2112852 (Refugee)
[2025] ARTA 1891
•14 August 2025
2112852 (Refugee) [2025] ARTA 1891 (14 August 2025)
Decision and Reasons for Decision
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2112852
Tribunal: General Member M Graham
Date: 14 August 2025
Place: Canberra
Decision:The Tribunal sets aside and remits the matter for reconsideration in accordance with the order that the applicant must be taken to have satisfied
s 36(2)(a) of the Migration Act.
Statement made on 14 August 2025 at 3:08pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social groups – women in Malaysia – married women in Malaysia – women in Malaysia who have experienced family violence – women in Malaysia who have had a child outside marriage – people with mental health issues – evidence of divorce – physical, sexual, emotional and financial abuse – fears family violence and economic hardship – best interests of the child – longstanding, persistent and significant family violence from two partners – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
AZAEH v MIBP [2015] FCA 414
FCS17 v MHA [2020] FCAFC 68.9
MIMA v Khawar (2002) 210 CLR 1
Thalary v MIEA (1997) 73 FCR 437Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
Statement of reasons
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 September 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 12 October 2024 the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions of 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.
The applicant who claims to be a national of Malaysia, applied for the visa on 24 April 2020. The delegate refused to grant the visa on the basis that that the applicant did not satisfy subsection 36(2) of the Act, which requires an applicant to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person.
The applicant appeared before the Tribunal on 24 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Sibling A], who is the applicant's sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
At the end of the hearing the applicant was granted fourteen days to 25 March 2025 to provide further information in writing in support of her application. The Tribunal granted the applicant a further period to provide evidence of her Malaysian divorce proceedings with a certified English translation.
BACKGROUND
Departmental records indicate the applicant is [an age]-year old woman born in Kota Kinabalu, Sabah, Malaysia who arrived in Australia [in] February 2020 on a tourist visa and applied for a protection visa on 24 April 2020.
In the visa application the applicant states she grew up in [Village 1, District 1], Sabah and completed high school in [year]. She completed vocational training in [Vocation 1]. She is of Malay ethnicity and Muslim religion. Her parents [and siblings] live in Malysia. One of her [siblings] lives in Australia and another in [Country 1].
The applicant lived in [Town 1], Victoria when she lodged her application. For the past five years she has lived in [Town 2], NSW and is employed as [an Occupation 1 by Employer 1 in Town 3]. She is also studying English and [Vocation 2] at [Town 2] TAFE.
[In] February 2014 she married [Partner A], a Malaysian national, born on [date], and had a [child, Child A], born on [date].
The applicant met [Partner B], also a Malaysian citizen, in Australia in 2020 and they lived together in [Town 2], NSW. On [date] their [child, Child B] was born and in 2025 they separated.
[In] January 2025 [the Town 2] Local Court issued an Apprehended Violence Order (AVO) against [Partner B] for the protection of [the applicant] and [Child B]. [In] February 2025 [Partner B] breached the AVO and was apprehended by the police, imprisoned and at the date of the Tribunal hearing was awaiting a court hearing.
Claims for protection
In the visa application, the applicant states that she left Malaysia because her husband did not take care of her or her child. She came to Australia to give [Child A] a future because she received no financial support from her husband. He was unemployed and she was always fighting with him and his family and she became depressed. She did not experience harm in Malaysia and does not know what will happen to her if she returns. She does not think she will be mistreated. She does not think she will get help from the authorities and does not know what to do because she is scared.
In her statement dated 21 February 2025 at the hearing the applicant stated she fears family violence from her husband against her and [Child A] and also economic hardship. Her mother in law also mistreated her. A year after the wedding she left him and returned to her parents’ house. He followed her to her parents’ house, visited her every few months and abused her physically, sexually, and emotionally. He also stole money from her and damaged her property. In 2016 she gave birth to [Child A]. She found work to support herself and her parents cared for her young child.
The applicant also fears harm from another Malaysian national, whom she met in Australia in 2020 and with whom she had a child in [year]. She reported her partner’s coercive control and assault, including rape, to the police and was granted an AVO against him, which he subsequently breached. He is currently in gaol awaiting trial. She has experienced trauma due to her history of family violence and has sought treatment from a psychologist. She fears violence in future from her former partner in Australia against herself and [Child B].
In the Statement of claims of [the applicant], dated 21 February 2025, the applicant submits she fears harm on the basis of her membership of a particular social group, namely women in Malaysia.
Evidence before the Department
The Department considered the following:
·Protection visa application, dated 24 April 2020; and
·Summary of the delegate’s decision.
