2423365 (Refugee)
[2025] ARTA 1770
•2 July 2025
2423365 (REFUGEE) [2025] ARTA 1770 (2 JULY 2025)
DECISION AND
REASONS FOR DECISION
Representatives: Ms Sonia Oki and Mr Timothy Gerard Madigan
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2423365
Tribunal:General Member T H R Baggiano
Date:2 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)(a) of the Migration Act.
Statement made on 02 July 2025 at 2:28pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – women and children – single mother – victim of family violence – gender-based violence – physical assault – threats of killing – employment – mental health issues – internal relocation – unregistered marriage – illegitimate children – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal) Act 2024 (Cth), ss 106, 348
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCA 437
Selvadurai v MIEA (1994) 34 ALD 347Any 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 12 July 2024 to refuse to grant the applicant a protection visa 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), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. The decision and statement of reasons is made by the Tribunal.
The delegate refused to grant the visas on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to be [an age]-year-old national of Malaysia. She has claimed her place of birth as Johor, her ethnicity as Malay and her religion as Islam.
The applicant arrived in Australia [in] November 2019 as the holder of an Electronic Travel Authority (subclass 601).
The applicant provided a copy of the biodata page of her passport as part of her protection visa application. The delegate found that the applicant is a citizen of Malaysia, and there is no information before me to the contrary. I find that the applicant is a citizen of Malaysia, and that Malaysia is her receiving country for the purposes of assessing her claims.
Procedural history
On 25 January 2020, the applicant applied for a protection visa.
On 12 July 2024, the delegate refused the protection visa application.
On 17 July 2024, the applicant applied for review of her refused protection visa application with the Tribunal.
On 20 May 2025, the Tribunal sent a ‘Notice of Hearing’ letter to the applicant and invited her to her to appear before the Tribunal to give evidence and present arguments on 21 July 2025. The applicant her attendance for the hearing.
On 21 May 2025, the applicant’s representative requested that the Tribunal consider submissions provided to the Tribunal on 19 November 2024 and make a favourable decision without the need for a hearing.
Despite the delegate advising the applicant twice in September 2021 that she would be invited to an interview, this did not eventuate.
On review of all written material and evidence provided to date, the Tribunal assessed that it had sufficient information before it to make a decision on the papers without a hearing.
Making a decision without a hearing
The circumstances in which the Tribunal may reach a decision without a hearing in respect of a reviewable decision is set out in s 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). Section 106(1) provides that the Tribunal may make its decision in the proceedings in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of the subsections (2) to (5) are applicable.
Section 106(3) of the ART Act states that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the proceedings or hearing of the proceeding are the applicant and the non-participating party, the applicant requests the Tribunal to make its decision without holding a hearing or the decision is wholly in favour of the applicant, and the Tribunal is satisfied the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
Section 348A of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act. I note that this matter involves only the applicants and a non-participating party, being the Minister for Immigration and Multicultural Affairs.
The Tribunal has before it copies of the Department’s files, which includes the applicant’s protection visa application form and written claims, the applicant’s response to the delegate’s three request letters issued under s 56 of the Act and the delegate’s decision records. Based on this information, the Tribunal is able to determine the applicant’s identity and receiving country. It is also able to form conclusions about whether the applicant meets the criteria for a protection visa under ss 36(2)(a) and 36(2)(aa) of the Act without seeking further evidence or submissions from the applicant.
On the basis of the above information and relevant criteria in s 106(3) being met and in accordance with the applicant’s request, I am satisfied that the matter can be adequately determined wholly in the applicant’s favour without holding a hearing.
Evidence before the Department
Protection visa application
In the applicant’s protection visa application, she claimed to have left Malaysia because she was running away from her former husband.
She claimed the following:
a.She was not given any protection when she was physically and mentally abused by her former husband, which eventually led to divorce;
b.After divorce, her former husband kept harassing her and threatened to hurt her child as much as he had hurt the applicant previously;
c.She was emotionally and economically affected;
d.During the marriage, the human resources department of her workplace asked her to quit as her domestic violence issues were causing trouble within her workplace;
e.She was assaulted, harassed and battered during the marriage;
f.She was living under pressure and depression;
g.She had evidence of the domestic violence but it was destroyed by her former husband when she chose to move out of the family home;
h.The domestic violence caused her depression;
i.She did not seek help within Malaysia as her former husband threatened her and demanded she not lodge a police report if she wanted her child to be safe;
j.Her former husband threatened to take her child from her if she did not obey his instructions;
k.Her family helped her a lot during the marriage by encouraging her to file the divorce application which further angered her former husband and resulted in violence;
l.She did not try to relocate to any other part of Malaysia as she believed there was no way she and her child could move to other states. She and her child were being followed and watched by her former husband, and he also knew where her parents and relatives lived within Malaysia;
m.She believes that if she returned to Malaysia, she would be harassed, assaulted and hurt if she refuses his needs or instructions;
n.Her former husband only showed his true colours when they were together, but in public, he showed a different side;
o.She believes that she will be living under pressure and will be depressed and might kill herself if she returns to Malaysia;
p.She felt safe when arriving in Australia and she does not see her protection to be guaranteed if she returns to Malaysia since she cannot report her former husband;
q.She does not believe that authorities within Malaysia could protect her because her marriage is not registered in Malaysia, and she cannot seek protection from the magistrate. For non-registered marriages, a fine must be paid first before any protection can be obtained. This would be difficult as her former husband does not want to register the marriage;
r.She does not believe that she could relocate within Malaysia to avoid harm as she would be followed and the same situation would happen to her again as her former husband is actively looking for her.
