2404202 (Refugee) - [2025] ARTA 1888

2404202 (Refugee) [2025] ARTA 1888 (28 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2404202
Tribunal:General Member K McGrath
Date:28 July 2025

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

Statement made on 28 July 2025 at 11:12am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – Muslim women – domestic violence – physically beaten, kicked and raped by spouse – marriage voided due to no consent from wali – divorced – relocated but was found – mentally and emotionally abused her parents – child witnessed violence – consistent, credible and persuasive evidence – police reports, photographs of injuries, witness statement and official documentation relating to marriage – narrative of experiences reflect family violence – threats of violence continue – gender-based violence – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), Explanatory Memorandum
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Khawar (2002) 210 CLR 1
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 on 28 February 2024, to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Malaysia, applied for the visa on 6 January 2024.
The applicant appeared before the Tribunal on 29 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Brother A] by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The applicant was born in Perak, Malaysia on [date]. In Malaysia, the applicant lived exclusively in Selangor. The applicant travelled to Australia on a subclass 601 Electronic Travel Authority visa [in] March 2017 and again [in] November 2018. She returned to Australia [in] November 2023,on the same type of visa.
Evidence before the delegate
On 6 January 2024, the applicant applied for a protection visa. Her online protection visa application sets out that the applicant was physically beaten, kicked, and raped many times by her husband. She divorced him and tried to move to other houses and places to evade him, but he would eventually find her. At midnight, he broke down the door of her house and attacked her. The applicant made two police reports in relation to these incidents.
The applicant’s husband also used to attack her parents. He would go to their house, refuse to leave and “torture my parents mentally and emotionally”. The applicant made another police report to remove him from her parent’s home.
Reporting these matters to the police never changed the applicant’s situation in Malaysia.
A few days before lodging the protection visa application, the applicant tried to get copies of these police reports. She was told that she had to go personally to get a copy of the reports.
The applicant fears that she will continue to live a life in abuse and pain if she returns to Malaysia. She might take her own life as she cannot handle the pressure, stress and mental and physical torture any further. She does not think that the Malaysian authorities can offer her protection as, if they could help, they would have done so while she was in Malaysia.
A copy of the bio-data page of the applicant’s passport, Malaysian Identity Card and two pages of medical records were before the delegate.
The applicant was not invited to an interview by the delegate in relation to this application.
On 28 February 2024, the delegate refused to grant the applicant a protection visa.
Evidence before the Tribunal
The applicant applied to the then Administrative Appeals Tribunal (AAT) on 06 March 2024 for review of the delegate’s deciion.
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), 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.
On 24 February 2025, the applicant returned a pre-hearing information form to the Tribunal. That form re-iterated the applicant’s claims in relation to being beaten and kicked “multiple times” and raped “too many times” by her ex-husband. The form provides additional information about what happened after the applicant divorced her husband. After the divorce, things got worse. Her husband did not want to move out. She changed the locks, but he broke the locks. She reported this to the police. He forced her to remarry him. He was put in jail by the police because he had drugs but was released a few days later. He had a police friend. He said that he if cannot marry her, he will make her regret it.
On 27 March 2025, on request from the Tribunal, the applicant provided a copy of her marriage certificate (in the Thai language) and divorce certificate (in the Malay language). She also provided a duplicate copy of the biodata page of her Malaysian passport.
On 28 May 2025, the applicant appeared before the Tribunal. The applicant maintained her claims. In addition, she stated that she has [children] with her former spouse, [children’s names and ages deleted], who currently reside with her mother-in-law.
At hearing, the applicant described that she currently lives with her new partner, who is Christian and a national of [Country 1] (hereafter ‘new partner’). They plan to stay together but the applicant is not sure about whether they will marry as they are from different religions. She does not think that the Muslim community in Malaysia will accept her, because her partner is of another religion. The applicant stated that this would draw undue attention in Malaysia. She said; “they won’t come and cause trouble but it’s just not an ideal situation”. The applicant stated that she did not think her partner would return to Malaysia with her if she was to return, for these reasons, and because he is from [Country 1] and has permanent residence in Australia.
The Tribunal received oral evidence from the applicant’s brother, [Brother A], by telephone at the hearing. The Tribunal did not take evidence from the applicant’s second witness, [Friend A], at hearing as she was only available outside of business hours.
On 26 June 2025, the Tribunal requested the applicant to provide further documents, as discussed with the applicant at hearing. The applicant subsequently requested an extension of time to provide these documents, which was granted.
