2302759 (Refugee) - [2025] ARTA 734

2302759 (REFUGEE) [2025] ARTA 734 (5 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Md Jibril Bin Khalid
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2302759
Tribunal:General Member T H R Baggiano
Date:5 March 2025

Place:Brisbane
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)the first-named applicant meets s 36(2)(a) of the Migration Act; and
(ii)the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 05 March 2025 at 8:55am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – domestic violence by husband – drug use and physical harassment and assaults – reports to police but no action taken – court systems slow, complex and biased towards men/husbands – religious divorce and reconciliation under pressure from husband and his family – undetailed written application on advice of friend – substantial corroborating evidence provided later, including police reports, court documents, text messages and witness statement – limited education and work experience – husband’s attempts to trace and contact – country information – mixed protection for women experiencing gender-based violence – members of family unit nephew and children – legal guardianship of nephew – short return to obtain identity card for him – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 5LA, 36(2)(a), (b)(i), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCT 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 an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 February 2023 to refuse to grant the applicants’ protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
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. This decision and statement of reasons is made by the Tribunal.
The delegate refused to grant the visas on the basis that the first applicant is not a person in respect of whom Australia has protection obligations. Consequently, the delegate was not satisfied that the second, third and fourth applicants are members of the same family unit of a non-citizen who holds a Protection visa of the same class and who is a person in respect of whom Australia protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicants applied to the Tribunal for a review of the delegate’s decision on 27 February 2023.
Only the first applicant appeared before the Tribunal on 25 February 2025 to give evidence and present arguments. The second, third and fourth applicants have been included on the first applicant’s application on the basis of being members of the same family unit as the first applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The first applicant was represented in relation to the review. Her representative, Mr Md Jibril Bin Khalid, was also present at the hearing.
The issue in this matter is whether the applicants are persons in respect of whom Australia has protection obligations under the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and receiving country
The applicants claim to be nationals of Malaysia.
The first applicant is [Age] years old. The first applicant has claimed her place of birth as Kedah, her ethnicity as Malay, and her religion as Islam.
The children included as members of the same family unit in the same protection visa application are aged [Ages] (second, third and fourth applicants respectively).
The second applicant is the nephew of the first applicant. The second applicant claims his place of birth as Selangor. The first applicant became the legal guardian of the second applicant following the death of the second applicant’s mother who is also the first applicant’s eldest sister. The second applicant’s maternal grandmother has been given access rights to ‘visit, see, socialise and spend the night with the second applicant at a reasonable time’. The second applicant’s mother’s death certificate and consent order issued by the Syariah High Court naming the first applicant as the legal guardian of the second applicant were provided to the Department as part of the protection visa application. The first applicant subsequently provided the Tribunal with a certified English translation of the consent order.
The third and fourth applicants are the biological children of the first applicant. They both claim their place of birth as Kedah.
I accept the above as being reflective of the applicants’ backgrounds.
The applicants arrived in Australia as holders of Electronic Travel Authorities (subclass 601) [in] March 2020.
The applicants provided copies of the biodata pages of their Malaysian passports, birth certificates and national identity cards as part of their protection visa application. The delegate accepted that the applicants are citizens of Malaysia and there is no information before me to the contrary. I find that the applicants are citizens of Malaysia, and that Malaysia is their receiving country for the purposes of assessing their claims for protection.
Evidence before the Department
In her protection visa application, the first applicant claimed that she left Malaysia due to her husband frequently hitting her. She also claimed to fear returning to Malaysia because her husband could find her and would continue to hit her and that such harm would affect her children. She claimed that she cannot return to Malaysia and live there as her husband would be able to locate her, she would not be able to protect her children and the police would continue to release her husband from prison after payment of bail and that the police have advised her to “run to another country” with her children.
The delegate issued a s 56 ‘Request for more information for a protection visa application’ letter to the first applicant. The delegate requested that the first applicant provide various identification documents for all applicants, marriage certificate, address history, husband’s contact details, relationship evidence and history and further information and evidence in relation to claims of threats and harm, any medical treatment or other government or non-government assistance sought, any police reports against the husband, why the first applicant is unable to relocate to other areas in Malaysia, why the first applicant indicated on the Protection visa form that she is receiving financial support from her husband and whether the children have ever been physically abused by her husband.
In addition to identification documents, and documents establishing her legal guardianship over the second applicant, the first applicant provided the following in response to the delegate’s letter:
a.Email statement in Malay (accompanied by a certified English translation) confirming:
i.husband’s name, age and address;
ii.relationship history;
iii.date of marriage, divorce and recohabitation;
iv.that her husband has since divorced her twice but there is no documentary evidence of this due to her husband not wanting to admit that he had divorced her;
v.that the first applicant subsequently lived at her mother’s house with her sister and her sister’s son (second applicant) in Alor Setar, Kedah;
vi.that she cannot move back to Kuala Lumpur as her husband will follow her in an attempt to see his children and that she has no income to cover the high cost of living in a large state;
vii.that her sister passed away [in] July 2019 and that she subsequently took her sister’s son (the second applicant) under her care;
viii.that she moved to Australia to live with her mother and younger sister;
ix.that she feels scared to return to Malaysia as she feels unsafe because despite making numerous police complaints, she was repeatedly beaten by her husband who was bailed out by his family.
