2200942 (Refugee) - [2025] ARTA 833

2200942 (REFUGEE) [2025] ARTA 833 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2200942
Tribunal:General Member D Keenan
Date:3 March 2025

Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 03 March 2025 at 2:20pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – fears harm from ex-husband – extra-marital affair – physical and verbal abuse – particular social group – women in Malaysia – gender based violence – restricted contact with son – effective protection – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 January 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 4 October 2021. The delegate refused to grant the visa on the basis that effective protection measures were available to the applicant in Malaysia and they therefore did not have a well-founded fear of persecution.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s son, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant is a [age]-year-old female Malaysian citizen. She arrived in Australia [date] March 2020 as the holder of an Electronic Travel Authority (subclass UD-601P120). The applicant’s provided a copy of her Malaysian passport issued on [date] 2018 to the Department at the time of lodging her protection visa application. I accept the applicant is a Malaysian citizen.
EVIDENCE
Evidence before the Department
According to the information in the protection visa application, the applicant was born in Pulau Penang on [date]. She completed her primary school and high school education in Pulau Penang. She is of the Malaysian Chinese ethnic group and her religion is Buddhism. Her marital status was listed as separated.
Her written claims for protection were that she had a relationship with a person named [name] when she was working in Ipoh. They became friends and dated a few times. He was deeply in love with her and when she refused to marry him, he became hostile. He threatened to make stories about her to her friends, that if he could not marry her, nobody would, and he threatened to kill her if she refused to marry him.
She believed he would stalk her and find her if she moved to another part of the country, and she did not think the police could provide effective protection measures.
The applicant was not invited to an interview or for further information about her claim. The delegate decided that, as using force or threats to compel a woman to marry against her will or to prevent her from getting married is a punishable offence under Malaysian law, that Malaysians are free to marry people of other races, ethnicities or religions, that Royal Malaysian Police (RMP) has a willingness to enforce the laws, and Malaysia has an impartial judicial system, that effective protection measures were available to the applicant in Malaysia and she therefore did not have a well-founded fear of persecution.
Evidence before the Tribunal
Pre-hearing evidence
On 25 January 2022, the applicant applied to the Administrative Appeals Tribunal for a review of the Department’s decision. On 27 January 2022, the Tribunal acknowledged the application for review and informed the applicant that if she wished to provide material or written argument for the Tribunal to consider, she should do so as soon as possible.
On 27 August 2024, the applicant returned a Pre-hearing information form to the Tribunal. In that form she repeated the claims from her original protection visa claim.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were 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.
Oral Evidence at Hearing
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Mandarin languages.
She said that her protection visa application had been prepared by her lawyer. She had communicated with him via messages only and he had asked her to lodge it. She did not read and understand it before she lodged it. She was not satisfied that everything in her visa application was true and correct. She wished to make new claims at the hearing.
In relation to her background she said that she was born in Pulau Penang on [date]. She grew up and was educated there.
She moved to Ipoh when she got married at [age] years of age in 1998. She lived in Ipoh with her ex-husband, 2 sons, her daughter and her mother-in-law until before she came to Australia.
Her father passed away over 10 years ago. Her mother has lived in a single story, semi-detached property in [Town 1] since 2005. [Town 1] is a 20-minute drive from Penang. Her mother does not work due to her age. She speaks to her regularly at intervals between 10 days and a few weeks.
She has 4 siblings, 3 brothers and one sister. One of her brothers lives with her mother, another lives in Kuala Lumpur, and the other brother lives in the countryside of Penang caring for their father’s rice fields. Her sister lives in Penang. Her brother living in the countryside is married with 4 children. She only speaks to her siblings rarely when there is family business to discuss.
The applicant was married and then divorced. She has 3 children. The eldest is [age] years old and studying at a university in Australia. Her [age]-year-old daughter is studying at a university in Kuala Lumpur, and her [age]-year-old son is in the first year of senior high school and lives with her ex-husband in Ipoh.
She does not currently have a partner.
She competed high school in Pulau Penang and has not done any further study since then.
In Malaysia she worked as an office clerk in a [company] before she married. The company was owned by her ex-husband. She stopped working after she had children.