On 10 July 2025, the applicant provided the following;
a.NAATI-accredited translation of stamped copy of the applicant’s marriage certificate,
b.Eight photographs of bruising, cuts, and abrasions,
c.Three police reports lodged by the applicant in relation to the conduct of her spouse/former spouse, [Spouse A][1],
d.NAATI-accredited translation of a copy of a referral by the Islamic Religious [Department 1] of an application for registration of an Islamic marriage to Lower Syariah Court, dated [July] 2020,
e.NAATI-accredited translation and stamped copy of an Order of the Lower Syariah Court declaring the marriage between the applicant and her spouse not to be valid and ordering that the couple separate immediately, dated [August] 2020,
f.NAATI-accredited translation and stamped copy of an Order of the Lower Syariah Court declaring that the applicant’s children can bear their father’s name, dated [October] 2020,and
g.Signed letter of [Friend A], a friend of the applicant, dated 5 July 2025.
CONSIDERATION OF CLAIMS AND EVIDENCE
[1] [Spouse A] will be referred to throughout the Tribunal’s reasoning as the applicant’s spouse or former spouse, except when referring to the applicant’s written testimony.
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.
ANALYSIS, REASONS AND FINDINGS
Receiving country
The Tribunal finds that the applicant is a national of Malaysia as the applicant has provided her original Malaysian passport for sighting, has consistently maintained that she is a national of Malaysia and there is no evidence before the Tribunal that suggests that she may not be a national of Malaysia. Accordingly, the Tribunal will assess this application with reference to the Malaysia as both the country of the applicant’s nationality and the receiving country.
The applicant’s experience of family violence in Malaysia
The issue in this case is whether the applicant faces a real chance of continued violence at the hands of her former spouse on return to Malaysia now, or in the reasonably foreseeable future, and if so, whether the applicant meets the refugee or complementary protection criteria on this basis. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The applicant has provided credible evidence
The Tribunal finds that the applicant’s evidence at hearing was credible and persuasive.
Her oral evidence is consistent with her protection visa application and pre-hearing information form. The applicant responded clearly, relevantly and in detail to questions asked of her at hearing. It did not appear that the applicant was exaggerating her claims. The applicant presented as deeply distressed at hearing.
The applicant’s evidence is also plausible with reference to country information and information about the dynamics of family violence (as below).
Finally, her evidence is supported by NAATI-accredited, stamped, official documentation. It is also supported by her witnesses. The Tribunal gives some weight to the evidence of the applicant’s brother, given by telephone at hearing, and of her friend, provided in writing. The evidence of both witnesses is consistent with that of the applicant.
In sum, the Tribunal finds that applicant’s evidence at hearing to be credible as it is consistent, plausible and supported by official documentation as well as by her witnesses.
The applicant is Muslim
The Tribunal finds that the applicant is Muslim because this is documented on her Malaysian identity card (a scanned copy of which is before the Tribunal). Similarly, Malaysian Syariah Courts made orders in relation to the validity of her marriage and whether her children could take the name of her former spouse. Only Muslims are subject to syariah law and courts in Malaysia[2]. Further, the applicant was consistent in relation to this in her protection visa application and at hearing and provided an oath on the Quran at hearing.
The applicant married her spouse in Thailand
[2] ‘Malaysia: Overview of Muslim Family Laws and Practices’, Musawah For Equality in the Family, 22 February 2022. Available at >
The Tribunal finds that the applicant purported to marry [Spouse A] in Thailand in January 2012 because this is documented on her stamped marriage certificate (with NAATI-accredited translation).
In addition, the applicant’s evidence about this purported marriage was internally consistent. It was also consistent with country information in four respects: first, that permission of a male relative (a wali) is required for a Muslim woman to validly marry in Malaysia[3]; second, that couples in Malaysia often seek to circumvent these and other requirements by marrying offshore, including in Thailand[4]; third, that these offshore marriages must be registered with the State Islamic Religious Department in order to be recognised in Malaysia[5] and failure to do so can lead to difficulties, including in relation to the children of that marriage[6], and finally, that young, Muslim couples may get married because sexual intercourse outside of marriage is illegal under syariah law in Malaysia[7].
The applicant’s marriage has been declared to be invalid
[3] ‘Sixth periodic report submitted by Malaysia under article 18 of the Convention, due in 2022 : Convention on the Elimination of All Forms of Discrimination against Women’, Malaysia, 16 May 2022, at [124]. Available at Selangor Islamic council says only recognising overseas Muslim marriages registered with Jais’, Malay Mail, 8 January 2023. Selangor Islamic council says only recognising overseas Muslim marriages registered with Jais’, Malay Mail, 8 January 2023. ‘Selangor Islamic council says only recognising overseas Muslim marriages registered with Jais’, Malay Mail, 8 January 2023. ‘Intimacy under surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nural Huda Modh. Razif, Journal of Women of the Middle East and the Islamic World 18 (2020) 325-326, at p335-336.

