicant while in Malaysia, such as police scrutiny or bureaucratic difficulties, consistent with general country information. However, weight given to the evidence about the severity and systemic nature of these experiences is undermined significantly by his late disclosure. This claim was not raised in his original protection application, and the applicant explicitly acknowledged during the hearing that he had not originally claimed fear of discrimination. The Tribunal is not satisfied that the applicant has provided a compelling or reasonable explanation for the late claim and gives that claim limited weight.[8]
[8] Act s 367A.
DFAT’s report on Malaysia acknowledges that non-Malay citizens face discrimination in various areas of life, including education and employment. However, DFAT concludes that such discrimination does not typically rise to levels of persecution or significant harm required for protection under Australian law.[9] While Malay is the state’s official language, English – which the applicant speaks –is widely used throughout Malaysia. DFAT further notes that, while Malay-language requirements exist in public service roles, “it does not preclude” non-Malay speakers from entering that profession.[10] DFAT further explains that while non-Malay groups (e.g. Chinese, Indians) face some disadvantages, these are generally limited or moderate and they are predominantly a function of economic or educational factors.[11] Ultimately the applicant’s own evidence, which the Tribunal has accepted, was that he was able between 2017 and 2019, engaging in some education and regular employment. Indeed, the applicant did not claim discrimination in his original application and accepted at the hearing that it wasn’t his “main concern” about returning to Malaysia.
[9] For example, DFAT’s 2024 report notes that Malay-language requirements in public service can be a ‘barrier’, but explicitly “‘do not preclude’” Chinese or Indian Malaysians from those careers. DFAT Country Information Report – Malaysia (24 June 2024) [3.13], [3.18].
[10] Ibid, [3.13].
[11] Ibid [3.13]–[3.22].
While the Tribunal acknowledges that discrimination is not acceptable in a general sense, and acknowledges the difficulties he faced in that country, it is not satisfied that treatment meets the threshold of serious harm for the purposes of s 36(2)(a). Ordinary discrimination, marginalisation or disadvantage, without something more, does not amount to persecution. As McHugh J explained in Minister for Immigration and Multicultural Affairs v Haji Ibrahim:[12]
Persecution involves discrimination that results in harm to an individual. But not all discrimination amounts to persecution...The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution.
[12] Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1, 18-19 (McHugh J).
For the same underlying reasons — the weight given to the late claim about discrimination, the form of discrimination alleged, and the country information about the treatment of non-Malays — the Tribunal does not consider that the discrimination complained of does not approach the categories or attendant thresholds of significant harm required by s 36(2)(aa). The statutory categories of significant harm (torture, cruel or inhuman treatment or punishment, or degrading treatment) require treatment that is deliberate, targeted, and sufficiently severe to exceed ordinary disadvantage or hardship. Differential access to public benefits, linguistic barriers or social exclusion, without more, do not constitute such treatment.[13] The Tribunal is also satisfied that any alleged harm would not be a ‘necessary or foreseeable’ consequence of return, given the applicant’s demonstrated ability to independently live and work in Kuala Lumpur in the past and the fact he subsequently he has developed additional skills while living in Australia indicating he would not be unable to independently live, work and subsist in Malaysia in the future. Accordingly, the Tribunal is not satisfied that the applicant’s claims relating to systematic discrimination satisfy s36(2)(aa).
Findings of Fact
[13] DQU16 v Minister for Home Affairs (2021) 273 CLR 1,10 (Kiefel CJ, Keane, Gordon, Edelman, Steward JJ); SZSRX v Minister for Immigration and Border Protection [2014] FCCA 2447, [49] (Manousaridis J).
Based on all the evidence, the Tribunal finds that the applicant:
· Is a citizen of Malaysia, born in [Country 1] in [Year] to a Malaysian father and a [Country 1] mother.
· Resided in [Country 1] for most of his childhood, completing his schooling there until [Year], which included a period at a boarding school.
· Travelled to Malaysia for approximately six months in [Year] to obtain citizenship.
· Returned to Malaysia in [Year] after completing his high school education.
· Resided in Malaysia from between [Year] and his departure for Australia in 2019 during which time he held a range of employment and undertook an English language course.
· Experienced some instances of ethnic discrimination while living in Malaysia.