Since she has been in Australia, she has been working on farms fruit picking. She is currently providing financial support for her daughter’s university education in Kuala Lumpur.
She said she had travelled to Australia initially in November 2018 to help her son find a university to attend. She visited him again in 2019 whilst he was attending [a] University.
When questioned why she travelled to Australia in March 2020, she said that she and her daughter travelled to Australia to visit her son. Whilst in Australia, there was the outbreak of the pandemic (referring to the Covid-19 pandemic), so all the flights stopped and they were forced to stay in Australia until flights were available again.
When asked why she did not wish to return to Malaysia, the applicant initially provided a multitude of reasons, summarised as follows:
a.Lack of financial resources and her ex-husband is not financially supporting her.
b.People are spreading rumours about her after her divorce, and she does not have the courage to face them.
c.She has ongoing conflict with her ex-husband about having contact with her youngest son.
d.Her ex-husband has been violent towards her in the past.
e.Her ex-husband refuses to provide financial support for their daughter at university. When she asks for financial support, they will have an argument and she does not know what harm he will do to the applicant.
f.If she moves to Malaysia, she will need to live with her mother and brother. Her brother will not want to financially support her.
She said that, during the marriage, her husband had been violent towards her by dragging her down the stairs when she was pregnant with her youngest son. He had not been violent since then but was very aggressive when he was angry during their marriage. He had been aggressive to their daughter when she had more recently asked him for financial support to attend university.
When initially questioned about whether she could avoid harm from her husband by not contacting him if she returns to Malaysia, and not asking him for financial support, she said that she would then need to live with her mother and brother, and her brother would not want to financially support her.
Later in the hearing, the applicant claimed that she feared harm from her husband because during her marriage she had a relationship with another man. This was the reason her marriage ended.
She said her husband learned about the extra-marital relationship after she arrived in Australia. When he found out about it, he said that he wanted to kill the man who she had had a relationship with. Because he had said he wanted to kill this man, she fears that he will also want to kill the applicant.
She has not spoken to her ex-husband directly but when her ex-husband has spoken to her son, he has threatened that if she returns to Malaysia, he will do something to her.
She believes that if she travels back to Penang, Malaysia, he will travel to her residence and all the homes of her relatives to find her.
All her family members are in the Penang area. She has no family or friends to support her if she moves to any other area in Malaysia.
She said that her husband will be aware of her whereabouts because of his ongoing relationship with their children.
She did not believe police protection would be available to her because she did not think they would be interested in their small family conflict.
She said that she could not move to her brother’s house in Kuala Lumpur because he would not agree for her to live there, and he would not support her. He has already refused to provide any care to their mother in [Town 1].
Evidence of [Mr A]
The applicant’s son, [Mr A] gave oral evidence at the hearing. He lives in Australia.
He said that his mother cheated on his father during their marriage, and they did not have a happy outcome. If the applicant returns to Malaysia, she will need to avoid his father and his cousins.
He said that his father had been violent towards him when he was aged 15-17 years, including pushing him into a door, smashing things, causing bruises and slapping him.
He said that if his mother moves back to Penang, he fears his father will harm his mother.
When questioned about past harm that his father had caused to the applicant, Mr [A] said that when he was young his parents regularly had fights. They were mostly verbal fights. On a few occasions she suffered physical harm, and the applicant would self-treat her injuries with medicinal herbs. He thinks that if his mother were to return to Penang, his father would look for her there. Because the applicant has humiliated his father by having a relationship with another man, he fears his father will do something to harm her.
When questioned why he believed his father would harm his mother, he said that his father has not actually threatened to harm the applicant. When he speaks to his father, his father says that he wants to keep other men away from the applicant. His belief is based on Asian culture that a woman cannot cheat on her husband. He was himself angry with the applicant and had thoughts of harming her for damaging the family (which he did not intend to carry out). Based on his own feelings and reactions, together with his experience and knowledge of his father, he believes his father would be angry with the applicant and would wish to harm her.
He said that the family structure is broken. The families get together each year for the Lunar New Year and because his father must attend these family gatherings, his father is reminded each year that the applicant cheated on him during the marriage. This creates an ongoing source of humiliation for his father.
