2100221 (Refugee)
[2025] ARTA 1609
•15 July 2025
2100221 (Refugee) [2025] ARTA 1609 (15 July 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Paul O'Connor (MARN: 0854511)
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2100221
Tribunal:General Member M Bruce
Date:15 July 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
Statement made on 15 July 2025 at 9:18am
CATCHWORDS
REFUGEE – protection visa – Malaysia – financial debt – fears loan shark and ex-partner’s aunt – physical and verbal abuse from ex-partner – fears forced marriage to ex-partner by both families – societal or familial pressure does not constitute serious harm, degrading treatment or punishment – current partner is Christian – Malaysian law prohibits Muslim man marrying Christian woman – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
FMN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 612
Hirani v Hirani (1984) 4 FLR 232
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Respondent S152/2003 (2004) 222 CLR 1
Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505
MMM v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 324
MZXFJ v Minister for Immigration [2006] FMCA 1465
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614
MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13
Pretty v United Kingdom (2002) 35 EHRR 1
Price v the United Kingdom [2001] ECHR 458
R (on the application of Quila) v Secretary of State for the Home Department [2011] UKSC 45
Valašinas v Lithuania [2001] ECHR 479
Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132Any 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 Immigration and Multicultural Affairs on 24 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant, who claims to be a national of Malaysia, applied for the above visa on 6 January 2017. The applicant’s claims, as advanced in his application, are that:
a) The applicant left Malaysia because he was indebted to an illegal loan shark and unable to repay this debt.
b) The loan shark threatened unspecified harm against the applicant and his family.
c) The applicant did not seek assistance from the authorities following receipt of this threat because he believed they would not afford them adequate protection from the harm.
d) The applicant was unable to relocate within Malaysia to avoid this harm.
The delegate refused to grant the visa on the basis that:
a) The applicant had not claimed, nor was there any information before them to suggest, that the applicant will be targeted for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act, and
b) That the Malaysian authorities were able to provide an adequate level of protection from the criminal behaviour feared by the applicant.
The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of this decision on 7 January 2021.
On 14 October 2024, the AAT ceased to have effect, and the Administrative Review Tribunal (the Tribunal) came into effect.
Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1.) Act 2024 (the Transitional Act), applications made to the AAT that were not finalised prior to 14 October 2024 are taken to be applications made to the Tribunal.
Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal and the Tribunal is authorised to continue and finalise such proceedings in accordance with the Administrative Review Tribunal Act 2024 (Cth) (the ART Act).
APPLICANT’S CLAIMS BEFORE THE TRIBUNAL
The applicant’s claims, as advanced before the Tribunal, are that:
a) The applicant was in a relationship with a women in Malaysia between 2014–2016 (hereinafter [Partner A]). The applicant’s relationship with [Partner A] was initially amicable, but later became abusive with [Partner A] physically and verbally abusing the applicant. This abuse persisted for the duration of the relationship and included [Partner A] threatening harm against the applicant’s person whilst in possession of a knife.
b) The applicant impregnated [Partner A]; the pregnancy was subsequently terminated.
c) The applicant will be compelled to marry [Partner A] if returned to Malaysia. The applicant is opposed to this.
d) The applicant took out a loan in the sum of [amount] Ringgit. The applicant fears harm from this lender as a result of this unpaid debt.
a) [Partner A’s] aunt borrowed [amount] Ringgit from a lender and on let that sum to [Partner A] who in turn gave the funds to the applicant. The applicant fears that the aunt, or other members of [Partner A’s] family, will compel the applicant to replay this debt by way of actual or threatened physical harm against his person, or if this debt was repaid by [Partner A], that [Partner A] will exact physical harm against his person in retaliation for her having been compelled to repay the debt.
e) The applicant is currently in a relationship with a woman in Australia (hereinafter [Partner B]). The applicant and [Partner B] commenced their relationship in 2017 and have been de facto as of 2018. The applicant is a Muslim, and [Partner B] is a Catholic. Muslims are not permitted to marry or live as de facto with non-Muslim persons in Malaysia. Muslims who live as de facto with non-Muslim persons may be subject to investigation and action may be taken against them by the state Islamic Development Department.
f) Any child of the applicant would be deemed Muslim under Malaysian law, and he would be prevented by law from raising such a child as Christian. This is contrary to the intention of both the applicant and [Partner B].
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.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
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.
REASONS AND FINDINGS
Receiving Country
The Applicant travelled to Australia on a valid Malaysian passport that states that he is a national of Malaysia. The Tribunal accepts on the evidence before it, namely a copy of the Applicant’s passport, that the Applicant is a national of Malaysia and finds Malaysia as the receiving country for the purposes of the Act.