With the limited assistance of a migration lawyer from the United Workers Union, the applicant also provided a more detailed statement of claim dated 17 May 2021.
In this statement, the applicant provided details of:
a.growing up in a large family with [number] siblings and where her father was married to two women. She came from a ‘broken’ family and was raised by her paternal grandparents;
b.the progression of her relationship with her former husband, Mr H, and how it resulted in the applicant becoming his second wife;
c.her inability to finish school and having to leave school at the age of [age] to find work in Kuala Lumpur;
d.being blamed by her aunt and uncle for her parents’ breakdown in marriage;
e.meeting her former husband in Kuala Lumpur through one of her friends;
f.her former husband stating that he and his first wife did not get along but that he had an obligation not to divorce her as they had children together;
g.her former husband suddenly advising her that his marriage to her could not take place in Malaysia;
h.living in Kuala Lumpur with her former husband after marriage;
i.her former husband constantly making excuses for why their marriage could not be registered in Malaysia;
j.the jealousy and violence that the applicant was subjected to at the hands of her former husband. She detailed several incidents, including one where she attempted to leave him in mid-2018 which resulted in her being dragged and beaten in the carpark;
k.moving to her grandmother’s home in Johor to seek safety for around two to three months;
l.her former husband tracking her down at her grandmother’s home;
m.relocating and finding a job in Johor Bahru where her former husband was still able to locate her;
n.the applicant having to then answer her former husband’s calls and pretending that she would reconcile with him to appease him;
o.saving up money to get away from her former husband and relocate to Australia.
s 56 requests for more information from the delegate and the applicant’s responses
Despite committing to offering the applicant interviews, the delegate did not do so. The delegate took the unusual approach of issuing the applicant multiple written requests for further information under s 56 of the Act.
In relation to the delegate’s request for further information on 25 August 2021, the applicant provided the following information and evidence in response:
a.Email from Migration Lawyer from United Workers Union advising that the applicant had sought pro bono legal assistance in order to help her understand the delegate’s request. The United Workers Union expressed concerns that the delegate had issued an extensive request letter when the applicant’s native language is not English and has been without legal representation. The United Workers Union stated that this approach involved extraordinary unfairness and insensitivity towards the applicant and asked that the delegate consider extending an invitation for interview with a qualified interpreter and female case officer;
b.Applicant’s preliminary response to the delegate’s request summarising the information requested, as well as a list of supporting documents the applicant was able to provide;
c.Text message conversations between the applicant’s former husband and her mother;
d.Text message conversations between the applicant and her former husband;
e.Text message conversations between the applicant and her former husband’s first wife;
f.Screen shot demonstrating the applicant needing to share her location with her former husband;
g.Copy of certificate of marriage;
h.Copy of applicant’s child’s birth certificate;
i.Evidence of applicant’s video call communications with her child;
j.Photographs of the applicant and her former husband.
In October 2021, the applicant also provided a more detailed statement of claims made with the assistance of Asylum Seeker Resource Centre.
