2107067 (Refugee)

[2025] ARTA 1726

2107067 (REFUGEE) [2025] ARTA 1726 (25 JUNE 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Citizenship

Tribunal Number:  2107067

Tribunal:General Member J Lock

Date:25 June 2025

Place:Adelaide

Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that

(i)that the first named applicant meets s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant meets s 36(2)(a) of the Migration Act

Statement made on 25 June 2025 at 4:06pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – women and children – victim of family violence – race – Indian Malaysians – physical assault – threats of killing – coercive control – fraudulent withdrawal requests – disputed custody of child – state protection – decision under review remitted

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 499
Migration Regulations 1994, Schedule 2; rr 1.12, 2.08

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 May 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants claim to be nationals of Malaysia. The first applicant applied for a protection visa on 6 March 2020. The first applicant’s son (the second applicant) was born on [date]. By a decision dated 11 May 2021, the delegate refused to grant the visa to the first applicant as the delegate was not satisfied there was a real chance that the first applicant would be persecuted for reason of her race, religion, nationality, membership of a particular social group or political opinion. The delegate was also not satisfied that there was a real risk the first applicant would suffer significant harm on her return to Malaysia. The first applicant lodged an application for a review of this decision with the Administrative Appeals Tribunal (AAT) on 27 May 2021.

3. The first applicant advised the Department of the birth of the second applicant on [date]. The second applicant was included in the first applicant’s protection visa application by operation of Regulation 2.08 Migration Regulations 1994, as the child had been born after the first applicant’s protection visa application and prior to the delegate’s decision. However, the delegate was not aware of the birth of the second applicant at the time of making the first decision.

4. The Department of Home Affairs (the Department), as it was then, created a separate protection visa application for the second applicant on 2 November 2011, and sought further information from the first applicant about the second applicant’s claims by letter dated 5 August 2022. The first applicant responded by email dated 30 August 2022. In a decision dated 20 October 2022, the delegate refused to grant the visa to the second applicant as the delegate was satisfied that there were effective protection mechanisms available to the second applicant in Malaysia so that he did not have a well-founded fear of persecution. The delegate was also not satisfied that there was a real risk that the applicant would suffer significant harm if he was to move to Malaysia. The first applicant, on behalf of the second applicant, lodged an application for a review of this decision with the AAT on 3 November 2022.

5. On 26 February 2024, the AAT received a withdrawal form via its online lodgement system using the first applicant’s email address, purporting to be from the first applicant and purporting to withdraw the application for review for all applicants. The AAT contacted the first applicant in writing to confirm her intention to withdraw. The first applicant confirmed that she did not lodge the online withdrawal, that it had happened without her knowledge, and she did not wish to withdraw her application.

6. On 2 April 2024, the AAT received a further online withdrawal form from a non-authorised email address, purporting to be from the first applicant requesting the withdrawal of all applications. Again, the AAT contacted the first applicant to verify her intention to withdraw. The first applicant confirmed that she did not lodge the request for withdrawal.

7. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

8. The first applicant appeared before the Tribunal on 21 January 2025 to give evidence and present arguments in support of her claims and those of her son, the second applicant. The hearing was attended by an interpreter in the English and Tamil languages. The first applicant gave her evidence in English. The Tribunal received oral evidence from the first applicant’s mother, [Mother A], who gave her evidence in Tamil with the assistance of the interpreter.

   BACKGROUND

9. The first applicant is [an age]-year-old woman, born [specified year] in Malaysia. She is of Indian ethnicity and of the Hindu faith. She was born in Selangor, Malaysia. She was raised and attended school in Kuala Lumpur, Selangor. Her father passed away in an accident when the first applicant was [age] years old. She has [number of siblings, genders specified]. After the death of their father, their mother raised them as a single parent.

10. The first applicant states she is a citizen of Malaysia. She first travelled to Australia in 2016 on a tourist visa (subclass UD-601). She was granted a [student visa] in 2016, and undertook a [Course 1] in Victoria, graduating in June 2017. She was granted a further student visa (subclass TU-500) in 2018, and undertook a [Course 2] in Victoria, graduating in 2019.

11. The first applicant met [Husband A] (date of birth: [specified]) in Melbourne, Victoria in June 2019 and they married [in] February 2020. [Husband A] had applied for a protection visa. In March 2020 the first applicant lodged her protection visa application.

12. Initially the first applicant and her husband lived in Melbourne. On [date], their son, the second applicant, was born. The family moved to live in Adelaide, South Australia and from approximately June 2022 lived in a property in [Town 1]. Her husband’s protection visa had been refused and he had exhausted his rights of appeal and intervention. The first applicant was working as [an occupation 1] and working towards attaining her skill assessment to meet the criteria for a permanent visa. Her husband was staying at home and caring for the second applicant. The applicant and her husband separated in late April 2024 when he left the house on a final basis. The applicant and her son continued to live in the [Town 1] property.

13. The applicant’s husband left Australia in approximately June 2024.

14. The first applicant gave this background information in a statutory declaration declared on 21 August 2024, and in evidence at the hearing and the Tribunal accepts it to be true.

    CLAIMS AND EVIDENCE

    Evidence before the Department

    First applicant

15. The first applicant lodged a protection visa application on 6 March 2020. The delegate summarised the claims as follows:

    ·     they left Malaysia to come to Australia to study. They have completed a [Course 1] and [Course 2]. They have now come to know that their certificate if not recognised and the agent who they paid a fee too gave them wrong information and mistreated the law.

    ·     their mother is a single mother and took a loan from a loan shark and she is not going through a hard time to recover the debts.

    ·     they fell in love with a man while in Australia and just recently got married. When they told their mum she did not agree and asked them to pay the debts. They explained that they would still pay the debt and have chosen the right life for them.

    ·     if they return to Malaysia they will be unable to get a job related to their study as their qualifications would not be credible.

    ·     the man they have married is also in the protection visa process and if he returns to Malaysia it might cause him high risk. If they return to Malaysia they will be depressed because they are not medically strong.

16. The first applicant was not offered the opportunity to attend an interview with the Department.

17. In a decision dated 11 May 2021, the delegate refused to grant a protection visa to the first applicant. The delegate found the first applicant’s claims did not relate to persecution on the basis of her race, religion, nationality, membership of a particular social group or political opinion. The delegate was not satisfied there was a real chance she would be subject to harm on return to Malaysia for one of those reasons. The delegate was also not satisfied that the claims raised by the first applicant disclosed a real risk of significant harm to her on return to Malaysia. The delegate was therefore not satisfied that the first applicant met the criteria for complementary protection.

    Second applicant

18. The second applicant was born to the first applicant on [date]. By operation of Regulation 2.08 of the Migration Regulations 1994, the second applicant was included in the first applicant’s protection visa application. The Department sought further information from the first applicant about the second applicant’s claims by letter dated 5 August 2022.