Evidence before the Tribunal
The Tribunal considered the following evidence:
·Departmental Movement records for [the applicant], dated 17 February 2025;
·Pre-hearing submissions, dated 18 February 2025;
·Response to Hearing Notice, dated 3 February 2025;
·Statement of claims of [the applicant], dated 21 February 2025;
·Apprehended Domestic Violence Order (Provisional), issued [in] January 2025 against [Partner B] for the protection of [the applicant] and [Child B];
·The hearing; and
·Post-hearing submissions, including:
o Letter, dated 27 February 2025, from [Counsellor A], Counsellor and Psychologist, [Health Service 1];
o Letter of Support from [an] English Language teacher, [Town 2] TAFE, NSW, dated 10 February 2025;
o Letter of Support from [Case Manager A of Support Service 1], dated 11 March 2025;
o Birth Certificate of [Child B], dated [date]; and
o Commencement of Divorce Proceedings Form (with certified English translation), Syariah Courts in Kota Kinabalu, Sabah, dated [March] 2025, brought by [the applicant], with Extract of birth record for [Child A], born on [date], and Extract of identity document for [the applicant], attached.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is owed protection as a refugee or under the complementary provisions of the Act. For the following reasons, the Tribunal has concluded that the decision under review should set aside and remitted for reconsideration.
Does the applicant satisfy the refugee criterion for protection?
The applicant provided a copy of her Malaysian passport to the Department. Based on this information and given that the delegate did not raise any concerns about the applicant’s claimed identity or nationality, the Tribunal finds Malaysia is the receiving country for the purpose of assessing her protection claims.
Based on written and oral evidence provided by the applicant and Departmental information outlined in paragraphs 16 and 17, the Tribunal finds:
· the applicant is [an age]-year old woman born in Kota Kinabalu, Sabah, Malaysia who arrived in Australia [in] February 2020 and applied for a protection visa on 24 April 2020;
· the applicant is of Malay ethnicity and Muslim religion;
· she has lived in [Districts 1 and 2] in Sabah, Malaysia;
· [in] February 2014 the applicant married [Partner A], a Malaysian citizen, born on [date] and had a [child, Child A], born on [date];
· the applicant arrived in Australia [in] February 2020 and has lived in [Town 1], Victoria and [Town 2], NSW;
· from 2020 – 2025 in [Town 2], NSW, she had a relationship with [Partner B], also a Malaysian citizen;
· on [date] the applicant gave birth to a [child, Child B] in [City 1], NSW;
· the applicant has not applied for citizenship on behalf of [Child B] in Australia or Malaysia;
· for the past five years the applicant has lived in [Town 2], NSW, is employed as [an Occupation 1 by Employer 1 in Town 3] and is studying English and [Vocation 2] at [Town 2] TAFE;
· [in] January 2025 the applicant reported an assault by [Partner B] against her to NSW police and applied for an AVO against him to protect herself and [Child B];
· [in] January 2025 [Town 2] Local Court, NSW, issued an AVO against [Partner B];
· the applicant has separated from [Partner B] and is currently living with her [child, Child B] in [Town 2];
· [in] February 2025 [Partner B] breached the AVO and was apprehended by the police and at the time of the Tribunal hearing was in prison in NSW awaiting a court hearing; and
· [in] March 2025 the applicant commenced divorce proceedings in a Syariah court in Kota Kinabalu, Sabah, Malaysia against [Partner A].
Firstly, the Tribunal considered, based on the applicant’s profile, as described above, whether the applicant faces a real chance of serious harm if she were returned to Malaysia in the reasonably foreseeable future, based on her claims of persecution for one of the reasons set out in s5J(1)(a) of the Act.
Claim of Economic Hardship
The applicant claims she left Malaysia to escape her husband who did not financially support her and their [Child A] and that she would face economic hardship if she returned to Malaysia. She stated that she separated from him about a year after the marriage and went back to live with her parents. She found work as [an Occupation 2 at Workplace 1], and at night worked at [Workplace 2], to support herself and her [Child A] financially. Her parents looked after her [Child A] while she worked. Her husband was unemployed and lived 8 hours away but would visit her every few months, would get drunk and abuse her. He also damaged her property, including her computer and her mobile phone. He would visit her each month at her parent house and demand money for alcohol and cigarettes.
The Tribunal accepts the applicant’s oral and written submissions, including in her divorce petition, that her husband has failed to financially provide for her and her [Child A] throughout the 10 years of their marriage. The Tribunal also noted, however, her resourcefulness in moving back with her parents, finding work at [Workplaces 1 and 2] and finds that she supported herself and her [Child A] financially for five years and that her parents cared for her [Child A] while she was at work. Despite the difficulties experienced in her marriage, including the lack of support from her husband, which the Tribunal accepts, the Tribunal finds the applicant obtained accommodation for herself and her [Child A], albeit not safe from her husband, was employed and was not destitute.
On the evidence available, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm from economic hardship if she returns to her home state of Sabah, now or in the reasonably foreseeable future.
Fear of Harm from husband
The applicant stated she chose her own husband and married him at [age]. In 2014 she moved to [District 2], Dawau, 8 hours travel from her parents’ home in [Village 1, District 1], to live with him and his family. She separated from him about a year after the marriage because of her husband’s abuse and treatment by his family and went back to live with her parents. He followed her to her parents’ house and he and his mother shouted at her. He returned to visit her every few months, demanded her money, got drunk and became violent, abusing her and also damaging her property. She suffered physical and mental abuse, including controlling behaviour, assault and forced sexual intercourse. In [year, Child A] was born and she lived in fear that he would harm her and their [Child A].
