2108369 (Refugee)
[2025] ARTA 1694
•7 July 2025
2108369 (REFUGEE) [2025] ARTA 1694 (7 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2108369
Tribunal:General Member M. Tubridy
Date:7 July 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 07 July 2025 at 3:55pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – opposition to the Sultan – religion – Christian – race – ethnic Chinese – harm by Islamic Malay people – physical assault – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister on 28 June 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The application for review was lodged with the Administrative Appeals Tribunal (AAT) on 30 June 2021. On 14 October 2024, the AAT became the Administrative Review Tribunal (ART). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the ART. The Transitional Act gives the ART the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.[1]
[1] References in this decision to ‘the Tribunal’ are intended to include both the AAT and the ART.
BACKGROUND
As noted, the application for review was lodged on 30 June 2021. This attached a copy of the refusal notification which was emailed to the applicant on 28 June 2021 by the Department of Home Affairs (the Department), along with a copy of the delegate’s reasons for refusing to grant the visa. The delegate’s decision indicates that the applicant lodged her application for a protection visa on 1 March 2020. The delegate accepted the applicant’s claims as to her identity and citizenship, noting that the applicant claimed to be a citizen of Malaysia, and that she had provided a copy of her Malaysian passport as evidence of this. The delegate did not, however, accept any of the claims which formed the basis of the applicant’s protection claims, and so the delegate was not satisfied that the applicant was a refugee or that she would face a real risk of significant harm in Malaysia.
The delegate noted the applicant’s claim to fear that if she returned to Malaysia she would be harmed and beaten by Islamic Malay people. The applicant claims that Islamic, and particularly Malay, people been angry with her after she expressed dissatisfaction on Facebook about the attitude of the Sultan and his son toward people not from the state. The applicant claims that she was beaten by a group of Malays at a market, and that some of these people then came to her house looking for her. The delegate considered that further information was required to be satisfied these claims were genuine. The delegate related that on 18 May 2021 the applicant was requested to provide further details about these purported events, including details about: the Sultan and son in question (eight of Malaysia’s 13 states have hereditary rulers known as sultans);[2] and: details of how the applicant expressed her dissatisfaction towards the Sultan and his son, and the key dates with respect the claimed events; and: various other details, including whether the applicant sought medical treatment after the claimed attack, and whether evidence of this could be provided. The applicant was invited to provide this information (or an explanation of why it could not be provided; or a request for additional time to respond) within 28 days. The delegate’s decision of 28 June 2021 records that no response was ever received from the applicant. The delegate rejected the applicant’s protection claims in their entirety.
[2] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.19.
The Department provided the Tribunal with a copy of the applicant’s protection visa application (and its attached copy of the pages from the applicant’s Malaysian passport), also associated correspondence (including the request for more information which was emailed to the applicant on 18 May 2021) and administrative documents, and a further copy of the delegate’s decision.
In her 1 March 2020 lodged protection visa application the applicant indicated that she was born a citizen of Malaysia (to parents who were themselves citizens of Malaysia) in Malaysia in the state of Selangor, and that from her birth on [date] until [August] 2016 (when she departed Malaysia for Australia) she resided at a single address in Malaysia’s Federal Territory of Kuala Lumpur. She was a Christian, and ethnically Malaysian Chinese, and she could speak and was literate in the languages of English, Mandarin and Malay. She was financially supported by her own personal savings and had been engaged in study throughout her adult life, and after arriving in Australia she had completed a course in [subject 1] between 15 November 2016 and 15 January 2020 (and the applicant had evidently lodged her application for a protection visa some six weeks after finishing this study). With respect to the protection claims submitted in the applicant’s protection visa application, the delegate’s summary of these was broadly accurate, though for completeness it is worth noting that the applicant expressly asserted that the reason she was harmed and threatened by Malay people was because her attacker had sought to protect the reputation of their Sultan. The applicant also asserted that in criticising the Sultan and his son she was aware that she had broken a federal law, and that she was prepared to take responsibility for this, but that she had been harmed and threatened by Malay people acting outside the law, and it was further such harm which she feared. The applicant also claimed that she would experience the same harm wherever she went in Malaysia because the Islamic Malay persons who had attacked her had posted her photograph and personal information on Facebook.