The Tribunal finds that the applicant’s marriage has been declared to be invalid. Again, this is documented in a stamped court order (with NAATI-accredited translation). Further, the applicant’s evidence on this point has been internally consistent and is supported by country information. Specifically, Section 11 of the Islamic Family Law (Federal Territories) Act 1984 sets out that a Muslim marriage is void unless all conditions necessary, according to Hukum Syarak, are satisfied. Section 13 of that Act confirms that consent of the women’s wali is a condition of Hukum Syarak[8]. As the applicant married without the consent of her brother, who is her wali, her marriage is not valid.

The applicant experienced family violence

[8] Islamic Family Law (Federal Territories) Act 1984, Malaysia. Available at >

The Tribunal finds that the applicant experienced family violence at the hands of her spouse/former spouse from around 2017 until she fled Malaysia in 2023.

The applicant’s evidence is that her spouse hit, beat, slapped, kicked, pulled her by her hair, and raped her. At the start of her relationship, everything seemed perfect. She loved her spouse very much.

Later, he lost his job. He started to drink and use drugs. They had an argument about their car, which had been repossessed due to missed repayments. Her spouse became a different person, he started hitting her. She was so scared. She fled, with [Child A], to a hotel and later, reported the incident to the police. She was sent by the police for a medical examination. The doctor asked her if she really wanted to do this. Because it was the first time, and because she still loved him, she said no, and returned home.

When she returned, he “sweet talked” her and everything was fine for a few days. After that few days, they started fighting again and the applicant’s spouse kicked and slapped her and “all the bad things”. When he cooled down, he said that he was sorry, and he was just angry. He said that he loved her so much, but soon the violence started again. The applicant quit her studies and reduced her contact with her mother. She had grown up without a father, so her spouse’s love was very important to her. She felt that her spouse loved her so much and that she could not live without him. She also felt that no one else would want her, as she already had [children].

Her spouse started to have affairs. The applicant came to see that it was not love anymore but she did not want her [children] to grow up without a father, as she had. She started to tell her spouse that she hated him but that she just stayed with him for her [children]. Things got worse. It might be ‘OK’ for one day but then, for three or four days, he would “scream like crazy”. He beat and raped her. [Child A] witnessed an incident between the applicant and her spouse. The applicant comforted her. The applicant’s daughter was shaking in the applicant’s hands. The applicant thought; “what did I do to my daughter, I want her to have a father but not in this way”.