b.Royal Malaysia Police Report and certified English translation dated [August] 2018 detailing the physical harm (choking and pushing) inflicted on the first applicant by her husband while at her sister’s home as a result of her husband being unable to locate a drug apparatus;
c.Royal Malaysia Police Report and certified English translation dated [February] 2019 detailing the physical harm (hitting, slapping, pushing) inflicted on the first applicant by her husband because of an argument pertaining to the husband hitting the second applicant while at the first applicant’s home;
d.Royal Malaysia Police Report and certified English translation dated 28 [June] 2019 outlining the threat (holding a knife to the first applicant’s throat) and the physical harm (punching, throwing, pulling of hair) inflicted on the first applicant by her husband while at the home of the in-laws of the first applicant;
e.Six photographs of injuries to various parts of the first applicant’s eye, face and body;
f.Copy of marriage certificate card issued by the Department of Islamic Religious Affairs in the State of Kedah dated [December] 2012;
g.Copy of divorce certificate dated [November] 2018;
h.Recohabitation certificate dated 7 [January] 2019; and
i.Copy of the first applicant’s husband’s national identity card.
The applicants were not invited to attend an interview with the delegate.
Based on the delegate’s decision, the delegate found that the first applicant is not a refugee as defined by s 5H(1) of the Act and that she is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that the first applicant will suffer significant harm as defined in s 36(2A) of the Act. As such, the delegate was not satisfied that the first applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act as there are effective protection measures, as defined in s 5LA of the Act, that are available to the first applicant in Malaysia.
With respect to the second, third and fourth applicants, the delegate found that they do not satisfy s 36(2)(b) or s 36(2)(c) of the Act as they are not members of the same family unit of a non-citizen who holds a Protection visa of the same class and who is a person in respect of whom Australia protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing submissions and evidence
The first applicant’s legal representative provided the following information and documents prior to the hearing:
a.Royal Malaysia Police Report dated [October] 2019 in the Malay language;
b.Royal Malaysia Police Report dated [November] 2019 in the Malay language;
c.Royal Malaysia Police Report dated [January] 2020 in the Malay language;
d.Three Royal Malaysia Police Reports and English translations dated [August] 2018, [February] 2019 and [June] 2019 – duplicates of the documents referenced at paragraphs 25b to 25d;
e.Consent order relating to the second applicant with English translation – duplicate of the documents referenced at paragraph 18;
f.Divorce and subsequent reconciliation certificates in the Malay language – duplicates of documents referenced at paragraphs 25g to 25h;
g.Screen shot of text message from the first applicant’s friend who witnessed an incident between the first applicant and her former husband during Eid 2019 in the Malay language;
h.Screen shot of multiple text messages between the first applicant and her former husband between 2022 and 2024 in the Malay language;
i.Photograph of injury to the first applicant’s eye – duplicate of one of the photographs referenced at paragraph 25e;
j.Evidence of the first applicant’s case summoning her husband to the Islamic Lower Court in [District] in the Malay language.
The first applicant and her representative committed to providing English translations of any documents not originally issued in English after the hearing within a timeframe specified by the Tribunal.
The first applicant also provided an unsigned statement with the following key points:
a.She married [Mr A] on 20 December 2012;
b.[Mr A’s] behaviour changed when she was pregnant with her second son. She believes this was due to the stress of him not being able to secure a job. When he did procure a job, the salary was very low and not enough to cover expenses;
c.[Mr A] started taking drugs and became very abusive towards her. He would beat her in front of her children. Small fights would escalate into violence;
d.She made six police reports from 2018 to 2020 which were all unhelpful. She lost faith in the police as they did not help her;
e.When [Mr A] was in the process of getting arrested, he would plead with her to withdraw her charge against him and promised that he would stop his behaviour. Despite dropping the charge, he continued to be violent towards her;
f.The police had little regard for a vulnerable woman like her and could not keep her safe. [Mr A’s] family would always support their son and defend him each time and bailed him out of jail;
g.The police even told her to leave the country;
h.There was an incident during 2019 Eid where she was staying at her former husband’s family’s home after her former husband was bailed out of jail. He was unable to find some apparatus to consume drugs which led to him threatening to kill her with a machete. She ran out of the house screaming for help. Her friend, [Ms B] came to pick her and the children up. Despite a report being filed, nothing happened;
i.She lost faith in the Syariah Courts system in Malaysia. When she tried to file for divorce, the system was heavily biased towards her husband. When she tried to file for divorce [in] November 2018, he asked for a review of the decision which cancelled their divorce [in] January 2019. While he tried to file for divorce two more times, he ended up claiming that he did not ask for the divorce and that she lied and, when asked to swear an oath, he stated that he did not want to divorce. His family also backed him and told the court that he never wished to file for divorce;
j.She tried again to file for divorce in 2024, however, the Court decided to close the case;
k.She is unable to relocate anywhere in Malaysia as he will find her. He has even tried to obtain a tourist visa to come to Australia but his plans were foiled as he was scammed by an agent;
l.She allowed her children to speak to their father in 2024 but subsequently blocked his number. He would tell her children that she was a bad mother and to come back to him;
m.She returned to Malaysia recently for two weeks to update her nephew’s Malaysian identity card. She tried to do this online but the government made the process difficult, forcing her to go back to Malaysia. The identity card is important to allow her nephew to process anything moving forward if he needs to in the future. She did not tell anyone of her return and stayed in Putrajaya for only two weeks. She was scared the entire time she was there;
n.She is scared that her life will be in danger if she returns to Malaysia. There is nowhere else that she can get help. The authorities will not help her, and if they do, they are very slow and he will get to her first.