19. The first applicant responded by email dated 30 August 2022. The second applicant’s claims contained in that correspondence are summarised as follows:

    ·he would not be welcomed in Malaysia as his parents married against their families’ wishes

    ·Malaysia as a country will soon be bankrupt

    ·Malaysia is not a safe country because the government does not protect the safety of women and children

    ·the first applicant’s only concern is about the safety of the second applicant and his parents want him to be with them

    ·the first applicant feels safe and blessed living in Australia where people treat them with humanity

20. The second applicant was not offered the opportunity of an interview with the Department.

21. In a decision dated 20 October 2022, the delegate refused to grant a protection visa to the second applicant. The delegate found the second applicant would be able to receive protection from the Malaysian authorities from any threats of harm or harm from family members if he were to go to Malaysia. As such the delegate was not satisfied that he had a well-founded fear of persecution. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia there was a real risk that the second applicant would suffer significant harm. The delegate was therefore not satisfied that the second applicant met the criteria for complementary protection.

    Evidence before the Tribunal

22. The Tribunal received from the Department:

    a.the applicant’s departmental file including the protection visa application, identification documents and the delegate’s decision

    b.immigration records recording the applicant’s entry to and exit from Australia

23. Prior to the hearing, the applicant provided to the Tribunal:

    a.a pre-hearing information form provided by email dated 4 October 2024 raising new claims for protection based on a fear of harm from the applicant’s husband, and attaching:

    i.    a letter from [Official A] to [State Minister A] dated 9 July 2024 in relation to reports of domestic violence made by the applicant against her husband;

    ii.a letter from [State Minister A] to [Official A] dated 2 September 2024 in response to the above letter;

    iii.   an email dated [in] July 2024 from SA Police to [Agency 1] containing details of reports of domestic violence received from the applicant [in] May 2024 and [January] 2024 regarding alleged assaults by her husband; and

    b.a record of a report made to SA Police by the applicant on [a day in] June 2024 alleging that her husband had stolen her passport [in late] April 2024

    c.a response to the hearing notice form by email dated 28 December 2024, with the following attachments:

    i.a birth certificate for the second applicant;

    ii.   a further copy of a record of a report made to SA Police by the applicant [in] June 2024 alleging that her husband had stolen her passport [in late] April 2024; and

    iii.   a statutory declaration by the applicant dated 21 August 2024, attaching a copy of a lease extension for the applicant’s property, further copies of the applicant’s reports to SA Police dated [in] May 2024 and [January] 2024, and photographs of the applicant’s face showing bruising on the left-hand side and her arm showing showing broken skin.

24. This material is discussed in detail in the “Reasons and Findings” section below, to the extent it is relevant to the issues to be determined by the Tribunal.

25. Both the applicant and her mother gave evidence to the Tribunal at the hearing. Their evidence is discussed in detail in the “Reasons and Findings” section below.

26. Following the hearing, the applicant provided the Tribunal with copies of the following documents:

    a.copies of screenshots of the applicant’s social media account and comments that her husband had made on it;

    b.SA Police expiation notice dated [in] March 2024 issued to her husband for an excessive speeding offence [in] January 2024 in vehicle registration number [1] in the amount of $1,939

    c.Five SA Police expiation notices dated [in] April 2024 and [in] May 2024 issued to the applicant for speeding offences on [dates in] April 2024 in vehicle registration number [2] totalling $2,621

    d.Notice of Final Demand from Fines Victoria dated [in] December 2024 issued to her husband for failing to obey traffic lights on [a day in] August 2024 in the amount of $669.50

    e.Record from [an agency] dated [in] May 2024 recording a positive skills assessment outcome for the applicant

    f.A certificate recording the marriage of the applicant and her husband [in] February 2020

    g.[College 1] certificate for a [Course 1] [number] issued to the applicant dated 13 June 2017

27. This material is discussed in detail in the “Reasons and Findings” section below, to the extent it is relevant to the issues to be determined by the Tribunal.

    Applicants’ claims for protection

    First applicant

28. At the hearing, the first applicant gave evidence that her husband had prepared the protection visa application lodged on 6 March 2020 and she was not aware of the claims raised in the application at the time. The first applicant stated that the claims in relation to the loan shark were not true, and that her mother had not taken out a loan with a loan shark. The first applicant stated that she did not have any fear of harm from a loan shark or from her mother.

29. The first applicant stated at the hearing that her husband had received threats from people he owed money to in Malaysia that included threats to do something to her or their son to get to him. The first applicant confirmed that she feared harm on that basis. The Tribunal has assessed this as one of the first applicant’s claims for protection.

30. From a consideration of the further evidence, the Tribunal considers that the first applicant now raises a claim for protection on the basis that she fears violence from her husband should she return to Malaysia. The Tribunal has considered country information from the Department of Foreign Affairs and Trade (DFAT) that assesses women and girls face a moderate risk of gender-based violence in the form of domestic violence.[1] The Tribunal accepts that women who have experienced family violence constitute a particular social group in Malaysia.

    [1] Department of Foreign Affairs and Trade DFAT Country Information Report Malaysia (24 June 2024) (DFAT report) 31 [3.125]

31. The DFAT report also indicates that Indian Malaysians face moderate levels of official discrimination, including when attempting to gain entry into the state tertiary system or civil service. [2] This accords with the first applicant’s statement at the hearing that that there was a degree of racism in Malaysia where non-Muslims are not taken seriously and not given priority in education. The first and second applicants are of Indian ethnicity.

    [2] n 117 [3.22]

32. The Tribunal has assessed the first applicant’s claims as a fear of harm because of membership of a particular social group, specifically, “women of Indian ethnicity in Malaysia who have experienced family violence”.

33. The Tribunal notes that the first applicant did not raise a fear of family violence in her protection visa application lodged on 6 March 2020. At this time, the first applicant had only been married for just over a month and had not experienced any violence from her husband. The Tribunal accepts the first applicant’s evidence that her husband prepared her protection visa application, and she was not aware of the claims he put in the application. The Tribunal is satisfied that the first applicant has a reasonable explanation for not raising claims of family violence or present evidence relating to family violence prior to the delegate’s decision. The Tribunal has considered the requirement in s367A of the Act and draws no inference unfavourable to the first applicant for raising the claim and presenting evidence in relation to family violence after the delegate’s decision.

    Second applicant

34. From a consideration of the evidence, the Tribunal considers the second applicant’s claim for protection is based on a fear of harm in the form of family violence perpetrated by the first applicant’s husband (his father) should he return to Malaysia. The Tribunal finds that the second applicant is the dependent son of the first applicant and a member of her family. At the hearing, the first applicant gave evidence that the second applicant’s claims were the same has her own. The Tribunal has also had regard to the evidence that the first applicant’s mother, [Mother A], has spent a significant period of time in Australia living with the second applicant and caring for him. The Tribunal regards [Mother A] as a member of the second applicant’s family.