He said that he did not trust the police in Malaysia could protect his mother. He had a previous experience in Malaysia when their neighbours’ home was being robbed by thieves. He called the police twice for help, and it took them 2-3 hours to attend. He does not believe the police are efficient enough to protect the applicant if his father tried to harm her.
The applicant was questioned again about past physical harm from her ex-husband. She was vague in her answers about this and said that the main incident was when she was pushed down the stairs. She would try to avoid arguments with her ex-husband because she feared physical harm from him. She was regularly subjected to verbal abuse from him which she tried to avoid so that she would avoid further physical abuse.
Post-hearing Evidence
After the hearing, the applicant provided the Tribunal with a copy of a letter from Lawyers in Malaysia, dated 28 October 2024, “Re: Ipoh High Court Originating Summons No. (reference provided), [Mr B] – Applicant, [Ms C] – Respondent”, enclosing the following documents (enclosures not included):
a.A sealed copy of “Dekri Nisi (Perceraian)” dated 6.10.2024;
b.A sealed copy of “Perintah (Perceraian)” dated 6.10.2024; and
c.A sealed copy of “Sijil Menjadikan Dekri Nisi Mutlak (Perceraian)” dated 10.09.2024.
According to Translate.com, “Dekri Nisi (Perceraian)” means Nisi Decree (Divorce) in English, “Perintah (Perceraian)” means Order (Divorce), and “Sijil Menjadikan Dekri Mutlak (Peceraian)” means Certificate Making Absolute Decree (Divorce).
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.
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 meets the definition of a refugee and, if not, whether the complementary protection criteria are satisfied. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Factual Findings
The Tribunal found the applicant’s evidence in relation to the physical abuse she experienced during her marriage, and her extra-marital relationship was compelling. She demonstrated shame and reluctance in talking about this aspect of her claim, and she had difficulty managing her emotions when discussing it. She did not try to embellish or exaggerate the abuse she experienced during her marriage and had difficulty expressing her ongoing fear of her ex-husband, which was expressed as conflict avoidance on her part during the marriage, to avoid verbal and physical harm.
The evidence of the applicant’s son was also compelling. He also had difficulty controlling his emotions when speaking about the abuse he had experienced from his father, and he had witnessed towards his mother. Although he had different recollections from the applicant, about the number of times his father had been physically abusive towards her mother, the Tribunal finds this does not undermine the claims but rather demonstrates an absence of collusion between the applicant and her son regarding the evidence given to the Tribunal. It is plausible that the applicant may not remember all incidents of physical harm in the context of an ongoing abusive relationship.
The Tribunal accepts the applicant completed year 12 in Malaysia and did not complete any further education. She was married to her husband in Malaysia when she was [age] years old. Her employment in Malaysia was limited to working as a clerk for her husband’s business which she ceased when she had children [number] years ago. While she has been in Australia, she has gained work experience picking Australian seasonal fruit.
The Tribunal accepts that during her marriage, the applicant was subjected to physical and verbal abuse by her husband. An incident of serious physical abuse occurred when the applicant was dragged down the stairs by her husband when she was pregnant with her youngest son. She remained in fear of her husband and was subjected to ongoing verbal abuse in their relationship, including in the presence of their eldest son. Her eldest son was exposed to other incidents of physical abuse by the applicant’s ex-husband, including pushing, both towards himself and towards the applicant.
During their marriage, the applicant had a sexual relationship with another man. The applicant’s ex-husband learned about the affair after the applicant travelled to Australia in March 2020.
The applicant does not currently speak to her ex-husband, but he has ongoing communication with their three children, and the youngest son lives with him. He has made ongoing comments to his children expressing interest in the applicant’s current relationships with other men, and in particular enquiring as to whether she is in a relationship.

The applicant’s ex-husband filed for divorce and the divorce was finalised in 2024.
The applicant and her ex-husband have an ongoing indirect relationship through their children. The son is living with the applicant’s ex-husband in Malaysia, and he does not allow the applicant to speak to him. The applicant’s ex-husband has also threatened to withdraw financial support for their daughter to attend university.