She stated after five years she left Malaysia to escape violence and controlling behaviour from her husband. Before she came to Australia she asked her mother to care for her [Child A], but three months later her husband and his mother came to take [him/her] away to live with them. Her mother supported her decision to come to Australia where she would be safe.
When questioned about the nature of the fights she referred to in her application she said her mother asked him to get a job to support his family. She stated she felt under pressure to obey her husband and accepted that family violence was normal and there was nothing she could do about it. She was injured on several occasions and developed depression because she felt helpless but did not seek medical help. She did not move away from [Village 1] to escape her husband’s abuse because she needed her parents to care for her [Child A] while she worked. She did not report the abuse to the police or seek medical treatment for her injuries because she was scared and accepted such behaviour was common in marriage.
In her written submission she states that in 2020 she lodged a complaint against her husband to the local Islamic religious department. Recently she asked her sister to follow up with the office about her complaint. Her sister was told they wrote to her husband asking him to attend the office within six months but he ignored them and never came. They were supposed to engage in counselling and if this did not work they could proceed to divorce. Her sister was advised as the matter occurred 5 years ago and nothing happened the case was withdrawn. The applicant submitted that the lack of action by the authorities demonstrates that they did not take her allegations of violence against her husband seriously. In her written statement she also submits she fears harm on the basis of her membership of a particular social group, namely women in Malysia.
The Tribunal also accepted evidence by video at the hearing from the applicant’s [sister, Sibling A], who has been working in [Country 1] since 2018. The Tribunal asked the witness what she knew about her sister’s marriage and her husband. She told the Tribunal in 2014 her sister married a man of a different race from a village a long way away. At the time she was living in the family home in [Village 1]. She said he did not fulfill his duties as a husband by providing financial support and had also taken their [Child A] away. She had not witnessed the violence in person but her sister had complained of the physical and mental treatment she suffered. She said her sister did not report her husband’s treatment because she was scared of the police. She stated her parents and most of her siblings and their families still lived in Sabah. She knows her sister is now applying for a divorce. In relation to her health she said her sister has gone through a lot.
The Tribunal finds, based on the divorce petition provided to the Tribunal, dated [March] 2025, that the applicant has commenced divorce proceedings in a Syariah court in Sabah against her husband. The Tribunal noted the applicant in the petition cited as grounds for divorce the lack of financial support and violence from her husband, consistent with the claims in her application for protection. Regarding her divorce the applicant said it is expensive to hire a private lawyer in Malaysia but she has been able to do this since coming to Australia with income from her employment. While the Tribunal accepts that she has applied for a divorce, until it is granted it would be speculative to assess the applicant’s chance of serious harm and the availability of protection against an ex-husband from the authorities in the context of a divorced woman in Malaysia.
The Tribunal noted the applicant’s evidence that she fears violence from her husband if she is returned to Malaysia because he will be angry with her for having another relationship outside the marriage and another child. She stated he will find her wherever she goes because due to strict Islamic practices her parents will be forced to tell him her location. She fears he will try to kill her and her [Child B] because he has a violent nature.
Based on the applicant’s evidence and the evidence of the witness, the Tribunal accepts the applicant’s account of her relationship. In making that assessment has had regard to DFAT advice that violence against women in Malaysia is a significant problem and that it is underreported because it is regarded as a ‘sensitive topic’1. It is more common in rural areas, such as where the applicant’s husband lives, in lower education and lower socio- economic status backgrounds and is associated among other things with substance abuse, exposure to prior violence and lack of support. The Tribunal also accepts that there is a high level of acceptance of domestic violence in the community as a normal reaction to stress or frustration2.
The Tribunal notes that Syariah or Islamic Religious Law is administered by the government at the state level in Malaysia and governs matters including betrothal, marriage, divorce, adoption and guardianship3. The Tribunal noted that while the National Guardianship of Infants Act (1961) was amended in 1999 to give mothers equal parental rights to fathers, only four states have extended those provisions to Muslim mothers4. Based on country information and the oral evidence of the applicant, the Tribunal accepts that the applicant has lost custody of [Child A] and as a single mother, with a child born out of wedlock, is unlikely to regain custody of [Child A] from her ex-husband, even once she is divorced.