35. The Tribunal has assessed the second applicant’s claim for protection under s5K of the Act, as a member of a particular social group consisting of his family, and specifically the first applicant (his mother) and [Mother A] (his grandmother).

36. The Tribunal has also considered whether the second applicant is entitled to protection as a member of the same family unit as the first applicant under s 36(2)(b) of the Act.

37. The Tribunal has also considered whether the second applicant has a fear of harm from people to whom his father owes money if he were to return to Malaysia.

    RELEVANT LEGISLATION AND MANDATORY CONSIDERATIONS

    Criteria for protection visa

38. 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.

1. 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.

2. 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).

3. 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.

4. 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

5. 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

6. The issue in this case is whether the applicants have a well-founded fear of persecution because of their race, religion, nationality, membership of a particular social group or political opinion, if they were to return to Malaysia. Alternatively, the issue is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicants will suffer significant harm.

7. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

   Country of nationality

8. The first 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 first applicant has consistently stated that she is a citizen of Malaysia. The Tribunal finds that the first applicant is a Malaysian citizen. The Tribunal has assessed her claims against Malaysia as the country of nationality and the receiving country.

9. The second applicant was born to the first applicant and her husband in Australia on [date]. Both of his parents are Malaysian citizens. Malaysia’s Federal Constitution determines eligibility for Malaysian citizenship and allows a child to be registered as a Malaysian citizen if at least one parent is a Malaysian citizen.[3] The Department assessed the second applicant’s birth certificate as evidence of his identity and his country of citizenship as Malaysia. The Tribunal considers the second applicant is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.

   [3] Federal Constitution (Malaysia) 31 August 1957, amendments up to 2019, reprint as at 15 October 2020, art. 15(2)

   Findings of fact

10. The first applicant gave her evidence to the Tribunal at the hearing in a genuine, consistent and open manner. The evidence she gave at the hearing is largely consistent with the information contained in the police reports and her statutory declaration declared on 21 August 2024. The Tribunal accepts the first applicant’s evidence at the hearing is credible. On that basis, and in the absence of any evidence to the contrary, the Tribunal accepts the applicant’s account as true.

11. The Tribunal accepts that the first applicant met her husband in Melbourne in 2019 and they were married [in] February 2020, six months later. At the time, she did not know much about his background. She had been working towards permanent residency through study and work until she met her husband.

12. The Tribunal accepts that her husband subjected the first applicant to family violence that started with verbal abuse and escalated over time to physical assaults and threats to kill her. The Tribunal accepts that her husband exercised coercive control over her and her son by taking her passport to frustrate her permanent visa application and purporting to withdraw her application for review at the Tribunal on two occasions.

13. At the hearing, the first applicant gave evidence of enduring “mental torture” from her husband. She stated that her husband told her that the [Course 2] that she attained in 2019 from [College 2] was not recognised. She has since found that she has been able to rely on it and it was recognised as part of a skill assessment to do further studies. The Tribunal finds that this is consistent with a pattern of family violence in which a perpetrator seeks to undermine a partner’s sense of self-worth and independence. In this instance, her husband sought to lead the first applicant to believe that she would be unable to attain a permanent residence visa on the basis of her qualifications and employment and instead would need to claim protection relying, in part, on his claims for protection.

14. The first applicant gave evidence that after their marriage, her husband did not allow her to contact her sisters. She stated that after their marriage her husband’s true colours came out. They were renting a house with friends in Melbourne, and he would yell at her in front of others and tried to hit her on occasion, but the friends would intervene. She stated that he would apologise following these events and she would accept.

15. Their son was born in Melbourne in [specified year]. The first applicant stated that her husband called her “stupid” and undermined her abilities as a mother. She stated that her husband was first violent to her soon after their son was born. She stated her husband slapped her on the face when she was holding her son who was [age] old. She stated he regretted it as she had just given birth. She stated that she bore everything for her son as she knew what was like to grow up without a father. The Tribunal accepts the first applicant’s evidence of this incident.

16. The family moved to Adelaide in May or June of 2022 as her husband’s visa was ending. She states that he tried to convince her to return to Malaysia with him, but she refused as she felt her life was in Australia and she was working towards permanent residency through a skilled visa in [her occupation]. She stated that her husband threatened to ruin her permanent residence application and that he has done so by taking her passport. She believes her husband attempted to do so by sending emails to the Tribunal on two occasions attempting to withdraw her application for review.

17. As set out at paragraphs 5 and 6 above, the Tribunal received two requests purporting to be from the first applicant requesting her applications for review be withdrawn. The Tribunal contacted the first applicant, and she confirmed she did not lodge the withdrawal requests and did not wish to withdraw her applications. The Tribunal has considered this considering the threat made by her husband to ruin the first applicant’s permanent residence application. The Tribunal received these fraudulent withdrawal requests in February 2024 and April 2024. The first applicant stated that her husband left the house in late April 2024, and he left Australia in June 2024. The first applicant reported to SA Police that after her husband left, she noticed that her passport was gone and that she believes that he took it. The first applicant stated that she believed he did this to frustrate her attempts the gain permanent residence through a skilled visa as it could not be granted to her without a valid passport. On the basis of the evidence before it, the Tribunal accepts that the first applicant’s husband took her passport and attempted to withdraw her applications for review on two occasions. The Tribunal finds that this was done to frustrate the first applicant’s applications for permanent residence, as he had threatened to do, and in order to force the first applicant to return to Malaysia with her husband. The Tribunal finds that this constitutes coercive control and forms part of the family violence inflicted on the first applicant by her husband.

18. The Tribunal accepts that the first applicant was physically assaulted by her husband on a further three occasions, on [days in] December 2023, [January] 2024 and [April] 2024. The first applicant gave evidence at the hearing of each of these assaults that was consistent with the reports that she made to the SA Police and a statutory declaration she declared on 21 August 2024. The Tribunal accepts the accounts of these assault as set out below are true.

19. In a report to SA Police dated [in] January 2024 (incident number [1]), the applicant reported that her husband assaulted her on [a day in] December 2023 when she was holding her son, by bending her fingers backwards causing pain. She stated that her husband was accusing her of having an affair and had taken her phone to read her messages and gone through her social media accounts. She alleged that on [a day in] January 2024 her husband sent her a voice message stating words to the effect of “You are under my control now; you have to listen to me. I will ruin your permanent residency application; I know how to do this. I will make you not be able to live in this country. I will kill you and take your son, he is my son.” She further reported that later that night her husband returned home intoxicated and assaulted her by hitting her with significant force with a pool noodle 2-3 times to the face and body. He threated to hit her with a closed fist. The assault occurred in front of their son. Her husband then left the house with the applicant’s handbag, phone, iPad, money, drivers’ licence and bank cards. The applicant later contacted the police [later in] January 2024 and advised that she no longer wanted to proceed with any police action and her husband had apologised and felt guilty about what he had done.