On 30 June 2021 the Tribunal emailed the applicant an acknowledgement that her application for review (of the decision of 28 June 2021 to refuse her a protection visa) had been received by the Tribunal. The Tribunal provided the applicant with an overview of what to expect of the review process. Relevantly, as part of this, the applicant was advised that if she wished to provide material or written arguments for the Tribunal to consider (including a statement setting out why she disagreed with the delegate’s decision) she should do so as soon as possible. Nothing was received from the applicant in response.
On 10 June 2025 the Tribunal emailed the applicant and advised her that her file was being prepared to be given to a Tribunal Member. The applicant was asked to assist the Tribunal by completing a pre-hearing information form, and then retuning this to the Tribunal within 14 days. The applicant replied that same day, providing the Tribunal with a completed information sheet. Asked what protection claims she had made to the Department, the applicant reproduced the delegate’s summary of her claims (excepting one line of this, this being where the delegate had summarised the following aspect of what the applicant had submitted in her protection visa application as: They were dissatisfied with the Sultan and his son due to their attitude toward people not from the state. They expressed their dissatisfaction on Facebook which made the Islamic people (by way of explanation, the delegate referred to the applicant as ‘they’, notwithstanding that the applicant was a single person)). This noted, it was not apparent from this that the applicant was suggesting that she had not made this claim. Instead, what was suggested by this was that the applicant did not seek to dispute the delegate’s understanding of the protection claims which had been put forward by the applicant in her protection visa application; and the applicant expressly ticked a box which confirmed she still had the same protection claims. The applicant also ticked the box which indicated that she did not have any additional or different protection claims for the Tribunal to consider. The applicant also ticked the box which indicated that she did not have any new supporting evidence and information for the Tribunal to consider.
The information sheet then explained to the applicant that, once her case had been allocated to a Tribunal Member, she might be required to attend a scheduled hearing which would be her opportunity to present her case and make submissions and give evidence relating to issues arising in her matter. It was explained that she could ask the Tribunal to make a decision without holding a hearing. It was explained there was no guarantee that that the applicant would receive a favourable a decision if the Tribunal proceeded to make a decision because it considered the issues could be determined in the applicant’s absence. In response to this, the applicant ticked the box for indicating that she did not want to attend a hearing, and that she requested that the Tribunal made a decision without a hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Section 106 of the Administrative Review Tribunal Act 2024 (the ART Act) sets out circumstances in which the Tribunal may reach a decision without a hearing. Section 106(3) applies to reviews where the only parties are the applicant and a non-participating party, which is the case here. It provides that the Tribunal may make a decision without a hearing where the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding, and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties.
I am satisfied that the correspondence history considered above establishes that the applicant has made a request that the Tribunal make a decision without holding a hearing of the proceeding within the meaning of s.106(3)(b)(ii) of the ART Act. The issues to be decided in this review are whether the applicant meets the criteria for a protection visa, and specifically whether she satisfies the refugee criterion in s 36(2)(a) of the Act or, if not, whether she satisfies the complementary protection criterion in s 36(2)(aa). As has been noted above, the applicant has been provided several opportunities (first by the Department, and subsequently by the Tribunal) to provide further claims and/or evidence and information in support of her case since she lodged her protection visa application on 1 March 2020. She has not done so, nor has she indicated that she wishes to do so, nor has she requested to be allowed further time to do so. The material before the Tribunal includes the applicant’s protection claims, and also her claim to be a national of Malaysia, along with a copy of her Malaysian passport, and also the information she has provided in her protection visa application about her identity and personal history. I also have before me country information about Malaysia including the relevant country information assessments prepared by DFAT. I consider, as per s.106(3)(c) of the ART Act, that the issues for determination in the proceeding can be adequately determined in the absence of a hearing.
The applicant presents as a citizen of Malaysia. I note, with respect to the law of the relevant country, that the Federal Constitution of Malaysia provides that among the circumstances which will entitle a person to citizenship of Malaysia is when they were born on or after 16 September 1963 in Malaysia to parents of whom at least one was a citizen or a permanent resident at the time of birth.[3] The applicant has indicated in her protection visa application that she was born in Malaysia (in Malaysia’s state of Selangor) on [date] to parents who were themselves both citizens of Malaysia. The applicant provided the Department with a copy of her Malaysian passport, and this presents her as a national of Malaysia who was born in Selangor on [that date]. I accept that the applicant is a citizen of Malaysia, and a national of Malaysia, and I find Malaysia to be her receiving country for the purpose of this review.