As the applicant has raised claims of family violence by her husband and de facto partner which were not made before the primary decision, under s 367A of the Act the Tribunal is to draw an unfavourable inference to her credibility unless the applicant is able to provide a reasonable explanation under s 367A(2). The Tribunal asked the applicant why she had not claimed family violence by her husband in her original application for protection or provided any documentation earlier. She initially made claims only of economic hardship and neglect by her husband. The Tribunal also noted she gave evidence of the good work and living conditions she has experienced in Australia, which when considered with country information about the poorer economic conditions in Malaysia, particularly in rural areas of Sabah5, may suggest she came to Australia for economic reasons. She responded she did not come to Australia for economic reasons and she did not previously mention the family violence because she was not aware she could apply for protection for that reason. She also offered to provide documentation after the hearing about the violence of her husband, her divorce application and a report from a psychologist about the effect the family violence has had on her health. She also said her sister, who is appearing as a witness will provide evidence about the applicant’s marriage problems. The Tribunal found the applicant to be a credible witness and accepted the applicant’s account of her marriage and the family violence she suffered. The Tribunal gave weight to the fact that the applicant has now provided a number of documents supporting her claims of family violence, her medical condition and her divorce, which the Department did not have when it made the original decision. The Tribunal also accepted that her explanation for not providing information about the family violence earlier is reasonable in the circumstances, particularly as she is a Muslim woman from Malaysia where country information indicates there is widespread community acceptance of family violence and limited protection from the authorities under Syariah law.
1 Paras 3.115- 3.117
2 Para 3.116.
3 DFAT Country Information Report: Malaysia (24 June 2024), paras 3.40 – 3.42.
4 Ibid, para 3.60.
5 DFAT Report Economic Overview, paras 2.7-2.9.
The Tribunal finds based on oral and written submissions by the applicant, letters of support from a psychologist and other crisis support workers, as well as the country information outlined above that there is sufficient evidence available to establish that there is a real chance the applicant will face serious harm from her husband if she returns to her home state of Sabah, now or in the reasonably foreseeable future.
Fear of Harm from ex-partner
The applicant told the Tribunal she suffered family violence from a subsequent partner, also a Malaysian National, whom she met in Australia. She told the Tribunal they had a relationship from May 2020 – January 2025 and had a child together who was born in [year]. In early 2025 she suffered family violence from her de facto partner and in January 2025 she reported her partner’s assault to the police. She also sought and was granted an AVO against him because she fears violence against her and her [age] year old [Child B] in future in Australia. The Tribunal finds, on the basis of the AVO granted by the Court [in] January 2025 and the applicant’s evidence, that the family violence was serious and that the applicant’s former partner is now in prison awaiting trial because the order was breached.
The Tribunal accepts the applicant’s evidence that she called [Support Service 1 in City 1] for help after the assault because of the stress and trauma suffered by her due to her former partner’s violence and that she has sought treatment from a psychologist. The Tribunal gave weight to the letter of support from [Counsellor A], Psychologist and Counsellor at [Health Service 2], confirming that the applicant has been attending counselling at the health service since January 2025. She stated that in February 2025 the applicant was the victim of a violent home invasion and multiple aggravated sexual assaults. She also reports that the applicant was provided with a medical response from a Forensic Medical Examiner and a psycho-social response from [Health Service 1] which provides a Violence Abuse and Neglect Service. Counselling for psychological trauma was recommended following reports by the applicant of domestic violence occurring over two to three years. While not in a position to provide a formal psychological evaluation, [Counsellor A] stated that the applicant is “struggling with the physical and psychological impacts from the interpersonal violence she has recently experienced”.
The Tribunal accepts that the applicant has had a long term de facto relationship with a Malaysian National in Australia, that they had a child in [year], that she experienced serious family violence from him, that she is separated from him and sought an AVO against him because she feared serious harm against herself and her [Child B] in Australia. According to the applicant at the time of the hearing he was in prison in Australia for breaching the AVO.
The applicant’s evidence was that she feared further violence from him in Australia but did not provide evidence about his visa status or the likelihood that he may be returned to Malaysia and pose a renewed threat to her and [Child B] there. While the visa status of the applicant’s former partner is unknown and he is awaiting a criminal trial for his alleged actions against the applicant in Australia, the Tribunal considered whether there is a real chance of serious harm in the form of further family violence from the applicant’s de facto partner in Malaysia because he is a Malaysian National, does not have a right of permanent residence in Australia and might be returned to Malaysia in the reasonably foreseeable future.
The Tribunal finds there is not sufficient evidence available at this time to establish that there is a real chance the applicant will face serious harm from her ex-partner, a Malaysian national, if she returns to her home state of Sabah, in Malaysia, now or in the reasonably foreseeable future.
Fear of losing [Child B] due to uncertain legal status
The applicant fears returning to Malaysia because [Child B] was born out of wedlock and she is not sure of her [child’s] citizenship status and whether [he/she] would be allowed to live in Malaysia with her. She submits as a single woman she fears for her safety and would not receive protection from the authorities. She fears her husband and his family will find her if she returns to Malaysia and that she and [Child B] would not be safe anywhere in Malaysia.