By this time, [Child A] was approaching school age. She needed to be registered in order to attend school. The applicant asked her spouse to come with her to register their daughter. He refused. She took her daughter and went to the Muslim court to ask for her marriage in Thailand to be registered so that [Child A] could be registered. She told the Muslim court the truth about her wali, that she did not have a male relative as a wali when she married. The court said that this was really wrong. She and her spouse returned to the court together. The court said that their marriage was void and they could re-marry in the correct way if they wanted to stay married.
The applicant’s former spouse said that they needed to get married again. The applicant said that she did not want to and that she could not live like this anymore. For a few days, he was sweet. He said things like; “let’s marry again” and “let’s start our family again”. He said that he did not have anywhere else to go. Even though it is not allowed in her religion, the applicant told her former spouse that he could stay in the house for a few days. When that time passed, he refused to leave the house. Within one or two weeks, he was again kicking, hitting, slapping and raping the applicant. The applicant repeatedly asked her former spouse to leave the home, but he refused.
The applicant changed the locks. When she returned home, her former spouse had broken into the home and was again acting sweetly. The applicant again went to the police. It was not long before her former spouse’s violence started again. The applicant’s mother was overseas, and the applicant offered her mother’s home to her former spouse, with her mother’s permission. The arrangement was that he was to pay some bills. After some months, he had not paid any bills but would also not leave the house. The applicant and her brothers reported this to the police. The applicant’s spouse ran away from the police for some time but then returned to the applicant’s home. The applicant felt that she could no longer stay in that home and moved with her [children] from place to place, one week here, one week there, for a few months, staying first in hotels and later in ‘air bnbs’ because they were cheaper.
The applicant needed a place to stay more permanently so that her children could settle in to school. She moved to Rawang to start a new life. She did not tell her former spouse of her location. Within a few months, her former spouse located her and again started to live with the applicant. She repeatedly asked him to leave. She said that it was not good because her neighbours knew that she was a single mother. She could not be seen to live with a man to whom she was not married. He said that she was still his wife. Her former spouse’s violence continued. In one incident, he had something in his hand and bashed her with it. She took a knife and said to him; “just take the knife and kill me, I can’t live like this anymore”. She was so scared and angry that she gave the knife to her former spouse. During this period, the applicant’s former spouse also threatened her saying; “If I cannot get you, no-one is going to get you. I will kill you”. In another incident, she was on the street with a male friend. Her former spouse tried to hit her with a car. He said; “if you do that again, I will kill you”.
Later, he again saw her with this friend. The applicant describes that; “he became crazy. He pushed me, knocked my head against the door and just stayed at home like husband and wife. I thought what is going to happen to me”. At this time, the applicant’s mother had a fall in Australia. The applicant planned to travel to Australia to help bring her mother back to Malaysia. She left Malaysia and has not returned.
While the applicant has been in Australia, her former spouse has continued to contact her. He demands money so that he can travel to see their [children]. She does, on occasion, provide him with this money. Approximately one month before the hearing, the applicant told her spouse that she was not going to give him money anymore. He cursed her. She blocked his number. Subsequent to this, he contacted the applicant from his mother’s phone (the applicant’s mother-in-law, who has care of their children). He threatened that she would regret it, if she showed up in front of him.
