2216067 (Refugee) - [2025] ARTA 1719

2216067 (Refugee) [2025] ARTA 1719 (4 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1929919 (Applicant 1)
2216067 (Applicants 2 and 3)

Tribunal:General Member S. Vohra
Date:4 July 2025

Place:Melbourne
Decision:The Tribunal affirms the decisions under review.

Statement made on 04 July 2025 at 12:25pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – first applicant husband’s fear of harm from local businessmen – collected money to register businesses with politician for grants – threatened and house burnt down – second applicant wife’s fear of harm as divorced woman – abuse and threats, ex-husband’s continuing abuse of children and second wife, and continuing threats communicated to mother – member of family unit Australian-born child born within six months of parents’ marriage and will be considered illegitimate – not registered but eligible for Malaysian nationality – fear of harm from older relatives or authorities – joint hearing and decision – inconsistent and unsubstantiated claims and evidence – adverse inference for late claims – passage of time and no recent contact – claimed fear of harm speculative – country information – conservative Islamic national with codified syariah criminal offences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (4)(b), (5), 36(2)(a), (aa), (2A), 65, 367A
Migration Regulations 1994 (Cth), r 2.08, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505
MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 a combined review of three decisions each made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants claim to be members of the same family unit.
Applicant 1 applied for a protection visa on 22 July 2019. It was refused on 14 October 2019. He applied to the Administrative Appeals Tribunal (AAT) for merits review on 22 October 2019.
Applicant 2 applied for a protection visa on 19 May 2020 and it was refused on 18 October 2022. She applied to the AAT on 31 October 2022.
Applicant 3, the daughter of Applicants 1 and 2, was born on [Date]. She was deemed to have made an application for a protection visa that day and added to her mother’s protection visa application under Regulation 2.08 of the Migration Regulations 1994. Her application was refused on 25 May 2023. Applicant 3 applied to the AAT on 25 May 2023 and was joined to her mother’s application.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The Tribunal asked the applicants if they consented to have a joint hearing. This was on the basis that Applicant 1 had raised claims about his daughter, Applicant 3. The applicants agreed to have a joint hearing and appeared before the Tribunal on 11 April 2025 to give evidence and present arguments. As the hearing was not completed on that date, the applicants returned to the Tribunal for a further hearing on 16 May 2025 (together ‘the hearing’).
At the hearing, the Tribunal also received oral evidence from Applicant 2’s mother in Malaysia, over the phone. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Applicant 1 is a [Age] year old Malaysian Muslim man from [Town] in Sabah. He arrived in Australia [in] May 2019 on a visitor visa.
Applicant 2 is a [Age] year old Malaysian Muslim woman from [Town 2] in Sabah. She is divorced from her first husband who lives in Malaysia with their two children. She arrived in Australia [in] March 2020 on a visitor visa.
Applicants 1 and 2 met in Australia and were married on [Date]. On [Date], their daughter, Applicant 3, was born. She is now [Age] years old.
EVIDENCE BEFORE THE DEPARTMENT
The evidence before the Department in each application consisted of only a protection visa application and identity documents.
In summary, Applicant 1 made the following claims in his protection visa application:
1. Before the Malaysian General Elections in 2018, a politician from Kuala Lumpur called [Mr A] had a gathering with businessmen in [Town 1], Sabah. He promised to get them funding if they registered their businesses. They agreed to do so, and the applicant was chosen to collect the registration fees and deposit them into [Mr A]’s bank account. The applicant collected and deposited about RM 170,000. He has the deposit slip as proof.
2. After a few months, there was no news of [Mr A], even though the applicant tried to call him many times. The local businessmen began to get angry and asked the applicant for a refund. They started to threaten him and then they burnt down the applicant’s house. Fearing for his life, the applicant took a flight to Melbourne [in] May 2019. If he returns, he will surely be killed.
3. He does not think that he will be safe if he relocates to another part of Malaysia. He does not believe that the police will be able to protect him all the time.
In summary, Applicant 2 made the following claims in her protection visa application:
i.She left Malaysia because of a crucial political issue being that she is a divorced woman with financial constraints which makes Malaysia ‘not her place to stay anymore’.
ii.She didn’t move to another area of the country because it ‘didn’t make sense’ for her to move to another place.
iii.Sharia law does not protect women when they are divorced. Her spouse did not give her money to survive.
iv.She is unable to relocate to another area of the country if she returns because the authorities are dysfunctional and there are still many unresolved problems.
v.The authorities are unable to provide protection because there are double standards from the federal government. She feels like there is no point staying in Malaysia.
Applicant 3 did not raise her own claims before the Department.
Neither Applicant 1 nor Applicant 2 were invited to attend an interview with a delegate and no additional material was otherwise provided by the applicants in support of their claims prior to the primary decisions being made.
The delegates refused the visas, finding that the applicants did not meet the criteria for a protection visa.
EVIDENCE BEFORE THE TRIBUNAL
Applicant 1
Pre-hearing submission
The Tribunal wrote to Applicant 1, asking him to complete a Pre-Hearing Information form. The form asks, among other things, whether the applicant wants to give any further information about the claims for protection or whether there are any other reasons why he would be afraid to return to his home country.
In his response, Applicant 1 wrote as follows:
“I have a new claim which why I need Australia to grant me a visa. I had married to a malaysia woman which also holding a protection visa. My wife is a widow. I married my wife when she pregnant 4 months. In my country it’ s prohibited to pregnant before legal married. My family know about this and they really angry and feel embarrassed on I did. My family warned me and will report to Islam authority for doing an illegal things if they found out I’m in Malaysia. In my country Malaysia, my daughter will be call a illegitimate child as I married when my wife was pregnant 4 months. I fear to return to Malaysia as my family will report me and wife for giving a birth to illegitimate. In Malaysia we will be humiliated because of our situation. I will provide further information of my new claim of protection.”
