2104242 (Refugee)
[2025] ARTA 2316
•13 August 2025
2104242 (REFUGEE) [2025] ARTA 2316 (13 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2104242
Tribunal:General Member J Lock
Date:13 August 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
Statement made on 13 August 2025 at 9:50am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – fear of forced marriage – victim of loan shark – race – Kadazan – religion – Catholic – employment – internal relocation – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 relevant Minister on 25 March 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 21 March 2020. The delegate refused to grant the visa on the basis that the applicant did not have a well-founded fear of harm from being subjected to a forced marriage as the applicant could access effective protection mechanisms in Malaysia through the police and judicial system. The delegate also found that the applicant could access that protection so that there was no real risk that she would suffer significant harm if she returned to Malaysia, and so was not owed complementary protection.
The applicant appeared before the Tribunal on 29 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The applicant is [an age]-year-old woman from Sabah, Malaysia. Her ethnicity is Kadazan and her religion is Catholic. She grew up in [Town 1] with her parents. She is their [position in family]. Her father passed away in 2012. Her mother is aged [age] years and lives in [Town 1], as do all of her siblings.
The applicant completed her schooling up to [grade] in high school in [Town 1]. After finishing school, she started working in a [business 1] in [Town 1]. She continued to work for the [business 1], transferring to work in Kota Kinabalu after a year, and then a few years later, transferring to work in Kuala Lumpur. After a few years, the [business 1] closed down and the applicant continued to work in Kuala Lumpur. She worked at [two similar businesses] and then joined [a business 2] where she worked until leaving to come to Australia.
The applicant arrived in Australia [in] December 2019 as the holder of a visitor visa (subclass UD-601).
The applicant provided the above background information at the hearing and the Tribunal accepts it to be true.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The Tribunal received a copy of the applicant’s file from the Department of Immigration and Citizenship (the Department) which contained the following relevant documents:
·the protection visa application lodged 21 March 2020
·copy of the applicant’s passport
·the delegate’s decision dated 25 March 2021.
The delegate’s decision contained a summary of the claims raised by the applicant in her protection visa application as:
a.The applicant is Islamic and fell in love with [Mr A] while working in Kuala Lumpur, Malaysia.
b.The applicant’s parents were furious to learn she wanted to marry [Mr A]. The applicant’s parents and brothers threatened her and told her to end her relationship with him as they wanted the applicant to marry the son of their best friend.
c.The applicant continued her relationship with [Mr A]. When her parents learnt of this, they came to his workplace where they met [Mr A] and threatened to kill him if the relationship didn’t end.
d.[In] December 2019, the applicant left her family and flew to Australia with [Mr A] in search of protection from the Australian government.
e.The applicant fears returning to Malaysia because she and [Mr A] will not be able to marry. Further, both the applicant and [Mr A] will be killed by the applicants’ parents and brothers if they were to return.
f.The applicant would not relocate within Malaysia because they are scared of the threat made against their lives and they would not feel safe in another part of the country.
g.The applicant would not seek protection from the authorities because they do not think the police can protect them all the time.
The applicant was not offered the opportunity to attend an interview with the Department.
Evidence before the Tribunal
Written submissions
The applicant provided further information regarding her claims for protection in a pre-hearing information form filed with the Tribunal on 23 June 2025. The information was in the Malay language and was translated by the interpreter in the hearing as follows:
My main reason for coming to Australia is to pay up my debts. And to renovate or fix up my mum’s house wherever needed. And to help my mum fulfil her dream in building a house on her own land. And to have some savings before I return to Malaysia.
Evidence given at the hearing
The applicant gave evidence at the hearing with the assistance of an interpreter in the English and Malay languages. When the claims raised in her protection visa application were put to the applicant through the interpreter in the hearing, she appeared surprised and at times amused. She clearly stated that the claims put in her application were not true. The applicant stated that she is of the Catholic, not Muslim religion. She stated she has never known a man named [Mr A] in her life. The applicant did not seek to make any further claims for protection and stated that she does not have any fears of returning to Malaysia. The applicant stated that she has plans to return to Malaysia in about 2 years after she has had time to save enough money to fulfil her goal of helping her mother build her dream home.
The further evidence given by the applicant at the hearing is discussed below in an assessment of the protection criteria in the section titled Reasons and Findings, where relevant.
Adverse information
At the hearing, as required under s359A of the Act, the Tribunal put specific information which may be the reason or part of the reason for affirming the decision under review (adverse information) to the applicant. The information was contained in documents that had been uploaded to the applicant’s Tribunal file via the Tribunal’s secure online portal which required the applicant’s personal details in order to gain access. The Tribunal was concerned that the applicant did not upload the documents herself and was not aware of the information contained in them.
