2206392 (Refugee) - [2025] ARTA 1790

2206392 (REFUGEE) [2025] ARTA 1790 (10 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2206392
Tribunal:General Member S Fitzsimons
Date:10 August 2025

Place:Melbourne
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:
·s36(2)(a) of the Migration Act.

Statement made on 10 August 2025 at 3:46pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual woman – masculine appearance and presentation – shamed in workplace and public – hidden relationships – limited support from family and possibility of forced marriage – mental health – Australian citizen partner originally from third country – country information – Christian not subject to syariah law – civil law, political and societal discrimination and forced marriages – modification of behaviour not required – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(b), (c), (2), (3), (4)(b), (5), 5L, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant S395 of 2002 v MIMA (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 19 April 2022 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 28 May 2019. The delegate refused to grant the visa on the basis that due to a lack of detail or evidence in the visa application, the delegate was not satisfied the applicant’s protection claims were genuine.
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 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 appeared before the Tribunal on 1 August 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was not represented in relation to the review.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s36 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 s36(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: s5H(1)(a).
Under s5J(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 s 5J(2)-(6) and ss5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s36(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: s36(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 ss36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s499 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Tribunal
Background
The applicant was born on [Date] in Sandakan in Sabah.
She told me she is ethnically Kadazan and that she is a Roman Catholic.
She arrived in Australia in April 2019 and has remained here ever since. Since arriving in Australia she has worked in [workplace 1s] in different roles and she currently works at [Employer 1].
In her visa application, the applicant claimed she is lesbian and even though she is Christian and not Muslim, she cannot live in Malaysia as a lesbian woman because being lesbian is prohibited by the government. She claimed she was regularly shamed and humiliated in public, she was not supported by her family and that as a result her mental health suffered and she experienced depression. She claimed as a “pengkid” she felt tortured through social judgment and physically she was humiliated as people would pull down her pants in public. She claimed she cannot relocate or seek protection in Malaysia because the laws prohibiting same sex relationships apply everywhere in Malaysia.
There is no evidence before me that the applicant was offered an interview by the delegate or the Department.
At the hearing the applicant told me she prepared her visa application with the help of a friend and that the claims in her visa application relating to her sexuality are true.
The applicant’s life in Malaysia as a lesbian
At the hearing the applicant told me she grew up in Sabah with her parents, [sisters], one of whom is her twin, and her brother. She told me her brother has passed away. She also told me that one of her sisters is autistic and she lives with the applicant’s parents. Her oldest sister is [an occupation], another sister works in a [shop] and her twin sister works in the [shop] too. Her parents live in Kota Kinabalu. Her mother did not work and her father is retired.
The applicant and I discussed her sexuality and I asked her about previous relationships she had had with women in Malaysia. She told me that when she about [age] years old, she was attracted to a Chinese girl but at the time she was too young to truly understand what her feelings meant at that time but that she felt different with girls than she did with boys.
I asked her about the harm she had experienced in Malaysia on account of being a lesbian. She said that she has always had short hair and as she got older she preferred to dress in a masculine way. As a result she said that from the time she was at secondary school, and then regularly as an adult, she was judged by others around her, both by people known to her and strangers she would pass by on the street. She claimed that one of her sisters bought her a wig made of long hair and told her to wear it. She said that whenever there was a family occasion that involved taking photographs, she was forced to wear makeup and a dress but she would hide so as to avoid socialising with her family or having her photo taken.
By the time she was about [age] years old she knew she was a lesbian. Her first relationship was with [Ms A], an older woman she met whilst working at a [workplace 2] and that relationship lasted for about 4 years, two of those years they lived together. She claimed they had to keep their relationship secret because it is illegal to be lesbian in Malaysia and because of this they could not display any affection towards each other in public.
The applicant then described in detail to me all the other same-sex relationships she had in Malaysia. In all the relationships she had (which were many) she described frustration, sadness and hurt at having to hide her relationships from her family and from society. She described feeling trapped and not in control of her own life.
I asked the applicant to explain to me the nature of the harm she experienced from both her family and her work colleagues. She said that her mother regularly told the applicant that she would go to hell when she died. At one stage when the applicant was not living at home (she was living in Kota Kinabalu close to her work), her mother found out she was in a same-sex relationship and came over to the applicant’s house, packed up her belongings and forced the applicant to live back at home. The applicant said she loves her family and did not want to hurt them and so she stayed living at home with her parents. She continued to have relationships with women but she was forced to do so in secret.
The applicant told me that she worked at [Employer 2] for quite a few years before she came to Australia and she regularly had work colleagues (including her boss) make hurtful and derogatory comments about her appearance and despite being good at her job she never got promoted. She told me that her boss would regularly ask if she was a man or a woman and he was critical of her frequently. She claimed that the treatment she suffered made her feel very depressed. The reason she stayed working for years at [Employer 2] was because her boss needed someone like her who spoke Chinese. Her work colleagues told her she should go to Thailand and “get a penis” and “cut off” her breasts so that she could be a man.