Applicant 1’s evidence given at the hearing
In summary, Applicant 1 gave the following evidence at the hearing about his initial claims:
1. He is the owner of a [workshop] in his home town of [Town 1], in Sabah.
2. National elections were held in Malaysia in May 2018. In April 2018, his friend introduced him to [Mr A], who had come to Sabah to speak with small business owners. [Mr A] was a politician involved in the upcoming elections. He invited Applicant 1 to attend a small meeting, as one of the local business owners.
3. [Mr A] told the attendees at the meeting about a government grant, with money that needs to be allocated to business owners with a trading licence. Applicant 1 was told that if he can collect fees from local business owners, they would be able to get a 100% to 200% return on their fees, through the government grant.
4. A number of the clients from Applicant 1’s workshop, and others in the neighbouring villages, wanted to participate. Applicant 1 took their registration fees, which varied from about 100 to 800 ringgit, depending on the size of their business. People sold their land and cars to be able to get the money to pay the fees to join.
5. Applicant 1 collected fees from about 100 to 200 people and collected around 170,000 ringgit. He deposited the fees on a daily basis into [Mr A]’s bank account.
6. After the election, Applicant 1 tried to call [Mr A], asking when the money from the grant would be paid to the investors. [Mr A] gave a number of excuses. After about three months, Applicant 1 realised that they had been cheated.
7. The investors were angry with Applicant 1. However, most of them were understanding when he explained to them that he had also been cheated.
8. One investor, whose nickname sounded like ‘[Mr B]’, came to Applicant 1’s workshop and made threats. [Mr B] threatened to burn down Applicant 1’s house, which was his family home, owned by Applicant 1’s parents.
9. The house was burnt down in April 2019. Applicant 1 knows it was [Mr B], because he showed [Mr B]’s photo to some village kids who had witnessed a person lighting the fire. The kids confirmed that it was [Mr B] who had lit the fire.
10. Applicant 1 went to the police but they could not do anything until the fire department made a report. Applicant 2 felt it was too dangerous to wait, so he left Malaysia and came to Australia.
11. He has not heard from [Mr B] since he came to Australia. However, Applicant 1’s friend says that [Mr B] is looking for him and lots of other people are looking for him.
12. He would not be able to relocate as nowhere in Malaysia would be safe, he knows that [Mr B] carries out his threats and next time, [Mr B] might kill him. [Mr B] will do everything to find Applicant 2.
Applicant 1 provided the following to the Tribunal:
·A short movie clip which the interpreter interpreted during the hearing. The video shows a number of people in a room that looks like a classroom. There is a lectern for speakers and about 10 people in [shirts] standing behind the lectern. The audience cannot be seen. The dialogue consists mainly of welcomes and introductions. Applicant 1 was one of the people in a [shirt] behind the lectern. Applicant 1 also claimed that [Mr A] was shown in the clip, but his profile could only be seen for a few seconds. Applicant 1 claimed that this was a meeting of the youth wing of a party or organization called [Group 1] and that [Mr A] is a leader of a group called [Group 2] which sits within [Group 1]. Applicant 1 said that [Group 2] is the group which was involved in the licence scheme. The Tribunal notes that the clip does not show anything about small businesses, investments, grants or licences.
·Copies of four deposit receipts showing the sum of 200 RM being deposited into a bank account under the name of [Mr A]. The receipts are dated from September and October 2017.
·A printout from a [Social media] page, showing the profile photo of a man under which is the wording [Mr A]- Business Owner – Self-Employed’.
The Tribunal raised with Applicant 1 its concerns around the credibility, consistency and plausibility of his claims, giving some examples in relation to the evidence provided.
Applicant 1 also gave evidence at the hearing in relation to his claims involving his daughter (Applicant 3). In summary, he said that:
1. His father is a pious man and his uncle is an Iman, a leader at a mosque in Kota Kinabalu. His uncle is over [age] years old.
2. When his parents found out that Applicant 1 had had a child out of marriage, it brought shame to them, but they have not told others in the family.
3. His uncle would not be able to accept that Applicant 1 had a child out of marriage and might punish him according to the Muslim religion, he might torture the applicant.
4. Their child (Applicant 3) will not bear the applicant’s name if they return to Malaysia and will experience bullying at school, she may even commit suicide because of this. When she is grown up and is getting married in Malaysia, Applicant 3 will have to admit that she was born out of wedlock. Applicant 1 does not know who will accept her and marry her. In Australia, she will be able to marry anyone she wants.
5. Applicant 1 doesn’t know exactly how his family in Malaysia will react toward the child, however, they might abandon the child as they don’t want shame in the family. His uncle or other family members might give the child away to someone else.
6. Applicants 1 and 2 do not want their daughter to be circumcised. His family will check if it is done and make them do it.
7. They cannot relocate as this would go against family tradition. His family want all the family to be together in one family home. Even though Applicants 1 and 2 are adults, the family will impose their will.
8. Applicant 1’s parents may accept that his daughter was born less than 6 months after the marriage and may accept it if he relocates, but his uncle would not accept this.