The applicant was informed that several documents had been uploaded to her Tribunal file. Those documents related to another person. That person also had an application for review at the Tribunal. Details contained in that person’s protection visa application are very similar to the details contained in the applicant’s protection visa application. The similar details include the person’s address at the time of application, the nature of the claims made, and places of previous employment. The other person’s current address is the same as the applicant’s current address.
The applicant was advised that this may lead the Tribunal to find that the applicant’s claims are not genuine and that she does not have a well-founded fear of persecution. The Tribunal noted that the applicant had already told the Tribunal that the claims put in her protection visa application were not true. The Tribunal invited the applicant to make any further comment.
The applicant stated that when she first arrived in Australia, she did not know anything about the Australian law. She was put in contact with a person she knew as “[Mr B]” through a person she met when she was [working]. He asked her a series of questions via text messages about her personal details, education and work history, arrival in Australia and contact details. He did not ask her anything about any need for protection. She thought she was applying for work rights. She did not see the form before it was submitted. She did not know what was written in her application.
This is consistent with the Tribunal’s assessment of the applicant protection visa application, in that the basic biographical information provided in the application has been confirmed by the applicant. However, other biographical information, such as details of the applicant’s family members, is omitted from the application. This information was not included in the list of information the applicant said she was asked to provide to “[Mr B]”.
The applicant has stated that the claims for protection contained in her protection visa application are not true. The Tribunal accepts this and accepts the applicant’s explanation as to how her application was prepared. To the extent that there is any inconsistency between the information contained in the protection visa application and the applicant’s evidence at the hearing, the Tribunal prefers the applicant’s evidence.
The Tribunal draws no conclusion adverse to the applicant’s interests from the similarities in details contained in the applicant’s protection visa application and those contained in the other person’s protection visa application.
The applicant’s claims
The applicant has stated that the claims raised in her protection visa application in relation to forced marriage and an inter-racial marriage are not true. From a consideration of the applicant’s evidence, the Tribunal has identified and assessed the following factors that may put the applicant at risk of harm if she were to return to Malaysia:
a.her Catholic religion
b.her Kadazan ethnicity
c.debts owed in Malaysia
RELEVANT LEGISLATION AND MANDATORY CONSIDERATIONS
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant has a well-founded fear of persecution if she were to return to Malaysia. Alternatively, the issue is whether there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which was provided to the Department and Tribunal. The Department assessed the passport and found no evidence that it was a bogus document. The applicant states that she is a citizen of Malaysia. The Tribunal finds that the applicant is a Malaysian citizen. The Tribunal has assessed her claims against Malaysia as the country of nationality and the receiving country.
Credibility
The applicant gave her evidence to the Tribunal at the hearing in an open and forthright manner, even when that evidence did not support her claim for protection. The Tribunal accepts the evidence given by the applicant at the hearing to be true.
Does the applicant satisfy the refugee criterion for protection?
Risk of harm for the reason of forced marriage or an inter-racial relationship
These claims were contained in the applicant’s protection visa application and are set out are paragraph 9. The applicant stated at the hearing that these claims are not true and she does not fear harm if she were to return to Malaysia. The Tribunal finds there is no real chance of harm for reason of forced marriage or an inter-racial relationship if the applicant were to return to Malaysia in the reasonably foreseeable future.
Risk of harm for reason of race or religion
The applicant stated that she does not fear harm in Malaysia because of her Catholic religion or her Kadazan ethnicity (or race). She did not provide any evidence of having experienced any harm because of her Catholic religion or her Kadazan ethnicity, other than what is recounted below.
The applicant stated that she left her last job in Malaysia because of suspected racism. The Tribunal took the applicant to be referring to discriminatory treatment because of her Kadazan ethnicity or being an indigenous Malay from Sabah. She was working at [a business 2] in Kuala Lumpur. Her manager was a Chinese Malay man and she felt he would look for her mistakes just to sack her. She said she did not know if he was racist, but she had 5 friends from Sabah who were working at the same place and that he had sacked 4 of them. She stated that he did not treat her or her friends in a bad way or threaten them, but that he just tried to sack them when they made very small mistakes. The applicant stated that her manager had informed his superiors about her performance, and she felt he was trying to sack her, but she decided to resign. She then decided to come to Australia because of what her friends had told her about Australia.