Preliminary Findings of Fact
Before proceeding to address each of the applicant’s claims, it is useful to make the following findings of fact.
Applicant’s prior relationship in Malaysia.
The applicant claims that he was in a relationship with [Partner A] in Malaysia between 2014–2016. The applicant’s relationship with [Partner A] was initially amicable but later became abusive with [Partner A] physically and verbally abusing the applicant. This abuse persisted for the duration of the relationship and included [Partner A] threatening harm against the applicant’s person whilst in possession of a knife.
The applicant submitted two signed statements from separate parties that were each consistent with this account.
The applicant also submitted two news articles reporting on separate instances of men being stabbed by their female partners. The Tribunal received no submissions as to what the Tribunal was to take from these articles. Having considered the articles, the Tribunal finds that they support the general possibility of a man being subject to abuse from a female partner and accords this minimal weight.
Having considered the applicant’s testimony before the Tribunal and noting that it is consistent with the signed statements above, the Tribunal finds this claim to be credible and accordingly accepts that the applicant was in a relationship with [Partner A] between 2014–2016 and that this relationship was an abusive one.
The applicant further claims that he impregnated [Partner A] and that [Partner A] subsequently terminated the pregnancy. This claim is consistent with the certified translations of the signed statements of applicant’s mother and the certified translation of messages received by the applicant from the aunt of [Partner A].
Having considered the applicant’s testimony before the Tribunal and noting that it is consistent with the signed statements and messages above, the Tribunal finds this claim to be credible and accordingly accepts that the applicant impregnated [Partner A] and that [Partner A] subsequently terminated the pregnancy.
Applicant’s current relationship in Australia.
The applicant claims that he is currently in a relationship with a woman in Australia (hereinafter [Partner B]). The applicant claims that he and [Partner B] commenced their relationship in 2017 and have been de facto as of 2018. The applicant claims that he is a Muslim, and that [Partner B] is a Catholic.
These claims are supported by the applicant’s statutory declaration, signed statement, and oral testimony before the Tribunal. They are further supported by the signed statement of [Partner B] and her oral testimony before the Tribunal, by the signed statement of the [sibling] of [Partner B], and the 66 images variously depicting the applicant and [Partner B] submitted by the applicant.
Having considered the applicant’s testimony before the Tribunal and noting that it is corroborated by the testimony of [Partner B] and submissions above, the Tribunal finds these claims to be credible and accordingly accepts that the applicant and [Partner B] commenced their relationship in 2017 and that they have been de facto as of 2018. The Tribunal further accepts that the applicant is a Muslim and that [Partner B] is a Catholic.
Having made the findings of fact as set out above the Tribunal has addressed in turn each of the applicant’s claims as set out above.
Ground 1 – Outstanding Debts
The applicant claims to have taken out a loan from a lender in the sum of [amount] Ringgit (approximately $[amount] AUD) of which [amount] Ringgit (approximately $[amount] AUD) remains outstanding. The applicant states that the lender will exact or threaten physical harm against his person to compel repayment of this debt if he is returned to Malaysia.
The applicant states that he sought out this lender and attended them in person having seen an advertisement for their services. The applicant states that he was required to make monthly repayments in [amount] Ringgit and that the loan was to be repaid by 3-4 years.
The Tribunal noted that on the lower figure at 3 years the total repayments would be [amount] Ringgit and at the higher figure at 4 years it would be [amount] Ringgit; noting that in both instances this was less than the amount loaned. The applicant indicated that he could not recall the exact details of the loan as it was taken out over eight years ago.
The applicant was asked if he was given a copy of the loan agreement when he took out the loan. The applicant stated that he was provided with a document setting out the term of the loan and the monthly amount that was required to be paid, but that he no longer had this document in his possession. The Tribunal enquired if the applicant was in a position to provide this document to the Tribunal at a later date. The applicant stated that he left all his documents with his ex-partner and that she may have disposed of them. The Tribunal enquired whether the applicant had any record of the repayments made under the loan, the applicant stated that there were no records of these repayment as they were made in cash to the lender in person.
The Tribunal enquired if the applicant had been contacted by the lender at any point following his default to demand repayment. The applicant stated that he had not.
The Tribunal enquired whether the applicant’s family in Malaysia had been contacted by the lender at any point following his default to demand repayment. The applicant stated that he had not.
The applicant submitted several articles which suggest that usury lending is prevalent in Malaysia. The Tribunal accepts this, noting it is consistent with reports from the Department of Foreign Affairs and Trade.[1] However, these being only indications of the general prevalence of usury lending, the Tribunal accords this minimal weight.