Post hearing submissions from Applicant 1
Following the hearing, Applicant 1 sent the following document to the Tribunal, in support of his claims in relation to [Mr A]’s scam:
·A screenshot showing a still of a [Social media] live clip of two men at a table. A number of people have posted comments on the video. The screenshot shows comments which imply that if these men invest, they will be scammed and will lose their money. One comment says “This is a big liar…[Mr A] will face disaster soon because he’s a habitual liar….”
Applicant 2
Pre-hearing submissions
Prior to the hearing, Applicant 2 submitted the following documents:
i.A Divorce Certificate for the marriage between Applicant 2 and her first husband, [Mr C]. The date of marriage is noted as [October] 2009 and the date of divorce is [May] 2018.
ii.Screen shots of text messages containing two photos of Applicant 2 with a large lump on her forehead.
iii.A photo of a handwritten (unsigned, undated) statement. Its contents are summarised as follows:
a.Applicant 2 met her ex-husband in 2006, and they were married [in] October 2009. Their first child was born on [Date].
b.Her husband started to yell at her over simple things in front of everyone. When her baby was 3 months old, he grabbed a warming milk bottle and threw it at the wall, while screaming at her. Her mother was there at the time.
c.Applicant 2 was shocked and terrified. His violence worsened and he slapped her face in front of his friends when she asked him a question.
d.After their second child was born on [Date], there was an incident of violence when Applicant 2 had asked him what he did with his sister-in-law, as they had been acting like a couple. He threw objects and beat up Applicant 2, punching her in the face, head and body. She was bruised.
e.His sister-in-law told him not to give Applicant 2 money or buy anything for her. Applicant 2 was treated like a servant. She did her best to pray. When her husband saw her doing prayers, he would laugh at her and tell her she was just pretending.
f.When the children were 3 and 4 years old, he beat her again, punching her in the head. She ran to her friend’s house and asked for help from the government. She was provided shelter accommodation for one week only and then was told to return to her husband and be patient.
g.Her ex-husband was a gangster and paid the government to chase her out of protective services by telling them that she had mental issues.
h.She went to her mother’s house to hide from him, but he found her and took the kids away from her. She filed for divorce, but he rejected it many times. When they were at the Syariah Court, she was told to make a payment to her ex-husband to enable the divorce and gain custody of the children. However, at that time she did not have a permanent job, and he was awarded custody of their children.
i.Hr ex-husband told Applicant 2 that if she tried to contact or see the children, he will kill her and bring shame to her family. After a few months’ work, she had the money to pay her ex-husband to try to gain custody, but her application was rejected due to her work situation and income level. She could not see her children after the divorce and was devastated and depressed. She decided to run away to Australia to start a new life while looking for ways to claim her children.
j.Since she has been in Australia, she has contacted her kids through her ex-sister-in-law. Her kids have told her that they are beaten by their father every day and they live in fear. They had to hide in the closet just to speak with her, to avoid being seen.
k.Her ex-husband told her that if she wants her kids, to marry him again as his second wife. She refused. He made threats about what would happen if he found out she travelled back to Malaysia. He even mentioned ending her life and the life of their kids. She was depressed and even went for psychiatric treatment for a while in Australia, however she could not afford to pay it anymore as her Medicare expired and cannot be renewed.
Applicant 2’s evidence given at the hearing
In summary, Applicant 2 gave the following evidence at the (first and second) hearing:
1. She was primarily raised by her mother. She is the [birth order] child and has [brothers]. Her father “came and went”. One of her brothers is in [Country 1], the other two are in Malaysia. She is only in contact with one of them, who looks after her mother. She occasionally sends her mother financial support, for food and medicine.
2. She left school early, in grade 5. She left as she did not have the birth registration documents needed for high school; her parents had never bothered to get them. From the age of 13, she worked in the [workplace 2] where her mother worked and was always bullied for not going to school. She then worked in a [workplace 3] and, at the age of 17, applied for her identity documents herself.
3. She met her first husband in [Year] when she was about [age] years old. They had a long-distance relationship as he worked in [Country 2]. He proposed to her in October 2009, and they married and moved to Kuala Lumpur from Sabah. Her husband’s elder siblings lived in Kuala Lumpur, and it was where his company was based. After a year, he stopped working in [Country 2] and they lived together full time.
4. She discovered that he had a bad temper when their first child was three months old. He threw warming milk against the wall, in front of her mother. Things got worse and he punched her face.
5. When her kids were 3 and 4 years old, he punched her again. She had asked him about his relationship with his brother’s wife, as she (Applicant 1) thought that her husband and her sister-in-law had been ‘acting like a couple’. After he punched her, she ran away to her friend’s house.
6. Authorities then protected her for a while. She was given accommodation for a week in a shelter but was not able to access accommodation for longer than that.
7. In 2014, after she left the shelter, Applicant 2 moved back to her mother’s house in Sabah with her children. She was able to afford the travel as she had saved some money from the food money that her ex-husband gave her.
8. From 2014 to 2018, her husband came a few times to Sabah to try to convince her to move back with him.
9. One time in 2017 they had an argument, and he punched her. Applicant 2 went to the police in Sabah. One of her brothers was being paid by her ex-husband and he tipped off the ex-husband, who came to the police station when she was there making her complaint. When her husband arrived, the police ripped up the report.
10. Applicant 2 tried to get a divorce many times. She offered to pay her dowry and was able to initiate a divorce, which was granted in 2018. However, her ex-husband was awarded custody of the children.
11. In 2018, Applicant 2 went twice to [Country 3] for a break, with a friend who had a business there. She also went to [Country 1]. She travelled to [Country 4] in 2019. She then decided to come to Australia for a new life in March 2020.