20. In a report to SA Police made by the applicant [in] May 2024 (incident number [2]) the applicant reported to the police that her husband assaulted her on [a day in] April 2024 while she was holding their son who was asleep. She alleged that he struck her with an open hand to the right side of her face, grabbed her around both shoulders in a bear hug and grabbed her right wrist hard, pushed his fingers into her wrist and pulled it when the applicant grabbed her phone to call the police. Their son awoke and started crying. The applicant reported that her husband threatened to kill her and take her son away if she reported him to the police or border force. She reported that she suffered bruising and swelling under her eye and abrasions to her wrist and knuckles. She further reported that on [a day in] May 2024 her recovery email had been changed and it appeared that her husband was trying to access her email account. The applicant reported that her husband had since left the house with his possessions, and she had changed the locks. The police report was made [in] May 2024. In response to the applicant’s report the police contacted her husband [in] May 2024, and he confirmed he was in Victoria but refused to provide his address. He stated to police that his visa was expiring and he would be returning to Malaysia. He further stated to police that he wanted custody of his son and would not return to SA.

21. On [a day in] June 2024 the applicant made a report to the police alleging that her husband had taken her passport and all her certificates when he left the house in late April 2024. She stated that she made a quick check of her documents when her husband left the house in [Town 1], SA and located the cover of her passport but did not pick it up at the time. When she checked it on 24 June 2024, she realised that it was only the cover and she stated her belief that her husband had taken it.

22. The applicant declared a statutory declaration on 21 August 2024 (the statutory declaration). It appears to be for the purposes of having her husband removed as tenant to the tenancy lease agreement for the [Town 1] property. In the statutory declaration, the applicant declared that:

    a.For the last 3 years of their relationship, her husband had been controlling and denigrating, and isolated her from her close family, did not allow her to have friends and accused her of having an affair;

    b.Her husband assaulted her on [a day in] December 2024 by bending her fingers back, causing her to fall over while she was holding her son. She did not report it to police immediately and thought it would be safer if she and her son stayed with her husband to avoid his behaviour escalating;

    c.Her husband further assaulted her on [a day in] January 2024, and she immediately ran outside to the main road with her son and called for help. A neighbour assisted her and she called the police;

    d.Following the assault on [a day in] January 2024, the applicant reported both assaults to the police in an incident number [1] (referred to above);

    e.[Later in] January 2024, her husband apologised to her for his behaviour and promised to change. She mistakenly believed her husband was sincere in his apology and advised the police that she did not want to take any further action;

    f.Following this her husband moved to Melbourne and did not return until March 2024;

    g.She was advised by the AAT on two occasions by letters dated 29 February 2024 and 30 April 2024 that someone purporting to be the applicant had attempted to withdraw her application for review and she suspects it was her husband on both occasions as he had threatened to do so;

    h.On [the day in] April 2024 she was assaulted by her husband, and this was reported to police [in] May 2024 in incident number [2] referred to above;

    i.On [a day in] May 2024 she returned home from work to realise that her husband had packed all his belongings and stolen her passport and their son’s birth certificate;

    j.Her husband refused to sign a release form to remove his name as a tenant of the [Town 1] property and she believed this was so that he could continue to control her and access the property and abuse her.

23. The first applicant gave evidence that her husband’s behaviour deteriorated significantly at the end of 2023. He would engage in frequent arguments with the first applicant in front of their son. The first applicant believed that her husband took drugs, specifically ice or methamphetamine, when he visited his friends in Melbourne. She saw the change in his behaviour. She stated on the day of the assault [in] January 2024 they had a big argument, and her husband did not sleep for 24 hours. She believed he was under the influence of ice at this time.

24. Following the assault in January 2024, the first applicant stated that her husband went to Melbourne. She asked her mother to come from Malaysia to provide her with support. Her mother came and provided support for about 3 months and left in April 2024. The first applicant stated that her husband returned to the house for his son’s birthday around [date]. The first applicant stated that during the visit, her husband was very disrespectful to her mother and on one occasion he tried to hit her, but the first applicant stopped him. The first applicant stated that the assault on [the day in] April 2024 occurred after her mother had left and returned to Malaysia.

25. The applicant’s mother, [Mother A], aged [age] years, gave evidence to the Tribunal at the hearing through an interpreter in the Malay language. She recounted first meeting the first applicant’s husband (her son-in-law) in 2023. She came to stay with the family when the second applicant was [age] and stayed for about 2 months on that occasion. She said that she returned to Malaysia and then the first applicant’s husband ran away and there was no-one to look after the child, so she returned in early 2024. This evidence is consistent with the account of the first applicant and the Tribunal accepts it to be true.

26. [Mother A] recalled being scared of her son-in-law and said he was verbally abusive to the first applicant. [Mother A’s] evidence was general in nature and at times lacked detail. When asked to describe specific incidents she stated that all of a sudden a fight would start, that her son-in-law was getting angry with her for not doing the cooking and that so many things happened, and she didn’t know how to describe them.

27. [Mother A] gave details of one incident when her son-in-law threatened to hit her with a one litre insulated drinking bottle which was silver on the inside and blue on the outside. She stated that he asked her how it would be if he hit her with it. She said she was very scared. [Mother A] recalled another incident when her son-in-law was leaving the house in his car, and she went outside to close and lock the gate. She stated that her son-in-law got out of the car, and ran at the gate hitting it forcibly, causing her fear. She stated her heart was beating very fast. While [Mother A] was not able to recall when these incidents occurred, she was able to provide a detailed account of each incident, and the Tribunal accepts both incidents occurred and caused [Mother A] fear.

28. [Mother A] stated that on one occasion she saw her son-in-law twist the first applicant’s arm. When asked to provide more details of this assault she replied that these things happened very quickly. She was not able to provide any more detail of this assault or when it occurred. The Tribunal notes that the first applicant did not refer to her mother being present during the assaults by her husband on [the days in] December 2023, [January] 2024 and [April] 2024, either in her evidence to the Tribunal, her reports to SA Police or in the statutory declaration. The first applicant confirmed that these were the incidents when her husband physically assaulted her, along with an assault in approximately April or May 2021, when her son was [age]. Both the first applicant and [Mother A] confirm that [Mother A] was not present in Australia at the time of any of the reported assaults. While the Tribunal appreciates it can be difficult for witnesses to recall exact dates of specific assaults, [Mother A] was not able to provide any specific detail of the assault. The Tribunal prefers the evidence of the first applicant in relation to the specific assaults. The Tribunal does not accept that [Mother A] witnessed her son-in-law twist the first applicant’s arm.