The first applicant’s representative also provided submissions containing country information, with the following key points:
a.The first applicant is currently residing in Australia, and her country of nationality is Malaysia. The applicant does not have a right to enter or reside in any other country;
b.The first applicant has faced significant physical harassment and physical ill-treatment;
c.The multitude of text messages and attempts to contact the first applicant shows that her life will be threatened if she were to return;
d.She is also denied access to basic services, threatening her capacity to subsist as can be seen where nothing was done after her multiple police reports and the Syariah Courts in Malaysia being biased towards her former husband;
e.The first applicant has a well-founded fear of persecution due to being a member of a particular social group, being a vulnerable single woman and single mother to two children and nephew under her custody;
f.Effective protection measures are not available to the first applicant in her home country. She cannot access protection in Malaysia due to its rigid bureaucracy and slow and expensive systems;
g.The real chance of persecution relates to all areas of her home country. She cannot avoid persecution by relocating and this can be proven from her former husband’s attempt in procuring a tourist visa for Australia;
h.On the point of relocation, it must be considered whether it will be reasonable. What is ‘reasonable’, in the sense of ‘practicable’, must depend on particular circumstances of the first applicant and the impact upon that person. As a single mother, it will be difficult for the first applicant to continue living whilst having to raise her two children and nephew under her custody all by herself. She is not able to get help from anyone else and will have to start from scratch, all whilst trying to avoid her ex-husband;
i.The first applicant is unable to avail herself to state protection as can be seen from the numerous and ineffective police reports. The police themselves told the first applicant to leave the country;
j.The first applicant meets both refugee and complementary protection provisions;
k.Country information was also provided on the ineffectiveness of authorities in enforcing domestic violence cases, complex procedures and reluctance in issuing protection orders and cultural and institutional barriers in obtaining protection orders for Malay women through Syariah courts.
Applicant’s oral evidence at hearing
Preparation of protection visa application
With respect to the preparation of her protection visa application, the first applicant stated that she contacted a friend who helped direct her to the correct Department of Home Affairs portal and protection visa form. From there, the first applicant prepared her own protection visa application and submitted it. The first applicant confirmed that the claims in her protection visa application are true and complete.
I acknowledged receipt of the additional police reports and evidence received just prior to the hearing. Asked why the first applicant did not provide this documentation to the delegate when requested in 2021, she responded by saying that when she sought guidance from her friend, her friend recommended that she submit just the latest reports and then provide all other evidence at hearing. The first applicant confirmed that her friend was not a migration agent or legal practitioner and that she did not have legal representation at that point in time.
Visa history
The first applicant explained that after arriving in Australia in March 2020, she went on to lodge her protection visa application in May 2020.
Asked whether the first applicant has departed Australia since arriving [in] March 2020, she explained that she obtained Bridging Visa Bs for her and the dependent applicants. They returned to Malaysia in December 2024 for approximately two weeks as the second applicant needed to present in person to obtain his Malaysian identity card. The first applicant explained that she was told by Malaysian authorities that she should have applied for the second applicant’s new identity card when he was 12 years old. However, she was only able to go through the process now when the second applicant is [Age] years of age. The second applicant was successful in obtaining in his new Malaysia identity card. The first applicant showed a copy of the receipt during hearing.
Asked whether the first applicant visited any friends or family during her trip to Malaysia in December 2024, she stated that they did not. They only stayed in a hotel in Kuala Lumpur to await the processing of the Malaysia identity card for the second applicant.
Personal details and background
The first applicant lived in both Alor Setar and Kuala Lumpur in Malaysia. She moved to Kuala Lumpur for work purposes and initially lived alone but subsequently lived with her former husband after their marriage. Prior to travelling to Australia, the first applicant resided with her mother in Alor Setar.
The first applicant has a mother and three siblings who still reside in Malaysia. The first applicant’s father and [sister] both passed away. After the first applicant’s [sister] unexpectedly passed away, the first applicant became the legal guardian of the second applicant. The second applicant’s father has no contact with the second applicant. The first applicant keeps in contact with her family every day.
The first applicant married her former husband, [Mr A], [in] December 2012. They were divorced [in] November 2018 when the first applicant asked her former husband to divorce her. They reconciled [in] January 2019.
Education and employment history
With respect to her education, the first applicant completed high school in Malaysia.
With respect to her employment history, the first applicant worked as [an occupation] in [job task 1] in 2008. When she married her former husband in 2012, she stopped work. However, from 2018 to 2020, she was a part-time [occupation 2]. Apart from these jobs, she has worked casual and part-time jobs. In Australia, she works on a [workplace doing job task 2].
Reasons for departing Malaysia
Asked why the first applicant decided to leave Malaysia, she stated that she is fearful of her former husband as he is dangerous and looks for her everywhere. She went on to explain that since 2018 when she was pregnant with the fourth applicant, he started becoming violent and beat her up all the time. She explained that in 2018, he had stopped working and started taking illegal substances which contributed to his violence against her. This violence continued for the entire duration of their relationship.