The statement of claims is summarised as follows:
a.Her protection visa application was completed with the assistance of her cousin, Mr M who is living in Australia;
b.As her cousin did not explain the entire process to her, she has realised that some significant details were omitted from the protection visa application;
c.She did not include details of her family members as she thought it might cause problems for them with both Malaysian and Australian authorities;
d.The applicant sought limited assistance from the United Worker’s Union to prepare a statement and also to respond to a request for further information issued by the Department on 25 August 2021 under s 56 of the Act. During these sessions, she did not receive any legal advice about what evidence to include in her response;
e.Mistakes and inconsistencies in her protection visa application and documentation are the result of extremely limited assistance she has had throughout the process;
f.This statement attempts to correct or clarify the errors and inconsistencies;
g.The applicant listed all members of her family unit, including her [age]-year-old son, Master Q, who was born to the applicant and her former boyfriend, Mr M;
h.Mr M left the applicant when she became pregnant, and the applicant no longer has any contact with him;
i.The applicant lived with her son up until around her son’s [number] birthday in [Town 1], Johor, in her mother’s old home. The home was about about five minutes from the applicant’s father and stepmother’s home;
j.As the applicant’s mother had already separated from her father, her mother had cut contact with the whole family and no longer lived in this home;
k.While the applicant’s father was upset with her for falling pregnant outside of marriage, he was still proud to have a baby boy enter the family and wanted the applicant and her son to live close by;
l.The applicant did not get along with her stepmother, which is why she did not reside in her father’s home;
m.In [Town 1], the applicant had little opportunity to work and earn her own money;
n.After she gave birth, people would constantly ask her whether she was going to get married but after they found out that she was an unmarried woman with a child, they would stop talking to her, not want to be friends with her and would gossip about her behind her back;
o.The applicant’s work colleagues would tell new employees to stay away from the applicant, deeming her to be a ‘bad person’;
p.This treatment still impacts the applicant and she struggles to share details about her personal life due to the risk of being discriminated against;
q.The applicant’s father and stepmother provided only food to her. As a result, the applicant took a job in August 2015 and left Master Q at her father and stepmother’s home;
r.In July 2016, the applicant’s place of employment closed down, after which the applicant used her savings to move her and Master Q to Kuala Lumpur as the applicant could not find employment within [Town 1] with adequate pay. She also wanted to provide for Master Q and herself;
s.The applicant experienced difficulty in renting a room in Kuala Lumpur. People either did not want to rent a room to her or let her stay with them after the learnt that she had a child outside of marriage;
t.As a result of the difficulties, the applicant had to lie and state that Master Q was her nephew. These lies hurt her emotionally, and often the lie would be found out;
u.The applicant experienced difficulty in putting care arrangements in place for her son, despite various attempts. Eventually, the applicant’s friend, Mr S and Mr S’ mother agreed to look after Master Q on a paid basis from around the end of 2017 or early 2017;
v.The applicant’s family did not offer to take care of Master Q as they looked down on her for having a child outside of marriage;
w.Master Q is still living with Mr S on a full-time basis;
x.When the applicant married Mr H, he did not want Master Q to live with the applicant, even though the applicant asked many times;
y.Whenever Mr H was not home and when the applicant was able to take leave, the applicant would bring Master Q home to stay with her;
z.The applicant would call Master Q via videocall to keep in touch. Master Q met Mr H in person only four times;
aa.The applicant did not include Master Q’s details in her protection isa application because she did not want to get him involved or in trouble;
bb.The applicant was also fearful that if she included Master Q’s details on her application, Malaysian authorities would learn that Master Q was not living with her, and would conclude that she was unable to care for her son, resulting in her losing custody of her son;
cc.The applicant felt guilty about involving Master Q in her relationship with Mr H, and any trauma that may have caused him. She did not want Master Q to be impacted by her own mental health;
dd.The applicant and her siblings eventually moved in with extended family and ceased living with her biological parents as they were busy and had trouble taking proper care of her and her siblings;
ee.The applicant’s father was married to two women being the applicant’s biological mother and the applicant’s stepmother;
ff.The applicant keeps in contact with relatives outside of Australia, namely her aunt (Aunt R) and grandmother, around five or six times a week. She also contacts her son, Master Q, four to five times a week, subject to internet connectivity;
gg.The person that the applicant referred to as her ‘mother’ in her previously statement is her Aunt R. This is because the applicant lived with her aunt and was raised by her from a young age and sees her aunt as a mother figure;
hh.The applicant has a cousin in Australia but did not mention him in the protection visa application for fear of causing trouble for him;
ii.While the applicant stated in her written application that she was divorced, she is not officially divorced as her husband will not grant her the divorce nor complete the paperwork. The applicant thinks of herself as divorced even though it is not official;
jj.There were many instances whereby Mr H agreed to divorce but then would go back on his word. He would often say that he would never divorce her so that she could not escape him;
kk.The applicant believes that she would need to arrange for divorce documents to be done in Malaysia, not Thailand. She is unsure why this is required but was told by family and Mr H’s family that a divorce certificate would need to be obtained from Malaysia;
ll.The applicant has previously travelled to [specified countries including Thailand]. She thought that the question about applying to enter any other country was asking whether she had applied to live, and/or seek protection from any other country other than Australia, and that is why she answered ‘no’;