1. [Mother A] stated that on another occasion her son-in-law assaulted the first applicant, and her face was swollen. She stated at first that she knew this because she saw the photos. [Mother A] then stated that she was in the next room when it happened, she heard the fight and came out of the room to see the first applicant was crying and her face was swollen. [Mother A] told the first applicant to take a photo. She could not recall when this happened. The first applicant gave evidence to the Tribunal of her husband assaulting her and striking her face on [the days in] January 2024 and [April] 2024. She made reports to the police and swore the statutory declaration about these assaults. She did not refer to her mother being present at the time of these assaults. Based on the first applicant’s evidence and [Mother A’s] evidence, [Mother A] was not in Australia on these dates. The Tribunal prefers the evidence of the first applicant. The Tribunal accepts that [Mother A] saw photos of bruising to the first applicant’s face following an assault and discussed the assault with her. The Tribunal does not accept that [Mother A] was present in the house when the first applicant was assaulted and suffered a swollen face.   

2. [Mother A] stated that she arrived in Australia again in June / July 2024 and has remained in Australia since that time, providing support to the first and second applicants. She did not see her son-in-law on this occasion. This is consistent with the first applicant’s evidence and the Tribunal accepts it to be true. The first applicant stated that her mother provides her with mental support as at times she has felt overwhelmed and contemplated suicide.

3. [Mother A] stated that when she was in Malaysia, her son-in-law called her to tell her bad things about the first applicant. She stated he used very bad and vulgar words, and she believed he was drunk at the time. [Mother A] stated that she hung up on him. She has not had any further contact from him, and she has blocked his number. She was not specific about when this occurred. The Tribunal accepts this occurred.

4. [Mother A] expressed her fear that her son-in-law will hurt the first applicant and kidnap the second applicant if they return to Malaysia.

5. The first applicant stated that she and her husband separated in late April 2024. In early May 2024 she stated that her husband left their son at her work, and she returned home to find that he had taken his belongings, his passport, medical certificates, birth certificates, and their marriage certificate and left.

6. On one occasion after this, the applicant believes that her husband came to the house at night and took clothes hanging on the line in the back yard. After that she put a padlock on the gate. The first applicant stated that she found rat poison at their home and believed her husband had kept it there and that he was going to try to kill her.

7. The first applicant stated that she feared that her husband would kill her and take their son away. The Tribunal accepts the first applicant’s fears were reasonable in circumstances where her husband had made threats to kill her and take their son. This is also on the basis that the point of separation is often the most dangerous for women experiencing family violence and at the time, her husband’s behaviour was erratic and unpredictable, and she believed he was taking drugs, and his violence was escalating. These factors are identified in the National Domestic and Family Violence Bench Book [4] as indicative of a significant risk to the first applicant of escalation of family violence and intimate partner homicide.

   [4] Australasian Institute of Judicial Administration National Domestic and Family Violence Bench Book Attorney-General’s Department and University of Melbourne (July 2024) accessed online Article | AIJA, section 4.2 (the National Domestic and Family Violence Bench Book)

8. The first applicant stated that after he left, her husband incurred significant fines in a car that  she now owns, and she bears the responsibility for these fines. The first applicant provided copies of infringement notices to the Tribunal following the hearing as detailed at paragraph 26 above. Five SA Police expiation notices were issued to the first applicant for speeding offences on [dates in] April 2024 totalling $2,621. The Tribunal accepts the first applicant’s evidence that these offences were committed by her husband in her vehicle. The Tribunal finds these offences caused financial harm to the first applicant and that this was more likely than not, the intention of her husband. The Tribunal finds, whether committed intentionally or with reckless disregard to the financial impact of his behaviour on the first applicant, this amounts to financial abuse and forms part of the family violence inflicted on the first applicant by her husband.

9. The first applicant gave evidence of an incident involving the second applicant in March or April 2024. She stated that she believes her husband was under the influence of drugs at the time. There was an argument between them and her husband shouted at their son, who fell backwards. She was worried her son could have hit his head. She stated she did not report this to the police or refer to it in her statutory declaration. The first applicant stated that they had had some contact from the Department of Child Protection around that time and her husband begged her not to tell them what was happening as they would take their son, or it would be bad for his protection visa claim. For this reason, she did not put this incident in her statutory declaration or police report. She later withdrew her complaint with the police as she did not want her husband sent home or for Child Protection to take the second applicant. The Tribunal accepts the first applicant’s account of this incident as true.

   Finding in relation to a fear of harm from money lenders

10. The Tribunal has assessed the claim raised by the first applicant that she and the second applicant feared harm from people her husband owed money to in Malaysia. The first applicant gave evidence at the hearing that her husband received a lot of threats in Malaysia and that he owed money. He had been threatened by people who said they would do something to the first or second applicant to get to him. The first applicant was unable to provide any specific details of who the people were or why they threatened her husband. She said that they were his claims, and she did not have any information to give in relation to them.

11. The first applicant gave evidence that her husband completed her protection visa application, and the Tribunal accepts this fact. In the application form, her husband put down as a part of the first applicant’s claim:

    And also the man that I got married to named [Husband A] is now in protection visa that he can never return back to Malaysia and it might caused him high risk.

12. The decision of the delegate dated 20 October 2022 in relation to the second applicant refers to the first applicant’s husband having applied for a protection visa. The decision records that her husband was refused a protection visa in a decision that was affirmed by the Full Federal Court of Australia [in] June 2021. Having regard to this record, the police record referred to above of a conversation with him [in] May 2024 in which he stated that that his visa was expiring and he would be returning to Malaysia, and the first applicant’s evidence that her husband’s visa was expiring, the Tribunal finds that the first applicant’s husband was not granted a protection visa in Australia.

13. On the evidence before it, the Tribunal is not satisfied that the first applicant’s husband owes money to people in Malaysia or that those people have threatened to harm the first or second applicant. The Tribunal finds that there is no real chance of any harm to the first or second applicants from people in Malaysia to whom the first applicant’s husband owed money.

    Does the first applicant satisfy the refugee criterion for protection?

    Real chance of serious harm

14. The Tribunal accepts that the first applicant’s husband subjected her to family violence that started with verbal abuse and escalated over time to physical assaults and threats to kill her. The Tribunal accepts that her husband exercised coercive control over the first applicant taking her passport in order to frustrate her permanent visa application and purporting to withdraw her application for review at the Tribunal on two occasions.