The Tribunal considered the applicant’s evidence at hearing about her fears for the future of [Child B] if she returned to Malaysia, noting that the law requires both subjective and objective elements to be satisfied in order for the fear to be well-founded. In relation to the applicant’s fear that her [child], from a de facto relationship in Australia, may not be granted citizenship or be allowed to enter the country, the Tribunal referred to country information that citizenship requirements for children are not clearly defined by statute in Malaysia and where a child’s original immigration status is unknown or uncertain, citizenship may not be granted. Citizenship may also be refused to children with unknown birth parents or because they were born outside marriage6. In this case the Tribunal accepts the applicant’s evidence that her de facto partner is a Malaysian national, that [Child B] was born outside the marital relationship and that she has not applied for Malaysian citizenship on [his/her] behalf. The Tribunal also took into account 2023 amendments to the Malaysian Constitution, which enable children born overseas to a Malaysian mother married to a foreigner, as well as children with a Malaysian father, to automatically obtain Malaysian citizenship by applying for registration at a Malaysian consulate or at the National Registration Department in Malaysia7. It follows that the applicant may be able to take steps to obtain proof of his citizenship from Malaysian authorities in Australia but based on the available country information about the operation of the relevant Malaysian citizenship laws it would be speculative to assume the applicant’s [child] would be granted Malaysian citizenship.
The Tribunal also referred to country information that while discrimination against women and girls is banned under the Malaysian Constitution, it nonetheless persists across the country. Muslim women have fewer rights than men under syariah law, there is strong stigma attached to pre-marital sex and pregnancy and children born outside marriage8. The Tribunal’s overall assessment of the relevant country information required a weighing up of different aspects of Malaysian law and its application to [Child B’s] situation. The Tribunal took into account the possibility of [Child B] being granted Malaysian citizenship but considered the fact that [his/her] Malaysian father and mother had not been married at the time of [his/her] birth might still operate as a barrier to [gaining] citizenship.
In conclusion, in light of the country information the Tribunal finds that the applicant’s fear in relation to [Child B’s] Malaysian citizenship if she had to return to Malaysia in the reasonably foreseeable future is objectively well-founded. Further, even if her [child] is granted Malaysian citizenship, there is a real chance both the applicant and [Child B] would still suffer discrimination due to the predominantly Muslim population of the country and the stigma attached to children born outside the martial relationship.
The Tribunal also accepts the applicant’s evidence that she has applied for divorce and no longer has custody of [Child A] from her marriage. The Tribunal therefore took into account the serious impact losing [Child B] would have on the applicant, after her experience of the death of her first child in the first year of her marriage, the loss of custody of [Child A] at [a young age] and the applicant’s mental health for which she is seeking treatment.
6 DFAT Country Report: Malaysia, (2024) para 3.62 – 3.63.
7 Ibid, para 5.36.
8 Ibid, para 3.113
Secondly, based on the applicant’s profile, that she is a Malaysian national from Sabah of Malay ethnicity and Muslim religion, who is married but has applied for divorce, has experienced family violence from two former partners, has separated from both partners and has had one child within marriage and one child outside marriage, the Tribunal considered whether the real chance of harm faced by the applicant amounts to ‘serious harm’, as defined in s5 of the Act, noting the instances outlined are not exhaustive but includes ‘significant physical harassment of the person’.
The Tribunal has accepted on the basis of country information that family violence is widespread in Malaysia, there is a high degree of acceptance of family violence against women by religious authorities and within the Muslim community and that state protection for female victims of family violence is ineffective and inadequate. In considering whether the applicant’s husband’s conduct constitutes ‘serious harm’ the Tribunal also noted that the type, severity and duration of the abuse, which had continued for five years after the applicant left her husband and moved back with her parents and that [Child A] was born a year after the move. The Tribunal accepts that in the circumstances the applicant feared future violence against herself and her child and that Muslim community pressure, including her parents, and the presence of her young [Child A] operated as a barrier to her relocating or reporting the matter to the police but considers that this does not detract from the seriousness of the conduct. Her evidence is that her mother advised her to leave the country to escape the violence of her husband. The Tribunal also accepts that divorce was not considered by the applicant prior to her departure from Malaysia due to the expense.
The Tribunal accepts the applicant’s account of her abusive marriage and subsequent abusive de facto relationship and the assessment of her psychologist that she is receiving treatment for trauma and finds, based on the applicant’s oral evidence about the abuse that the applicant has experienced severe pain and suffering over a period of eight years over the course of both relationships. The Tribunal also relied on the police report of the applicant’s former partner in Australia in which he is described as deliberately, repeatedly and viciously raping the applicant. In relation to the family violence by both the applicant’s husband and her former de facto partner, the Tribunal finds that they come within the definition of ‘significant physical harassment of the person’ and therefore amount to ‘serious harm’.
The Tribunal also accepted that the applicant reported her husband’s conduct to the Islamic religious office in Sabah in 2020 but no action had been taken and the complaint had been withdrawn because it relied on the applicant’s husband consenting to counselling, which he did not do. While the Tribunal notes that she did not report the abuse to the police and no- one in her family reported the abuse to the police after her move and separation, the applicant did take a number of steps to stop the abuse without success, including leaving the marital home after one year and returning to live with her parents 8 hours away. Following a further five years of abuse, in the form of visits by her husband every few months and repeated abuse, which the Tribunal accepts, the applicant decided to come Australia to escape the abuse, leaving her [age] year old [Child A] behind, which must have been difficult for her and indicates to the Tribunal the seriousness of the abuse suffered by the applicant.