[1] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [35] 3.150
The Tribunal finds the applicant’s claim not to be credible. The applicant was unable to state the terms of the loan with sufficient certainty and on either account given by the applicant the terms are inconsistent with the amount stated to have been borrowed. This finding is further supported by the applicant’s testimony that neither he, nor his family, have been contacted by the lender following the applicant’s asserted default.
The applicant further claims that [Partner A’s] aunt borrowed [amount] Ringgit (approximately $[amount] AUD) from a lender and on let that sum to [Partner A] who in turn gave the funds to the applicant.
The applicant claims that:
b) If this debt remains outstanding, the aunt or other members of [Partner A’s] family will compel the applicant to replay this debt by way of actual or threatened physical harm against his person, or
c) If this debt was repaid by [Partner A], that [Partner A] will exact physical harm against his person in retaliation for her having been compelled to repay the debt.
In support of claim (a) the applicant submitted a certified translation of messages received by the applicant from the aunt of [Partner A] on 10 August 2018.
The Tribunal accepts these messages as corroborative of the existence of the outstanding debt and, accordingly, finds the applicant’s claim that [Partner A’s] aunt borrowed [amount] Ringgit and on let that sum to [Partner A] who in turn gave the funds to the applicant to be credible.
The question that arises, therefore, is what harm, if any, may be occasioned to the applicant as a result of this outstanding debt if he is retuned to Malaysia.
In making that determination it useful to set out the following passages of the messages received by the applicant from the aunt of [Partner A] on 10 august 2018.
a) “Peace be upon you … I’m sorry to trouble you”
b) “After all that has happened between you and [Partner A].. you forget it just like that Its not that I want to meddle in your business.. but I’m asking you to take some responsibility for what has happened” [sic]
c) “I hope you get it settled”, “I hope you settle the … loan”
d) “I hope you settle it quickly”
e) “we need to be responsible for what we do and settle them well.. because Allah’s punishment we do not know..” [sic]
f) “I sincerely apologise.. I have to get involved in this matter of yours” [sic]
g) “ [Partner A] is like my own daughter … I hope you understand what I mean”
Having considered the nature of these messages, the Tribunal finds that they are appropriately characterised as requests for repayment intended to shame or guilt the applicant into repayment rather than threatening harm against the applicant.
This, and the applicant’s testimony that he has received no further communication from [Partner A] or members of her family since 2018, is such that the Tribunal is not satisfied that the aunt or other members of [Partner A’s] family would compel the applicant to replay this debt by way of actual or threatened physical harm against his person if retuned to Malaysia.
This finding does not discount the applicant’s surrogate claim that [Partner A] may have repaid the debt and that she will exact physical harm against his person in retaliation for her having been compelled to repay the debt.
The Tribunal notes that this claim is consistent with the applicant’s accepted evidence that [Partner A] has previously been physically and verbally abusive to him.
However, the Tribunal notes the guidance of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 which note that a real chance cannot be one that is based on mere speculation, conjecture, or surmise, rather, it requires something more than the applicant’s claim being plausible or credible.
The Tribunal notes the applicant’s accepted testimony that he have no knowledge of whether this debt was repaid by [Partner A] and, there being no other material before the Tribunal to evidence this, the Tribunal finds this aspect of the applicant’s claim to be entirely speculative.
The Tribunal finds, accordingly, that there is no real chance that [Partner A] will exact physical harm against his person in retaliation for her having been compelled to repay the debt.
Having found that the applicant will not face a real chance of serious harm, the Tribunal is not satisfied that the applicant will face a real risk of significant harm; the threshold for the ‘real risk’ element in the complementary protection criterion in section 36(2)(aa) being the same as that of ‘real chance’ in the refugee criterion in section 36(2)(a).[2]
[2] Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; See also MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13 (upheld on appeal in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614) at [19]
Ground 2 – Forced Marriage
The applicant claims that he would be forced into marriage with [Partner A] due to his having impregnated [Partner A] and their respective families desire that they marry to absolve the associated social stigma that this engendered.
As noted above, the Tribunal accepts that the applicant was in a relationship with [Partner A] between 2014–2016 and that this relationship was an abusive one.
The latter part of this finding is, however, immaterial insofar as it is generally accepted that forced marriage can constitute serious harm sufficient to amount to persecution, even if not likely to lead also to domestic violence[3] and reflected in Australia in cases such as MZXFJ v Minister for Immigration[4].
