2014534 (Refugee) - [2025] ARTA 1700

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 affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5L, 36(2)(a), (aa), (2A), 65, 351
Migration Regulations 1994 (Cth), Schedule 2
CASES
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 2447
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 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 1700
Decision Date: 2 July 2025

CaseChat Overview and Summary

The applicant, a Malaysian citizen born and raised in [Country 1], sought a protection visa based on claims of a well-founded fear of persecution if returned to Malaysia. The applicant alleged threats of forced marriage, kidnapping, and systemic discrimination due to his [Country 1] background. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under the Migration Act 1958. This involved assessing whether the applicant faced a real, specific, and substantiated risk of persecution or significant harm in Malaysia, and if there were effective protection measures available to him there.

The Tribunal evaluated the evidence and testimonies presented by the applicant. It found that while the applicant had experienced harassment in Malaysia due to his [Country 1] heritage, these incidents did not reach the threshold of persecution under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967. Furthermore, the Tribunal concluded that the Royal Malaysian Police could provide effective protection against the threats the applicant feared. The Tribunal also noted the applicant's integration into Australian society, including his relationship, employment, and contribution to the community. Given these findings, the Tribunal did not accept the applicant's claims of a real, specific, and substantiated risk of harm in Malaysia.

The Tribunal affirmed the delegate's decision not to grant the applicant a protection visa. However, it referred the matter to the Minister for potential intervention under section 351 of the Act due to the applicant's unique and exceptional circumstances, including his limited support networks in Malaysia and his integration into Australian society.

The Tribunal's final orders affirmed the decision not to grant the applicant a protection visa and referred the matter to the Minister for consideration of intervention.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 2025Representation: N/AReferral 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 INTERVENTIONHaving 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 - 331112The 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 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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