12. Since she has been in Australia, her ex-husband’s sister has helped her to contact her children a couple of times. The last time was in 2022. However, her ex-husband found out and hit the children. Her sister-in-law is also afraid of him and stopped facilitating calls.
13. Early last year, Applicant 2 received a call from her ex-husband’s new wife, asking her how to leave the marriage as she was being beaten every day. She called from the children’s phone.
14. Her ex-husband lives in Kuala Lumpur with their two children. Her ex-husband’s parents still live in Sabah, about 3 hours away from Applicant 2’s mother’s home.
15. Her ex-husband returns to Sabah every Eid and goes to Applicant 2’s mother’s house, asking where Applicant 2 is and when she is returning. He threatens that he will kill Applicant 2 if she returns.

Applicant 2 gave inconsistent evidence about some of the abuse and threats she received from her ex-husband. For example, she had initially said that, when she left the shelter, she went back to him and he threatened to kill her, punched her and put a knife on her neck. Later, she said that she went straight from the shelter to a friend’s house and then to Sabah. She also said that her ex-husband followed her to Sabah and took the children away, threatening that he would kill Applicant 2 if she tried to take them back. Later, however, she said that the children were with her until he obtained custody of them after the divorce.
Applicant 2 gave inconsistent evidence about when she had last seen her ex-husband. She first stated that it was at the police station in 2017, before the divorce. She then said that her elder brother arranged for her ex-husband to come to the applicant’s mother’s house several times when she was living there, after they were divorced. The ex-husband would come to the house and would threaten her. The last time she saw him was before she went to [Country 1] in December 2018.
Applicant 2 also gave inconsistent evidence about the last contact that she has had with her ex-husband. She had first said that her ex-husband had called her in Australia, telling her that if she ever wanted to see the children again, she could marry him as a second wife. She then said that the last time she has ever spoken to him was at her mother’s house in 2018.
Applicant 2’s mother gave evidence from Malaysia by phone. She mentioned that she witnessed the incident when the ex-husband threw the warming milk against the wall and beat Applicant 1 but could not recall when this happened. When asked by the Tribunal, she said that the ex-husband comes to her house every Eid, looking for the applicant, threatening that he will kill her if she returns. There was another person in the background who, at one point, was audibly coaching the applicant’s mother to give her responses. For this reason, as well as for the vagueness of the applicant’s mother’s responses, the Tribunal places little weight on the evidence she gave.
The Tribunal noted to Applicant 2 that she had not raised any claims about domestic violence in her protection visa application form. Applicant 2 said that she did not know how to fill in the form and her friends helped her to complete it.
The Tribunal noted to Applicant 2 that there has been little contact between her and her ex-husband and queried whether he remained an ongoing threat. Applicant 2 agreed that there was little contact, saying that she did not contact him as she was concerned it would have consequences for her children in Malaysia.
The Tribunal noted that Applicant 2 had not seen her ex-husband since at least before she went to [Country 1] in December 2018 and, between then and the time she came to Australia in March 2020, he had not harmed her. Applicant 2 then said that he spreads rumours about her and prevents her from getting jobs. She did not tell the Tribunal this before as it would have taken ‘too much time’.
The Tribunal noted its concerns about the credibility of Applicant 2’s mother’s evidence.
The Tribunal asked whether Applicant 2 may be able to relocate. Applicant 2 said that her ex-husband was a member of a gang called [Group 1], which meant that he could find her anywhere.
Applicant 3
Applicant 3 is a child who is [Age] years old and is unable to put her own claims. From the testimony of her parents, the Tribunal takes her claims to be as follows:
·She will be considered illegitimate, unable to take her father’s name, and may be bullied at school, to the point that she may commit suicide. She may be discriminated against when she is ready to marry.
·She may be circumcised, according to Muslim tradition in Malaysia.
·She may be abandoned or given away by Applicant 2’s family.
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 each of the applicants is a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether each applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection. A summary of the relevant law and mandatory considerations is set out above, and an extract of key provisions of the Act is provided in the Attachment.
The Tribunal has considered the claims of each applicant and will present them separately below.
Applicant 1
Applicant 1’s identity and country of reference
Applicant 1 claims to be a citizen of Malaysia. Applicant 1 provided a copy of his passport to the Department. The Department accepted his identity. There is nothing before the Tribunal to suggest that Applicant 1 is not the person identified in the application for protection.
The Tribunal accepts that Applicant 1 is a citizen of Malaysia which is also his receiving country for the purposes of refugee and complementary protection assessments.
Credibility considerations
The Tribunal has carefully considered Applicant 1’s claims to fear harm if he returned to Malaysia.
In doing so, the Tribunal has remained aware of the importance of adopting a reasonable approach in the finding of credibility. It understands that it should give the applicant the benefit of the doubt, if it is satisfied as to the applicant’s general credibility, as per the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection[1] which states that:
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[1] Reissued, Geneva February 2019 at [196] and [204].
The Tribunal recognises that, if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]
[2] See MIMA v Rajalingam (1999) 93 FCR 220
[3] See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547
The Tribunal acknowledges that there may be minor variations and discrepancies in evidence that occur when oral evidence is communicated through an interpreter. It also recognises that people may have different abilities in recalling details, dates and figures and that memory may be impacted by the passage of time.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts that Applicant 1 was a small business owner of a [workshop] in [Town 1], Sabah. It accepts that he was at a meeting of a network or organization “[Group 2]”, part of the larger “[Group 1]” network, as shown in the video clip he sent to the Tribunal.