[3] Hathaway [221 - 222] 3.3.3
[4] MZXFJ v Minister for Immigration [2006] FMCA 1465
Similarly, the Tribunal accepts the applicant’s submission that, per FMN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 612 at [43], forced marriage may constitute degrading treatment or punishment. Indeed, the Tribunal notes the reasoning of Steward J in the above case, with which the Tribunal concurs, that the act of being entered into a marriage without one’s consent is an act which should be characterised as intended to cause humiliation; and that humiliation would in most cases certainly be extreme and be entirely unreasonable.[5]
[5] FMN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 612 [44]
The Tribunal has had regard to the laws that govern marriage within Malaysia, namely the Law Reform (Marriage and Divorce) Act 1976 and the Islamic Family Law (Federal Territories) Act 1984 (Malaysia) and finds that the applicant could not be entered into any marriage absent their consent.
The Tribunal notes that Section 22 (6) of the Law Reform (Marriage and Divorce) Act 1976 (Malaysia) provides that “[no] marriage shall be solemnized unless the Registrar is satisfied that both the parties to the marriage freely consent to the marriage. “and Section 37 (a) further provides that “[a]ny person who uses any force or threat to compel a person to marry against his will shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding three thousand ringgit or to both.”
The Tribunal notes the applicant’s submission, which the Tribunal accepts, that Section 3 of Law Reform (Marriage and Divorce) Act 1976 (Malaysia) excludes its operation in respect of marriages involving a Muslim party. The relevant section providing that “[t]his Act shall not apply to a Muslim or to any person who is married under Muslim law and no marriage of one of the parties which professes the religion of Islam shall be solemnised or registered under this Act …”
However, these previsions are replicated mutatis mutandis in the Islamic Family Law (Federal Territories) Act 1984, notably section 13 (a) which provides that a “marriage shall not be recognized and shall not be registered under this Act unless both parties to the marriage have consented thereto” and section 37 (a) which provides that, “[u]nless permitted under Hukum Syarak, any person who uses any force or threat to compel a person to marry against his will commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both”
However, this finding does not discount the possibility of the applicant being compelled to consent to the marriage by means of actual or threatened physical harm against their person or otherwise by societal or familial pressure.
Accordingly, there are several questions that arise for determination. Whether the applicant would be compelled to marry [Partner A], what harm might be occasioned to compel the applicant to enter into the marriage and, whether this would amount to serious harm or significant harm.
Would the Applicant be Compelled to Enter Marriage
The Tribunal notes the signed statement of the applicant’s mother dated 27 February 2025 which states that, “[Partner A’s] family are forcing my family and I so that my son takes responsibility for what he has done by deciding that my son and [Partner A] should be married as soon as possible. As a mother, I also want my son to take responsibility for what he has done to [Partner A] by marrying her as soon as possible to protect the reputation of both sides of the family”.
The Tribunal notes also the signed statement of the applicant’s mother dated 24 March 2025 which states that, “[Partner A] and her family attended my house in April 2019. [They] came to me because they wanted me to do the right thing. I intend to do the same. We would like them to marry so that both families will not be disgraced. From 2019 to 2024 they came to see me on many occasions. The last time they came to my house was in November 2024. I am sure and certain that [they will] come again.”
These statements support the applicant's claim that members of his family and the family of [Partner A] would exert pressure on the applicant to enter into a marriage with [Partner A]. This claim is further supported by the messages received by the applicant from the aunt of [Partner A]. The relevant passages of those messages being,
a) “After all that has happened between you and [Partner A].. you forget it just like that Its not that I want to meddle in your business.. but I’m asking you to take some responsibility for what has happened” [sic]
b) “we need to be responsible for what we do and settle them well.. because Allah’s punishment we do not know..” [sic]
c) “[Partner A] is like my own daughter … I hope you understand what I mean”
The Tribunal notes also the applicant’s submission of a certified translation of messages received by the applicant from [Partner A] dated 30 May 2017 whereby [Partner A] expressed jealousy over a female friend of the applicant having liked a post that the applicant had made on [Social media 1] and threatened to publish photographs of the applicant’s penis unless the applicant refrained for making further posts.
The Tribunal notes that this message was received on 30 May 2017, which was after the applicant stated their relationship had ended. To the degree that this evidences an intention on the part of [Partner A] to pursue a relationship with the applicant following their separation, the Tribunal notes that this message was received shortly following their separation and the applicant’s accepted testimony that he and [Partner A] had progressively less communication following their separation, with their last communication being in July 2017. The Tribunal therefore accords minimal weight to this.
Having considered the evidence as set out above the Tribunal accepts the applicant’s claim that he will be compelled to consent to marriage with [Partner A] by members of his family, [Partner A], and the family of [Partner A]. The relevant question is, therefore, what harm might be occasioned to compel the applicant to enter into the marriage and, concomitantly, whether it would be sufficient to amount to serious harm or significant harm.
Nature of Efforts to Compel Applicant to Enter Marriage.