mm.The applicant attended four different schools and completed high school. Although she had already graduated from high school, she repeated some parts of high school as her original results were not good. However, she did not complete the course;
nn.In the applicant’s previous statement, she detailed several occasions where Mr H assaulted her. There were many more occasions but as the applicant is being assisted only on a limited basis, she cannot provide details of every single assault but would like the opportunity to do so in an interview with the Department;
oo.Examples of threats, assault and harm were provided by the applicant as follows:
i.In 2018, the applicant, Master Q and Mr H went on their first and only holiday together. During this holiday, Master Q recalls Mr H trying to choke the applicant in her sleep. The applicant had trouble breathing and her neck was sore, but Mr H stated that he had a bad dream and denied choking the applicant on purpose;
ii.Mr H assaulted the applicant when she was living with his mother-in-law. The applicant lived there as Mr H wanted the applicant to be supervised. One evening when the applicant and her mother-in-law were already asleep, Mr H shouted at the applicant from outside the home. Mr H had called the applicant’s mobile phone but she had not answered as she was asleep. When the applicant went to open the door, Mr H slapped her causing her to fall backwards and hit her head on the stairs. He dragged her to the bedroom and hit her face, accusing her of having someone in the house. The applicant’s mother-in-law came to her aid and confirmed that the applicant had not been with anyone else in the home, and allowed the applicant to sleep in her room. The applicant’s mouth was bleeding and she had bruises on her arms and legs, but did not report the incident to police nor seek medical help;
iii.Although the applicant continually recorded evidence of Mr H’s violence by taking photos of her injuries, Mr H destroyed the evidence but constantly accessing her phone, email and social media accounts. After physically hurting her, he would take her phone from her and delete photographs to ensure she had no proof of his abuse;
iv.Mr H threatened the applicant not to lodge any police reports if she wanted for Master Q to remain safe;
v.The applicant and Master Q were followed and watched by Mr H. When she moved to Johor Bahru, he found out where the applicant lived and worked and would come to her workplace to watch her for the whole day. Sometimes, he would send text messages to her asking her why her hijab was too short or why her clothes were too tight;
vi.Mr H would also park his car at he applicant’s house and wait for her to return from work or from seeing friends. He also did this when the applicant stayed at her grandmother’s home;
pp.The applicant stated that she could not relocate within Malaysia as Mr H was still actively looking for her. In the past, Mr H said that she could never escape him and that he would find her no matter where she went, and he did. One of the last times he said this to the applicant was a few days before she came to Australia;
qq.The applicant does not know if Mr H is still looking for her because she has blocked him on all social medial accounts and has not spoken to him since she came to Australia;
rr.The applicant is still in contact with Mr H’s mother as she became close to her during her marriage to Mr H and because the applicant looked after her. Mr H’s mother still expresses that she misses the applicant and hope that they can live together again. Mr H’s mother stated that she has argued with Mr H and they do not talk to each other about the applicant or the relationship;
ss.The applicant is not sure whether Mr H has come back to her grandmother or aunt’s house to look for her;
tt.The applicant never sought help or went to police about the assaults as she was too scared to go to the police. Mr H had threatened her in the past in this regard and it scared her very much;
uu.The applicant stated that she has never had very strong evidence about the violence she was experiencing because generally she would only have bruises and cuts. She never attended hospital. Even though she felt badly injured sometimes, she was scared to go to hospital. Due to this, she did not think she had enough proof to go to the police about Mr H’s violence. If any of her family noticed her bruises, Mr H would fabricate a story and make it seem as if the applicant had hurt herself;
vv.If the applicant was forced to return to Malaysia, she is scared that Mr H will take revenge on her for leaving him. She is scared he will hurt her more than he has in the past, and will kill her;
ww.She believes that Mr H would still be looking for her as she is his wife, and because he told her in the past that he would never stop looking for her;
xx.She does not believe that the police would help her as they rarely help with ‘family matters’;
yy.Mr H has a close contact at [named police station]. This is a cousin on his first wife’s side. Mr H had let the applicant know that this cousin is in a high position, and that if she ever reported him, he would have someone in the police force who could help him. The applicant took this to mean that Mr H’s cousin would refuse to take her complaints;
zz.Mr H’s first wife’s father, Mr A, works in politics. Mr H stated that his father-in-law worked [deleted]. As a result, the applicant felt that she had to be very careful not to upset the family;
aaa.The applicant does not believe that she can relocate to another part of Malaysia. She is unable to live with her father as she does not get along with her stepmother. Her stepmother does not want the applicant to stay in the family home and will ask her to leave as soon as possible. Her father takes her stepmother’s side and does not stick up for her. She is not welcome in their home;
bbb.She cannot live with her mother as her mother has cut contact with all family members since her divorce from the applicant’s father. Her mother also blamed the applicant for the failed marriage but she does not know why. While the applicant’s mother did eventually make contact with the applicant again, she was not available when the applicant needed her (during pregnancy and when she gave birth). The applicant has had a difficult relationship with her mother and would not be able to live with her on an ongoing basis, and would not have any security living with her mother as her mother may get upset and kick her out without warning;
ccc.The applicant cannot live with her siblings. Four of her siblings live with their stepmother. Her youngest sibling lives with the applicant’s biological mother and new husband;