The Tribunal finds the applicant’s evidence, as set out above, about her experiences of family violence to be credible. This is because, as set out above, the Tribunal found the applicant’s oral evidence, which focused on her experiences of family violence, to be persuasive and credible. In addition, the applicant’s claims relating to family violence are supported by significant documentation in the form of three police reports, photographs of injuries, a witness statement and official documentation relating to the marriage. The Tribunal finds these documents to be consistent with, and supportive of, the applicant’s testimony and gives weight to these documents. The applicant’s oral evidence was consistent with that documentation, creating a persuasive timeline of a purported marriage, a police report relating to the first act of violence, court orders relating to the invalidity of the marriage and the status of the children and further police reports.
The applicant’s evidence is also plausible with reference both to country information and the dynamics of family violence. In terms of country information, the Department of Foreign Affairs and Trade (DFAT) sets out that family violence against women is prevalent in Malaysia[9].
[9] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.115] - [3.116].
Further, the applicant’s evidence, as set above, reflects known dynamics in relationships involving family violence, specifically the cycle of violence and escalation. The narrative set out above reflects multiple rounds of the cycle of violence: with tensions building, then an incident or incidences of abuse, then reconciliation and calm, with the applicant’s spouse/former spouse apologising, “sweet talking” and refraining from violence, and then a return to the start of the cycle, with tensions again building[10]. The above narrative also shows the violence escalating over time, to the point where the applicant’s former spouse threatened to kill her[11]. Finally, this narrative reflects the ways in which family violence leads to women becoming isolated and experiencing escalating feelings of hopelessness and helplessness, seen as the applicant withdrew from her university studies and her relationship with her mother and felt so helpless that she handed her former spouse a knife and told him to kill her[12].
[10] ‘Domestic Violence Cycle’, Relationships Australia Queensland, 19 April 2021. Available at
[11] ‘Trends and Issues in crime and criminal justice: How does domestic violence escalate over time?’, Haley Boxall and Siobhan Lawler, Australian Institute of Criminology, May 2021. Available at ‘What is Isolation as Abuse’, yourtoolkit.com, undated. Available at ‘Domestic Violence and Abuse in Intimate Relationship from a Public Health Perspective, Zlatka Rakovec-Felser, Journal of Psychological Research, 22 October 2014. Available at >
The Tribunal has considered the applicant’s delay in lodging her protection visa application. The applicant visited Australia on two occasions, once in 2017 for approximately one week, and once in 2018, for approximately two weeks, without lodging a protection visa application. She returned to Australia in November 2023 and lodged her application within two weeks of that arrival. The Tribunal accepts the applicant’s evidence that she did not know about protection visas on her earlier trips to Australia and that she only came to know of such visas through the social worker who was assisting her mother during the hospitalisation that led the applicant to travel to Australia. Accordingly, the Tribunal does not draw an adverse credibility inference from the applicant’s delay in lodging her protection visa application.
In sum, the Tribunal finds that the applicant is a Muslim woman who purported to marry [Spouse A] and who experienced family violence perpetrated by him from around 2017 until she travelled to Australia in 2023, as set out above. The Tribunal also finds that the marriage was declared invalid in 2020, but that the applicant’s former spouse’s violence continued unabated.
Real chance of serious harm
The Tribunal finds that the applicant would return to Puchong, Selangor on return to Malaysia. The Tribunal accepts the applicant’s evidence that her mother, and one of her brothers, reside in Puchong and that the applicant has never resided in Malaysia in a place other than Selangor.
Violence against women is a significant problem in Malaysia[13]. While domestic violence is a crime, marital rape is not[14]. There are significant deficiencies in the enforcement of the laws prohibiting domestic violence[15] (set out in more detail below).
[13] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.115].
[14] 2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at
[15] 2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.117] – [3.125].