The applicant claims that He will be compelled to consent to the marriage by means of actual or threatened physical harm against his person or otherwise by societal or familial pressure.
As noted above, the Tribunal considers the nature of the messages received by the applicant from the aunt of [Partner A] to be appropriately characterised as attempts to shame or guilt the applicant into repayment of the outstanding debt rather than threatening harm against the applicant. To the extent that these messages may also be viewed as an attempt to compel the applicant to enter into a marriage with [Partner A] the Tribunal finds that they are also appropriately characterised as attempts to shame or guilt the applicant into entering into a marriage with [Partner A] rather than threatening harm against the applicant.
There is no evidence before the Tribunal of actual or threatened physical harm having been previously exerted to compel the applicant to consent to enter marriage with [Partner A]. However, the Tribunal notes the applicant’s accepted evidence that [Partner A] has been physically abusive to the applicant in the past and accepts that the applicant may have a fear of harm based upon this prior harm. The Tribunal notes also the guidance of the High court in Minister for Immigration & Ethnic Affairs v Guo (Guo) that past events, though not a certain guide as to the future, may provide a reliable basis for determining the probability of their recurrence.[6] However, the Tribunal notes that, as set out above, fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[7] The relevant consideration is, therefore, to what extent these past events are a guide as to the future.
[6] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574
[7] Ibid at 572 see also Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
The Tribunal again notes the guidance of the High Court in Guo that it depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.[8]
[8]Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–5.
In that regard, while it accepted that [Partner A] was abusive to the applicant whilst they were living as de facto, the Tribunal notes that [Partner A] and the applicant have been separated for approximately 9 years and that there is no evidence before the Tribunal that [Partner A] has threatened physical harm against the applicant during this period. The Tribunal accordingly finds this aspect of the applicant’s claim to be speculative.
The Tribunal notes also its finding above that section 37(a) of the Islamic Family Law (Federal Territories) Act 1984 (Malaysia) proscribes the use of force or threat to compel a person to marry against his will. The Tribunal notes further the report of the Department of Foreign Affairs and Trade that the Royal Malaysia Police is generally considered a professional and effective force.[9]
[9] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [41] 5.5
The Tribunal considers that these factors would further reduce the chance of the applicant’s family, [Partner A], or members of [Partner A’s] family, threatening or exacting physical harm against the applicant’s person to less than a real one.
The Tribunal finds accordingly that that there is no real chance that either the applicant’s family, [Partner A], or the family of [Partner A] would exert or threaten physical harm against the applicant.
Having found that there is no real chance that either the applicant’s family, Ms X, or the family of Ms X would exert or threaten physical harm against the applicant, the Tribunal finds that there is no real risk that either the applicant’s family, Ms X, or the family of Ms X would exert or threaten physical harm against the applicant; the threshold for ‘real risk’ in the complementary protection criterion in s 36(2)(aa) being the same as that of ‘real chance’ in the refugee criterion in s 36(2)(a).[10]
[10] Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; See also MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13 (upheld on appeal in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614) at [19]
Regarding the non-physical pressure that the applicant claims would be exerted upon him to enter into a marriage with Ms X, the Tribunal accepts, on the basis of the evidence set out above, that members of Ms X’s family have previously sought to shame or guilt the applicant into marriage with Ms X and that the applicant’s mother has expressed that his family is similarly desirous that they marry to absolve their respective families from shame. The Tribunal therefore accepts the applicant’s claim that his family and the family of Ms X will exert non-physical pressure to compel the applicant to marry Ms X.
The Tribunal has therefore considered whether this would be sufficient to compel the applicant to enter into the marriage against his will or otherwise be sufficient in its own right to constitute serious or significant harm.
The Tribunal has had regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Respondent S152/2003[11] per McHugh J which notes that the degree of harm required to constitute serious harm is such that a person cannot be expected to tolerate it, and the decision of the Federal Magistrates Court in SZAOD v Minister for Immigration[12] which affirmed, sub silentio, a finding of the Refugee Review Tribunal that general societal or familial pressure to marry against one’s wishes does not arise to the level of serious harm. The Tribunal has further had regard to the reasoning of Madgwick J in MMM v Minister for Immigration & Multicultural Affairs[13] which suggests that familial pressure to marry would be likely to fall well short of the statutory requirement.[14]
[11]Minister for Immigration and Multicultural Affairs v Respondent S152/2003 (2004) 222 CLR 1
[12] SZAOD v Minister for Immigration [2004] FMCA 89 [16]
[13] MMM v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 324 at 327 referring to Applicant A vMinister for Immigration & Multicultural Affairs (1997) 190 CLR 225 per Brennan CJ. The Court’s reasoning is broadly consistent with the discussion of ‘protection’ and ‘persecution’ in the joint judgment of Gleeson CJ with Hayne and Heydon JJ in Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1.