ddd.The applicant’s stepbrother and younger brother stay with her grandmother but the applicant cannot stay there as Mr H knows that home and could find her;
eee.The applicant cannot stay with her sibling who lives with another aunt in Kuala Lumpur as they are not in touch;
fff.The applicant stan with another sibling who is married and has a family of her own, including four children;
ggg.As for other siblings, the applicant cannot stay with them as she has not kept in contact with them;
hhh.The applicant cannot live with her aunts and uncles as Mr H knows where her grandmother’s house is, which is where most of her aunts and uncles live. They also look down on her as a woman who had a child out of wedlock, and say that she should go to her father or mother for help;
iii.If the applicant returns to Malaysia, she wants to ensure she is no longer connected to Mr H and wants to get divorced. The magistrate would need to notify Mr H. She would need to register the divorce to make it official but is terrified of doing so because Mr H would then know where she is;
jjj.The applicant’s understanding is that to get divorced, she would first need to register the marriage in Malaysia, and then do the paperwork to get divorced;
kkk.Polygamous Malaysians often get married in Thailand. It is the applicant’s understanding that because this happens quite often, Malaysian and Thai authorities agree to acknowledge Thai marriages in Malaysia, and they are easy to trace because of this;
lll.While the applicant’s marriage to Mr H was not registered, they were socially and culturally treated as being married. All friends and family knew they were married. Therefore, the applicant would need a divorce certificate to formalise her separation from him;
mmm.If the applicant tried to relocate, she would face discrimination. People would know that she married another woman’s husband, and that she had a child before she got married. She would be required to provide this information when trying to seek employment or accommodation, and it would be obvious because her son does not have his father’s name;
nnn.As a woman in a polygamous marriage, she would be seen as a bad person, she would be discriminated against and excluded from society. In the past, she has had trouble making friends and finding employment. IN big cities, people do not care as much but the applicant would face more discrimination in smaller cities and towns, which is where she would need to relocate to;
ooo.Many people in Malaysia are not open-minded and would treat the applicant badly as a single mother who had a child outside of marriage;
ppp.If the applicant relocated, she would want Master Q to live with her. She misses her son greatly;
qqq.If she relocated, here chances of finding employment would be affected as they would not want to hire her due to having a child outside of marriage and being a second wife. People will look down on her and she would be required to work for very low pay. She needs to make enough money to survive and to support Master Q;
rrr.As a woman living alone, people will look down on her, harass her and bully her;
sss.The applicant’s chances of finding accommodation would be low. She has experienced discrimination before when trying to find somewhere to live;
ttt.While the applicant has not been formally diagnosed, she believes that she has depression. She has researched her symptoms which include locking herself in a room or cupboard, isolating herself, getting upset easily over small things, worrying a lot about the future. Other people including her manager in Australia and friends in Malaysia have expressed concern about her;
uuu.The applicant tried killing herself twice in Malaysia. On her first attempt, she made several cuts to her left hand and wrist and has scars from these. Her friend sent her to hospital to stay overnight. On her second attempt, she was with Mr H and he was verbally abusing her. She took a knife and held it to her chest and told Mr H to stop talking or she would hurt herself. Mr H told her that she was crazy but stopped talking;
vvv.She did not seek psychiatric help in Malaysia because it was expensive and she did not have the money for it. In Australia, she has not tried to kill herself but is not feeling well;
arriving in Australia, she has received help from [Agency 2] after her friend referred her to this provider. The applicant has a case worker that she has seen since June 2021. The case worker is a mental health clinician who provides counselling to the applicant. The applicant sees the case worker once a week and has started to feel a bit better. While the applicant sees the case worker less frequently, the applicant is able to text her at any time if she needs support;
xxx.The applicant would like to receive more treatment or counselling. She is still struggling with her emotions and stress levels and with remembering details of the past such as her marriage to Mr H and her relationship with her mother. She struggles with nightmares. Her housemates have told her that they hear her crying and screaming in the middle of the night. She does not feel very well rested when she wakes up, and often does not want to wake up.
On 5 April 2023, the applicant received another request for further information from the Department on the basis that due to the period of time that had passed since the last s 56 request, the Department was seeking additional information. The request letter did not stipulate the information required, nor did it indicate whether the applicant’s previous statement and evidence had been considered. On 11 May 2023, with the limited assistance of the Asylum Seeker Resource Centre (ASRC) and despite the vague request by the Department, the applicant provided the following updated information:
a.The applicant is sometimes in contact with her former husband’s mother, Mrs T, who lives in Malaysia;
b.Mrs T is not in contact with her son, Mr H, and she is old, lonely and unwell;
c.The applicant feels as though she should offer support at this time to Mrs T as Mrs T was supportive when the applicant separated from Mr H;
d.The applicant believes that Mr H would be even angrier if he knew that the applicant was in contact with his mother;
e.Due to family violence suffered by the applicant, she experiences symptoms of depression, post-traumatic stress disorder and anxiety, and such details are covered by the report from [Agency 2] Mental Health Clinician, [Ms B] dated 6 March 2023;
f.The applicant is afraid that if she is forced to return to Malaysia, she will not be able to subsist due to her inability to work and support herself due to her poor mental health;
g.The applicant is afraid that her mental health will significantly deteriorate due to being returned to the country where her abusive former husband will seek revenge on her.