However, as discussed at the hearing, the Tribunal has concerns about the credibility of the claims that Applicant 1 collected money from local business owners to pay to [Mr A] who was running a scheme which was, effectively, a scam. It has concerns about the credibility of the claims that Applicant 1 faced threats due to this and that a person nicknamed [Mr B] then burnt down his house. It has these concerns for the following reasons.
First, his claims are unsubstantiated. For example, Applicant 1 was unable to substantiate his claims about depositing money in [Mr A]’s bank account and has been inconsistent in relation to this. In his protection visa application form, he clearly states that he collected and deposited about RM 170,000 and ‘has the deposit slip as proof’. At the hearing, he denied that he had any deposit slip. First, he said that it had been burnt in the house fire which, as the Tribunal pointed out, raises the question of why he then wrote that he had the slip on his protection visa application. Then he told the Tribunal that he would try to get receipts. He submitted 4 receipts showing deposits of RM 200 each, into a bank account under the name [Mr A], dated in September and October 2017. According to Applicant 1’s testimony, [Mr A] only came to Sabah to spruik the scheme in April 2018. The Tribunal does not accept that the receipts submitted substantiate Applicant 1’s claims.
Applicant 1 was also unable to substantiate his central claim of harm, that his parent’s house, as well as 2 neighbouring houses, burnt down. Applicant 1 mentioned police reports and fire department reports but was not able to produce these and unable to clearly explain why he was not able to get copies. The Tribunal considers that there would be some documentation, such as reports of authorities, newspaper reports or other documents that Applicant 1’s parents may have as evidence that their house, and neighbouring houses, were destroyed due to arson.
Secondly, Applicant 1’s claims about the scheme are implausible. For example, he claims that he was able to get over 100 local business owners to invest in the scheme in amounts from RM 200 to RM 800 and was able to collect RM 170,000 in the space of approximately four to six weeks in April -May 2018. He did this by travelling in the area and convincing people of the scheme, who then sold land and cars to fund their investment. The Tribunal finds it implausible that he was able to collect so much money by convincing so many people to invest in this short time. It also finds it implausible that people sold land and cars to invest such small amounts.
The Tribunal also finds it implausible that the police refused to act on Applicant 1’s claims that [Mr B] committed arson resulting in significant property damage, particularly as Applicant 1 says that there were eyewitnesses to such a serious offence.
Thirdly, Applicant 1’s claims are inconsistent. For example, in his protection visa applicant, Applicant 1 makes no mention of [Mr B], rather refers to “businessmen” threatening him. However, at the hearing, Applicant 1 confirmed that it was really only [Mr B] from whom he fears harm and that other investors had been quite understanding.
For these reasons, the Tribunal does not accept that Applicant 1 collected money from local businessmen, was blamed for [Mr A]’s scam, faced threats from local businessmen including [Mr B] and had his house burnt down by [Mr B]. It does not accept that there is a real chance that he faces harm from local business owners or [Mr B] if he returns to Malaysia.
Applicant 1’s claims regarding his daughter
In Applicant 1’s written claims, and at the hearing, he raised the status of his daughter. The Tribunal will address the claims about harms that the daughter may face in the section ‘Applicant 3’ below. In this section, it will consider what harms Applicant 1 may himself face. Briefly, Applicant 1 raised claims that he may be harmed by his uncle, that he may be reported to authorities, that he may be humiliated and, further, that he may face harm if his baby is given away or circumcised. Each of these claims has been carefully considered by the Tribunal.
The Tribunal notes that, in MIMA v Haji Ibrahim, McHugh J outlined the degree of harm that would be required to constitute persecution. The judgement predates the current legislation, yet remains of assistance in determining this issue. His Honor explained:
The Convention protects person from persecution, not discrimination. Nor does the inflection of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive, or prolonged that it can be described as persecution.[4]
[4] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].
Section 5J (5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. These provisions do not define ‘serious harm’ but provide instances of the serious harm referred to in ss 5J(4)(b)) by way of an aid to their application.[5] The following are listed as instances of ‘serious harm’:
(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.
[5]         MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 at [48]. Although the Court was considering ss 91R(1)(b) and (2), its reasoning appears equally applicable to ss 5J(4)(b) and (5), given their similar wording.
That Explanatory Memorandum explains that the definition of ‘persecution’ as set out in s 91R (1) (now s 5J(4)):
… reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well-founded fear of harm which is so serious that they cannot return to their country of nationality, or if stateless, to their country of habitual residence. These changes make it clear that it is insufficient … that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia.[6]
Harm from Applicant 1’s uncle
[6] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No 6) 2001 (Cth), at [25].
Applicant 1 claimed that he may be harmed or tortured by his uncle, who is an Iman, for having a child within 6 months of his marriage. The Tribunal accepts that the child, having been born 5 months and 3 weeks after the date of her parents’ marriage, would be deemed illegitimate under syariah law in Malaysia.[7]
[7] This finding is discussed further under the section ‘Applicant 3’.
Applicant 1 was vague about the details of the harm or torture he may face from his uncle. The Tribunal notes that his uncle does not yet know that Applicant 1 is married or has a child. He has not made threats to Applicant 1 and there is no evidence before the Tribunal that he is violent, that he has harmed Applicant 1 in the past, nor that he has harmed or tortured any other person for this or any other reason in the past. The Tribunal finds that Applicant 1’s fears of physical harm from his uncle are purely speculative and do not meet the ‘real chance’ threshold.
The Tribunal is not satisfied that Applicant 1 faces a real chance of harm from his uncle.