The applicant fears that she will be subjected to rumours from family members if she returns to Malaysia because of her extra-marital affair.
The Tribunal accepts the applicant’s explanation provided at hearing for not raising these claims before the primary decision was made, specifically, that her application was lodged without full consultation with her. The applicant also demonstrated significant shame and remorse about her extra-marital relationship, and the Tribunal is satisfied that this is a further reasonable explanation for the applicant not raising these claims before the primary decision was made. The evidence of the applicant’s son was compelling, and there was not an opportunity for the applicant’s son to provide his evidence before the primary decision was made. The Tribunal has therefore not drawn any inference unfavourable to the credibility of the applicant’s claims and evidence.
Independent country information
The DFAT Country Information Report Malaysia, June 2024 provides the following information regarding gender-based violence in Malaysia:
a.There is strong social stigma attached to pre-marital sex and pregnancy. Rape within marriage is not a crime. In-country sources reported that girls were sometimes married at a young age to reduce stigma following teenage pregnancy, and that marriage sometimes occurs in cases of rape, allowing the perpetrator to go unpunished.
b.Violence against women and girls is a significant, albeit underreported, problem. While surveys have indicated that the prevalence of reported intimate partner violence in Malaysia is relatively low (affecting 8 per cent of ever-partnered women, according to one 2014 study), experts believe the actual incidence is likely much higher, and this it is underreported due to it being a ‘sensitive topic’.
c.A 2020 study published in BMC Public Health found significant factors which contribute to intimate partner violence in Malaysia were lower education background, lower socio-economic status, history/current substance abuse, exposure to prior abuse or violence, violence condoning attitude, husband or partners controlling behaviour, substance abuse and involvement in fights and lack of social support. A 2021 survey by the Women’s Aid Organisation found 53 percent of respondents believed domestic violence was a ‘normal’ reaction to stress or frustration.
d.State protection for women and girls experiencing gender-based violence (GBV) is mixed. There are special police units that deal with child abuse and GBV. However, in country sources told DFAT that these services were inadequate to meet demand. Women who approached police for help may not have access to a female officer. According to in-country sources, the families of women who have experienced GBV often placed pressure on them to drop the matter, either directly or through police officers dealing with the case.
e.According to in-country reports, police often failed to follow up on reports of GBV. It was not uncommon for a woman who has experienced GBV to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process.
f.A requirement to deal with the closest police station to the incident can make it difficult for women who experience GBV to relocate. Other barriers include financial costs of living alone.
g.Amendments to the Domestic Violence (Amendment) Act (2017) strengthened protections for individuals who experience domestic violence and expanded the definition of domestic violence to protect former spouses.
h.The amendments to the Domestic Violence (Amendment) Act also introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week to prevent a perpetrator from entering a safe location. An EPO can also be used to remove an offender from the house where the victim lives.
i.In -country sources told DFAT that EPOs were difficult to obtain and required strong evidence of violence or damage to property. Police reportedly do not always enforce EPOs.
Reasons
The Tribunal finds the applicant’s “home area” or place of likely return is Penang as this is where she grew up, her mother and brother reside close by and most of her family continue to reside there.
The Tribunal needs firstly to assess whether there is a real chance of harm to the applicant if she returns to Penang. A real chance is a possibility that is not remote or far-fetched, and is not measured by a set percentage. A superficial statistical analysis without regard to the characteristics of the applicant or circumstances of the case will be insufficient to draw a conclusion that there is no real chance of persecution[1]. An applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that they will be persecuted[2].
[1] DZACQ v Minister for Immigration and Border Protection [2014] FCA 754, at [65]
[2] Chan Chee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62, at [429]
The Tribunal has accepted that the applicant’s ex-husband has physically abused her during their marriage. He has also subjected her to verbal abuse throughout the marriage, and the applicant was fearful of him. He has continued to express controlling tendencies regarding the applicant through enquiries with their children about her personal life, through ongoing restriction of her contact with their [age]- year-old son, and through denial of financial assistance for their daughter.
