2437850 (Refugee)

[2025] ARTA 1696

2437850 (Refugee) [2025] ARTA 1696 (2 July 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:Minister for Immigration and Citizenship  

Tribunal Number:  2437850

Tribunal:General Member D. Gordon

Date:2 July 2025

Place:Melbourne

Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:

·s 36(2)(a) of the Migration Act.

Statement made on 02 July 2025 at 4:26pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – religion – Islam – particular social groups – lesbian women – women suffering domestic violence – unmarried women with illegitimate children – physically abused by her father, brother and her child’s father – sexual assault – relies on child’s father for welfare and support – fears violence, forced marriage and persecution – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 375A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Appellant S395/2002 v MIMA [2003] HCA 71
Chan Yee Kin v MIEA (1989) 169 CLR 379
MZAFC v MIBP [2016] FCA 1081
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, 27
SZBEL v MIAC (2006) 228 CLR 152
Withers v R [2025] NSWCCA 67

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

1. This is an application for review of a decision made by a delegate of the Minister on 21 November 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a national of Malaysia, applied for the visa on 9 April 2015.

3. The delegate refused to grant the protection visa on the basis that:

   a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant had a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.

   b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant was not a person 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.

4. The applicant appeared before the Tribunal over two days on 13 and 27 June 2025 to give evidence and present arguments.

5. The applicant also submitted documentary evidence in support of her claims.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

7. The applicant was represented in relation to the review by her solicitor, Ms Partington.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:

    a.The refugee criterion in s 36(2)(a) of the Act; or

    b.The complementary protection criterion in s 36(2)(aa) of the Act; or

    c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.

15. For the following reasons, the Tribunal has concluded that the decision under review ought to be set aside and remitted for reconsideration on the basis that the applicant satisfies the refugee criterion in s 36(2)(a) of the Act.

    COUNTRY OF NATIONALITY

16. The Tribunal finds the applicant’s identity and nationality are confirmed by her passport and recorded personal particulars.

17. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purpose of her protection claims and assessments.

18. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Malaysia, and therefore s 36(3) of the Act is not applicable.

    THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT

19. The Tribunal has before it the initial protection visa application lodged by the applicant with the Department.

20. The applicant claimed persecution on grounds intersecting her religion and being a member of a particular social group attaching to her sexuality.

21. The Tribunal notes that the applicant maintains her original claim for protection.

    FAVOURABLE FINDINGS OF THE DELEGATE BELOW

22. The Delegate in the decision below has made findings in favour of the applicant.

23. On paragraph 43 of the Decision Record, the Delegate accepted that:

    a.The applicant identifies as a lesbian but is naturally cautious about expressing her sexuality in the community, both in Malaysia and Australia.

    b.The applicant was physically abused by her father while living in Malaysia because she did not conform to his views about how women should behave in Malaysian society.

24. On paragraphs 50, 52 and 54 of the Decision Record, the Delegate accepted that the applicant belonged to the particular social groups of lesbian women in Malaysia, of women suffering domestic violence in Malaysia, and of unmarried women with illegitimate children.

25. On paragraphs 61 to 63 of the Decision Record, the Delegate accepted that the harm feared constituted serious harm and was systematic and discriminatory.

26. It is not for the Tribunal in exercising its merits review jurisdiction to disturb finds in favour of the applicant’s case unless there are cogent reasons for doing so and putting the applicant on notice and providing an opportunity to respond. See also SZBEL v MIAC.[1]

    [1] (2006) 228 CLR 152 at [36], [44], [47].

27. The Tribunal adopts the Delegate’s findings set out above. There was no evidence or other information to contradict or disturb these positive findings in favour of the applicant’s case.

28. The issue before the Tribunal is whether on the evidence the Tribunal is satisfied pursuant to the criteria in the Act that the applicant would be persecuted if she returns to Malaysia. This requires examining the evidence placed before the Tribunal along with the current country information against the claims of persecution made.

    THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL

29. The applicant has previously appeared before the Tribunal (Case 1620621) where she was unsuccessful, and she subsequently succeeded on judicial review whereby the matter was remitted back to the Tribunal for reconsideration and determination according to law.

30. The applicant’s judicial review before the Federal Circuit Court of Australia (MLG3664/2018) identified the failure to consider whether the applicant had lived discretely in Malaysia because she feared persecution on the basis of her sexuality and that error was material as had the Tribunal considered that potential reason for her having lived discretely, there was a realistic possibility it could have arrived at a different conclusion.