Being reported to authorities
Country information indicates that Islamic doctrine in Malaysia places high cultural value on the institution of marriage and that sex before marriage would likely be in breach of various syariah legal provisions. Khalwat (illicit proximity) and zina (unlawful sexual intercourse) are syariah law violations that are punishable with a fine or imprisonment, or both. Penalties for immoral offences vary between Malaysian states in accordance with each state’s syariah laws. For example, under the Syariah Criminal Code (Federal Territories) Act 1997 both khalwat and zina are offences but in a practical sense, offenders are commonly prosecuted for khalwat.[8]
Under section 27 listed above, two people can be legally arrested for khalwat if they are found “in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts.” Note that this definition refers to “immoral,” not “sexual,” acts. Yet in court, this is taken to mean that the couple were, at the time of arrest, engaged in illicit sexual intimacy that may or may not have included unlawful sexual intercourse (zina). Furthermore, what counts as “immoral” acts heavily depends on the subjective interpretations of the religious enforcement officers conducting the arrest. The rather loose and ambiguous definition of what constitutes khalwat thus makes it easier to prosecute couples on this charge, as opposed to other crimes such as zina (s. 23), for example, which would require the testimony of four male witnesses who actually observed the act of sexual penetration taking place.[9]
[8] Administrative Appeals Tribunal (AAT) case number 1802978 of 10 October 2024 at [64].
[9] Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nurul Huda Mohd. Fazif, Journal of Women of the Middle East and the Islamic World, Volume 18, Issue 2-3, Brill, October 2020, pp.335-336, as cited by Deputy President Burford in AAT case number 1802978 at [64].

Similarly, in Sabah, the home region for Applicants 1 and 2, the Syariah Criminal Offences Enactment 1995 states that:
Any male person who commits forbidden sexual intercourse with another female person shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years, or to canning not exceeding six strokes or any combination of such punishments.[10]
…
Any male person who is found living together or cohabiting or confining or hiding in any place with a female person who is not his mahram other than his wife which arouses suspicion that they are committing a sinful act shall be guilty of an offence of khalwat and shall, on conviction, be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding one year or to both.[11]
[10] Section 80(1) of the Syariah Criminal Offences Enactment 1995
[11] Section 84 (1) of the Syariah Criminal Offences Enactment 1995.
Applicant 1 said in his written claims that his family will report him to authorities for having forbidden sexual intercourse. He did not raise this claim at the hearing; however, he did say at the hearing that he thought his parents may be understanding and that his extended family do not know of the situation. The Tribunal acknowledges that his extended family may learn about his child’s status, that is, that she may be considered illegitimate under syariah law and that will mean that he committed forbidden sexual intercourse according to syariah law.
However, the Tribunal considers that it is far-fetched that the family of Applicant 1 will report him to authorities for an act that was committed several years ago, in another country, particularly as he thinks that his parents may be understanding. The Tribunal also considers that it would be extremely unlikely, if even possible, that he would be prosecuted or convicted for having sex out of wedlock, given that the intercourse happened in Australia several years ago. It does not consider that there is a real chance that this will happen, and it does not find that this fear is well-founded.
The Tribunal is not satisfied that Applicant 1 faces a real chance of harm either of being reported to authorities, or from being reported to authorities.
Being humiliated
The Tribunal accepts that, if his daughter’s status is widely known, Applicant 1 may face some societal and familial disapproval or mockery, which may result in feelings of shame or humiliation. However, in relation to any humiliation that he may feel, the Tribunal considers that the fact that he is now married to his daughter’s mother, and that they were married when the child was born, may go some way to mitigate this.
The Tribunal has considered how any feelings of shame or humiliation may impact Applicant 1. It notes that Applicant 1 is a mature man in his [Decade] who has lived independently in Australia for some years. He has shown that he is willing to challenge accepted cultural norms by marrying a divorced woman who does not wear a headscarf and has children from a previous relationship. He has also shown that he has the resilience to start a new life and family in Australia. There is no evidence before the Tribunal to suggest that Applicant 1 suffers from mental health issues or is vulnerable in any other way. The Tribunal does not find that, in Applicant 1’s case, experiencing shame or humiliation would rise to the level of serious harm required under the refugee definition. The Tribunal does not find that Applicant 1 faces a real chance of serious harm for this reason.
In summary, for Applicant 1, the Tribunal is not satisfied that Applicant 1 faces a real chance of serious harm for reasons connected to his daughter’s status or for having sex before marriage.
Harm if the baby is abandoned or circumcised.
Applicant 1 claimed that his family may force him to abandon the baby, to avoid the shame of her illegitimacy. Again, this is purely speculative, and the Tribunal finds that it is far-fetched, particularly given that the baby is now [Age] years old and has formed an attachment to her parents. The Tribunal also notes that Applicant 1 said that his parents may be accepting of the child. Applicants 1 and 2 are married adults and would be able to withstand any pressure to abandon their baby, if indeed they faced any. The Tribunal does not accept that Applicant 1’s family can force him and Applicant 2 to commit an act of abandoning their child.
The Tribunal considered the harm which Applicant 1 himself may suffer in relation to the possibility that his daughter may be circumcised if he returns to Malaysia with her. It will consider the harm which his daughter may face in the section ‘Applicant 3’ below.