Initially, the first applicant always sought help from others, including neighbours and her former husband’s family. When things got worse, she started reporting the abuse to police. However, her former husband’s family would always bail him out.
The first applicant also explained that she returned to Kuala Lumpur but her former husband followed her there. She then needed to return to Kedah as she had no place to live and lived at her mother’s place.
After the divorce, the first applicant remained living with her mother. It was only during this period of time that the beatings from her former husband stopped. However, he would often call the first applicant because he wanted to speak to the children. He promised the first applicant that he would change.
The first applicant and her former husband reconciled [in] January 2019. Her former husband’s family promised her that their son would change. At the time, the first applicant believed those promises.
Soon after the reconciliation, the first applicant’s former husband’s behaviour escalated. She recalled an occasion where he held a knife to her throat. Despite all the reports to the police, his family continued to bail him out. His family also blamed the first applicant for their son’s violent behaviour. They would say that the first applicant was a burden and was giving stress to their son, which was what was causing him to behave in the way that he was. During this time, the first applicant’s former husband continued to take illicit substances.
The first applicant provided evidence of six police reports in total, summarised as follows:
a.Royal Malaysia Police Report and certified English translation dated [August] 2018 detailing the physical harm (choking and pushing) inflicted on the first applicant by her husband while at her sister’s home as a result of her husband being unable to locate a drug apparatus;
b.Royal Malaysia Police Report and certified English translation dated [February] 2019 detailing the physical harm (hitting, slapping, pushing) inflicted on the first applicant by her husband because of an argument pertaining to the husband hitting the second applicant while at the first applicant’s home;
c.Royal Malaysia Police Report and certified English translation dated [June] 2019 outlining the threat (holding a knife to the first applicant’s throat) and the physical harm (punching, throwing, pulling of hair) inflicted on the first applicant by her husband while at the home of the in-laws of the first applicant;
d.Royal Malaysian Police Report and certified English translation dated [October] 2019 detailing the harm (verbally abusing, hitting causing swollen face and bleeding nose) inflicted on the first applicant by her husband as a result of her asking him to tidy up the house;
e.Royal Malaysia Police Report and certified English translation dated [November] 2019 detailing physical harm (strangling) inflicted on the first applicant by her husband due to being disgruntled about the first applicant wanting to lodge a police report as a result of him disturbing her at her workplace;
f.Royal Malaysia Police Report and certified English translation dated [January] 2020 detailing the physical harm (hitting, slapping, pushing, pulling of hair) inflicted on the first applicant by her husband when the first applicant went to gather her belongings from the family home.
Despite there being six reports to police, the first applicant explained that there were many more instances of violence outside of the six incidents. While the police detained her former husband twice, he would always be bailed out by his family. For the other four instances, the police would just talk to him and then release him. In some instances, the police would impose an order that the former husband not come within a certain distance of the first applicant, but he disregarded those orders. Whenever the first applicant raised this with the police, they would not do anything to enforce it. After the last report was made, the police advised the applicant that there were just too many reports and the only solution they could offer or suggest to her was for her to run away from Malaysia to another country.
All reports to the police were made at the police station because after each violent attack, the first applicant’s former husband would take her phone or destroy it so that she could not call for help. After the police reports, the first applicant would present herself to a hospital in Alor Setar. She was often dismissed by the doctors as they did not feel that her injuries were serious enough. They did not refer the first applicant to any other organisations, nor did they provide any reports for her visits. The only advice they provided to the first applicant was to deal with matters herself and to seek legal assistance.
The first applicant stated that she has never sought counselling or mental health support.
I discussed with the first applicant that she stated in her protection visa application that her husband would not divorce her. However, in her response to the delegate on 8 September 2021, she mentioned that her former husband had divorced her twice after the reconciliation period but that there is no evidence from the court. I asked the first applicant to explain this discrepancy. The first applicant stated that after their first divorce and subsequent reconciliation, she went to court after asking her husband to divorce her. However, the court rejected her application, hence why she does not have evidence of any subsequent divorces. The court rejected her application on the basis of her former husband’s testimony that he never divorced the first applicant in the first place and that she is sick. The applicant stated that despite her attempts to formally divorce her husband, these were not successful and under the Malysia legal system, she is deemed to till be married to him as they treated the first divorce as if it never happened.
Asked whether the first applicant’s former husband ever harmed the second, third and fourth applicants, she confirmed that he beat the second applicant, her nephew. These beatings occurred as the former husband did not like the second applicant. The beatings happened very often and ever since the second applicant was four years old to nine years old. In one of the police reports, there is reference to an argument between the first applicant and her former husband due to him beating the second applicant.
While the first applicant did not seek any additional help for the second applicant, she simply tried to keep him safe and protect him in their own home.
Asked whether the first applicant’s former husband still has an interest in the second applicant, she stated that he did not. She is of the view that her former husband is only interested in getting to her.
The first applicant became visibly upset when she started talking about her children witnessing her being beaten and harmed by her former husband. She said that she could not afford to see her children cry.
Asked whether the first applicant’s husband knows of her whereabouts, she responded in the affirmative. She understands that he has tried to travel to Australia many times but was scammed by an agent, so has not yet come to Australia.