15. The Tribunal has had regard to this past behaviour in assessing the first applicant’s risk of harm should she return to Malaysia. The Tribunal finds that her husband’s violence occurred over a period of over three years and escalated in severity over that time. The Tribunal finds that there is a real chance that the applicant will be harmed by her husband should she return to Malaysia in the reasonably foreseeable future. The harm faced is one of on-going family violence by her husband. The Tribunal has found that the first applicant experienced a number of the risk factors identified in the National Domestic and Family Violence Bench Book[5] as indicative of a significant risk of escalation of family violence and intimate partner homicide, specifically:

    ·past family violence and escalating violence

    ·threats to kill

    ·separation

    ·misuse of drugs by the perpetrator

    ·coercive and controlling behaviour in the form of financial abuse

    ·coercive and controlling behaviour in the form of system abuse to frustrate the first applicant’s applications for permanent residency

    ·dispute involving parenting, specifically a threat to kidnap their son

    [5] n 4

16. The Tribunal also considers that, having lost his application for a visa in Australia, her husband is likely to harbour a degree of resentment and anger towards the first applicant for not returning to Malaysia with him and instead pursuing an application for a visa in her own right. In so doing, the first applicant has challenged her husband’s coercive and controlling behaviour. The Tribunal considers this raises the risk of harm for the first applicant.

17. The Tribunal finds that her husband’s conduct in Australia indicates a real chance of serious harm to the first applicant if she were to return to Malaysia. There is a real chance of on-going family violence consisting of an on-going threat to the first applicant’s life, significant physical harassment and significant physical ill-treatment of the first applicant.[6]

    [6] ss 5K(5)(a), (b) and (c) of the Act

18. The Tribunal is mindful of the fact that the first applicant has not experienced family violence in Malaysia. The violence she experienced occurred in Australia. Sadly, family violence does not stop at international borders. Despite having access to police assistance, the first applicant still experienced family violence on several occasions and at multiple levels. This violence is a predictor of future violence, in Australia and in Malaysia. The test for the Tribunal to apply is whether there is a real chance the applicant would experience serious harm from her husband should she return to Malaysia. The Tribunal accepts there is a real chance of serious harm for the reasons set out above.

    Well-founded fear of persecution

19. Section 5(J)(1)(a) of the Act states that 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. The Tribunal has found that the first applicant is a member of a particular social group, specifically women who have experienced family violence in Malaysia. The Tribunal finds that the first applicant fears persecution because of her membership of a particular social group.

20. The Tribunal further finds that her membership of a particular social group is the essential and significant reason for her fear of persecution.[7] In finding this, the Tribunal has considered the DFAT report that identifies violence against women and girls as a significant, if under-reported, problem in Malaysia.[8]

    [7] s 5J(4)(a) of the Act

    [8] n 1, 30 [3.115]

21. The Tribunal finds that the persecution feared by the first applicant, in the form of on-going family violence, involves systematic and discriminatory conduct.[9] The Tribunal is satisfied on-going family violence in the form of threats to kill, physical assaults and harassment are deliberate actions on the part of her husband intended to cause harm to the first applicant and targeted at her for the reason of her being a woman in Malaysia.

    [9] s 5J(4)(c) of the Act

    Does the real chance of persecution relation to all areas of Malaysia?

22. The Tribunal accepts the first applicant’s evidence that her husband does not have her current phone number or email address and does not have any contact with her. The Tribunal has considered whether there is a real chance the first applicant will be located by her husband should she return to Malaysia.

23. The Tribunal finds that if she returned to Malaysia, the first applicant is likely to live with the second applicant and her mother in Johor Baru. The first applicant has relied heavily on her mother, [Mother A], in the past two years for support with the care of the second applicant and for mental and emotional support. [Mother A] gave evidence that she usually lives in her son’s house in Johor Baru. The Tribunal finds that her husband has had contact with members of the first applicant’s family and had access to the applicant’s phone, email, iPad, social media and personal documents in the past. The Tribunal finds there is a real chance her husband would be able to locate the first applicant through her family members if she were to live in Johor Baru with her mother.

24. The first applicant gave evidence that after her marriage, she became isolated from her [siblings] and none of them communicate with her now. She only has the support of her mother. The first applicant gave evidence that one of her sisters is acting against her and trying to help the first applicant’s husband. The Tribunal accepts the first applicant’s evidence and finds that it would be very difficult for the first applicant to keep her whereabouts hidden from her husband should she return to Malaysia.

25. The Tribunal accepts that the first applicant’s husband stole her passport. The first applicant gave evidence that with her passport, her husband would be able to bribe authorities in Malaysia to locate her.

26. The Tribunal has considered relevant country information on Malaysia from the Australian Department of Foreign Affairs and Trade (the DFAT report)[10] in assessing this claim. DFAT reports that:

    Transparency International’s 2022 Corruption Perceptions Index (CPI) ranked Malaysia 61st out of 180 countries and territories. Malaysia’s CPI ranking has remained largely steady over the last 10 years, although corruption remains a significant concern. A 2022 study published in Public Administration and Policy analysing the prevalence of corruption in Malaysia since 2004 stated there was a high prevalence of bribery, embezzlement, fraud, cronyism, bid-rigging, and money laundering at the highest levels of government. Corruption also occurred among police, in low value tenders, and in evading business regulation.

    According to in-country sources, many ordinary Malaysians perceive important institutions to be corrupt. For example, in country sources reported that 95 per cent of Malaysians perceived the police as corrupt and able to be bribed, and a Transparency International Corruption Barometer survey found almost half of Malaysians surveyed perceived the police as corrupt. Nevertheless, GAN Integrity reported in 2020 that it was uncommon to be required to pay bribes to access government services in Malaysia.[11]

    [10] n 1

    [11] n 1 11 [2.20] – [2.21]

27. Having considered the country information, the Tribunal considers that it is not a remote or far-fetched possibility that the first applicant’s husband could use her passport and pay a bribe to Malaysian authorities to locate the first or second applicants should they return to Malaysia. This is especially as he is the father of the second applicant and would be regarded as having rights in relation to the second applicant. When considered cumulatively with the risk of the first applicant’s family members disclosing her location to her husband, the Tribunal accepts that the real chance that her husband will locate her and subject her to serious harm extends to all areas of Malaysia.[12]

    [12] s 5J(1)(c) of the Act

    Are there effective protection measures available to the first applicant in Malaysia?

28. DFAT reports that:

    State protection for women and girls experiencing gender-based violence (GBV) is mixed. There are special police units that deal with child abuse and GBV; however, in-country sources told DFAT that these services were inadequate to meet demand. Women who approach police for help may not have access to a female officer. According to in-country sources, the families of women who have experienced GBV often placed pressure on them to drop the matter, either directly or through police officers dealing with the case.[13]

    [13] n 1 30 [3.117]

29. The Tribunal notes recent amendments to Malaysia law in the Domestic Violence (Amendment) Act (2017) that strengthened protections for individuals who experience domestic violence introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week to prevent a perpetrator from entering a safe location. An EPO can also be used to remove an offender from the house where the victim lives. However, the Tribunal also notes DFAT’s report that in-country sources advised EPOs were difficult to obtain and required strong evidence of violence or damage to property and police do not always enforce EPOs.[14] DFAT concludes that state protection is available but often inadequate or ineffective in practice.[15]

    [14] n 1, 31 [3.120] – [3.121]

    [15] n 1, 31 [3.125]

30. The violence experienced by the first applicant occurred in South Australia. The country information indicates that the first applicant would need to have strong evidence of further violence committed against her in Malaysia in order to obtain an EPO. This exposes the first applicant to a real chance of serious harm before she could access effective protection from the Malaysian authorities. The Tribunal finds that this means the first applicant cannot access effective protection measures in Malaysia.