A summary of the applicant’s claims and further country information was provided.
ASRC requested, again, that the delegate provide the applicant with an interview given the applicant’s vulnerabilities.
In addition to the above submissions, a copy of the [Agency 2] letter from Mental Health Clinician, [Ms B], was provided to the delegate.
On 14 June 2023, the delegate issued yet another request for further information from the Department, specifically asking for details of the applicant’s ex-husband’s relative who is part of the Royal Malaysian Police force and how they may influence the level of protection available to the applicant in Malaysia, and any documentation and supporting evidence. The delegate requested this information as the applicant had previously claimed that she would not have access to effective state protection.
The applicant sought the limited assistance of ASRC to respond to this request. A response was provided on 12 July 2023 by way of submissions.
The applicant, through ASRC, advised the delegate that some of these details had already been provided in an earlier response in October 2021 and that she could not provide any further details, documentation or supporting evidence. ASRC also stated that based on information available online, [a specific detail concerning the Royal Malaysian Police]. Further, the applicant’s husband had already threatened the applicant and stated that if she reported the abuse, he would get help from the police force. Therefore, it is reasonable to assume that because her husband’s cousin is based at [a noted venue], that they may be influential in limiting protection available to the applicant.
ASRC also went on stated that the applicant’s claims regarding lack of effective protection are broader than this detail alone, and proceeded to provide relevant country information.
ASRC reiterated again their request for the delegate to provide the applicant with an interview.
Included in the applicant’s Departmental file was a copy of a Joint Statement of Concern issued by ASRC, Circle Green Community Legal, Immigration Advice and Rights Centre, Refugee Advice and Casework Service, Refugee and Immigration Legal Service, Refugee Legal and Tasmanian Refugee Service. The statement highlighted:
a.the need for protection visa applicants to be given the opportunity to be interviewed from a procedural fairness perspective;
b.the use of s 56 requests in place of interviews risks denying protection visa applicants a fair opportunity to be heard;
c.the trend of refusals without interview for applicants advancing gender- or sexuality-based violence and family violence claims, and for people with mental health conditions or other vulnerabilities;
d.the denial of interview where credit is an issue;
e.lack of certainty and uniformity regarding process; and
f.inappropriate use of resources in review processes in that refusal of applications without interview would waste Department, Tribunal and Court resources.
Evidence before the Tribunal
Submission from representative prior to constitution of review matter
Prior to the applicant’s review matter being constituted to a presiding Member, the applicant’s representative, Mr Madigan from the Refugee and Immigration Legal Services, wrote to the Tribunal on 19 November 2024 and invited the Tribunal to find favourably in this review application without the unnecessary expense of a hearing.
Mr Madigan provided a summary of the application process and key dates, including the numerous requests for information from the Department. He outlined the findings that the delegate made, namely where they accepted:
a.the applicant’s claims of domestic violence perpetrated by her former husband in Malaysia;
b.the applicant’s claim that she is experiencing mental health challenges, following her experience of domestic violence;
c.the applicant’s claim that she was in a polygamous marriage with her former husband, Mr H;
d.that the applicant was in a particular social group of ‘single mothers in Malaysia’;
e.that given the proximity of her former husband to her home area in Kuala Lumpur and the locations of Johor Bahru, they were satisfied that the applicant could face more than a remote chance of serious harm from her former partner in these areas of Malaysia. However, the delegate was not satisfied that a real chance of serious harm extends to all areas of Malaysia and that the applicant could relocate to an alternative location in Malaysia such as Georgetown, Penang;
f.that state protection is available but often inadequate or ineffective in practice.
The applicant’s representative addressed the delegate’s concerns by advancing the following arguments:
a.The delegate has made an assumption regarding the possibility of relocation without any foundation in evidence that the applicant’s former husband would be motivated to travel between Kuala Lumpur and Johor Bahru to find her but for unspecified reasons, would not be motivated to travel an additional few hours to Penang to find and harm her;
b.The delegate needed to have taken into account the applicant’s evidence that she would pursue the divorce process and the magistrate would notify Mr H;
c.There is a non-remote possibility that when notified of the applicant’s intention to divorce him, Mr H will seek to do her harm, as he has done in the past;
d.Alternatively, there is a non-remote possibility that the former partner will become aware of the applicant’s whereabouts through mutual associates;
e.Peninsular Malaysia is very small – less than the distance from Brisbane to Newcastle;
f.The proper enquiry is not solely focused on harm from the former husband but from any person who might seek to cause her harm by reason of her gender. The applicant has suffered violence in the past from her parents and former husband;
g.The fact that the applicant has been in a violent relationship in the past provides a reliable indicator that she is more likely to enter a violent relationship in the future;
h.The DFAT report states that women and girls generally face a moderate risk of gender-based violence and there are sufficient indicative factors present to find that there is a real chance the applicant will suffer persecutory harm in Malaysia.