The Tribunal has found that the applicant’s former spouse perpetrated family violence against her for approximately seven years, with the most recent act of violence (when the applicant was pushed, and her head knocked against a door) occurring only eighteen months ago, directly before the applicant travelled to Australia. The Tribunal has found that this violence continued despite the marriage between the applicant and her spouse being declared invalid and despite the applicant moving multiple times to try to evade her former spouse. The Tribunal has found that the applicant’s former spouse has threatened her as recently as one month ago.
The Tribunal finds that this recent past harm, that was not averted by the couple’s marriage ending or by the applicant moving locations form a strong foundation for determining what may happen in the future.
Considered alongside the recent threats of harm, the Tribunal finds that there is a real chance that the applicant’s former spouse will perpetrate serious harm on the applicant on her return to Puchong, Selangor now or in the reasonably foreseeable future (s5J of the Act).
The Tribunal finds that that serious harm would take the form of physical abuse, including being hit, beaten, slapped, kicked, pulled by her hair, as well as sexual abuse including rape. The Tribunal finds that this significant physical ill-treatment constitutes serious harm as required by s5J(5) of the Act.
Refugee reason – particular social group of Muslim women
The Tribunal finds that the applicant belongs to a particular social group in Malaysia of ‘Muslim women’. Gender based groups can appropriately form the basis of a particular social group[16]. ‘Muslim women’ satisfies the relevant legislative requirements in section 5L as;
a.All members of the group share the characteristics of being Muslim and female,
b.On return, the applicant would share each of these characteristics,
c.Each characteristic meets one or more of the requirements is section 5L(c) as: being Muslim is a characteristic so fundamental to the applicant’s identity that she should not be forced to renounce it; and gender, in the applicant’s circumstances, is an immutable characteristic, and
d.These shared characteristics are not a fear of persecution.
[16] MIMA v Khawar (2002) 210 CLR 1 at [35], [81], [128] – ]129].
That Muslim women is a particular social group in Malaysia can further be seen as there are laws in Malaysia that apply only to this group[17]. For example, members of this group are unable to marry without permission from a guardian or the courts and are unable to unilaterally divorce their husbands without a protracted legal process[18]. This distinguishes Muslim women from Muslim men[19] and non-Muslim women[20]. Muslim women are recognised as a distinct group in Malaysian society[21].
[17] Association of Women Lawyers, Musawah, Sisters in Islam (authors), CEDAW (ed. or publisher): Thematic Report on Muslim Family Law and Muslim Women's Rights in Malaysia; 88th CEDAW Session, May 2024
[18] Association of Women Lawyers, Musawah, Sisters in Islam (authors), CEDAW (ed. or publisher): Thematic Report on Muslim Family Law and Muslim Women's Rights in Malaysia; 88th CEDAW Session, May 2024 at p15-16
[19] Association of Women Lawyers, Musawah, Sisters in Islam (authors), CEDAW (ed. or publisher): Thematic Report on Muslim Family Law and Muslim Women's Rights in Malaysia; 88th CEDAW Session, May 2024 at p15-16
[20] In Malaysia, Muslim women are subject to state-based syariah law in relation to family and personal laws. These laws do not apply to non-Muslim women. 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.41] – [3.42]. See also Association of Women Lawyers, Musawah, Sisters in Islam (authors), CEDAW (ed. or publisher): Thematic Report on Muslim Family Law and Muslim Women's Rights in Malaysia; 88th CEDAW Session, May 2024 at p5
[21] ‘Intimacy under surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nural Huda Modh. Razif, Journal of Women of the Middle East and the Islamic World 18 (2020) 325-326, at p328.
The Tribunal finds that the applicant’s spouse/former spouse has, and would continue, to perpetrate family violence, a form of gender-based violence, against the applicant, because she is a woman, and more specifically in this case because she is a Muslim woman. The essential and significant reason that the applicant faces harm is because of her membership of the particular social group, in Malaysia, of Muslim women (s5J(1)(a)) and s5J(4)a)).
Internal relocation
However, the Tribunal finds that the real chance of serious harm faced by the applicant does not extend to all areas of Malaysia, as required by section 5J(1)(c)).