[3] See Article 14(1)(b), and then Part II and III of the Second Schedule (including ‘Interpretation’), in: 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; Canada IRB, ‘Malaysia: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognized and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship, 16 November 2007, MYS102621.E.
The applicant claims to fear that if she returned to Malaysia she would be harmed and beaten by Islamic Malay people. The applicant claims that most of the Islamic, and particularly Malay, people were angry with her after she expressed dissatisfaction on Facebook about the attitude of one of the sultans and his son toward people not from the state. The applicant claims that she was beaten by a group of Malay people at a market, and that some of these people then came to her house looking for her, and that these people then posted her personal information on Facebook such that she can now be found anywhere in Malaysia.
Country information indicates that nine of Malaysia’s 13 states have hereditary rulers (eight sultans and one rajah), and that Malaysia has a unique system of constitutional monarchy wherein these 13 hereditary rulers share the position of king on a five-year rotating basis. Matters pertaining to Islam, including codification of syariah based laws and procedures and their administration, fall under state jurisdiction, with the sultans being the designated heads of religion in each state.[4] In states with no sultan and in the Federal Territories, the king assumes responsibility for such processes.[5] There are reports of the king and the state sultans of Malaysia promoting tolerance toward Malaysia’s non-Muslim and non-Malay communities (particularly in more recent years);[6] but there have also been instances of some kings and some sultans asserting the pre-eminence of the majority Muslim Malay population.[7] For instance, in January 2014 the then king of Malaysia (Abdul Halim, the Sultan of Kedah) made a speech endorsing the view that the word “Allah” can only be used by Muslims, with non-Muslims being banned from uttering this.[8] In June 2014 the Sultan of Selangor asserted that Islam is placed on a higher position in the country, and he admonished a Selangor member of parliament for having criticised a raid by authorities which had seized and refused to return Malay-language Bibles which contained the word “Allah”.[9] Malaysia’s 1948 Sedition Act prohibits sedition and public comment on issues defined as sensitive, including racial and religious matters or criticism of the king; and criticisms made of the king (and of Malaysia’s other hereditary rulers or their family members) by vocal civil society or opposition leaders have sometimes seen such persons facing sedition charges, and sometimes this has also been the case for less prominent persons who have posted critical comments on social media.[10]
[4] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 2.19.
[5] USDOS, ‘Malaysia 2020 International Religious Freedom Report’, 12 May 2021, 20210513090814, p.3.
[6] Rashid, R. ‘Malaysia: Johor Sultan Stops Laundromat’s Muslim-Only Policy’, Benar News, 27 September 2017, ; Today Online, ‘Malaysia’s Sultans express concern that religious controversies are splitting the country’, 10 October 2017, ; Al As, M. & N.N.M. Rahmat, ‘All citizens have a place under the Malaysian sun, says Sultan Nazrin’, Strais Times, 6 August 2024, ; The Star, ‘Heed King’s call to build a safe, inclusive, and united Malaysia, says Lam Thye’, 3 June 2025,
[7] See, for example: DFAT, ‘DFAT Country Information Report: Malaysia’, 13 December 2019, 20191213141745, 3.36; DFAT, ‘DFAT Country Information Report: Malaysia’, 29 June 2021, 20210629092134, 3.32.
[8] Malay Mail, ‘PAS Syura Council backs Kedah Sultan over 'Allah'’, 21 January 2014, ; ABC News, ‘Malaysian king backs court ban on non-Muslims using the word Allah’, 19 January 2014,
[9] Au, E. & N. Noorazam, ‘Selangor Sultan censures Pas MP’, Straits Times, 6 July 2014,
[10] Times of Malta, ‘Facebook man arrested for mocking sultan’, 23 December 2010, ; Underhill, K. ‘Malaysia Cracks Down on Sultan-Mocking Facebook Page’, Forbes, 29 December 2010, ; ICG, ‘The ICJ strongly condemns Malaysia’s decision to retain and strengthen sedition law’, 27 November 2014, HRW, ‘Malaysia: Sedition Act Wielded to Silence Opposition’, 14 September 2014, USDOS, ‘Malaysia 2018 Human Rights Report’, 13 March 2019, 20190314091511, p.10; FMT, ‘Trio arrested for sedition after social media remarks against Sultan Muhammad V’, 9 January 2019, ; Baker, S. ‘People in Malaysia are being threatened with prison for tweeting mean things about their royal family’, Business, Insider, 19 January 2019, ; Asia Sentinel, 'Sedition Threat for Activist Mocking Malaysia’s Queen', 24 April 2021, 20210426112829.