The Tribunal considered country information which confirms that the Kadazan people are part of the larger ethnic group in Sabah known as the Kadazandusun. The broader Kadazandusun are part of the Bumiputera, an ethnic category that includes Malays and the indigenous peoples of Sabah and Sarawak, also known as Anak Negeri.[1] The UN Refugee Agency (UNRA) identified in 2018 that approximately 60% of Sabah’s 3.5 million people are from indigenous minorities and the Kadazandusan minority represents the largest minority at approximately 18% of the population.[2] The DFAT Country Information Report Malaysia (DFAT report)[3] identifies that while government regulations and policies have included numerous affirmative action style preferential programs to boost the economic position of Bumiputera, many are marginalised within Malaysian society. Many indigenous people in Sabah live outside urban areas and have limited access to schooling and healthcare and some have experienced land grabs by developers as they do not have formal title over their land.[4] DFAT assesses that the indigenous peoples of Malaysia broadly face a low risk of official discrimination in the form of inadequate service provision and failure to uphold and protect customary land rights. UNRA observes that while in theory indigenous peoples in Sabah are supposed to benefit from some of the programmes for Bumiputera, the trend has been for authorities to direct these mainly towards the now dominant Malays and Muslims. It assesses that indigenous peoples and non-Muslim minorities such as the Chinese are under-represented in the political and economic arenas in Sabah.[5]
[1] 'Sabah's People and History', State Government of Sabah (Malaysia), No Date, Accessed 11 July 2024;[2] World Directory of Minorities and Indigenous Peoples - Malaysia : Indigenous peoples and ethnic minorities in Sabah | Refworld accessed 30 July 2025
[3] Department of Foreign Affairs and Trade DFAT Country Information Report Malaysia (24 June 2024) (DFAT report) [3.5] 14
[4] DFAT report (n.3) [3.8] 15
[5] n.2
DFAT identifies that approximately 9% of the Malaysia population practises Christianity and approximately 75% of Malaysian Christians live in Sabah and Sarawak, around 65% of whom are indigenous.[6] Freedom of religion is protected in Article 3(1) of the Malaysian Constitution, however other clauses in the constitution severely restrict the capacity of religions other than Islam to proselytise.[7] DFAT assesses that Christians are not generally at risk of societal discrimination.
[6] DFAT report, n.3 [3.35] 19
[7] DFAT report, n,3 [3.37] 19
The applicant stated that her intention is to return to Malaysia in about 2 years and return to live with her mother in [Town 1], Sabah. She gave evidence of having shared the cost of renovating her mother’s current home, with costs totalling 27,000RMB ($10,000AUD).[8] She and her mother are now intending to share the cost of building her mother’s dream house and their budget is around 60,000RM (or $21,000AUD).[9] She has been putting money in her mother’s bank account towards this goal and does not know how much she has saved to date. She stated that she is not yet sure what she would do for work if she were to return to Malaysia now, as it may be difficult to find work at an age of [age] years. She thought she could obtain work at a supermarket where her sister works.
[8] The Tribunal has applied the current exchange rate of the Reserve Bank of Australia (RBA) as at 29 July 2025 to verify these estimations, specifically $1 Australian dollar (AUD) being worth 2.7663 Malaysian Ringgit (RM): Exchange Rates | RBA. [Details deleted].
[9] (n.8) 60,000RM = $21,690AUD
The Tribunal finds that if the applicant were to return to Malaysia she would live in [Town 1], Sabah with her mother and be living in the same area as her [siblings] and their families. There is no evidence before the Tribunal to suggest that the applicant or her mother experience any insecurity in their land tenure. The applicant felt that while she might face some difficulties due to her age, she could obtain employment in Malaysia. The Tribunal accepts the applicant experienced some difficulties with a Chinese Malay manager in her previous employment in Kuala Lumpur. The applicant stated that she did not know if her manager was raising issues with her performance because of her race. The applicant’s employment was not terminated by the manager, she chose to resign. The Tribunal is not satisfied on the evidence before it that this was because of the applicant’s Kadazan ethnicity.
While it is possible that the applicant may face some difficulties in obtaining employment if she were to return to Kuala Lumpur, the Tribunal does not accept that this is because of her Kadazan ethnicity or Catholic religion. The applicant gave evidence of a strong work history in Malaysia. She worked consistently in several places of employment in [Town 1] and Kuala Lumpur after leaving school up until she left Malaysia to come to Australia at [age] years. There is no evidence before the Tribunal that the applicant was unable to find employment in the past in Malaysia on the basis of her age, her ethnicity or religion. The Tribunal finds this indicates that the applicant has good prospects of finding work in Malaysia. The applicant will be [age] years old if she were to return to Malaysia. There is no evidence before the Tribunal that the applicant would be unable to obtain any employment or be able to support herself due to her age.