The Tribunal also accepts the applicant had an extra-marital relationship with another man during her marriage, and her ex-husband and extended family members are aware of this. Based on the applicant’s specific profile, particularly not being educated past high school, having had an extra-marital relationship in a country that has a strong social stigma against pre-marital sex, having limited financial resources, and having been subjected to physical and verbal abuse in the past, and the ongoing conflict over contact with their [age]-year-old son and their daughter’s university fees, there is a real chance that she will be subjected to physical and verbal abuse by her ex-husband as a reasonable and foreseeable consequence of her return to Malaysia.
The Tribunal also finds the applicant will be subjected to rumours by extended family members in relation to her extra-marital relationship. These rumours will cause psychological harm to the applicant.
Section 5J(4)(b) provides that if a person fears persecution under the Act, the persecution must involve serious harm to the applicant. Examples of serious harm provided in the Act include significant physical harassment[3] and significant physical ill-treatment[4]. Mental harm for refugee protection claims may constitute persecution involving serious harm within the meaning of section 5J(4)(b). Only claims that amount to ‘serious’ mental harm will meet s5J(5)[5].
[3] Section 5J(5)(b)
[4] Section 5J(5)(c)
[5] Refugee Law Guidelines para 3.11.7.2. Serious mental harm
In SCAT v Minister for Immigration and Multicultural and Indigenous Affairs[6], the Full Federal Court, in relation to serious mental harm, observed that:
-    Applicants may not be aware they have suffered psychological damage and are therefore incapable of expressing such concerns as a direct claim therefore heightening the need for decision makers to monitor the implications of what is presented;
-    The cumulative effect of considerable discrimination is likely to entail severe psychological harm; and
-    Psychological harm that has directly affected family members may be taken into account as an element of psychological harm to the claimant themselves.
[6] SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003]FCAFC 80, at [22]-[23]
Based on the above, and the factual findings, the Tribunal finds that there is a real chance the applicant will be subjected to physical harm by her ex-husband as a reasonable and foreseeable consequence of her return to Malaysia. That physical harm will be in the form of her ex-husband locating her and subjecting her to hitting, slapping, and/or dragging her. This will cause serious harm to the applicant. There is also a real chance she will be subjected to ongoing verbal abuse by her ex-husband when she attempts to contact her [age]-year-old son in Malaysia. This verbal abuse will amount to serious mental harm to the applicant. Emotional and psychological trauma that result from non-physical elements of abuse can cause as much, if not more pain and trauma, both in the short- and long- term[7]. It will be particularly harmful to the applicant because of her personal attribute of having been physically and verbally abused by her ex-husband throughout her marriage. In addition, the applicant will be subjected to rumours by her extended family which will cause additional and cumulative mental harm to the applicant.
[7] eg. Field, R, Jeffries, S, Rathus, Z, Lynch, A, ‘Family Reports and Family Violence in Australian Family Law Proceedings: What Do We Know?’ (2016) 25 JJA 212
Section 5J(1) and (4) provide that for a person to have a well-founded fear of persecution, the essential and significant reason for the persecution must be one or more of the refugee protection reasons set out in s5J(1)(a), being race, religion, nationality, membership of a particular social group (PSG) or political opinion.
Section 5L sets out the requirements of a “particular social group”, particularly that a characteristic is shared by each member of the group, the person shares or is perceived as sharing that characteristic, the characteristic is innate and immutable, fundamental to a member’s identity or conscience such that the member should not be forced to renounce it, the characteristic distinguishes the group from society, and the characteristic is not a fear of persecution.
In principle, membership of a PSG may be based on gender. Recognition of a PSG is a conclusion reached upon the evidence in relation to the particular circumstances of each case[8]. In Khawar[9] the Court emphasised the operation of cultural, social, religious and legal factors, rather than any perceptions held by the community, as determining that married Pakistani women were a PSG.
[8] A v Minister for Immigration & Ethnic Affairs [1997] HCA 4, at [208]
[9] S v Minister for Immigration and Multicultural Affairs [2004] HCA 25, at [30], citing Minister for Immigration v Khawar [2002] HCA 14, at [83].