31. Upon review of the Departmental file, the Tribunal noted the presence of a s 375A Non-Disclosure Certificate. In compliance with the authority in MZAFC v MIBP, the Tribunal wrote to the applicant, summarised the gist of the grounds stated therein, provided a copy of the certificate and inviting any comment or challenge.[2] The applicant did not pursue this. For the avoidance of doubt, the Tribunal has examined the contents of the non-disclosure certificate on file and does not rely on the information therein as it does not go towards or provide any adverse information that would damage the applicant’s case.

    [2] [2016] FCA 1081.

    COUNTRY INFORMATION

32. The Tribunal refers to the DFAT Country Information for Malaysia which provides relevantly as follows.[3]

    [3] DFAT Country Report for Malaysia 2024.

33. [3.35] According to the US State Department, 63.5 percent of the Malaysian population practices Islam; 18.7 per cent Buddhism; 9.1 per cent Christianity; 6.1 per cent Hinduism; and 9 per cent other religions, including animism, Confucianism, Taoism, Sikhism and Jehovah’s Witnesses.

34. [3.40] Malaysia has a two-track legal system: common law, administered at the federal level; and Islamic religious law, known as syariah (also spelled sharia), which is administered at the state level and varies by jurisdiction.

35. [3.113] There is strong social stigma attached to pre-marital sex and pregnancy.

36. [3.125] DFAT assesses that women and girls in Malaysia face a moderate risk of GBV in the form of domestic violence, and in the case of Muslim girls, also face a high risk of GBV in the form of FGM/C. State protection is available but often inadequate or ineffective in practice. Family, economic, and societal pressures often act as barriers to leaving abusive relationships.

37. [5.9] Religious enforcement officers, known locally as religious police, have a range of powers depending on the syariah laws that apply in each state. Religious enforcement officers can detain and charge individuals to go before syariah courts for a range of reasons, including indecent dress, alcohol consumption, the sale of restricted books, or for being in close proximity to members of the opposite sex. State level syariah imposes a range of penalties.

38. [3.115] Violence against women and girls is a significant, albeit underreported, problem.

39. [3.117] State protection for women and girls experiencing gender-based violence (GBV) is mixed. There are special police units that deal with child abuse and GBV; however, in-country sources told DFAT that these services were inadequate to meet demand. Women who approach police for help may not have access to a female officer. According to in-country sources, the families of women who have experienced GBV often placed pressure on them to drop the matter, either directly or through police officers dealing with the case.

40. [3.118] According to in-country sources, police often failed to follow up on reports of GBV. It was not uncommon for a woman who has experienced GBV 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. In-country sources said specialist GBV investigative units (Branch D11 of the RMP’s Criminal Investigation Department) tended to respond to GBV more sensitively and effectively than regular front-line police officers.

41. [3.126] As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent.

42. [3.127] Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression.

43. [3.128] While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men.

44. [3.131] Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.

45. [3.51] Local media has reported rising conservatism amongst Malays, especially young people. There is also evidence of decreasing tolerance towards sexual and religious minorities on religious grounds (see LGBTQIA+ community). International media reported in 2022 that despite the progressive tendencies of the multi-ethnic coalition of the Anwar Government, it was under pressure to respond to the values of conservative Islamic voters and parties.

46. [3.133] LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common. NGO Justice for Sisters reported in 2023 that doxxing of LGBTQIA+ people in the media and social media was also common.

47. [3.138] Lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community. LGBTQIA+ activism in Malaysia has historically focused on HIV, as HIV was often the only issue considered ‘acceptable’ for government engagement. Accordingly, NGOs advocating for lesbians and queer women are less prominent and have less funding. Forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim. In rural areas, families sometimes confine lesbians to the family home due to cultural stigma. Treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women. In-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022. While syariah offences only apply to Muslim women, they also have a large impact on non-Muslim lesbians by harming their relationship with authorities.

48. 5.16 Malaysia’s prisons are overcrowded, and in-country sources reported in 2018 that five-by-five metre prison cells contained an average of 20 people. According to World Prison Brief, in February 2023, the number of prisoners in Malaysia had reached over 72,400, despite Malaysian prisons only having capacity for a maximum of 65,700 prisoners. Authorities generally hold men, women and juveniles separately.

49. 5.17 Prisons generally operate bucket toilets, suffer water shortages, and require prisoners to sleep on the floor with blankets. Newer prisons (Sungai Udang in Melaka, Sungai Buloh in Kuala Lumpur, and Puncak Alam in Selangor) have flushing toilets. Prison medical and psychosocial support services do not meet the accepted international minimum standards for the treatment of prisoners. The prison system has an arrangement with government hospitals to provide medical care; however, onsite medical supplies are insufficient to meet demand.