The Tribunal also finds that the applicant will have secure accommodation in [Town 1] with her mother. She will also have the support of her [siblings] who may assist her in obtaining employment, as indicated by the applicant who anticipated being able to work at the supermarket where her sister works. Given her extensive family network, the Tribunal finds that the applicant will have access to sufficient support if she is unable to find employment. Taking into account the applicant’s age, ethnicity and religion, the Tribunal in not satisfied the applicant is at risk of economic hardship.
The Tribunal has found that if she returned to Malaysia, the applicant would return to live in [Town 1], Sabah. The Tribunal has had regard to country information that indicates that the Kadazan community is a significant ethnic minority in Sabah, and that many of that community practise the Christian faith (including Catholicism). The Tribunal has considered that the applicant grew up, completed her schooling and worked for several years after school in [Town 1] before moving to Kuala Lumpur. There is no evidence before the Tribunal that the applicant experienced any harm in [Town 1].
Having considered both the relevant country information and the evidence of the applicant’s specific circumstances, the Tribunal is satisfied there is no real chance will experience any harm if she returned to [Town 1] in Sabah, Malaysia in the reasonably foreseeable future.
Risk of harm relating to debts
The Tribunal considered whether the applicant is at risk of harm as a result of debts she owed in Malaysia. The applicant gave evidence that when she left Malaysia she owed approximately [amount]RM ($[amount]AUD)[10] to three licensed financial institutions in Malaysia – [three institutions named]. To her credit, the applicant has been able to discharge these debts since living in Australia.
[10] [Details deleted.]
The applicant stated she did not have any fear of harm from any people or institutions to whom she had owed money in Malaysia. She said she never borrowed money from unlicensed lenders or loan sharks as she was too scared to do so.
The applicant has since been able to contribute approximately 12,500RM ($5,000) towards renovations on her mother’s home and is saving to contribute to the budgeted cost of 60,000RM ($21,000AUD) building her mother’s dream home. She hopes to be able to fulfil this dream and save a bit of money for herself before returning to Malaysia.
There is no evidence before the Tribunal that the applicant has suffered any harm in the past as a result of debts she owed to licenced financial institutions in Malaysia. The applicant has now discharged these debts and does not fear any harm as a result of these debts in the future. While the Tribunal acknowledges country information that indicates that people who borrow money from unlicensed lenders (loan sharks) in Malaysia may face harassment and harm in some circumstances[11], the applicant has only borrowed from banks and licensed financial institutions and does not face that risk.
[11] DFAT report (nX) [3.149]-[3.154] 35-36
The Tribunal finds there is no real chance of any harm as a result of debts owed by the applicant in Malaysia in the past if she were to return to Malaysia in the reasonably foreseeable future.
Conclusion on refugee grounds
The applicant stated that she does not fear harm if she were to Malaysia. The Tribunal is satisfied the applicant does not fear persecution for the purposes of s5J(1)(a) of the Act.
Having considered the applicant’s risk of harm arising from her age, religion, race and debts both individually and cumulatively, the Tribunal finds there is no real chance of any harm to the applicant if she were to return to Malaysia in the reasonably foreseeable future for the purposes of s5J(1)(b) of the Act.
The Tribunal finds the applicant does not have a well-founded fear of persecution for the purposes of s5J(1) of the Act and as such is not a refugee under s5H of the Act.
The Tribunal finds that the applicant does not satisfy the criteria for a protection visa under s36(2)(a) of the Act and is not a person to whom Australia has protection obligations.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). That criterion is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[12]
[12] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
Having found there is no real chance of any harm to the applicant if she were to return to Malaysia, the Tribunal finds there is no real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia for the purposes of s36(2)(aa) of the Act.
Conclusion
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 s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 29 July 2025
Representative for the Applicant: self
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
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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.
…
'Cultivating Rice and Identity: An Ethnography of the Dusun People in Sabah, Malaysia', Elizabeth Gimbad, Western Sydney University, January 2020, p.9;
'Dusun - Sabah, Malaysia', Encyclopedia.com, 11 July 2025;
'Dusun, Kadazan in Malaysia Profile', Joshua Project, 11 July 2025;
Department of Foreign Affairs and Trade DFAT Country Information Report Malaysia (24 June 2024) (DFAT report) [3.4] 14
0
1
0