For the reasons outlined above, the Tribunal finds that the persecution of the applicant by her husband in the form of family violence, including rape, assault, and coercive control over six years constitutes serious harm, as defined in s 5J(5) (c) namely ‘significant physical ill- treatment of the person’. The Tribunal took into account the fact that the applicant left her husband’s family’s home a year after the marriage, due to his conduct and that his parents had not protected her there or reported his conduct to the police. The Tribunal also noted in her divorce application that her first child had died in that first year but was not able to question the applicant about the circumstances as this information was provided after the hearing.
For the reasons outlined above the Tribunal is satisfied that there is a real chance of ‘serious harm,’ as defined in s5 of the Act, to the applicant from her husband if she returns to Malaysia in the reasonably foreseeable future.
Thirdly, the Tribunal considered whether the harm faced by the applicant is for one of the reasons set out in s 5J(1)(a), namely for reasons of race, religion, nationality membership of a particular social group or political opinion.
The Tribunal considered whether the applicant is a Member of a Particular Social Group (MPSG), as defined by s5L of the Act and is satisfied based on the facts as outlined above and taking into account recent High Court authority9 for gender based groups and gender based violence that the applicant’s circumstances come within the definition. In that 2002 case Gleeson CJ accepted that women in Pakistan were members of a distinct and recognisable group and in an earlier case single women in India were similarly recognised10. Although the applicant claims she will be harmed by her husband for personal reasons, country information indicates state authorities provide inadequate and ineffective protection to women in Malaysia, including in some reported instances of police withholding protection to women that would otherwise be provided to assault victims. The High Court considered the state’s withholding of protection from women or failure to prevent violence against women, constitutes systematic discrimination against women, which is tolerated and sanctioned by the state11. The Tribunal noted that legal, social, cultural and religious factors need to be considered in determining whether a person belongs to a Particular Social Group but that the “alleged systemic failure of the enforcement of criminal law in certain situations does not dictate a finding of a Member of a Particular Social Group”12.
The Tribunal also took into account evidence about the applicant’s mental health in considering whether the applicant is a member of a Particular Social Group. The Tribunal finds, based on evidence from her case manager at [Support Service 1] and a psychologist at [Health Service 2], that following the assault from her ex-partner in 2025, the applicant reported the matter to the police and sought medical assistance. The Tribunal also accepts that the applicant is suffering from trauma relating to longstanding family violence.
The Tribunal accepts that the applicant’s fear of harm is for one of the reasons set out in s 5J(1)(a) namely being a Member of a Particular Social Group (PSG), and is for an essential and significant reason as required by s5J(4)(a). The Tribunal finds, based on the applicant’s evidence provided about her circumstances, which the Tribunal accepts, in addition to the membership of a Particular Social Group claimed by the applicant, namely women in Malaysia, the applicant is also a member of the following PSGs:
· married women in Malaysia;
· women in Malaysia who have experienced family violence;
· women in Malaysia who have had a child outside marriage; and
· people with mental health issues.
The Tribunal considers that the above formulations are capable of constituting a particular social group for the purposes of s 5J(1)(a) of the Act in accordance with s 5L of the Act and
9 MIMA v Khawar (2002) 210 CLR 1 at [118] per Kirby J
10 Khawar per Gleeson CJ at [32] and Thalary v MIEA (1997) 73 FCR 437.
11 MIMA v Khawar (2002) 210 CLR 1.
12 MIMA v Khawar (2002) 2010 CLR 1 at 28, [838], [130].
that the applicant shares the characteristics of the groups identified above in accordance with s L(b).
The Tribunal referred to the definition of “Membership of a particular social group other than family” in s 5L, requiring that the characteristic is shared by each member of the group, that the person shares or is perceived as sharing the characteristic, that the characteristic distinguishes the group from society but noting that the characteristic common to group members may not be the fear of persecution. Based on the four characteristics outlined in paragraph 59 falling within the definition in s 5L, the Tribunal finds, based on her profile, that the applicant was a member of the relevant group or groups and will be a member on her return to Malaysia. The Tribunal is also satisfied based on country information that the law of Malaysia defines women like the applicant objectively as a member of a particular social group, for the purpose of treatment by the state. For example a married woman, such as the applicant would be unable to seek redress against her husband for rape because the law in Malaysia does not treat rape in marriage as a crime13.
As the Tribunal accepts ‘women in Malaysia’ comprise a particular social group, the Tribunal also finds, based on country information, that the selective and discriminatory withholding of State protection in Malaysia on the grounds of the applicant’s gender provides the necessary nexus of systematic and discriminatory conduct, required under s 5J(4)( c) of the Act.