31. The DFAT report also indicates that Indian Malaysians face moderate levels of official discrimination, including when attempting to gain entry into the state tertiary system or civil service. This accords with the first applicant’s statement at the hearing that that there was a degree of racism in Malaysia where non-Muslims are not taken seriously and not given priority in education. This may indicate that the first applicant may face an added degree of difficulty as a non-Muslim in seeking access to protection from harm from her husband from the Malaysian authorities.[16]

    [16] n 1, 17 [3.22]

32. The first applicant gave evidence of an incident that occurred when she was living in Malaysia. She had a necklace stolen from her by a couple of men who got into a car and drove away. She reported it to the police and was able to give them the registration number of the vehicle. She stated that no action was taken by the police. The Tribunal accepts the first applicant’s account of this incident. When considered in the context of the country information, it may indicate that the first applicant may experience difficulty in accessing effective protection from the police in Malaysia due to a combination of factors – that she is a woman who has experienced family violence and that she is of Indian ethnicity.

33. The applicant’s mother, [Mother A], stated that by the time the police take action it will be too late for the first applicant to be protected. She stated that the police will not take any action even if they were to complain that something is going to happen. She stated that even if something happens the police will take a lot of time to take any action. The Tribunal considers this evidence is consistent with the country information and accepts [Mother A’s] assessment.

100.   The first applicant gave evidence at the hearing of contacting her husband’s ex-wife in Malaysia about three or four times from June – August 2024. The first applicant learned that her husband had been married previously and then divorced. After her husband left, she stated that she contacted his first wife to try to understand his character. The first applicant reported that the first wife said:

a.she had received an email from her ex-husband who wanted to meet their son, now aged [age] years

b.her son refused to see him as he had left them when the son was [age range] years old;

c.her ex-husband had been seen back in Malaysia, and he tried to go to their son’s school in Kuala Lumpur;

d.she reported it to police but no action was taken;

e.her mother had seen her ex-husband a couple of times in front of the first wife’s house in Kuala Lumpur;

f.she thought her ex-husband was planning something;

g.she had been hit and abused terribly by her ex-husband and she was still afraid to meet him;

h.her ex-husband had stripped her, taken photos of her and then threatened to use them against her;

i.her ex-husband abused drugs in Malaysia;

j.she had been unable to access protection through the Malaysian authorities.

101.   The Tribunal accepts the first applicant’s account of the experiences of her husband’s first wife and finds they are plausible.

102.   After hearing this, the first applicant believed that if she had been married to her husband in Malaysia that she would already be dead. She believes that she was protected from such extreme violence from her husband in Australia because of the protection offered to women and children. When the country information discussed above regarding effective protection was raised with the first applicant at the hearing, she referred to the experience of her husband’s first wife and asked why she was not protected from her husband’s violence. The first applicant said this indicated that the police never take any action in relation to family violence.

103.   The Tribunal is satisfied that the real chance of serious harm faced by the first applicant on her return to Malaysia is an imminent and immediate threat once her husband locates her. The Tribunal has had regard to the effective protection measures available to the first applicant in Malaysia, in the form of EPOs. Having considered the country information, the Tribunal finds that the first applicant would need to have been a victim of further violence and have good evidence to support her report of violence in order to access the protection of an EPO. The Tribunal finds that even if she were to obtain the protection of an EPO there is a strong likelihood that it would not be enforced by the police. The Tribunal further finds that this likelihood is increased as the first applicant is an Indian Malay. The Tribunal is therefore not satisfied that the elements of effective state protection are satisfied, in that:

a.the first applicant cannot access the protection;

b.the protection is not durable if an EPO is not enforced by the police; and

c.the country information indicates that the police are not reasonably effective in enforcing EPOs

Could the first applicant modify her behaviour to avoid the real chance of persecution?

104.   The Tribunal has considered whether the first applicant could take reasonable steps to avoid a real chance of persecution in Malaysia, specifically to avoid her husband locating her. Having found that the first applicant’s husband would be able to locate her through her family members in Malaysia, the Tribunal has considered whether it would be reasonable for the first applicant to avoid any contact with family members if she were to return to Malaysia.

105.   The first applicant gave evidence of her mother providing her with mental support and support in caring for the second applicant in Australia. She gave evidence of feeling suicidal when she was living with her husband. She stated her mother has come to Australia on four occasions since the birth of the second applicant, staying for three months on each occasion. On the last occasion, when her mother arrived in June 2024, it was intended that she would stay for 12 months. [Mother A] was in Adelaide and caring for the second applicant at the time of the hearing.

106.   The Tribunal finds that both the first applicant and second applicant receive significant support from [Mother A]. [Mother A] has provided care for the second applicant for a significant part of his life, noting she has been with him for around 21 months, and he is now aged [age]. [Mother A] provides significant practical support and emotional support to the first applicant. [Mother A] gave evidence of staying for periods of time with one of her own sons and assisting to care for his children. It is apparent that if the first and second applicants have contact with [Mother A] it is likely that members of their extended family will be aware of it. In order to avoid a real chance of her husband locating her, the Tribunal accepts that the first applicant would have to avoid any contact with her family members, including her mother, and live in hiding. The first applicant gave evidence that she feared her husband would find her through her work, which would be in the [specified] industry, and he would not let her live peacefully in Malaysia. She said she did not want to keep running away in Malaysia and hiding. The Tribunal has considered the negative impact this would have on the first applicant’s mental health, noting her evidence that she has experienced suicidal thoughts in the past and is a survivor of family violence. The Tribunal finds that modifying her behaviour to have no contact with her mother is not a reasonable step for the first applicant to take, should she return to Malaysia.

107.   The Tribunal has also found that it is not a remote or far-fetched possibility that the first applicant’s husband could use her passport and pay a bribe to Malaysian authorities to locate the first or second applicants should they return to Malaysia. There are no steps the first applicant could take to mitigate this risk.

108.   The Tribunal finds there are no reasonable steps the first applicant could take to avoid a real chance of persecution from her husband in Malaysia.

Conclusion – first applicant

109.   The Tribunal is satisfied that the first applicant faces a real chance of serious harm from her husband if she were to return to Malaysia, as a woman of Indian ethnicity in Malaysia who has experienced family violence.

110. It follows that the Tribunal finds that the first applicant has a well-founded fear of persecution and is a person in respect of whom Australia has protection obligations under s36(2)(a) of the Act.