The Tribunal has found that the applicant’s former spouse will seek to harm her on return to Malaysia. Further, the Tribunal has found that the applicant’s former spouse found her and continued to abuse her, when she moved to Rawang, Selangor, despite the applicant not disclosing her location to him. The Tribunal finds that the applicant’s former spouse would seek to find and harm the applicant wherever she may reside in Malaysia.
The Tribunal further finds, based on the applicant’s evidence, that her former spouse will come to know that she has returned to Malaysia because she will collect her children from the care of his mother, who her former spouse visits from time to time.
The Tribunal finds that the applicant would face a real chance of serious harm from her former spouse in all areas of Malaysia in which the applicant and/or her former spouse have some connection, these being Selangor (where they lived as a couple), the Federal Territory of Kuala Lumpur (where the applicant’s former spouse has worked) and Kelantan (where her former spouse grew up and where their children currently reside, with the applicant’s mother in law).
However, the Tribunal is not satisfied that the applicant’s former spouse has any ability to locate the applicant outside of those States and Territories of Malaysia. The applicant’s former spouse is a private citizen. There is no evidence before the Tribunal to suggest that he has access to official records or to any networks that would allow him to locate the applicant more broadly within Malaysia.
The applicant raised concerns at hearing that someone (for example, her mother-in-law, a friend or family member) may disclose, possibly incidentally, her location to her former spouse and that it is possible that, through the operation of her online business, which the applicant requires to supplement her income, the applicant’s former spouse may come to know of her whereabouts by ordering a product in the name of another person and then seeing the return address once that product is delivered. However, the Tribunal considers that the applicant would only provide her new location to those whom she was confident would not disclose it to her former spouse, incidentally or otherwise. In relation to the business, there is no evidence before the Tribunal that the applicant could not conduct her online business in a way that did not disclose her location.
In these circumstances, the Tribunal is not satisfied that the applicant would face a real chance of serious harm in any Malaysian State or Territory other than Selangor, the Federal Territory of Kuala Lumpur and Kelantan. The Tribunal acknowledges that as a non-Sabah and Sarawak resident, there are legal impediments to the applicant establishing herself in these areas. The Tribunal, however, considers all remaining States and Territories of Malaysia to be safe for human habitation and the applicant to be able to access those areas safely and lawfully[22].
[22] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [5.23] – [5.25].
Accordingly, the Tribunal finds that the real chance of persecution faced by the applicant does not extend to all areas of Malaysia. The Tribunal finds that the applicant does not meet the requirements of section 5J(1)(c) of the Act.
Does the applicant satisfy the refugee criterion for protection?
The applicant has raised claims of family violence. In relation to those claims, the Tribunal finds that the applicant faces a real chance of serious harm in the form of significant physical ill-treatment on return to Malaysia, now and in the reasonably foreseeable future, because of her membership of the particular social group of Muslim women, within Malaysia. However, the Tribunal finds that real chance of serious harm to be localised. Accordingly, the Tribunal finds that the applicant does not meet the requirements of section 5J(1)(c) of the Act and is not a person in respect of whom Australia has protection obligations because the person is a refugee, under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) on the basis of her family violence claims, the Tribunal has considered the alternative criterion in section 36(2)(aa).
Real risk of significant harm
As above, the Tribunal is satisfied that there is a real chance that the applicant’s former spouse will perpetrate physical abuse, including hitting, beating, slapping, kicking, pulling her by her hair, as well as sexual abuse including rape, on the applicant on her return to Puchong, Selangor, now or in the reasonably foreseeable future.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).