· Demonstrated an ability to relocate within Malaysia, moving from his father's town to Kuala Lumpur, where he lived and supported himself for a period.
· Arrived in Australia in 2019 and lodged an application for a protection visa on 8 April 2019.
However, the Tribunal does not accept that the applicant:
· Faces a specific or personalised real chance or real risk of harm (simpliciter) from torture, kidnapping, and forced marriage in Malaysia.
· Has been subject to acts of discrimination which individually or cumulatively rise to a level of persecution or significant harm necessary to engage Australia’s protection obligations.
DECISION
Based on the evidence presented, the Tribunal does not accept that the applicant faces a real, specific, and substantiated risk of torture, kidnapping, forced marriage, or systemic discrimination amounting to persecution or significant harm upon return to Malaysia. Having reviewed all the evidence the Tribunal is not satisfied that there is objective evidence that the applicant will face persecution or significant harm as defined by the Act, for any other reason, if he returned to Malaysia. He does not meet the criteria in either limb of s 36(2) of the Act.
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).
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing
: 5 March 2025
Representation
: N/A
Referral for Intervention: The Tribunal refers the matter to the Minister pursuant to s 351 of the Act for the reasons set out in the note attached to this decision.
ATTACHMENT - NOTE ON MINISTERIAL INTERVENTION
Having reviewed the Minister’s Guidelines on Ministerial Powers (s351, s417 and s501J), the Tribunal considers this matter may be one which raises unique and exceptional circumstances. On that basis it refers the decision to the Minister noting the following:
·The applicant is affected by unique and exceptional circumstances through no choice, direction or fault of his own. He was born, raised and schooled in [Country 1] and lived the majority of his life there (17 years). However, the Tribunal is unable to reach a state of satisfaction that the applicant is entitled to [Country 1] citizenship. That is because he had previously been registered as a Malaysian citizen born outside of Malaysia at birth and [Country 1] does not permit dual citizenship for adults. As such the Tribunal has accepted the applicant does not have [Country 1] citizenship rights and is solely a Malaysian citizen. Despite that status, the only briefly resided in Malaysia (less than 2 years), having been sent there by his father, from whom he is now estranged. It was also the applicant’s father who caused the applicant to be registered as a Malaysian at birth, even though he was born, grew up and lived most his life in [Country 1]. It is also the case that his mother is a [Country 1] citizen and lived her entire life in that country and that his father has now left Malaysia and resides in [Country 1]. Therefore:
oThe applicant is, by virtue of his Malaysian citizenship, not stateless, but he appears to fall between the cracks of citizenship law. That is, he is legally bound to a state for which he has no apparent or demonstrable connection other than an overseas birth registration certificate. It is evident that the applicant would not have chosen to be registered as a Malaysian citizen if he had been given a choice.
oThese are circumstances which the Act does not appear to anticipate.
oGiven that the applicant grew up and spent most of his life in [Country 1] it would appear he is unable to be returned to his “usual residence” through circumstances outside his control.
·The Tribunal has accepted evidence that the applicant, during his time in Malaysia, experienced harassment and denial of rights available to others in Malaysia because of his [Country 1] heritage and upbringing. While the Tribunal is not satisfied the discrimination amounted to persecution under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 and does not meet the threshold for complementary protection, it is satisfied the applicant would face similar discrimination if he were returned to Malaysia. On the accepted evidence before the Tribunal the applicant has very limited support networks in Malaysia. The Tribunal therefore considers the applicant may, because of returning to Malaysia, be required to live in a situation of relative personal and social isolation. The Minister may consider that situation is one affecting the applicant’s human rights and dignity, or which gives rise to concerns about the .
·The applicant has been in Australia for over six years, during which he has integrated into the Australian community, formed a relationship, learned and been trained in English language proficiency, studied and trained in a specialist trade ([Field 1]) in which he now works and contributes to Australian society. [Field 1] is listed as a skilled occupation on the MLTSSL skills shortage list.[14]
[14] ANZSCO 2022 - Subclass 186 and 482 visas – 331112; ANZSCO 2013 - all other visas - 331112
The Tribunal makes these notes acknowledging that the discretion to substitute a decision of the Tribunal with another decision is entirely a matter for the Minister.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
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