I asked the first applicant how she came to know about her husband’s attempts to travel to Australia. She responded by saying that her former husband messaged her younger sibling through social media about coming to Australia, and also stated that he wanted to talk to his children.
I asked the first applicant and her legal representative to explain to me the contents of the text message exchanges between the first applicant and her former husband. In summary, the text messages show the former husband’s anger at the first applicant. While he admits in some messages that what he did was wrong, he then continues to blame the first applicant. He asks the first applicant why she is tormenting him and why she is ignoring him. He constantly states that he wants to speak to his children. After the last message in 2024, the first applicant blocks her former husband’s number.
I asked the first applicant to explain how her former husband got access to her phone number. The first applicant stated that her younger sibling gave her number to the former husband. Asked why her younger sibling would give her number to the former husband, she said that he kept saying to her younger sister that he just wanted to speak to his children.
The first applicant stated that she eventually allowed her children to speak to their father but supervised them closely while they were do so.
Asked how her children felt about speaking to their father, the first applicant stated that there were not happy to speak to him. They do not wish to engage with him. He tried asking the children where they live but they did not disclose this information to their father .
Asked about the contents of the screenshots of a message from the first applicant’s friend, she explained that during Eid in 2019, she had a quarrel with her former husband which led him to chase her out of the house. The fight was in relation to him not being able to find a drug apparatus. He threw out her clothes and bag and used a machete to threaten to kill her but was stopped by his two cousins. While his siblings tried to call the police, they were stopped by his mother. As a result, the first applicant was chased out of the house. Her friend then came to pick up the first applicant and her children and drove them to the first applicant’s mother’s home. The first applicant’s friend provided a text message statement in support of the first applicant and what happened that day.
Asked what the first applicant thinks will happen to her if she returns to Malaysia, she stated that her former husband will look for her. When he finds her, they will quarrel and she will die.
Asked whether the first applicant thinks the authorities in Malaysia could protect her, she responded by saying that until now, her former husband has been in and out of jail because of drugs. This will continue to happen and they will release him again.
Asked whether the first applicant thinks she can relocate to another part of Malaysia to avoid harm from her former husband, the applicant stated that she cannot run away from the harm as he will continue to look for her. She is of the view that he will continue to pursue them as he also wants the children to live with him.
The first applicant’s legal representative also stated that when Malay women are asked such questions, they generally shut down because it is the way that they were raised. I stated that I understand the cultural barriers and how this may be causing the first applicant to hold back. I stated that when I asked the first applicant if she had anything else that she wanted to speak about to support her claims, she looked as if she was going to say something but then decided to hold back. I stated that I would take into consideration the first applicant’s reluctance to speak due to cultural reasons.
I put to the first applicant that as raised by the delegate in the refusal decision record, the delegate had relied on country information which stated that the Malaysian police force are willing and reasonably effective in combatting crime and that they would be available and willing to provide the first applicant with assistance. The delegate asserted that if the first applicant could obtain protection from authorities in Malaysia, then there is not a real risk of significant harm. I also put to the first applicant that country information states that amendments to domestic violence laws in Malaysia in 2017 strengthened protections for victims, and that there were three different types of protection orders available, including an emergency protection order. I stated that these protections from the police and judicial system could indicate that there is effective state protection which might indicate that the required threshold for serious or significant harm had not been met.
The first applicant responded by saying that when she made reports to police, they did not take any action at all. At the umpteenth time, the police did catch him but then he was bailed in. In 2018 and 2019 when she made those police reports regarding being beaten up, they took no action. When she went to the Syariah court with regards to the divorce, she still got abused. Everything remained the same. Not a single thing changed. The tipping point was when one police officer told her to just escape to another country as they could not do anything to help there. They said that there was nothing that could be done. She went on to state that any time he was caught, he was bailed out by his parents and this would continue again and again. Until now, her former husband is in and out of jail. She learned through all these incidents that police do nothing at all. Whenever he is released, he still looks for her and repeats the same thing over and over again.
The first applicant’s legal representative also made the following points, in addition to the written submissions and country information he provided:
a.Bureaucracy makes the entire system slow;
b.There is no surprise that a single Malay woman’s case is not taken seriously and no help is offered. This is, in part, due to corruption in the police force. Had the first applicant’s case been a big viral case, then maybe the police would have done something about it;
c.The first applicant has gone to the police six times but her former husband continues to be bailed out. It is clear that her case has been swept under the rug;
d.Although the law has been amended in 2017 with the creation of systems which allow for the imposition of protection orders, the reality of the situation is set out in the written country information. It is a super complex and slow system;
e.The first applicant has faced the abuse, gone to the police station and continues to be injured, threatened by knife by her husband. He is still out there, and if he is in jail, it would not be for much longer;
f.The system that is intended to protect is not effective at all;
g.There is also a lack of training in the police force. The law is there but when it comes to enforcement, this is questionable;
h.In the written submissions and country information, a similar case to the first applicant was outlined. There was a woman who put in 12 police reports but she received no help. Instead of offering help, she was asked why she got pregnant. This is similar to the first applicant’s situation where she was told by police to just leave the country;
i.With respect to relocation, the first applicant’s husband is even trying to find her in Australia. In terms of the possibility of relocation elsewhere in Malaysia, we can see that her sister just straight out gave the first applicant’s number to her former husband. If she is back in Malaysia, she would not last much longer. The police will not help and they will take a long time to get to her. Her former husband would reach her first, before the police and it would be too late for her;
j.It is also unreasonable for a single mother having to raise two children and her nephew all by herself to be expected to relocate;
k.In terms of protection visa law requirements, the first applicant would fall under the social group of being a vulnerable woman. She faces serious harm and her life is threatened. She would suffer significant physical harassment and ill treatment;
l.In relation to complementary protection, she would be arbitrarily deprived of her life and would suffer torture and cruel and degrading treatment or punishment;
m.The first applicant would not be afforded protection by the state as shown by the lack of action by police and her former husband pursuing after all these years.