This noted, it is not apparent from the country information before me (which covers matters of this kind back to 2010) that there have been instances of physical attacks upon persons who have made social media posts critical of a sultan and/or a sultan; though this is not to say that such a situation is entirely implausible (such as in circumstances where a local group of Malay Muslims might be unusually sensitive to the issue of criticisms being published about a Sultan and/or his son).
This noted, it is difficult to believe that the applicant actually was affected by a situation of this kind, or that she ever expressed any dissatisfaction about a sultan and his son as she claims, or that she has any interest in voicing or posting opinions critical of one or more of Malaysia’s sultans (and/or such a sultan’s son). For, the claims which the applicant put forward in this respect in the protection visa application which she lodged on 1 March 2020 were extremely vague, with the applicant providing no more information than that she considered that one of the sultans and his son had an attitude towards people not from the state which was very unfair. The applicant provided no details as to the specific identity of the sultan and his son in question, or the date of the Facebook post she had purportedly made and its content, nor did she provide any documentary evidence of such a post having been made (or, alternatively, an explanation of why such evidence and/or information had not been provided). No details were provided as to the date upon or specific locality where the purported assault had occurred wherein the applicant was beaten by a Malay group when she went to market. No explanation was volunteered as to why (if all of this was true) the applicant had (after arriving in Australia in August 2016) not sought protection by lodging a protection visa application until 1 March 2020.
On 18 May 2021 the delegate emailed the applicant and requested that she provide more information about her claims. I note in this regard that in doing so the applicant was sent two different information requests (in the respective ‘Request Checklist and Details’ forms), and that one of these information requests evidently does not relate to the applicant’s case, as it asks for clarification about matters unrelated to the protection claims put forward by the applicant. This noted, this was no reason for the applicant not to have responded to the delegate’s email so as to clarify matters as to what her protection claims were. Moreover, the delegate’s 18 May 2021 email also attached a ‘Request Checklist and Details’ form which did ask questions about the claims which the applicant had submitted in her 1 March 2020 protection visa application, and which requested: details about the Sultan and son in question; and: details of how the applicant expressed her dissatisfaction towards the Sultan and his son, including what was said, the key dates and what medium was utilised; and: various other details, including whether the applicant sought medical treatment after the claimed attack, and whether evidence of this could be provided. It is difficult to believe that the applicant would not have replied to this by submitting further information and evidence to the Department (or alternatively an explanation of why the information and evidence could not be provided) if her protection claims were true; and I note that in her protection visa application the applicant has indicated that she is literate in English, and had just completed a three-year course at a college in Australia in [subject 1].
The delegate’s invitation of 18 May 2021 advised the applicant that she had 28 days to respond or to request additional time to do so. The delegate’s decision of 28 June 2021 records that no response was ever received from the applicant, nor a request for additional time, and there is no evidence before me to suggest otherwise. On 30 June 2021 the applicant lodged her application for review and in doing so she provided the Tribunal with a copy of the delegate’s decision. The applicant has had the opportunity to provide any information she might wish to the Tribunal about her reasons for disagreeing with the delegate’s decision to refuse to grant her a protection visa (and was expressly invited to do this by the Tribunal when she first lodged her application for review in June 2021), but the applicant has provided nothing further, and on 10 June 2025 she expressly indicated to the Tribunal that she had no new evidence or information which she wished to provide.
Having regard to the evidence before the Tribunal and the credibility concerns detailed above, I am not satisfied and I do not accept that the applicant ever expressed any dissatisfaction with one of Malaysia’s sultans and his son about their attitude towards people not from the state, or that the applicant ever experienced any harm or threats as a result; nor am I satisfied that the applicant had any interest in expressing dissatisfaction in this or in any broader respect about any of Malaysia’s hereditary rulers or their family members. I reject these claims in their entirety and, given this, I am not satisfied that the applicant would for the foreseeable future face a real chance or a real risk of harm of any kind on such a basis.
For completeness, and although the applicant has made no other protection claims, I have also considered what the applicant’s situation would be more broadly with respect to her claim to fear harm in Malaysia from members of its Islamic and specifically its Malay community, and I have also considered whether the applicant would be at risk of harm from any other actor in Malaysia (including its government and authorities).