50. [3.148] DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.

    THE EVIDENCE AT THE HEARING

51. The applicant gave the following evidence at the hearing.

52. The Tribunal questioned the applicant as to why her father and brother would still harm her now that she had a son? The applicant responded that her father is a religious person and he would not accept her returning home with a child but without a husband. That having a child outside of marriage was not permitted. The applicant confirmed she had not entered into a registered marriage or an Islamic Nikka with her son’s father.

53. The Tribunal suggested to the applicant that her father was a conservative and religious person who held strong views about women’s roles in society and not because of the applicant’s sexuality. The applicant agreed.

54. The Tribunal questioned the applicant as to her ability relocate within Malaysia to avoid the harm she feared. The applicant responded that Malaysia is governed by sharia law, there would be significant discrimination towards an unwed mother with a child outside of marriage, that even her son would be bullied in school for not having a father.

55. The Tribunal asked the applicant about her ability to obtain employment and look after herself as part of a possible relocation. The applicant responded that she did not know how to obtain employment after so many years living away from Malaysia. That she would have to arrange daycare for her son. That she only had a high school certificate issued many years ago and after her father’s bankruptcy she had last worked in [Occupation 1] over 10 years ago. She explained she was currently [age] years of age and it would be very difficult to return to Malaysia and find employment or accommodation.

1. The Tribunal asked the applicant if she had any savings from her time in Australia. The applicant replied she did not have any savings. The evidence suggested the applicant was reliant on commonwealth and NGO support for her son and herself.

2. The Tribunal asked about the position of the applicant’s son if she were to return to Malaysia. The applicant responded that her son’s father would not allow him to go to Malaysia and that her son was an Australian citizen. She also wanted her son to have an Australian education and upbringing.

3. The applicant explained that for the past [number of] years her sole focus has been her son.

4. The Tribunal sought to ask about how the applicant herself would cope in Malaysia without her son. The applicant explained two matters. Firstly, that she would suffer emotional harmed if she was without her son as she spends all her time caring for him and being with him and takes care of all his welfare needs. Secondly, that her son needs her, her son does not even eat food without her. That once she was away for a day, and her son did not eat anything the whole day whilst waiting for her to return.

5. The applicant explained that she prepared all her son’s meals. She dropped and picked him from school. She would often sleep in the car near the school and wait for him to finish for the day. She makes his dinner and helps him with his homework. His father usually came home late around 830pm and would spend very little time with him. Her son had [Activity 1] on Tuesday and [Activity 2] on Saturdays which she takes him and attends to.

6. The Tribunal asked the applicant about her fears of returning to Malaysia. The applicant explained that as a single woman with a child she would be harassed by men, she would be looked down upon by Islamic priests in her community and she would have to hide her sexuality in Malaysia.

7. The applicant explained that she has been abused previously by her father and brother in Malaysia for her sexuality. She had been beaten up by them before. She was also beaten up in public whilst at the mall in Malaysia.

8. The applicant confirmed she had no intimate relations with her son’s father. The events leading to her pregnancy with him were without her consent and due to her intoxication.

9. The applicant explained she was financially tied to her son’s father as he earned and paid the outgoings for their flat. He was controlling and violent towards her but she relied on him.

10. Since the birth of her son, his father would collect the social welfare payments and would not account to her. Only after her domestic violence case was she informed that those payments were hers.

11. The applicant also explained her mental health impacts. That to leave for Malaysia without her son would be very traumatic for her. She was presently seeking mental health treatment for the past 4 years. She was also worried about leaving her son here in Australia alone with his father and no other support. She was concerned about her son’s safety.

12. The applicant also explained that even if she could leave her son’s father and take her son, this would deprive her son of a family. She wanted her son to experience having both a father and mother.

13. That even if she could take her son back to Malaysia, she would be concerned about how he would be treated. Her son is not a Malaysian citizen, and his birth is not registered with the Malaysian authorities.

14. The applicant explained that even in [State 1, Australia], she was cautious about openly expressing her sexuality as there was a Malaysian community here.

15. The applicant confirmed she was not in contact with her father and brother in Malaysia.

16. The Tribunal took the applicant to the decision of the Department and discussed some of the concerns raised by the Delegate in the Decision Record pertaining to the visa refusal.  

17. The Tribunal asked the applicant why she lived with her father till she was [age] years of age including working for him. The applicant explained she did not know anyone else she could go to. She stayed till she could collect enough money to run away to Australia. She had a friend in Tasmania who suggested she come to Australia. That culturally, she was a daughter in an Islamic household under her father and had to stay with her parents.