On several occasions throughout the hearing the applicant spoke of feeling dominated and controlled; that she never felt free to be who she is, which had an adverse effect on her mental health. She had a Muslim male gay friend who went to jail for being gay and she said that made her feel really scared.
The applicant claimed that the only person in her family that she feels supported by is her twin sister and that is because that are so close as twins but that the support she gets is limited to emotional support because her twin cannot be seen to support her in any way publicly given that to be a lesbian is illegal and not accepted in Malaysia. The applicant told me that at one stage her mother told her twin sister that her twin sister would go to hell for supporting the applicant which made the applicant sad and depressed. She said in public and amongst her family her twin sister would pretend that the applicant was interested in men. The applicant claimed that before she came to Australia, her twin sister’s mother-in-law was speaking with her family about forcing the applicant to marry a particular man known to them.
The applicant told me she loves all her family members very much and that she misses them and that it makes her sad that they cannot accept her for who they are. She gave this evidence several times throughout the hearing and each time she was visibly upset and cried when doing so.
The applicant’s life in Australia
The applicant told me that since 2022 she has been in a committed relationship with her partner [Ms B] who she met at work. She said she and [Ms B] had been living together but at the moment they are not, because they have been navigating some issues with [Ms B]’s family and their non-acceptance of [Ms B] being a lesbian, but she and [Ms B] are committed to each other. She said they are currently focussing on both working hard and saving money for their future together.
The applicant told me that initially she found it difficult to accept their age difference as [Ms B] is only [Age] years old, but that [Ms B] is so supportive of her and the fear she has of returning to Malaysia and that their age difference is not now an issue for her.
The applicant told she me she feels free in Australia to express her sexuality openly which has resulted in her mental health improving a lot, and that she gets a lot of emotional support and strength from [Ms B].
She said that she and [Ms B] both work long hours and sometimes their shifts do not align, but that when they are not working they spend almost all their time together. She and [Ms B] socialise with friends within the LGBTQI community and the applicant told me she feels safe in Australia.
The applicant’s fear of harm on return to Malaysia
The applicant told me her sexuality, and the way she dresses and her desire to have short hair, is critical to her identity and that even if she went back to Malaysia, and even knowing the kind of harm she faces in Malaysia because of her sexuality, she would still dress the same, have short hair and have relationships with women. She said she would like to get married to a woman one day but that in Malaysia that is not possible. If she returned to Malaysia, she fears she would be forced to live a lie to keep herself safe.
I put to her that as a Christian, she is not subject to Syariah law, and that country information before me[1] indicated that as a result treatment of Muslims who identify as lesbian is worse than for non-Muslims. She responded that she would still find it hard to get a job and housing and that she would be subject to constant discrimination and harassment from people she knows but also from strangers on the street.
[1] DFAT Country Information Report, Malaysia, 23 June 2024, paragraph 3.138.
The applicant told me that she feared she would again suffer from depression and that even if she tried to get help for her mental health in Malaysia, she would not be given access to help as she is a lesbian and society as a whole does not accept lesbians. She claimed the police would not help her as it is illegal to be lesbian. She claimed that her family do not understand mental health and that one of her cousins has mental health concerns and her family pretend that her cousin is fine. She wants to be free to live openly as a lesbian, dress as she likes and have short hair, all the things she cannot do in Malaysia. She told me she feels abandoned by her family and by Malaysian society.
Evidence from the applicant’s partner
At the hearing I took evidence from the applicant’s partner [Ms B]. She told me she is from [City in Country] but she is now an Australian citizen and that she came here as a child with her family from [Country]. She gave her evidence freely in English.
I asked her to tell me about her relationship with the applicant. [Ms B] spoke openly and without hesitation about the love she has for the applicant. She said they met at work in early 2022 and they have been together now for about three years and for some of that time they have lived together. She said that initially the applicant took longer to commit to their relationship because the applicant was worried about their age difference but that is no longer an issue.
She told me that her family do not accept her being lesbian given she grew up in a Muslim household in [City] but despite the pressure this has put on her relationship with the applicant, she and the applicant understand each other’s challenges and they are supportive of each other and of their relationship.
I asked [Ms B] what she knows of the applicant’s fears of returning to Malaysia. [Ms B] told me, without any hesitation that the applicant is a “pengkid” and that means she was, because she dresses like a man and is a lesbian, discriminated against by her family and by people at work and that the applicant feels abandoned by her family.
[Ms B] described her commitment to and love for the applicant, in an open and authentic manner, that corroborated the evidence the applicant gave me, about the applicant’s sexuality and the harm she had experienced in Malaysia.