Pre-hearing information form before constitution of review matter
On 15 January 2025, the Tribunal invited the applicant to complete a pre-hearing information form. The applicant completed this form and returned it to the Tribunal on 17 January 2025.
Response to Hearing Notice form
On 20 May 2025, the Tribunal invited the applicant to a scheduled hearing and asked the applicant to complete a Response to Hearing Notice form.
On behalf of the applicant, the applicant’s representative returned the completed form but asked the Tribunal to consider their preliminary submissions from 2024 in order to make a favourable decision on the review application without the need for a hearing.
REASONS AND FINDINGS
Credibility and findings of fact
In determining whether the applicants engage 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, pages 43-44.
[2] Randhawa v MILGEA (1994) 52 FCA 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.
Considering the significant volume of written material and evidence provided by the applicant with her protection visa application and when responding to the Department’s numerous requests for information, I have found that the applicant has given a detailed and credible account of the harm that she was subjected to in Malaysia, and the fears of harm she has if she were to return to Malaysia.
I have taken into consideration the following factors and have accepted the applicant’s reasonable explanations for the inconsistent or incorrect information originally provided in her protection visa application:
a.The applicant prepared her protection visa application with the assistance of a family member that did not explain the protection visa process in a way that she understood;
b.The applicant left out some significant details in her protection visa application as she misunderstood some questions;
c.The applicant was fearful of providing details of any other family members as she thought that it would cause problems for them with both the Malaysian and Australian authorities;
d.The applicant received limited assistance from various community legal centres prior to receiving the protection visa refusal decision, but was not represented by them;
e.The applicant was not invited to attend an interview with the delegate despite a number of commitments that this would be offered;
f.The applicant’s mental health challenges as a result of trauma she suffered due to family violence.
I have not made any adverse credibility findings and have accepted the written and documentary evidence that the applicant previously provided to the Department.
Considering the above, I accept the following claims as credible:
a.The applicant gave birth to her son, Master Q, following a previous relationship with Mr M. This relationship has since ended;
b.Due to having a difficult relationship with her mother, father and step-mother and their disapproval of her having a child out of wedlock, the applicant was unable to rely on her family to help support her and Master Q;
c.While the applicant’s father and step-mother looked after Master Q for some time in around August 2015 when the applicant secured herself a job, they did not provide the applicant with any other support apart from food;
d.After the applicant’s workplace closed down in July 2016, she relocated with Master Q to Kuala Lumpur;
e.The applicant struggled to secure accommodation as a single mother, resulting in the applicant having to lie and say that Master Q was her nephew;
f.After experiencing some issues in finding appropriate care for Master Q while the applicant worked, including taking Master Q to work with her, she ended up entrusting him into the care of her friend Mr S and Mr S’ mother at the end of 2016 or early 2017;
g.In December 2016, the applicant met Mr H and they started dating in January 2017;
h.Mr H had another wife (first wife) but their relationship was not going well. Mr H lived in Kuala Lumpur and his first wife lived in Johor Bahru;
i.In May 2017, Mr H provided the applicant with a new home and convinced the applicant that he wanted a serious relationship. Mr H and the applicant lived together soon after;
j.Mr H proposed to the applicant in October 2017 and organised their wedding;
k.When the applicant questioned why they were not getting married in Malaysia, Mr H stated that there was a lot of things to do if they wanted to get married in Malaysia but promised the applicant he would register the marriage in Malaysia;
l.Mr H and the applicant were married [in] November 2017, and the applicant met Mr H’s family two weeks later;
m.The applicant was disappointed that her family were unable to attend the wedding as it took place in Thailand;
n.After marriage, the applicant and Mr H lived in Kuala Lumpur, and Mr H’s first wife and their children lived in Johor Bahru. Mr H would spend time between both households;
o.The applicant was concerned that Mr H’s first wife would not accept the applicant’s marriage to Mr H, and that this would cause trouble for the applicant if the marriage was not deemed legal and might result in the applicant being seen as having an affair with Mr H;
p.Mr H did not permit Master Q to reside within Mr H’s household with the applicant;
q.Mr H continued to make excuses about why he had not registered their marriage in Malaysia, sometimes blaming his first wife who was allegedly not providing consent;
r.Not long after the applicant’s marriage to Mr H, he became jealous and controlling. He made the applicant quit her job so that she was not outside of the house and working with other men and cut contact with her friends;
s.The applicant recalls threats and abuse by Mr H towards her, even while they were living in the applicant’s mother-in-law’s home;
t.Mr H would slap or push the applicant into walls and furniture, threaten and beat her for her social media activity, and whenever they went back to his first wife’s home, Mr H would humiliate her and accuse her of being with another man whenever he was not around;
u.In 2018, the applicant attempted to leave Mr H and even relocated to different regions living with other relatives but Mr H continued to locate her;
v.The applicant had start responding to Mr H’s messages and calls and pretend that she was interested in reconciling to appease him;
w.The applicant separated from Mr H from around May 2019;
x.While the applicant thinks of herself as being divorced from Mr H, she is not officially divorced as Mr H will not agree to the divorce and/or will not register their marriage in Malaysia to then subsequently go through the divorce process;
y.While Mr H has previously committed to divorcing the applicant, he continued to change his mind or deny that he ever agreed to it. The last time he agreed to the divorce was around November 2019 but went back on his word stating that the applicant can never escape him;
z.Master Q continues to live with Mr S on a full-time basis in Malaysia.