18. The Tribunal asked the applicant about the allegation concerning her coming to Australia on a pre-arranged plan to work through a recruitment agent. The applicant denied this. She came to Australia on her own with just a ticket and no contacts. Once she arrived, she met a gay Indian man [who] helped her with finding accommodation and brought her to the Asylum Seeker Resource Centre.

19. The Tribunal asked the applicant about her saying she was discreet about her sexuality but also meeting other women in a mall and socialising openly. The applicant explained that at her local mall in Malaysia there was a back area where persons from the LGBTQI community gathered for coffee, and she sometimes spent time with her LGBTQI friends in a larger group portraying casual friendships so as not to arouse any suspicion. However, she could not hold hands or act as one could in Australia.

20. The Tribunal asked the applicant about why she did not have any relationships with women in Australia. The applicant explained that numerous matters affected her choice and inability to have a relationship. She did not have money. She did not have work rights. She felt embarrassed about her situation. She had a son. Her son’s father threatened and expected her not to associate with the LGBTQI community due to being the mother of his son. Once when some friends from the LGBTQI community helped her with groceries and came to the flat, her son’s father became very angry and warned her not to socialise with them.

21. The Tribunal asked the applicant about her future hopes if she were to remain in Australia with respect to her relationship choices. The applicant explained that if permitted to stay back in Australia she would raise her son, and as he became older, she would seek to be in a relationship and find financial security. She wanted to be in a relationship, and she wanted to partner with another woman.

    Other documentary evidence submitted

22. The applicant also submitted the following material into evidence to support her protection claims.

23. The applicant’s own sworn statement of 10 June 2025.

24. [Health service 1] letter of 11 September 2023.

25. [Support service 1] letter of 5 June 2025.

26. [Support service 2] letter of 10 June 2025.

27. [Support service 3] letter of 6 June 2025.

28. [School 1] letter of 18 September 2024.

29. [Court 1] Family Violence Orders.

30. [Country 1] passport for her child.

31. Australian citizenship and passport for her child.

32. Photographs depicting bruising on her body.

33. The Tribunal also has had regard to the bundle of material consisting of her Department file.

    THE ISSUE OF CONSENT WHILST INTOXICATED IN SEXUAL ASSAULT

34. The Tribunal notes that the decision below obliquely adversely referred to the applicant having had sexual relations with the father of her son whilst claiming to be a lesbian.

35. The applicant has always denied any consent and maintained that she was taken advantage of whilst intoxicated on that occasion when she became pregnant.

36. Express consent is not required at law. The surrounding facts such as intoxication evidentially are probative of the accused’s knowledge of a lack of consent by a complainant, per the New South Wales Criminal Court of Appeal in Withers v R.[4]

    [4] [2025] NSWCCA 67 at [178].

37. She maintains that she was a victim of sexual assault but has not caused to bring about an investigation and charges to be preferred on an indictment by the state police and prosecuting authorities as she has a child and relies on the father for welfare and support.

38. This is not a wild or far-fetched notion. Many women suffer from horrific sexual violence or sexual coercion in silence as they have no other option or means of escape and support. Especially if they are vulnerable, in poverty, unemployed or have young children.

39. The Tribunal accepts the applicant’s evidence that she was not consenting, and nothing adverse towards her claim is to be inferred by the circumstances of her pregnancy.

    FINDINGS ON THE EVIDENCE

40. The Tribunal makes the following findings after hearing and analysing the evidence.

41. The applicant is from Malaysia. The applicant is a lesbian.

42. The applicant was abused by her father previously in Malaysia.

43. The applicant has conducted herself discreetly due to her sexuality whilst in Malaysia.

44. The applicant has suffered family violence from her son’s father in Australia.

100.   The applicant conducts herself discreetly in Australia due to her present financial constraints, and the expectations of her son’s father. This includes not presently being in a relationship.

REFUGEE CRITERION ASSESSMENT

1. To satisfy the refugee criterion in the Act, the applicant must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly this requires the applicant to come within the definition of s 5H(1)(a) of the Act which defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution. Section 5J(1) of the Act further provides that 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 and 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 along with the requirements set out in ss 5J(2)–(6) and ss 5K–5LA of the Act.

102.   In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[5]

[5] (1989) 169 CLR 379.

1. The reasons in s 5J(1)(a) must be the essential and significant reasons for the persecution per s 5J(4)(a), and per ss 5J(4)(b)–(c) the persecution must involve serious harm and systemic and discriminatory conduct.