[Ms B] told me that she and the applicant are focussing on saving money because they want to buy a house together as soon as they can afford to.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a refugee or owed complementary protection because of her fear of harm due to her sexuality. For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration on the basis that the applicant is a refugee and owed protection because of her sexuality, that is she is a lesbian. In assessing the applicant’s claims for protection and in reaching this decision, I have considered all the evidence before me, as well as current country information regarding the LGBTQI community in Malaysia.
What is the applicant’s country of nationality?
I have before me a copy of the applicant’s Malaysian passport which was included with her protection visa application. At the hearing the applicant told me she is a Malaysian citizen which I accept. She also told me that she is not a citizen of any other country and that she does not have a right to enter or reside in a third country which I also accept. I find that the applicant is a Malaysian citizen and I have assessed her protection claims with Malaysia as the receiving country.
Does the applicant satisfy the refugee criterion for protection?
For the applicant to be considered at law a refugee,[2] she must have a well-founded fear of persecution. Well-founded fear of persecution is defined in s5J of the Act which requires the satisfaction of various criteria, and also contains some qualifications to those criteria.
[2] s5H(1)(a) of the Migration Act 1958.
Subjectively, the applicant must in fact hold a fear of being persecuted for one or more of five reasons,[3] and objectively, there must be a real chance the applicant would be persecuted for that feared reason.[4]
[3] s5J(1)(a) of the Migration Act 1958.
[4] s5J(1)(b) of the Migration Act 1958.
Throughout the hearing, the applicant gave her evidence openly and mostly in English. She spoke freely, and in detail, particularly about her previous relationships in Malaysia without hesitation. On the few occasions she was not confident there were appropriate English words to express herself, she did not hesitate in using the Malay interpreter without prompting from me to do so. She seemed genuinely upset and cried often when speaking of the hurt she feels at not being accepted by her family and by being judged by society in Malaysia because of her both her sexuality and her appearance. The manner in which she engaged with me throughout the hearing impressed upon me that she was telling the truth.
Given the evidence before me including the evidence of both the applicant and her partner [Ms B], I accept that the applicant is a lesbian of masculine appearance, and that she lives openly as a lesbian woman and that she is in a same-sex relationship with her partner [Ms B]. I accept that her sexuality and the manner in which she dresses is fundamental to her identity. I also accept she is from Sabah, she is ethnically Kadazan and she is a Roman Catholic.
Is there a real chance of serious harm to the applicant?

In considering the nature and risk of harm to the applicant, should she return to Malaysia now or in the reasonably foreseeable future, I have considered the applicant’s specific circumstances, namely that she is not Muslim, she is from Sabah, and that she is a lesbian of masculine appearance.
As a non-Muslim the applicant is not subject to prosecution as a lesbian under Syariah law. However I consider that her overtly masculine appearance places her at increased risk of prosecution under civil law, as successive Malaysian governments including under the current government, have publicly expressed discriminatory sentiment towards the LGBTQI community. “Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen.’ In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.”[5]
[5] As above at [1], paragraph 3.129.
The applicant referred to herself as a “pengkid.” Within the Muslim community, the expression “pengkid” is used to describe lesbians who are “butch” or have masculine characteristics.[6] Human Rights Watch reports that “From 2008 to 2010, seven states issued fatwas (Islamic edicts) against pengkid, which roughly translates as “tomboy” or “masculine woman.” The fatwas declare that women who have a “masculine appearance or gestures” or a “male sexual instinct” are forbidden in Islam… Between 1985 and 2019 every Malaysian state and federal territory introduced Sharia criminal enactments containing provisions criminalizing “a man posing as a woman” or “a woman posing as a man”.[7]
[6] Family Dynamic in the Construction of Malay Pengkids’ Identity, 5th UUM International Qualitative Research Conference (QRC 2022), Sharifah Zubaidiah Syed Jaapar et al.
[7] Human Rights Watch, “I Don’t Want to Change Myself” Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia, 10 August 2022, section III, available online:
Whilst the applicant is not Muslim, the fact that there is a specific offence relating to a “pengkid” within the Muslim community, I consider is reflective of general societal attitudes towards women who dress in an overtly masculine way as the applicant does, which I find places her at risk of harm in the form of societal harassment and discrimination, possible prosecution and physical harm and I find that the risk is more than remote. In relation to societal attitudes towards the LGBTQI community in Malaysia, DFAT reports that:
“The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah.”[8]
[8] As above at [1], paragraph 3.147.
Whilst the applicant is educated, she is from Sabah. That she is from Sabah and her clear visible masculine appearance, are factors that I find elevate the risk of harm to her.
Country information indicates that “Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent…Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour… Prosecutions have taken place under these laws, which includes penalties of whipping and up to 20 years in prison.”[9] DFAT assess that “members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence.”[10]
[9] Ibid, paragraphs 3.126 and 3.127.