The Tribunal notes that a fatwa was issued by the Malaysian Fatwa Committee of the National Council on Islamic Religious Affairs (JAKIM) in April 2009, proclaiming that female circumcision is obligatory. Although the fatwa was non-binding, it led to many Malay Muslims believing that female genital cutting (FGC) is a compulsory religious obligation (wajib), and not merely a recommended Islamic practice (sunat).[12] The fatwa was never issued by the different state’s fatwa committees and published in the official gazettes, meaning that it is not legally binding upon Muslims in their respective states. Nevertheless, it has led to a widespread perception that the practice is obligatory, and the Tribunal accepts that there may be societal pressure and condemnation for parents who do not have their daughter circumcised.
[12] Najua Ismail, Wajib, Sunat, Or Haram: The Debate On Female Genital Cutting In Malaysia Continues To Rage, Ova, 16 August 2024
Applicant 1 said that, if his daughter remained uncircumcised, he may face pressure from his family to have the procedure performed. The Tribunal accepts that there may be some family or societal pressure on Applicant 1 to have his daughter circumcised. It may feel difficult or unnatural to Applicant 1 to defy his family’s wishes and this may be distressing to him. However, the Tribunal does not accept that such difficulty or distress amounts to serious harm as required under s5(J)(4). The applicant did not suggest that this pressure would affect his job prospects, his ability to prosper or, in any serious way, his health and well-being, although it may be, at times, uncomfortable and stressful for him.
As there is no law that mandates circumcision, Applicant 1 would not face legal penalties for not having his daughter circumcised.
The Tribunal accepts that family pressure could be such that Applicant 1 might find it intolerable for the family to reside with his family. The Tribunal does not accept, however, that he has no other choice but to live with his parents. He is living independently with the other applicants in rental accommodation in Australia and has previously owned his own business. While it may cause some familial pressure or disruption if he lives independently with his own family (Applicants 2 and 3), the Tribunal does not accept that this would amount to serious harm.
Given the above, the Tribunal is not satisfied that there is a real chance that Applicant will face serious harm if he returns to Malaysia due to the issue of circumcision for his daughter.
Overall, on the evidence before it, the Tribunal is not satisfied that Applicant 1 faces a real chance of serious harm if he is returned to Malaysia in the foreseeable future. It finds that he does not meet the refugee criterion in s 36 (2)(a).
Does Applicant 1 satisfy the complementary protection criterion for protection?
Having concluded that Applicant 1 does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In doing so, the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of Applicant 1 being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
As explained above, the Tribunal has found there is no real chance that Applicant 1 will face harm from local business owners, or from [Mr B]. It has found that there is no real chance that he will face harm from his uncle. The “real risk” test under the complementary protection criterion imposes the same standard as the “real chance” test under the refugee criterion.[13] It follows that the Tribunal does not accept that there is a real risk that Applicant 1 will suffer harm from local business owners, [Mr B] or his uncle.
[13] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505, 551 [246], 557-58 [297], 565 [342].
The Tribunal has found that he may face some societal or family disapproval resulting in some feelings of shame or humiliation due to the status of his daughter and the fact that he had pre-marital sex. He may face familial pressure to have the child circumcised and may face discomfort or distress defying his family’s expectations. The Tribunal has considered whether these are harms which constitute significant harm, required by the complementary protection criterion.
The Tribunal is mindful of the definition of significant harm in s36(2A) of the Act, which states that:
(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.
The Tribunal is not satisfied that the harms that the applicant may face rise to the level of significant harm for the following reasons:
·The applicant will not be arbitrarily deprived of his life or face the death penalty.
·The harms are not acts or omissions by which severe pain or suffering are intentionally inflicted for a particular purpose as required under the definition of torture in s5(1) of the Act.
·The harms are not acts or omissions by which severe pain or suffering are intentionally inflicted, as required under the definition of cruel or inhuman treatment or punishment in s5(1) of the Act.
·The harms are not acts or omissions that cause or are intended to cause extreme humiliation which is unreasonable as required under the definition of degrading treatment or punishment in s5(1) of the Act.
In making these findings, the Tribunal has had regard to the particular profile of the Applicant 1. As stated above, Applicant 1 is a mature man in his [Decade] who has had the ability to travel to Australia and build a life for himself. He has shown he is willing to challenge conservative and traditional values in choosing a wife who has been divorced before, does not wear a headscarf, and has children from another relationship. He has not claimed or presented any evidence of mental health issues.
Given the above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that Applicant 1 will suffer significant harm, as defined in s 36(2A) of the Act, as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
The Tribunal is therefore not satisfied that Applicant 1 is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Applicant 2
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed for Applicant 2.
Applicant 2’s identity and country of reference
Applicant 2 claims to be a citizen of Malaysia. She provided a copy of her passport to the Department. The Department accepted Applicant 2’s identity. There is nothing before the Tribunal to suggest that Applicant 2 is not the person identified in the application for protection.
The Tribunal accepts that Applicant 2 is a citizen of Malaysia which is also her receiving country for the purposes of refugee and complementary protection assessments.
Does Applicant 2 satisfy the refugee criterion for protection?
The Tribunal accepts that Applicant 2 was married to [Mr C] in 2009 and that they were divorced in 2018. It accepts that they had two children who now live in Kuala Lumpur with Applicant 2’s ex-husband.
The Tribunal has carefully considered Applicant 2’s claims about the ongoing and future threat that her ex-husband poses to her.
In doing so, the Tribunal has remained aware of the importance of adopting a reasonable approach in the finding of credibility and it follows the same approach as that outlined in paragraphs 47 to 49 above.