Post-hearing evidence

The following documents were provided post-hearing:
a.Updated legal submissions and country information from the first applicant’s representative similar to the content already provided in the submissions referenced at paragraph 32, but now includes reference to a similar Administrative Appeals Tribunal case;
b.Statutory declaration providing a summary in the English language of the first applicant’s friend’s ([Ms C]) witness statement concerning the event that occurred during Eid 2019 (see paragraph 64) and how the first applicant had spoken to [Ms C] at great length and over a lengthy period of time about her issues with her husband;
c.Statutory declaration providing a summary in the English language of the first applicant’s husband’s text messages to her. The text messages show a pattern of the first applicant’s husband showing remorse and blaming himself for being a bad person and father, apologising for taking the first applicant’s sibling’s motorbike, wishing the first applicant that she finds happiness and a new partner, blaming her for the situation and for putting him in jail, blaming her for being unfaithful, wanting to speak to his children and making a range of disparaging comments about the first applicant;
d.Royal Malaysian Police Report and certified English translation dated [October] 2019 detailing the harm inflicted on the first applicant by her husband;
e.Royal Malaysian Police Report and certified English translation dated [November] 2019 detailing the harm inflicted on the first applicant by her husband;
f.Royal Malaysian Police Report and certified English translation dated [January] 2020 detailing the harm inflicted on the first applicant by her husband;
g.Judgement dated [July] 2024, issued by the Islamic Lower Court in [District] where the judge closed the applicant’s case against her husband.
REASONS AND FINDINGS
Credibility and findings of fact
In determining whether the first applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant, and nor does the Tribunal require rebutting evidence before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43-44.
[2] Randhawa v MILGEA (1994) 52 FCT 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
The first applicant provided a reasonable explanation for the lack of detail in her protection visa application claims and why she did not provide all evidence when requested by the delegate in 2021. The applicant explained that she had relied on the advice of a friend to provide the most recent evidence but to save the rest of the evidence for the hearing.
While the first applicant’s claims were not fully articulated in her protection visa application, I have given significant weight to the further evidence and documentation that she provided to the Department when requested, which included three Royal Malaysia Police Reports detailing the physical harm that her husband had inflicted upon her, as well as the additional evidence and police reports she provide to the Tribunal.
Based on the first applicant’s circumstances, including her limited education and the trauma that she has suffered as a result of family violence, I have not drawn any adverse credibility inference for the purposes of s 367A of the Act. I note that, while the claims as expressed in her protection visa application lacked detail, she subsequently provided substantial corroborating evidence to support her claim regarding the violence inflicted upon her by her husband when requested by the Department and they were not inconsistent with the evidence she provided to the Tribunal at hearing. The additional evidence and documents she provided to the Tribunal were issued by reputable third-party organisations, being the police authorities and the Islamic Lower Court in Malaysia. As such, I also give significant weight to this evidence, although it was provided well after the delegate’s refusal decision.
I have given weight to the applicant’s oral evidence to the Tribunal. She became visibly upset when providing evidence to the Tribunal, particularly in relation to how her children witnessed the violence that she endured at the hands of her former husband. Her evidence was generally consistent regarding the harm perpetrated by her former husband and his ongoing interest in her whereabouts. The first applicant’s claims regarding her experiences of family violence and inability access adequate protection and support are also supported by country information discussed below.
Considering the above, I accept the following claims as credible:
a.The first applicant was married to [Mr A] [in] December 2012;
b.During the first applicant’s pregnancy to her second child, [Mr A] started demonstrating violent and abusive behaviour towards her;
c.[Mr A’s] behaviour was triggered by his inability maintain employment or find employment that could sustain his family, as well as his drug use;
d.The first applicant and [Mr A] were divorced [in] November 2018;
e.The first applicant and [Mr A] reconciled on [January] 2019;
f.Despite multiple attempts to divorce [Mr A] (with the latest attempt being in 2024), the Syariah court prioritised [Mr A’s] testimony where he claimed that he never wanted to divorce the first applicant and that she was ‘sick’. This resulted in the Syariah courts concluding that the couple were never divorced in the first place;
g.The first applicant made six reports to the Malaysian police in relation to [Mr A’s] violence towards her, although the number of violent incidents exceeded this number;
h.Despite the police reports, [Mr A’s] family continued to bail him out or police would speak to him and then release him;
i.During the last police report, a police officer advised the first applicant to run away from Malaysia as they could not help;
j.The first applicant attended hospital on multiple occasions to tend to her injuries but doctors did not deem her injuries to be serious enough. They did not refer her to any support services but advised her to seek legal assistance;
k.[Mr A] also beat the second applicant when the second applicant was four years of age up to nine years of age;
l.The first applicant fled with her dependent applicants to Australia [in] March 2020. She has not returned to Malaysia except for two weeks in December 2024 when she was compelled to do so to obtain a Malaysian identity card for the second applicant;
m.[Mr A] obtained the first applicant’s phone number from her younger sibling and harassed the first applicant via text message from 2022 to 2024. The first applicant has since blocked her former husband’s number as her children do not wish to engage with their father;
n.The first applicant has been made aware by her younger sibling that [Mr A] has attempted to travel to Australia to locate her and her children but his plans were foiled by an agent who scammed him.