The issue for the Tribunal is to decide whether the applicant belongs to a PSG, and whether the reason for real chance of harm, is her membership of that group. The applicant is a woman from Malaysia. Along with other women in Malaysia, she may be subjected to intimate partner violence, and controlling behaviour by her husband or partners[10]. She is also subject to specific and inadequate state protection for women and girls experiencing gender-based violence in Malaysia[11], and to strong social stigmas attached to women relating to pre-marital sex and pregnancy[12]. The essential and significant reason for the real chance of serious harm to the applicant, is because she is a member of the particular social group of women in Malaysia. The characteristic of being a woman is not itself a fear of persecution. The persecution that the applicant will be subjected to is therefore covered by one of the refugee protection reasons in s5J(1)(a), membership of a PSG.
[10] DFAT Malaysia report June 2024 at para 3.116
[11] DFAT Malaysia report June 2024 para 3.117
[12] DFAT Malaysia report June 2024 para 3.113
Section 5J(4)(c) provides that to have a well-founded fear of persecution under the Act, the persecution must involve systematic and discriminatory conduct. The real chance of harm by the applicant’s ex-husband and by extended family members, is deliberate, premeditated and not random, and performed as a result of their attitudes towards women in Malaysia. The real chance of harm is therefore systematic and discriminatory in nature.
The real chance of persecution relates to the applicant’s home area of Penang as well as to all areas of the receiving country. The applicant and her son both gave evidence that the applicant’s ex-husband is aware of her whereabouts through communication with their children. Should the applicant move to any other area of Malaysia, there is a real chance her ex-husband will locate her and cause her physical harm and subject her to verbal abuse. The Tribunal therefore finds that the persecution relates to all areas of Malaysia.
Under s 5J(2) of the Act, a person is taken not to have a well-founded fear of persecution if effective protection measure are available to the person in the receiving country. One of the requirements for the relevant State being able to provide effective protection measures is that the person can access the protection. Based on the above DFAT report, although domestic violence laws in Malaysia now cover former spouses, police response to gender-based violence is mixed and the services to address gender-based violence are inadequate to meet demand. Police often fail to follow up on reports and it was not uncommon for a woman who has experienced GBV to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process.
DFAT also reported that although emergency protection orders may be available, these are difficult to obtain in the absence of strong evidence of violence or damage to property. As the serious harm the applicant will be subjected to will include verbal abuse, the applicant will not be able to obtain any emergency protection orders to protect her from this harm.
Based on this independent DFAT information, the Tribunal finds that effective protection measures are not available to the applicant in Malaysia.
A person does not have a well-founded fear of persecution if they could avoid the real chance of persecution by taking reasonable steps to modify their behaviour. The Tribunal has found that the applicant maintains indirect contact with her ex-husband through her relationship with her children. To avoid harm, she may cease all communication with her children, or ask them to restrict their communication with their father about her or her whereabouts. However, the applicant’s relationship with her children is a fundamental characteristic of her identity and conscience, and she is therefore not required to modify her behaviour in this respect because of s5J(3)(a). Further it would not be reasonable for the applicant to request her children to restrict their communication with their father or keep secrets from him. She may minimise the abuse from her husband regarding contact with their son, by utilising the family court system in Malaysia. However, the availability and utilisation of family court systems may itself be used as a tool for further harm[13] and accessing the family court system may itself be a stimulus for further abuse. The Tribunal finds there are no reasonable steps the applicant could take to modify her behaviour to avoid the real chance of persecution.
[13] Gutowski ER, Goodman LA. Coercive Control in the Courtroom: the Legal Abuse Scale (LAS). J Fam Violence. 2023;38(3):527-542. Doi: 10.1007/s10896-022022408-3. Epub 2022 May 19. PMID: 35611345; PMCID:PMC9119570
For the above reasons, I find the applicant has a well-founded fear of persecution pursuant to s 5J, and that she is a refugee pursuant to s 5H.
I have considered whether the applicant has a right to enter and reside in any third country. There is no evidence to indicate she has any such right and therefore s36(3) does not remove Australia’s protection obligations.
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 application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a).
Date of hearing: 6 February 2025
Representative for Applicant: The Applicant was not represented
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.
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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.
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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.
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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.
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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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