[14] See Administrative Review Tribunal, A Guide to Refugee Law in Australia Chapter 11 – Application of the Refugees Convention in particular situations 33-34.
The Tribunal finds accordingly that the general societal or familial pressure exerted upon the applicant to marry [Partner A] would not arise to a degree sufficient to constitute to serious harm.
The Tribunal has further considered whether the general societal or familial pressure exerted upon the applicant to marry [Partner A] would arise to a degree sufficient to constitute degrading treatment or punishment for the purposes of section 36(2A)(e).
The Tribunal again notes the Court’s finding in FMN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 612 that certain acts to compel a person to enter into a marriage to which they do not consent may amount to degrading treatment or punishment as defined in section 5(1) of the Act as an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
However, as set out by Baroness Hale in R (on the application of Quila) v Secretary of State for the Home Department [2011] UKSC 45 at [64][15] as cited by the Federal Court at [27] and again at [43] in FMN17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 612,
“There is a spectrum of behaviours behind the term forced marriage, ranging from emotional pressure, exerted by close family members and the extended family, to the more extreme cases, which can involve threatening behaviour, abduction, imprisonment, physical violence, rape and in some cases murder.”
[15] Her Ladyship quoting the Court of Appeal in Hirani v Hirani (1984) 4 FLR 232.
The Tribunal finds that continued efforts by the applicant’s family, [Partner A], or members of [Partner A’s] family to shame or guilt the applicant into marriage with [Partner A] would be at the lower end of this spectrum and insufficient in and of themselves to constitute extreme humiliation which is unreasonable. In this regard, the Tribunal finds that the reasoning of the Court in SZAOD v Minister for Immigration[16]and MMM v Minister for Immigration & Multicultural Affairs[17]above is equally supportive of a finding that general societal or familial pressure to marry against one’s wishes does not arise to the level sufficient to constitute extreme humiliation which is unreasonable.
[16] SZAOD v Minister for Immigration [2004] FMCA 89 [16]
[17] MMM v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 324.
The Tribunal finds accordingly that the general societal or familial pressure exerted upon the applicant to marry [Partner A] would not arise to a degree sufficient to constitute to significant harm.
Ground 3 – Interfaith relationship
The applicant claims that, as he is a Muslim and his current de facto [Partner B] is a Christian, he will not be permitted to marry in Malaysia and that any marriage having taken place between [Partner B] and the applicant outside Malaysia would not be recognised under Malaysian law.
The applicant further claims that, were he and [Partner B] to live as de facto in Malaysia that he would be subject to fines, forced rehabilitation, or arrest.
The applicant further claims that any child of the applicant and [Partner B] would be deemed Muslim under Malaysian law and that he would be prevented by law from raising such child as Christian contrary to the intention of the applicant and [Partner B].
Denial of Legal Recognition of Marriage
The applicant cited section 10(1) of the Islamic Family Law (Federal Territories) Act 1984 as authority for he and [Partner B] not being permitted to marry in Malaysia and that any marriage having taken place between He and [Partner B] outside Malaysia would not be recognised. Section 10(1) of the above act provides that “No man shall marry a non-Muslim except a Kitabiyah.”
The Tribunal notes the journal article by Arshad, Abdullah, and Mat Ali of the Universiti Teknologi Marathat Kitabiyah Faculty of Law that states that,
Kitabiyah and ahl al-Kitab are terms that are often used interchangeably to describe a woman who believes in revealed religion possessing a Divine Book, namely Judaism or Christianity. The Islamic Family Law Act and Enactments recognize a marriage between a Muslim man and a Kitabiyah. In the case of Johan bin Abdul Walked Shaik v Runa Bangoe Olsen, the Syariah court found that the marriage solemnized in Australia between parties to the marriage, namely between a Muslim man and a Christian woman, was valid according to the Shari’ah. This case highlights the interpretation of the term kitabiyah made by the Malaysian Syariah court in a Muslim marriage registered under the Islamic Family Law Enactment in Malaysia.[18]
[18] Arshad, Azhani; Abdullah, Rozlinda; Mat Ali, Syuhaeda Aeni. Kitabiyah in Muslim Marriages in Malaysia: Issues and Challenges. Kanun: Jurnal Undang-undang Malaysia Vol 34 No 2 (2022)
The Tribunal notes also the applicant’s submission of the following excerpts from the United States Law Library of Congress Global Legal Research Centre[19] which states that “The marriage laws that govern Muslims in Malaysia largely prohibit Muslim-non-Muslim marriages” and that “[i]n practice, the marriage of Muslim men to non-Muslim women is also highly restricted due to the definition of who constitutes a Kitabiyah in the legislation.”