The Tribunal has some concerns about the credibility of the evidence given by Applicant 2 in relation to experiencing long-term violence and intimidation at the hands of her ex-husband during her marriage and following its demise. It notes that she did not mention any domestic violence in her protection visa application. Her explanation was that she did not know how to fill in the form, however the Tribunal is not satisfied that this is a reasonable explanation.[14] She told the Tribunal that she had decided to come to Australia as Australia would protect her from domestic violence, so it makes little sense that she did not include this critical information in the protection application form and only mentioned the financial challenges of being a divorced woman. The Tribunal therefore draws an adverse inference as to the credibility of this claim.
[14] Section 367A applies where an applicant raises a claim that was not raised before the primary decision was made and requires the Tribunal to draw an inference unfavourable to the credibility of the claim if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made.
Nevertheless, the Tribunal is mindful of the importance of adopting a reasonable approach and cannot confidently make a finding that Applicant 2 was never abused by her husband. She was consistent in her statement and at the hearing in relation to the incident with the warming milk bottle, and the Tribunal accepts that this happened. Similarly, Applicant 2 was consistent in her claims about her husband’s anger when Applicant 2 accused him of improper conduct with his sister-in-law. The Tribunal accepts that this led to an argument and to Applicant 2 being subjected to violence.
The Tribunal accepts also that Applicant 2 left her husband in about 2014 to return to her mother’s house in Sabah and they divorced in [Year]. However, the Tribunal does not accept that, following the divorce, her ex-husband has continued to contact her, visit her, or threaten her. Applicant 2 gave starkly contradictory evidence in relation to the last time she had seen her ex-husband and the last time she had had any contact with him. The Tribunal does not accept that he has called her in Australia and threatened her, as Applicant 2 gave contradictory evidence about when she had last spoken with him.
The Tribunal does not accept that the ex-husband is a member of a gang. Despite two hearings totalling more than 7 hours, Applicant 2 did not raise this as a reason for her fear, or as a contributing factor to her fear. She gave no evidence about his gang membership or activities. She only mentioned it as a reason that the ex-husband may be able to find her when the Tribunal asked about possible relocation. The Tribunal finds the claim unsubstantiated and not credible.

100. The Tribunal does not accept Applicant 2’s claim or her mother’s evidence that the ex-husband goes to the mother’s house every Eid to threaten Applicant 2. It gives no weight to her mother’s evidence as her mother was being coached in the background by another family member. It also finds it implausible that the ex-husband, if he is visiting his family in Sabah, travels three hours to Applicant 2’s mother’s house to make a threat on an annual basis.
101. The Tribunal does not accept that the ex-husband will harm Applicant 2 if she returns to Malaysia as it does not accept that he has an ongoing interest in her. As above, Applicant 2’s testimony in relation to the last time that she saw her ex-husband in person was inconsistent. She first said that she had not seen him since the police station incident in 2017 and then said she had not seen him since ‘before she went to [Country 1]’ which was in December 2018. The Tribunal does not consider it necessary to make a firm finding as to which date is correct. The Tribunal considers that it is sufficient to note that either date of 2017 or 2018 was more than a year before she left for Australia in March 2020 and, by Applicant 2’s own evidence, he did not seek her out, try to see her or harm her during that time.
102. The Tribunal also notes that the ex-husband has custody of their children and has re-partnered. Given this, as well as the passage of time since Applicant 2 last saw or had contact with her husband and the fact that he did not try to contact or harm her in 2019, the Tribunal concludes that the ex-husband has no ongoing interest in Applicant 2 and there is no real chance that he will harm her in the foreseeable future, if she returns to Malaysia.
103. The Tribunal is not satisfied that there is a real chance of harm from the ex-husband if Applicant 2 were returned to her home area in Malaysia in the reasonably foreseeable future.
Applicant 2 and her daughter’s status
104. Applicant 2 did not herself raise any claims that she may face harm from her daughter’s status at the hearing, however she was nodding and signalling agreement with Applicant 1 when he was giving evidence about the impact of their daughter’s illegitimate status. The Tribunal has therefore considered whether she may face any harm in terms of being reported to authorities, facing humiliation, or having to abandon or circumcise the child.
105. For the same reasons as were given for Applicant 1 above, the Tribunal does not accept that Applicant 2 will be forced or even pressured to abandon the baby. It is not satisfied that there is a real chance that this will happen.
106. In relation to being reported to authorities, the Tribunal extends the same reasoning as it did for Applicant 1. It considers that it is unlikely that anyone would report Applicant 2 to authorities for having sex before marriage, particularly as she is a mature woman who was divorced and has had other children and is now married to the father of Applicant 3. There is only a very remote chance that she would be reported and, if reported, an even more remote chance that she would be successfully prosecuted and convicted given the fact that the act was several years ago and not within the Malaysian jurisdiction. The Tribunal is therefore not satisfied that she will face harm of being reported to authorities or from being reported to authorities.
107. In relation to familial disapproval for having sex before marriage and an illegitimate child, Applicant 2 did say that she would not face disapproval from her own family, so the Tribunal has not considered her family’s reaction to this.
108. However, the Tribunal has considered whether Applicant 2 may face disapproval from her husband’s family, if she returns to his family home and it accepts that she may face disapproval, which may lead to feelings of shame, humiliation or distress.
109. The Tribunal also accepts that there may be some family or societal pressure on Applicant 2 to have her daughter circumcised. Applicant 2 may find facing such pressure difficult and it may cause her some distress. As there is no law that mandates circumcision, Applicant 2 would not face legal penalties for not having her daughter circumcised.
110. Further, the Tribunal accepts that Applicant 2 may experience some forms of societal disapproval and feelings of embarrassment, shame or humiliation for having an illegitimate child.

(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.
…