Country information
I have taken into account a range of country information which provides insight on family and domestic violence in Malaysia.
Legislative changes to address family and domestic violence
Amendments to domestic violence law have strengthened protections for victims. In 2017, the law was amended to provide better protections for victims of domestic violence. Domestic violence victims can obtain protection orders which attract a fine and/or prison sentence if breached.[3] There are three types of protection orders that can be obtained applicable to varying circumstances including an Emergency Protection Order issued by the Social Welfare Department that can be applied immediately, an Interim Protection Order issued by the Magistrates Court which can be issued for a longer period while investigations take place, or a Protection Order issued by the Court for one to two years.[4] Emergency Orders reportedly can be difficult to obtain without strong evidence of violence to property.[5] The 2017 amendments broadened the scope of the definition of domestic violence to include spouses, former spouses, children, family members, incapacitated adults who are living as members of the family, and de facto spouses who have undertaken religious or customary marriage.[6] Despite improved protections introduced by the amendments, including broader protection orders for victims and introducing penalties for perpetrators who transgress them, unmarried couples and marital rape remain excluded from the definition of domestic violence and Penal Code respectively.[7]
Effectiveness of state protection
[3] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.120, page 31.
[4] ‘Who is Protected Under the Domestic Violence Act 1994?’, Mondaq, 11 October 2022; DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.120, page 31.
[5] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.120, page 31.
[6] ‘Who is Protected Under the Domestic Violence Act 1994?’, Mondaq, 11 October 2022.
[7] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.120 and 3.121, page 31; ‘Penal Code’, Government of Malaysia, enacted 1936, amended 1 September 2017, section 375A; ‘Domestic Violence Act 1994: An Overview’, Mondaq, 3 February 2021; ‘A brief history of marital rape – New Sin Yew’, Malay Mail, 4 November 2018.
State protection for women experiencing gender-based violence is mixed. While there are special units that deal with gender-based violence, the Department of Foreign Affairs and Trade states that these services were inadequate to meet demand and that families of women who have experienced violence often placed pressure on them to drop the matter, either directly or through police officers dealing with the case.[8] The DFAT report also goes on to say that police often failed to follow up reports on gender-based violence. It was not uncommon for a woman who has experienced violence to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process.[9]
[8] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.117, page 30.
[9] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.118, page 31.
A requirement to deal with the closest police station to the incident can make it difficult for women who experience gender-based violence to relocate. Other barriers include financial costs of living alone and/or paying for additional childcare, especially where family may have previously provided childcare.[10]
Reluctance of persons affected by family and domestic violence to seek help
[10] Ibid.
Although Malaysia amended its domestic violence laws to provide better protections for victims of domestic violence, violence against women continues to be a significant and underreported problem. The Women’s Aid Organization, an NGO, recorded 2,815 cases of domestic violence between 2021 and March 2023.[11] A 2020 study published in BMC Public Health found significant factors which contribute to intimate violence in Malaysia were lower education background, lower socio-economic status, history/current substance abuse and involvement in fights and lack of social support. Societal perception continues to be problematic with a 2021 survey by the Women’s Aid Organization finding that 53 per cent of respondents believing that domestic violence was a ‘normal’ reaction to stress or frustration.[12]
Divorce under Syariah law
[11] Ibid section 3.115, page 30.
[12] Ibid section 3.116, page 30.
Syariah law may adversely affect Muslim women. Malysia’s Constitution prohibits gender discrimination and gives women equal property rights.[13] However, Syariah law can deviate from these constitutional principles in some areas such as Islamic inheritance law that typically favours male children and male relatives.[14] Muslim women have less access to inheritance and divorce rights under Syariah law. Men can unilaterally divorce their wives, but women generally cannot do the same.[15]
Assessment or risk levels
[13] ‘Country Reports on Human Rights Practices for 2023 – Malaysia’, US Department of State, 22 April 2024, section 6, page 16.
[14] ‘Freedom in the World 2024 – Malaysia’, Freedom House, 3 April 2024; ‘Country Reports on Human Rights Practices for 2022 – Malaysia’, US Department of State, 20 March 2023, page 26.
[15] ‘Country Reports on Human Rights Practices for 2023 – Malaysia’, US Department of State, 22 April 2024, section 6, page 16.
DFAT assesses that women and girls in Malaysia face a moderate risk of gender-based violence in the form of domestic violence, and in the case of Muslim girls, also face a high risk of gender-based violence in the forms of female gender mutilation. State protection is available but often inadequate or ineffective in practice. Family, economic, and societal pressures often act as barriers to leaving abusive relationships.[16]
[16] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.125, page 31.