[19] United States Government, The Law Library of Congress, Global Legal Research Centre, Prohibition of Interfaith Marriage (Report, September 2015)
The Tribunal notes also the applicant’s submission of a 2013 article of the Malay Mail that quotes then Malaysian Islamic Development Department Director-General Datuk Othman Mustapha as stating that “[a]ny marriage between a Muslim and a non-Muslim is disallowed and is not recognised in this country and action can be taken by the state Islamic religious authorities”.
The Tribunal also notes the report of the Department of foreign Affairs and Trade which states that, “[a] non-Muslim (male or female) must convert to Islam before marrying a Malaysian Muslim”,[20] and the report of the US Department of State which notes that a non-Muslim must convert to Islam for the marriage to be legally recognised.[21]
[20] Department of foreign Affairs and Trade, Country Information Report Malaysia, June 2024 [23] 3.64
[21] US Department of State, 2023 Report on International Religious Freedom: Malaysia, 26 June 2024 [5]
Having considered the material above, the Tribunal finds that the applicant would be prevented from marrying [Partner B] under Malaysian law and that any marriage having taken place between [Partner B] and the applicant outside Malaysia would not be recognised under Malaysian law.
The Tribunal has therefore considered whether this amounts to serious or significant harm.
As regards serious harm, the Tribunal notes the Refugee law Guidelines prepared by the Department of Home Affairs which state that in certain circumstances, the denial of fundamental human rights for a refugee protection reason may constitute persecution involving serious harm within the meaning of s5J(4)(b) and, in determining whether the right in question is a ‘fundamental human right’, reference should be had to international human rights standards.[22]
[22] Department of Home Affairs, Refugee law Guidelines, 27 November 2022, 3.11.7.1.
The Tribunal notes that Article 16 of the Universal Declaration of Human Rights states that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry. However, the mere fact that a particular right is denied is not necessarily enough to establish persecution. It is generally also necessary to ascertain the importance the applicant places upon the exercise of the particular right in issue.[23] Indeed, as noted by the High Court in Minister for Immigration and Multicultural Affairs v Respondent S152/2003 (2004) 222 CLR 1 the harm or threat of harm will amount to persecution only if it is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it. Thus, an assessment of the tolerability of the harm is relevant in assessing whether the putative denial of the applicant’s human rights may amount to persecution.[24]
[23] Ibid citing Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132.
[24] Department of Home Affairs, Refugee law Guidelines, 27 November 2022, 3.11.7.1
The applicant stated in his submission to the Tribunal that legal recognition of marriage was a significant to him because he and [Partner B] are getting older and want to start a family.
It was put to the applicant that, as he has lived as de facto with [Partner B] for several years, that the Tribunal may form the view the legal recognition of marital status is not significant to the applicant. The applicant restated his desire for legal recognition of marital status.
The Tribunal accepts that the applicant holds a genuine desire for legal recognition of marital status between he and [Partner B], however, it is not satisfied that the legal recognition of marital status is sufficiently important to the applicant such that the denial of it would be so oppressive that the applicant could not be expected to tolerate it.
100. The Tribunal finds accordingly that the denial of legal recognition of marital status would not amount to serious harm for the purposes of section 5J(4)(b) of the Act.
101. As regards significant harm, the applicant submits that the denial of legal recognition of marital status amounts to degrading treatment or punishment for the purposes of section 36(2A)(e).
102. Degrading treatment or punishment is exhaustively defined in s5(1) as an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The assessment of whether particular conduct or conditions amounts to degrading treatment or punishment is necessarily subjective, in that it depends on the characteristics of the applicant and necessitates a taking into account of the societal context within which the harm occurs.
103. Treatment may be degrading if it ‘humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’.[25] The assessment of the minimum level of severity necessary to constitute ‘extreme humiliation’ is similarly subjective as it depends upon the circumstances of the case, including the nature and context of the treatment, its duration, its physical or mental effects and circumstance peculiar to the applicant.
[25] Pretty v United Kingdom (2002) 35 EHRR 1, [52], citing Price v the United Kingdom [2001] ECHR 458 at [24]-[30] and Valašinas v Lithuania [2001] ECHR 479 at [117].
104. The Tribunal accepts that the denial of legal recognition of the relationship with [Partner B] may diminish the applicant’s dignity and or engender feelings of inferiority, however, for the reasons stated above, it is not satisfied that the legal recognition of marital status is sufficiently integral to the applicant such that it would be properly regarded as satisfying the minimum level of severity necessary to constitute ‘extreme humiliation’.