Country information
I have taken into account a range of country information 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 criterion assessment
Based on the applicant’s circumstances, I find that if she were to return to Malaysia, she is likely to return to Johor, being her place of birth and her grandmother’s place of residence. Based on the above findings, I consider there is a real chance, being a possibility that is not remote or far-fetched, that the applicant would be subjected to harm in the reasonably foreseeable future from her former husband if she were to return to Johor.
I find there to be a real chance that the applicant’s former husband would be able to locate and harm the applicant if she were to return to Johor given that he was able to track her down in this location at her grandmother’s home when she first ran away from him, and because the applicant wishes to divorce her former husband, which would require her be in contact with her former husband to firstly go through the process of registering their marriage in Malaysia and then going through the divorce process. Without the official divorce, the applicant will inextricably remain connected to her former husband, and this would allow him to continue to exert control over her.
I give weight to the evidence the applicant provided which outlines her former husband’s tendency to manipulate and control the applicant through orchestrating their wedding so that it was conducted abroad and not in Malaysia, not allowing the applicant and her son to reside together, not allowing the applicant to work or associate with colleagues or friends and not agreeing to register their marriage, thereby taking away the applicant’s ability to pursue divorce. In additional to the mental and physical abuse, the applicant’s former husband has also pursued, followed and stalked her, indicating that he intends on monitoring the applicant’s whereabouts and who she associates with. Despite over five years having passed since the applicant arrived in Australia, I give weight to the severity of the harm that the applicant was subjected to whilst she remained in Malaysia. I do not accept that the time spent away from her former husband would result in him having no interest in the applicant should she return to Malaysia. In the past, he has shown a clear pattern in his attempts to control and isolate the applicant.
I accept on the basis of the applicant’s past experiences and circumstances, including her limited education, socio-economic status, lack of family ties and support, status as a single woman with a child born out of wedlock, history of being subjected to ongoing family violence and the above country information that there is a real chance that she would suffer serious harm at the hands of her former husband. This harm would include physical violence, harassment, stalking, coercive control, verbal and mental abuse and attempts on her life if she returns to her previous place of residence in Johor. I accept that the harm would include physical and verbal harassment, significant ill-treatment and a threat to the applicant’s life or liberty, such that would constitute serious harm under s 5J(5) of the Act.
In relation to the applicant’s claimed mental harm, I accept this claim and give weight to the letter of support issued by Mental Health Clinician, [Ms B], which details the applicant’s deteriorating mental health condition and suicidal ideations when she first presented to the clinic for assistance.
In considering whether the harm the applicant fears is for reason of 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 groups:
a.Separated Muslim women in Malaysia who have fled domestic and family violence; and
b.Single Muslim women with a child or children born out of wedlock.
I consider these groups are identifiable by the characteristics of gender, nationality, religion, relationship status (including relationship status at the time their child or children were born) 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 purposes of s 5J(1)(a) of the Act.
I have considered whether this real chance of harm relates to all areas of Malaysia. I give weight to the applicant’s written evidence where she stated that her former husband has repeatedly told her that she cannot escape him and that he would always find her no matter where she went. The applicant stated that her former husband knew where her family resided and had called them in the past when looking for her. Throughout their relationship, the applicant relocated from Kuala Lumpur to Johor to Johor Bahru, and each time, her former husband was able to track her down. As mentioned above, the fact that the applicant wishes to pursue an official divorce proceeding would also result in the applicant’s whereabouts being made known to her former husband by the relevant magistrate. This would elevate her risk of harm during such divorce proceedings as she tries to sever official relationship ties with her former husband. Based on the available evidence, I accept that the applicant’s former husband would pursue her throughout the country if he were made aware of her whereabouts. I find there is a real chance that the first applicant would be harmed by her former husband in all areas of Malaysia.
I give weight to the Department of Foreign Affairs and Trade country information which states that services for individuals who have experienced gender-based violence 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.[17] The Department of Foreign Affairs and Trade 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.[18] On this basis, I do not accept that the applicant would have access to adequate state protection should she return to Malaysia.
[17] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.117, page 30.
[18] Ibid, 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).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
T H R Baggiano
General Member
Date of hearing: N/A
Representatives for the Applicant: Ms Sonia Oki and
Mr Timothy Gerard Madigan
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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