I take it into account that Muslims and in particular Malay Muslims are the majority population in Malaysia (under Malaysia’s Constitution a Malay person is defined as being a person of Malay heritage professing the religion of Islam).[11] The applicant has indicated in her protection visa application that she is a Christian and that she is ethnically Malaysian Chinese. I accept that she is. DFAT assesses that Christians (who make up some nine percent of Malaysia’s population) are generally not at risk of societal discrimination;[12] and broader country information likewise indicates that the chance of this is very low, as is the possibility of their experiencing constraint upon their freedom of worship or harm of some other kind.[13] DFAT assesses that Chinese Malaysians (who make up some 20 percent of the population) experience low levels of official discrimination owing to how they may find themselves at a disadvantage when competing with Malays for an opportunity affected by a Bumiputra affirmative action program (Bumiputra, or ‘sons of the soil’, being a category which covers Malays and the smaller indigenous communities of the island of Borneo).[14] This, however, is a matter which has had little adverse impact upon Malaysian Chinese who comprise a high proportion of Malaysia’s professional and educated class, and who are prominent in business and commerce, and who tend to be wealthier than other ethnic groups in Malaysia.[15] More broadly, there is little evidence of Malaysia’s ethnic Chinese and/or Christian Chinese population experiencing difficulties.[16] I also take it into account that gender-based violence, and specifically domestic violence, continues to be a problem in Malaysia such that DFAT assesses that women and girls in Malaysia face a moderate risk of gender-based violence in the form of domestic violence (that is, sufficient incidents to suggest a pattern of behaviour).[17] But I note in this regard that the applicant has given no indication that she herself comes from or would be returning to a domestic situation where this is a concern. I note also that a level of discrimination and inequality persists in Malaysia with respect to matters like employment. But it is not apparent from the country information[18] that the situation is such that women in Malaysia (or that Malaysian Chinese and/or Christian women in particular) face a real chance or a real risk of experiencing harm in this respect.
[11] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.1, 3.4, 3.35.
[12] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.79.
[13] US Department of State, '2023 Report on International Religious Freedom: Malaysia', 26 June 2024, 20240627095012; US Department of State, 'Country Reports on Human Rights Practices for 2023 - Malaysia', 22 April 2024, 20240502105551; Pusat KOMAS, 'Malaysia Racism Report 2024', 21 March 2025, 20250325114634; Pusat KOMAS, 'Malaysia Racism Report 2023', 15 March 2024, 20240902141105; Suaram, 'Human Rights Report Malaysia 2024 Overview', 01 December 2024, 20250310114713; Suaram, 'Malaysia Human Rights Report 2023', 27 March 2024, 20240327165904.
[14] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.4-3.6, 3.12-3.15.
[15] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.11; 'Chinese median household income 29pct more than bumiputera', Malaysiakini, 11 July 2024, 20240712154255; 'Malaysia’s PM Anwar reframes policies on class, shifting from racial lenses', Straits Times, The, 06 October 2024, 20241008101048.
[16] Pusat KOMAS, 'Malaysia Racism Report 2024', 21 March 2025, 20250325114634; Suaram, 'Human Rights Report Malaysia 2024 Overview', 01 December 2024, 20250310114713; Suaram, 'Malaysia Human Rights Report 2023', 27 March 2024, 20240327165904.
[17] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.115-3.125.
[18] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833, 3.111; US Department of State, 'Country Reports on Human Rights Practices for 2023 - Malaysia', 22 April 2024, 20240502105551; and for a detailed overview of the situation in the recent year, see pp,104-113, in: Suaram, 'Human Rights Report Malaysia 2024 Overview', 01 December 2024, 20250310114713; and see also: Suaram, 'Malaysia Human Rights Report 2023', 27 March 2024, 20240327165904.
All this being the case, and as I have rejected such express protection claims as the applicant has made, I am not satisfied that that the applicant would for the foreseeable future face a real chance or a real risk of harm of any kind (whether physical or mental) for any reason in Malaysia, whether from members of its Islamic or specifically its Malay community, or from its government and authorities, or from any other actor.
Does the applicant satisfy the refugee criterion for protection?
For the reasons given above, I am not satisfied that the applicant has a well-founded fear of persecution within the meaning set out in s 5J. I am not satisfied that the applicant is a refugee within the meaning set out in s 5H.
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).
Does the applicant satisfy the complementary protection criterion for protection?
For the reasons given above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her receiving country, there is a real risk that she will suffer significant harm.
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)(aa).
Other considerations
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 decisions under review.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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