Accordingly, the Tribunal finds that the applicant faces a real risk of such harm on return, now or in the reasonably foreseeable future (s36(2)(aa)). Further, the Tribunal finds that that harm constitutes significant harm. The Tribunal finds that repeated physical assault and rape, within the applicant’s home, often in the presence of her [children], that the applicant feels powerless to prevent, constitutes both physical and mental pain and suffering that can reasonably be regarded as cruel and inhuman in nature. The Tribunal finds that this pain and suffering would be intentionally inflicted by the applicant’s former spouse and, as such, constitutes cruel, or inhuman or degrading treatment.
Faced by the applicant personally
The Tribunal finds this real risk to be faced by the applicant personally, and not by the population of the country generally, as the applicant, specifically, is being targeted by her former spouse (s36(2)(B)).
Internal relocation
The Tribunal has found that the applicant would not face a real chance of serious harm within the States and Federal Territories of Peninsular Malaysia that are not Selangor, the Federal Territory of Kuala Lumpur and Kelantan. Similarly, the Tribunal finds that the applicant would not face a real risk of significant harm within the States and Federal Territories of Peninsular Malaysia that are not Selangor, the Federal Territory of Kuala Lumpur and Kelantan
However, the Tribunal finds that it would not be reasonable for the applicant to relocate from Selangor to any other place in Malaysia. The Tribunal finds that conditions in any area other than Selangor would be unduly harsh for the applicant. She would not be able to live a relatively normal life, judged by the standards in Malaysia generally.
The Tribunal finds, based on the applicant’s evidence, that her new partner would not return with her to Malaysia. The Tribunal finds that the applicant would be relocating as a single mother, of [children under a certain age], to an area in Malaysia that she had never previously resided and has no family. Further, she would be experiencing the ongoing impacts of her prolonged experience of family violence, which is a form of complex trauma. She would be facing an ongoing risk of harm from her former spouse which, while not amounting to a real chance or real risk, is nonetheless not negligible. She would be unable to visit her elderly mother, who is unwell. Her children would be unable to have contact with the applicant’s mother-in-law, who has been their primary carer while the applicant has been in Australia, as this may otherwise lead to the applicant’s former spouse coming to know of her location. This will have a negative impact on the children and consequently, the applicant as their mother. Finally, as highlighted by DFAT, the applicant, as a single woman escaping family violence, would face barriers to relocation including the financial costs of living alone and paying for childcare[23].
[23] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.119].
In these circumstances, the Tribunal finds that it is not reasonable for the applicant to relocate to any area where there would not be a real risk that she would suffer significant harm (s36(2B)(a)).
State protection
The Tribunal finds that the Malaysian State would not provide protection such that the applicant would not face a real risk of significant harm in Malaysia.
Country information confirms that domestic violence, but not marital rape, is a crime in Malaysia[24]. Emergency Protection Orders are provided for under the legislative framework and crisis centres at hospitals and women’s shelters do exist[25].
[24] 2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.117] – [3.123]
However, this is not sufficient to reduce the risk to the applicant to less than a real risk. Country information confirms that police units set up to deal with family violence are inadequate to meet demand[26]. The police themselves can pressure women to drop their cases and “often” fail to follow up on reports of family violence[27]. Non-government organisations have reported that “the government did not act in cases of domestic violence; victims had to gather and maintain evidence, gather witness testimony, and ensure their own safety”[28]. Further, Emergency Protection Orders are difficult to obtain and not always enforced[29]. On this basis, DFAT concludes that, for women experiencing family violence in Malaysia; “state protection is available but often inadequate or effective in practice”[30].
[26] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.117].
[27] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.117] – [3.118].
[28] 2023 Country Report on Human Rights Practices: Malaysia’, United States’ Department of States, 23 April 2024 Available at 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.121].
[30] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 24 June 2024 at [3.125].
The applicant’s own experiences in Malaysia are consistent with this country information and highlight the deficiencies of State protection for victims of family violence. The Tribunal accepts, based on the applicant’s evidence and supporting documents, including police reports, that the applicant has sought protection from the police in Malaysia on three occasions. The Tribunal also finds that the applicant’s former spouse was once detained for a short period on drug charges, in response to these reports. The Tribunal accepts that the physician at the relevant hospital pressured the applicant against completing a medical examination that may have enabled her to pursue a protection order against her spouse. The Tribunal further accepts that, on one occasion, the police blamed the applicant for her former spouse’s violence, saying that she should not have allowed her former spouse to stay in the house after their marriage was found to be invalid. The Tribunal accepts that no application for a Protection Order has ever been made by the police to protect the applicant, nor has he been warned or detained other than in relation to drug charges, as above. In summary, despite three report to police in relation to her former spouse’s violence, the applicant has never been provided with effective protection by the Malaysian State.
Accordingly, the Tribunal is satisfied that the applicant cannot obtain, from an authority of the country, protection such that there would not be a real risk that she will suffer significant harm in the form of family violence in Malaysia.
The applicant’s current partnership with a Christian man
The applicant has raised claims arising from her relationship with her new partner, who is Christian. It has not been necessary for the Tribunal to consider these claims.
THIRD COUNTRY PROTECTION
The Tribunal finds that section 36(3) does not apply to the applicant.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a), the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
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.
…

at p 5 and 8-9.

and ‘Sixth periodic report submitted by Malaysia under article 18 of the Convention, due in 2022 : Convention on the Elimination of All Forms of Discrimination against Women’, Malaysia, 16 May 2022, at [124]. Available at