Fourthly the Tribunal has found based on the written and oral evidence of the applicant as outlined earlier, that the harm suffered by the applicant in the form of longstanding and persistent family violence by her husband is serious harm. The Tribunal has considered the past persecution of the applicant in Malaysia by her husband and made an assessment about the risk of future persecution. For the reasons above, the Tribunal accepts there is a real chance the applicant will face serious harm in the form of physical and sexual abuse and harassment from her husband, if she returns to Sabah. In light of her personal circumstances and mental health issues, the fact she has commenced divorce proceedings against her husband and would return with a child born outside her marriage, the Tribunal accepts that is she returns to Sabah, there is a real chance of violence from her husband in future because of their relationship and the past history of family violence.
Fifthly the Tribunal considered whether the risk of family violence from the applicant’s husband relates to all areas of the receiving country. 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
The Tribunal has accepted the account of the applicant’s marriage as well as the severity and duration of the abuse over a period of five years after she separated from him. Based on the written and oral evidence of the applicant, including her recent divorce petition, lodged by her lawyer in Malaysia, the Tribunal accepts that the last known residence of the applicant’s husband is in [District 2], on the east coast of Sabah and accepts also his regular and lengthy travel to visit her in [District 1] eight hours drive away, reported by the applicant and confirmed by her sister. The Tribunal finds, based on written and oral evidence provided by the applicant, that she experienced violence experienced from her husband in two areas of Sabah, namely [District 2], where she resided with her husband and his family, and [District 1] where she resided with her family. The Tribunal also accepts, however, that he continued to visit the applicant regularly after she left him, which involved a sixteen hour round trip and that he may be prepared to travel further across Malaysia in future if the applicant returns and were to relocate to an area outside Sabah. Due to the applicant’s husband’s demonstrated willingness to travel long distances to pursue her in the
13 DFAT Country Report: Malaysia, para 3.113.
past and the likelihood that he would do so again in future, the Tribunal finds that the applicant would not be safe from her husband anywhere in Malaysia and the harm relates to all areas of the receiving country as provided for in s 5J(1)(c).
As the Tribunal has found that the harm relates to all areas of the receiving country, the Tribunal considered whether it would be reasonable in all the circumstances for her to relocate to another area. The Tribunal also considered in relation to areas in Malaysia outside Sabah that the applicant might move to, whether they would be safe, physically habitable and hospitable so that she would be able to find food, shelter and work14. Taking into account the applicant’s need to work to support herself and her responsibility for a young child, her mental health issues which require ongoing psychological treatment and the family support she has in Sabah, contrasted with the lack of employment experience and family or other social networks she has elsewhere in Malaysia, the Tribunal finds it would be unreasonable for her to relocate to another area in Malaysia.
In determining the reasonableness of relocation, the Tribunal did not consider based on the lack of information available about the applicant’s former de facto partner, [Partner B], whether in the event that he is returned to Malaysia, the applicant may also be at risk of harm from him. The Tribunal had no evidence about the region of Malaysia that the applicant’s partner came from or would be likely to return to and the applicant’s evidence is that she fears harm from him only in Australia. The Tribunal also considered the situation of her [child, Child B], born outside a marital relationship in Australia, who may not be eligible for Malaysian citizenship, as a factor influencing the reasonableness of relocation by the applicant15 as outlined above, in that the applicant would need to access suitable health and education services for her child.
Sixthly, the Tribunal considered whether there are effective protection measures available to the applicant in Malaysia against family violence in future. Section 5J(2) of the Act provides that ‘a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country’, which according to s 5LA of the Act means the protection is both accessible to the person and durable and in the case of protection provided by the relevant State consists of ‘an appropriate criminal law, a reasonably effective police force and an impartial judicial system’.
The Tribunal took into account country information about Malaysia’s police force, including specialist family violence services, whether the applicant would be able to access police particularly if she relocated to a remote area of Malaysia and whether the police would be willing to provide protection to the applicant under Malaysia’s Syariah law, in the event that she or her child are faced with family violence from her husband in future. Relevantly, the applicant is a Muslim woman and married and [Child B] was born outside the marital relationship and country information indicates that State protection would not be available to a married Muslim woman experiencing domestic violence in the event of rape because rape within marriage is not considered a crime under Syariah Law in Malaysia16.
Regarding protection from the authorities in the event of future violence from her husband towards her or her child, the Tribunal took into account evidence from the applicant about whether she could get help from the police, noting that while she has applied for divorce, it has not yet been finalised. The applicant replied she was uncertain because she would go back to live with her parents in a village and she is not sure the police there would help. She
14 FCS17 v MHA [2020] FCAFC 68.9
15 AZAEH v MIBP [2015] FCA 414, on the issue of whether the
circumstances of dependent children may be relevant in a particular case: at [30], [34].
16 DFAT Country Report, Malaysia, para 3.120
said she has never dealt with the police before but she does not believe she would not be protected by the police because they see domestic violence as a private family issue and because in Malaysia Muslim women are expected to always obey their husbands. The Tribunal reminded her that she had sought help from the police in Australia in response to her recent experience of violence from her de facto partner. She said Malaysia is very different.