105. The Tribunal finds accordingly that the denial of legal recognition of marital status would not amount to degrading treatment or punishment for the purposes of section 36(2A)(e).
Harm Arising as a Result of De Facto Relationship
106. Regarding the second aspect of this claim, the applicant submitted that, if they lived with [Partner B] in Malaysia as de facto, he would be subject to fines, forced rehabilitation, or arrest. The applicant submitted that both the fine and the period of detention would be significant.
107. The applicant cited the US Department of State: 2023 Country Report on Human Rights Practices: Malaysia as authority for Islamic authorities’ ability enter private premises without a warrant to apprehend Muslims suspected of engaging in offenses such as gambling, consuming alcohol, or having sexual relations outside marriage.
108. The applicant further submitted that the Malaysian Syariah courts have the power to sentence a person to rehabilitation under Section 54(1) in Syariah Criminal Offences (Selangor) Enactment 1995 which provides that the court may sentence any person convicted of contempt or defiance of religious authorities to undergo counselling or rehabilitation in an approved rehabilitation centre for such period not exceeding six months.
109. The applicant further submitted several articles evidencing the rehabilitation to which Muslims suspected of engaging in offenses against Islamic law in Malaysia are subject.
110. In support of the applicant’s claim, [Partner B] testified that she intends to accompany the applicant to Malaysia if his is returned. Having given due regard to the testimony of [Partner B], the Tribunal finds that [Partner B] would not accompany the applicant to Malaysia if he were returned.
111. In so finding the Tribunal has had regard to [Partner B’s] testimony that she is currently on a bridging visa pending the outcome of her application the Federal Circuit Court for judicial review of a decision of the AAT affirming a decision of the Department of Home Affairs to refuse to grant her a Medical Treatment visa. The Tribunal notes that [Partner B’s] bridging visa would be voided if she departed Australia.
112. The Tribunal has further had regard to [Partner B’s] testimony that she has previously sought judicial review of decision of the AAT affirming a decision of the Department of Home Affairs to refuse to grant [Partner B] a Protection Visa. The Federal Circuit Court having dismissed the appeal.
113. The Tribunal regards [Partner B] as having demonstrated a willingness to fully engage with the visa appeals process and finds that she would remain in Australia for the foreseeable future in order to continue with the present appeals process.
114. Consequently, the Tribunal finds that there is no real chance that the applicant will be harmed as a result of residing with [Partner B] as de facto in Malaysia. Having found that the applicant will not face a real chance of serious harm as a result of residing with [Partner B] as de facto in Malaysia, the Tribunal is not satisfied that the applicant will face a real risk of significant harm as a result of residing with [Partner B] as de facto in Malaysia; the threshold for the ‘real risk’ element in the complementary protection criterion in section 36(2)(aa) being the same as that of ‘real chance’ in the refugee criterion in section 36(2)(a).[26]
[26] Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; See also MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13 (upheld on appeal in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614) at [19]
115. The Tribunal notes that as a consequence of its decision the applicant may be separated from his current de facto partner, however, as noted in SZRSN v Minister for Immigration and Border Protection [2013] FCA 751 per Mansfield J at [47] – [49] this is not a relevant consideration.
Child’s Religion
116. Regarding the third aspect of this claim, the applicant states that any child of the applicant and [Partner B] would be deemed Muslim under Malaysian law and that they would be prevented by law from raising such child as Christian contrary to the intention of the applicant and [Partner B].
117. The Tribunal is unable to identify any authority for this proposition in the applicant’s submissions. Indeed, the decision of the Malaysian Federal Court in Rosliza Ibrahim v Kerajaan Negeri Selangor & Anor [27] suggests that, as a Muslim father and non-Muslim mother may not be legal married, any child bon unto them would be born illegitimate and would accordingly follow the religion of the mother.
[27] Rosliza Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 30
118. The Tribunal does not therefore accept that any child of the applicant and [Partner B] would be deemed Muslim under Malaysian law and finds that they would instead be deemed as Christian.
119. Consequently, the Tribunal finds that there is no real chance that the applicant will be harmed as a result of being unable to raise a child of his and [Partner B] as Christian. Having found that the applicant will not face a real chance of serious, the Tribunal is not satisfied that the applicant will face a real risk of significant harm; the threshold for the ‘real risk’ element in the complementary protection criterion in section 36(2)(aa) being the same as that of ‘real chance’ in the refugee criterion in section 36(2)(a).[28]
[28] Minister for Immigration & Multicultural Affairs v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]; See also MZYXS v Minister for Immigration and Citizenship [2013] FMCA 13 (upheld on appeal in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614) at [19]
120. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) or section 36(2)(aa).
DECISION
121. The Tribunal affirms the decision under review.
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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