111.   The Tribunal finds that the second applicant is the dependent child of the first applicant. The Tribunal finds that the second applicant is therefore a member of the same family unit as the first applicant.[17]

[17] s 5(1) of the Act and Reg 1.12 Migration Regulations 1994 (Cth)

112.   The Tribunal finds that the second applicant satisfies s 36(2)(b)(i) of the Act and is therefore entitled to a protection visa.

Does the second applicant satisfy the refugee criterion for protection?

113.   The Tribunal has considered whether the second applicant is entitled to protection on the basis of his own claims for protection. The Tribunal has assessed the second applicant’s claim for protection under s5K of the Act, as a member of a particular social group consisting of his family, and specifically the first applicant (his mother) and [Mother A] (his grandmother).

114.   The claims raised on behalf of the second applicant in an email dated 30 August 2022 are set out at paragraph 19 above. At the hearing, the first applicant gave evidence that the second applicant’s claims were the same has her own. She gave her consent for her evidence to be considered as evidence in support of the second applicant’s claims. She gave evidence of her husband being verbally abusive to her in front of the second applicant.

115.   The Tribunal accepts that the first applicant was assaulted by her husband on three occasions when she was holding the second applicant:

a.when the second applicant was [age] and her husband slapped her on the face;

b.on [the day in] December 2024 when her husband bent her fingers back, causing her to fall over while she was holding the second applicant; and

c.on [the day in] April 2024 when her husband assaulted her while she was holding the second applicant who was asleep but then awoke and started crying.

116.   The Tribunal accepts that on a further occasion [in] January 2024, the first applicant was assaulted by her husband in the presence of the second applicant. The Tribunal accepts that on another occasion in March or April 2024, her husband yelled in the face of the second applicant causing him to fall over when he was around [age] years of age.

117.   The Tribunal accepts that the first applicant’s husband has threatened to kill her and take the second applicant. The Tribunal accepts that the Department of Child Protection contacted the first applicant in relation to her husband’s violence, but she withdrew a complaint as she feared the second applicant would be taken from her.

118.   The first applicant also gave evidence at the hearing that after the family moved to Adelaide in 2022, she was working and her husband stayed at home and cared for the second applicant who was about [age]. This arrangement appears to have continued until her husband left at the end of April 2024. There appear to be periods when her husband left and went to Melbourne, such as in early 2024, and the first applicant asked her mother to come and help her to care for the second applicant.

119.   The first applicant gave evidence of her fears for the second applicant being that her husband would take the second applicant away from her and that her husband is mentally sick and not well. She stated that her husband does not know how to behave with a small child and does not have the basic education of how to talk with a child or raise a child in the proper way. She stated that under Malaysian law, her husband will keep the second applicant. The Tribunal is mindful that its role is not to determine which parent is best able to care for a child.

120.   The issue for the Tribunal to determine is whether there is a real chance the second applicant will face serious harm if he were to return to Malaysia because he is a member of the first applicant’s family. The Tribunal has considered the risk of harm that the second applicant faces from his father. It is well established that childhood exposure to family violence has the potential to cause significant harm.[18] The Tribunal has found that the second applicant has had direct exposure to his father assaulting his mother on numerous occasions from an early age. Of concern, is that on several occasions the second applicant was being held by his mother at the time of the assault by his father, placing him also at risk of physical harm. The Tribunal concludes that his father was either directing his violence to the second applicant directly or had no regard for the second applicant’s welfare at that time.

[18] Australasian Institute of Judicial Administration National Domestic and Family Violence Bench Book July 2024, section 4.4.3: Article | AIJA

121.   The Tribunal has had regard to the indirect exposure of children to family violence in the form of a child being threatened, harmed or being used as a hostage by a perpetrator.[19] The Tribunal accepts that his father’s threats to take the second applicant constitute a form of indirect family violence.

[19] n 18

122.   The Tribunal has considered evidence-based research that finds that parents who perpetrate domestic and family violence are far more likely than other parents and caregivers to also perpetrate direct forms of child abuse and engage in negative parenting practices.[20]

[20] n 18

123.   The Tribunal has considered this information in assessing the risk of harm to the second applicant from his father. If the second applicant were to return to Malaysia, the Tribunal finds that he would be in the care of the first applicant for the reasonably foreseeable future. The Tribunal has found that the first applicant faces a real chance of serious harm in the form of on-going family violence from her husband if she were to return to Malaysia. The Tribunal finds the second applicant faces a real chance of serious harm from his father in the form of on-going family violence because of being a member of the first applicant’s family if he were to return to Malaysia in the reasonably foreseeable future.[21]

[21] s 5K of the Act

124.   The Tribunal has considered the past conduct of the second applicant’s father in assaulting the first applicant on multiple occasions when the second applicant was present and exposing the second applicant to both the damaging effects of family violence and the risk of injury himself. The Tribunal finds that the serious harm is in the form of on-going family violence directed at the first and second applicants amounting to significant psychological and physical ill-treatment of the second applicant.[22]

[22] s 5J(5)(c) of the Act

125.   The Tribunal applies the reasoning adopted in relation to the first applicant at paragraphs 85 - 108 above in finding that:

a.the second applicant’s membership of a particular social group, specifically, a member of the first applicant’s family, is the essential and significant reason for his fear of persecution;[23]

[23] s 5J(4)(a) of the Act

b.the persecution feared by the second applicant, in the form of on-going family violence, involves systematic and discriminatory conduct;[24]

[24] s 5J(4)(c) of the Act

c.the real chance of harm relates to all areas of Malaysia;[25]

[25] s 5J(1)(c) of the Act

d.the second applicant does not have effective protection measures available to him in Malaysia;[26] and

[26] s 5J(2) of the Act

e.there are no reasonable steps the second applicant could take to modify his behaviour to avoid a real chance of persecution.[27]

[27] s 5J(3) of the Act

Conclusion – second applicant

126.   The Tribunal is satisfied that the second applicant faces a real chance of serious harm from his father if he were to return to Malaysia, as a member of a particular social group consisting of family.

127. It follows that the Tribunal finds that the second applicant has a well-founded fear of persecution and is a person in respect of whom Australia has protection obligations under s36(2)(a) of the Act.

Conclusion – first and second applicants

128.   Having concluded that the first and second applicants meet the refugee criterion in s 36(2)(a), the Tribunal has not considered the alternative criterion for complementary protection in s 36(2)(aa) of the Act.

129.   There is no evidence before the Tribunal that either the first or second applicants have a right to enter and reside in any other country, therefore the Tribunal finds that s36(3) of the Act does not apply.

130. For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a) of the Act.

DECISION

131.   The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:

a.the first named applicant meets s 36(2)(a) of the Migration Act 1958 (Cth); and

b.the second named applicant meets s 36(2)(a) of the Migration Act 1958 (Cth)

Date(s) of hearing:    21 January 2025  

Representative for the First Applicant: self   

Representative for the Second Applicant:   First Applicant

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.

…