[10] Ibid, paragraph 3.148.
DFAT reports that particularly in Sabah (where the applicant is from), forced heterosexual marriages of lesbians are common.[11] In Sabah, discrimination results in members of the LGBTQI community commonly trying to hide their sexuality, more so than in more urbanised areas such as Kuala Lumpur.[12]
[11] Ibid, paragraph 3.138.
[12] Ibid, paragraph 3.147.
The US Department of State supports the applicant’s claims of discrimination in the workplace where it reports that in Malaysia, “[t]he law did not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics and did not recognize LGBTQI+ individuals, couples, or their families. LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality.”[13]
[13] US Department of State, Country Reports on Human Rights Practices for 2023: Malaysia, section 6, available online:
The applicant’s claims about the harm she experienced in Malaysia are supported by country information and for this reason, I accept that the applicant was subjected to discrimination and harassment both in the workplace and within society, and that she was subject to the possibility of a forced marriage by her sister’s mother-in-law. I also accept that the applicant suffered from depression in Malaysia and that her depression was caused as a direct result of the harm she suffered in Malaysia because of her sexuality.
The applicant’s claims that her family do not accept her sexuality, wanted her to change her appearance and tried to control her are also supported by country information and as a result I accept the applicant’s claims of the harm caused to her by her family. “The general attitudes towards LGBTIQ persons are reflected by some of Malaysia’s state actors, including ministers, state assembly persons and members of Parliament. The common narratives are ‘LGBTIQ people are Western ideas’, ‘LGBTIQ people are a result of the failure of family institutions’, ‘The state needs to increase punishment to curb the “spread of LGBTIQ”’, and ‘LGBTIQ people need to be cured or corrected with the right approach and effort’.”[14]
[14] Monitoring Report: LGBTIQ+ Rights in Malaysia, ARROW, 2020, page 12, available online:
Not only do I accept that the applicant suffered the harm described above, but that the reason she suffered the harm was because she is a lesbian and because she is perceived to be a lesbian by others in Malaysia because of her masculine appearance.
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Considering the harm the applicant has experienced in Malaysia and the reason for that harm, her specific circumstances, and the country information quoted above, I accept that there is a real chance[15] the applicant will be subject to persecution including prosecution, employment discrimination, societal and familial exclusion that amounts to serious harm[16] in the form of a threat to her liberty, significant physical harassment and significant physical ill treatment if she returns to Malaysia now or in the reasonably foreseeable future. I am therefore satisfied that sections 5J(1)(b) and 5J(4)(b) are met.
Does the serious harm extend to all areas of Malaysia and is state protection available?
[15] As above at [4].
[16] s5J(5)(a), (b) and (c) of the Migration Act 1958.
The serious harm the applicant faces is from both her own family, Malaysian society and the Malaysian state. As the Malaysian state is one of the perpetrators of the harm, I accept that the serious harm extends to all areas of Malaysia and that state protection is not available to the applicant. I am therefore satisfied that section 5J(1)(c) and section 5J(2) of the Act are met.
Behaviour modification
I find that the applicant’s sexuality and her nationality are both fundamental aspects of her identity and that she cannot modify or conceal her sexuality and her nationality to avoid a real chance of persecution, and indeed she is not required by law to do so. Section 5J(3) is therefore satisfied.
Reason for the persecution
The applicant has claimed a fear of persecution on the basis of her sexuality, that she is a lesbian. I consider that lesbians in Malaysia can constitute a particular social group (“PSG”).[17] A person is to be treated a member of a PSG other than that person’s family[18] if a characteristic (her sexuality and nationality), other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic, and that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. Having accepted that the applicant is a lesbian and that she is a Malaysian citizen, I also accept that she is a member of the PSG comprising “lesbians in Malaysia.” Membership of a PSG is one of the reasons contemplated in section 5J(1)(a) and I am satisfied therefore that s5J(1)(a) of the Act is met.
[17] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
[18] s5L of the Migration Act 1958.
The applicant’s membership of a particular social group (lesbians in Malaysia) is the essential and significant reason for the persecution, and the persecution also involves systematic and discriminatory conduct and I am therefore satisfied that sections 5J(4)(a) and (c) are met.
There is nothing before me to suggest that the applicant has engaged in any conduct in Australia that s5J(6)is relevant.
On the material before me, I am satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of a PSG (lesbians in Malaysia) if she returns to Malaysia now or in the reasonably foreseeable future. For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a).
Having concluded that the applicant does meet the refugee criterion in s36(2)(a), it is not necessary for me to consider the alternative criterion in s36(2)(aa).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s36(2)(a) of the Migration Act.
Date of hearing:  1 August 2025
Representative for the Applicant: N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…