The Tribunal also considered, based on country information, whether state protection would be available to the applicant if she were returned to Malaysia in the reasonably foreseeable future. DFAT advice indicates while some special police units have been established to deal with abuse against women and children, these services are inadequate to meet demand17. Reluctance from some police officers to deal with family violence has also been reported with some women encouraged by police to withdraw their complaints and at other times complaints are not followed up. Generally, the specialist gender based violence investigative units are more likely to respond sensitively and effectively than front line officers18.
In relation to legal protection from the Malaysian authorities for victims of family violence, the Tribunal noted amendments to the Domestic Violence (Amendment Act (2017) strengthened protections for individuals who have experienced domestic violence and expanded the definition of “domestic violence” to include spouses, former spouses, children and others but does not include domestic violence between unmarried couples or rape within marriage19. Further Emergency Protection Orders (EPO)s may be sought under the legislation to prevent an offender entering a location or to remove an offender but such orders may in practice be difficult to obtain and may not always be enforced20. In addition since 1996 One Stop Crisis Centres (OSCC)s were set up by the Malaysian government in more than 102 Emergency Departments of Malaysian Hospitals located mostly in city centres21, indicating the extent of the problem of family violence against women in Malaysia and the response of the authorities. The Tribunal also noted the availability of women’s shelters for victims of family violence run by government and non-government organisations22 in Malaysia but that these only deal with the aftermath of domestic violence and do not constitute effective protection measures. The Tribunal also noted that while the applicant experienced family violence from 2014 – 2020, she had not sought police protection, including in the period after 2017 when the new domestic violence laws were introduced but that access to effective protection for women experiencing domestic or family violence remains an issue in Malaysia.
Overall the Tribunal accepts the DFAT assessment that women in Malaysia face a moderate risk of domestic violence and while state protection is available, it is often inadequate and ineffective and in addition, family, economic and social pressures operate as barriers for women leaving abusive relationships23. In the present case the Tribunal finds that because the serious harm faced by the applicant is family violence from her husband, and country information about the widespread authority of Syariah law throughout Malaysia indicates that, despite some reforms to Malaysia’s legal system expanding the scope of domestic violence laws and remedies available to victims, the lack of available and effective state protection for women in Malaysia generally and married Muslim women in particular is widespread. It follows the Tribunal finds the State protection available in the applicant’s circumstances is not sufficient to constitute effective protection measures for the purpose of s5J(2) and 5 LA of the Act.
17 DFAT Country Report, Malaysia, para 3.117
18 Paras 3.118-3.120
19 Para 3.120
20 Para 3.121
21 Para 3.122
22 Para 3.123
23 Para 3.125
In summary, due to the applicant’s profile, history of family violence, parental responsibilities and mental health issues, family support in Sabah and country information about people with the applicant’s profile, the Tribunal finds that the applicant faces a real chance of serious harm if she returns to Malaysia in the reasonably foreseeable future and it would not be reasonable for her to relocate. The Tribunal is also not satisfied the applicant could access effective protection from the Malaysian authorities.
As the Tribunal has found in accordance with s 5J(1), that the applicant fears being persecuted because of her membership of a particular group and there is a real chance that she would be persecuted for that reason and that the real chance of persecution relates to all areas of the receiving country and that effective protection measures are not available to the person in the receiving country as provided for in s 5J(2), the Tribunal went on to consider whether the applicant could take reasonable steps to modify her behaviour in order to avoid a real chance of persecution in accordance with s 5J(3). The legislation provides that a person cannot be expected to modify their behaviour where that would be in conflict with a characteristic that is fundamental to the person’s identity or conscience, require them to conceal an innate or immutable characteristic or require them to do certain other things.
The Tribunal considered what the applicant would do if she returned to Malaysia, noting that the persecution in this case is family violence by her husband and considering whether there is a particular course of action the applicant could take or behaviour she could modify to avoid future harm from her former husband. As the applicant is a woman and a wife under the jurisdiction of Syariah law and known to her husband by her physical appearance, the Tribunal considers these are innate or immutable characteristics which she is not required to change, with the exception of her marital status which she is in the process of changing. The Tribunal has also found that the applicant would require family support in future, that the applicant’s parents are likely to disclose her residential location to her husband if he asks them and that he is prepared to travel long distances within Malaysia to track her down. In conclusion the Tribunal finds the applicant could not take reasonable steps to modify her behaviour so as to avoid a real chance of persecution.
It follows that the applicant faces a real chance of serious harm if she were returned to Malaysia in the reasonably foreseeable future, based on her claims of persecution for one of the reasons set out in s5J(1)(a) of the Act.
Having regard to the findings of fact set out above, the Tribunal is satisfied that the applicant is a person in respect of whom obligations under s 36(2)(a).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the matter for reconsideration in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of Hearing: 24 February 2025
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 of persecution would not exist if it were assumed that the fear of persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)a characteristic is shared by each member of the group; and
(b)the person shares, or is perceived as sharing, the characteristic; and
(c)any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)the characteristic is not a fear of persecution.
5LA Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)the person can access the protection; and
(b)the protection is durable; and
(c)in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
…
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