Refugee assessment
Based on the first applicant’s circumstances, I find that if she were to return to Malaysia, she is likely to return to Alor Setar, being her previous place of residence and the area in which her mother resides. Based on the above findings, I consider there is a real chance, being a possibility that it is not remote or far-fetched, that the first applicant would be subjected to harm in the reasonably foreseeable future from her former husband if she were to return to Alor Setar. The threat of harm is heightened by the former husband’s use of illicit substances and pattern of erratic behaviour.
While I acknowledge that nearly five years has passed since the applicant departed Malaysia, I accept that her former husband has continued to show an interest in her whereabouts, has expressed anger at her departure and inability to connect with his children, refuses to divorce her, has tried to travel to Australia to find her and her children and until 2024, persistently harassed the first applicant by text message to allow him to speak to his children. Further, I find there to be a real chance that he would be able to locate and harm the applicant if she were to return to Alor Setar, as evidenced by his efforts to make contact with the first applicant’s younger sibling to obtain the first applicant’s phone number and was successful in doing so.
I accept on the basis of the applicant’s past experiences and circumstances, including her limited education (completion of high school), socio-economic status (employed in part-time and casual roles and currently working in the [work sector]), history of being subjected by ongoing family violence and the above country information that there is a real chance that she will suffer serious harm by her former husband, by way of physical violence, verbal and mental abuse and threats and attempts on her life if she returns to her previous place of residence in Alor Setar. I accept that the harm may include physical and verbal harassment, significant ill-treatment and a threat to the applicant’s life or liberty, such that would constitute serious harm for the purposes of s 5J(5).
In considering whether the harm the first applicant fears is for reasons of her race, religion, nationality, membership of a particular social group or political opinion, I consider that it is for the reason of the applicant’s membership of the following social group:
a.Separated Muslim women in Malaysia who have fled domestic and family violence.
I consider that this group is identifiable by the characteristics of gender, nationality, religion, relationship status and experiences of domestic and family violence, and that the common characteristics or attributes are not a shared fear of persecution. I am satisfied that the harm that the applicant fears is for reason of her membership of particular social groups for the purpose of s 5J(1)(a).
I also accept that the Syariah court has shown bias towards the first applicant’s former husband in revoking the divorce and not allowing subsequent requests for divorce. I have given weight to the Islamic Lower Court judgement which shows that the first applicant’s most recent attempt to divorce her husband in 2024 has been declined yet again. This would mean that the first applicant is seen to still be legally married to [Mr A], and this would give him a right to pursue the first applicant and have access to his children. The barriers that the Syariah court have put up for the first applicant have enabled her former husband to retain control over the first applicant, and to force an unwanted connection between the two of them. I find that there is a real chance that the first applicant would be harmed by her former husband and that he would continue to pursue her and her children as a result of legal authorities not permitting her to cut ties with a spouse who has inflicted significant violence on the first applicant.
I have considered whether this real chance of harm relates to all areas of Malaysia. As per the first applicant’s evidence at hearing, her former husband had pursued her after she tried relocating to Kuala Lumpur. He continues to try to contact and locate her in Australia and refuses to divorce her. Based on the available evidence, I accept that the applicant’s husband would pursue her throughout the country if he were made aware of her whereabouts. As stated during hearing, the first applicant’s former husband was able to convince her younger sibling to disclose her phone number. Further, I am of the view that the hypothetical of the first applicant fleeing and relocating to other areas of Malaysia is futile. She is a single woman (in the sense of being separated from her husband, although not legally divorced) caring for three children and whose former husband has persisted in locating her regardless of her location or what country she resides in and refuses to divorce her. I find there is a real chance that the first applicant would be harmed by her former husband in all areas of Malaysia.
In light of the above country information and the first applicant’s past experiences, I am not satisfied that the applicant would be able to access adequate state protection. The first applicant has provided significant corroborating evidence of her numerous attempts to report her former husband’s violence towards her to police. As experienced first-hand by the first applicant, the police in Malaysia have been unable and unwilling to provide her with protection and a viable long-term solution to the ongoing violence she suffered at the hands of her former husband. This experience is supported by country information which states that reports of gender-based violence is often not followed up by police.[17] I find that effective protection measures, as set out in s 5LA, would not be available to the applicant with respect to harm from her former husband.
[17] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.118, page 31.

I am also satisfied that the first applicant does not have a right to enter and reside in a third country and meets s 36(3) of the Act.
I find that the first applicant is a refugee as defined in s 5H(1) of the Act. Accordingly, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
I am satisfied that the second, third and fourth applicants are dependent children of the applicant, and are members of the same family unit as the first applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first applicant’s application. It follows that the second, third and fourth applicants will be entitled to a protection visa, provided the criterion in s 36(2)(b)(i) and the remaining criteria for the visa are met.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the second, third and fourth applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a). However, the Tribunal is satisfied that the second, third and fourth applicants, being the nephew and sons of the first applicant, belong to the same family unit as the first applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first applicant’s application. It follows that the second, third and fourth applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
T H R Baggiano
General Member
Date of hearing:   25 February 2025
Representative for the Applicants:            Mr Md Jibril Bin Khalid
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.
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