104.   Section 5J(5) of the Act defines instances of serious harm as including a threat to a person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist and denial of capacity to earn a living of any kind, where the denial threatens the person’s capacity to subsist.

Fear of harm from religious conservatism and sexuality

105.   The applicant fears harm in Malaysia from the state which outlaws same-sex relationships and from her father and brother who hold religiously conservative views about women.

106.   The salient integers of this claim that require factoring are that the applicant has a child in Australia for whom she is the primary caregiver, she has previously and continues to suffer violence and emotional harm, and she lacks familial and social support in Malaysia.

107.   The applicant’s own evidence gave a plausible narrative, one that she has maintained since her initial application with the Department. Her documentary material in support suggest that she has been a victim of coercive control and domestic violence.

108.   DFAT country information suggests an increased Islamisation of values in Malaysia along with laws which forbid and outlaw same-sex relationships.

109.   The Tribunal accepts that it is not farfetched or too remote a consideration that the applicant would be subjected to severe forms of harassment, being charged by the religious police and have her father and brother harm her if she returns to Malaysia.

110.   The Tribunal accepts that it is the applicant’s religion and membership of that particular social group that would be the essential and significant reason for the applicant suffering systematic and discriminatory conduct amounting to persecution contrary to s 5J(4) of the Act.

111.   The Tribunal accepts that the applicant would not be able to obtain effective state protection per s 5J(2) of the Act as same-sex relationships are outlawed all over Malaysia.

112.   The Tribunal refers to SZATV v Minister for Immigration and Citizenship[6] and accepts that it would be impracticable and unreasonable to require the applicant as a single woman without any protection or assistance back in Malaysia to relocate. The applicant’s ability to relocate is further made unreasonable by her fears for and care needs for her child in Australia. It is difficult to accept that the applicant would be able to emotionally leave her child in Australia and return to Malaysia and integrate back into searching for employment and arranging her accommodation whilst she is also constantly worried and in fear over her son back in Australia. Furthermore, the applicant is presently on social welfare support in Australia and does not have funds to manage her arrival back into Malaysia. As a single woman of her age and profile, she would be placed in a very difficult situation with obtaining employment and housing.

[6] (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ).

113.   Relocation is also not an option as the nationwide laws in Malaysia outlaw and prohibit the applicant’s sexuality and lifestyle choices. No matter where she relocates to, she could be liable to be charged and prosecuted for engaging in an unnatural offence or breaching sharia law. The real chance of persecution relates to all areas of Malaysia per s 5J(1)(c) of the Act.

114.   If the applicant is outed, found or arrested for being a lesbian, the seriously harmful consequences include incarceration, caning, deprivation of housing and loss of employment.

115.   Importantly, to return the applicant to Malaysia would force her to hide her sexuality and live discreetly. This in itself is persecution. To live in fear of others discovering and punishing for a protected attribute in refugeehood is deserving of protection. It is living with that constant fear of being discovered and the real chance that such discovery would lead to suffering persecution that engages Australia’s protection obligations.

116.   If the applicant were also to be open about her sexuality this would severely curtail and impact her ability to secure housing and employment and expose her to persecution.

117.   The Tribunal refers to Appellant S395/2002 v MIMA where it was held that the need to conceal, modify or act discreetly with respect to a protected attribute would amount to persecution.[7]

[7] [2003] HCA 71 at [40], [80].

118.   The Tribunal accepts that for the applicant to hide her sexuality upon return to Malaysia would be contrary to s 5J(3) of the Act.

119.   The Tribunal does not accept that these are laws of general application as these laws in Malaysia target a specific vulnerable group of the population and cannot be characterised as laws applicable and necessary for the overall population or state welfare machinery in general.

120.   The Tribunal also accepts that the applicant faces a real chance of serious harm by her father if she is returned to Malaysia as she would be forced to marry a man by her family and surrounding community. She is presently unmarried, and this poses an open threat to her.

121.   On the material before it and as set out above, the Tribunal is satisfied that the applicant fears being persecuted on account of her religion and her sexuality, and there is a real chance that if the applicant is returned to Malaysia now or in the reasonably foreseeable future, the applicant would be persecuted, and the real chance of persecution relates to all areas of Malaysia.

122. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

123. As the Tribunal has found in favour of the applicant under s 36(2)(a) of the Act, the Tribunal has not gone on to consider any other protection criteria.

DECISION

124. 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.

Date of hearings: 13 and 27 June 2025

Representative: Ms Brianna Jade Partington

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.

…