GSX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 579

(a) any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has experienced, where the reason for the fear or persecution is not a reason mentioned in s.5J(1)(a); and

(b) any fear of persecution, or any persecution, that the applicant or 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 of persecution mentioned in (a) above had never existed.

1. At paragraphs [20] - [21] the Tribunal said:

Therefore, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s.5J(1)(a) (race, religion, nationality, membership of a particular social group, political opinion) will not have a well-founded fear of being persecuted within the meaning of s.5J.

The reason the applicant fears harm is because of a personal vendetta related to a car accident in which a person was killed where her husband was the driver. The applicant does not fear harm because of her religion, race, nationality or political opinion. Although the reason behind the threats they face can reasonably be considered to be the result of a personal dispute, the applicant and her son are only being targeted because they are members of the particular social group of family members related to her husband.

1. Accordingly, the Tribunal considered whether a family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act and correctly applied s 5K of the Act.
2. I discern no error in the Tribunal's approach to, or consideration of, this issue.
3. The Additional Ground 2 Submission does not disclose any jurisdictional error on the Tribunal's behalf.

1. The applicants submitted that the first applicant's two youngest children ought be included in the review application. For the reasons set out in GTL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FedCFamC2G 578 I reject that submission.

1. In oral submissions, the applicants submitted that there are practical difficulties with relocating within Malaysia and further submitted that once a vehicle was used for work, the family would be located via their identity cards. The applicants conceded that these claims were not before the Tribunal. Accordingly, no error can arise as a result of the Tribunal not considering material that was not before it. Further, by this submission the applicants effectively seek impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
2. None of the additional matters raised by the applicants disclose jurisdictional error.

1. For the above reasons, the Amended Application must be dismissed.
2. The Minister seeks that the first applicant pay its costs. I shall order that the first applicant pay the Minister's costs in an amount to be fixed, if not agreed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

The applicants' evidence is that she fears that, she and her family will be traced throughout Malaysia by her husband's attackers, and that these men will bribe the police and track them wherever they go. The applicant's mother has a brain tumour and is in hospital and they believe that her illness has been caused by the stress of what was happening to her daughter. The men went to her home prior to her hospitalisation in 2018 to ask where the applicant and her husband. They told her that they will kill them. Subsequently, the applicant's mother's health has severely deteriorated and they consider that is because of the threats made to the applicant. I observed the distress with which this information was relayed at hearing by the applicant and also by her husband and I accept that this threat occurred, and that the applicant's mother in law is very unwell.

The applicant's mother-in-law has a brain tumour and is in hospital and they believe that her illness has been caused by the stress of what was happening to her daughter. The men went to her home prior to her hospitalisation in 2018 to ask where the applicant and his wife were. They told her that they will kill him and his wife. Subsequently, the applicant's mother in law's health has severely deteriorated and they consider that is because of the threats made to her daughter. I observed the distress with which this information was relayed at hearing by the applicant and also by his wife and I accept that this threat occurred, and that the applicant's mother in law is very unwell.

... I find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm, if they were to return to reside in either of Johor Bahru or Kuantan Pahang.

... I find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm, if they were to return to reside in either of Johor Bahru or Kuantan Pahang.

According to DFAT's 19 April 2018 Country Information Report:

5.18 Malaysia's Constitution provides for freedom of internal movement, but the eastern states of Sabah and Sarawak have autonomy over their own immigration. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, must present national identity cards (or passports for foreigners) to gain entry and can visit for a maximum period of three months. The federal government can overrule immigration decisions made by Sabah or Sarawak in limited circumstances, including for national security reasons.

5.19 Sabah and Sarawak both issue working visas to non-residents (including other Malaysians), but these can be difficult to obtain. Both states limit purchase of land by non-residents. Far more people migrate from Sarawak and Sabah to peninsula Malaysia than in the other direction, due to better work opportunities and higher salaries.

5.20 In recent years, Sabah and Sarawak have denied entry to a small number of individuals. The Official Secrets Act contains the list of individuals banned from entering, and is not available to the public. During the Sarawak state election in May 2016, opposition leaders including PKR's Vice President Nurul Izzah Anwar, Selangor Chief Minister Azmin Ali, and DAP's Liew Chin Tong were denied entry on arrival in Sarawak. In March 2016, Tony Pua, Selangor state DAP Chief was refused entry into Sarawak. In 2015, Teresa Kok, a Chinese Malaysian and vice-Chairman of the DAP, was prevented from entering Sabah and the Hindu Rights Action Force chairman P Waythamoorthy was denied entry into Sarawak. DFAT is not aware of any instances of authorities denying an individual's exit from Sabah or Sarawak.

5.21 DFAT assesses that, subject to the restrictions outlined above in relation to Sabah and Sarawak, Malaysians can and do freely relocate internally. Individuals likely to attract official attention under state sharia-based law, including transgender individuals, women escaping domestic violence or Muslims wishing to marry a non-Muslim, often move to large urban centres to avoid attention. People also move to different parts of Malaysia, generally larger urban areas in peninsula Malaysia, for economic reasons.

According to DFAT's 19 April 2018 Country Information Report:

5.18 Malaysia's Constitution provides for freedom of internal movement, but the eastern states of Sabah and Sarawak have autonomy over their own immigration. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, must present national identity cards (or passports for foreigners) to gain entry and can visit for a maximum period of three months. The federal government can overrule immigration decisions made by Sabah or Sarawak in limited circumstances, including for national security reasons.

5.19 Sabah and Sarawak both issue working visas to non-residents (including other Malaysians), but these can be difficult to obtain. Both states limit purchase of land by non-residents. Far more people migrate from Sarawak and Sabah to peninsula Malaysia than in the other direction, due to better work opportunities and higher salaries.

5.20 In recent years, Sabah and Sarawak have denied entry to a small number of individuals. The Official Secrets Act contains the list of individuals banned from entering, and is not available to the public. During the Sarawak state election in May 2016, opposition leaders including PKR's Vice President Nurul Izzah Anwar, Selangor Chief Minister Azmin Ali, and DAP's Liew Chin Tong were denied entry on arrival in Sarawak. In March 2016, Tony Pua, Selangor state DAP Chief was refused entry into Sarawak. In 2015, Teresa Kok, a Chinese Malaysian and vice-Chairman of the DAP, was prevented from entering Sabah and the Hindu Rights Action Force chairman P Waythamoorthy was denied entry into Sarawak. DFAT is not aware of any instances of authorities denying an individual's exit from Sabah or Sarawak.

5.21 DFAT assesses that, subject to the restrictions outlined above in relation to Sabah and Sarawak, Malaysians can and do freely relocate internally. Individuals likely to attract official attention under state sharia-based law, including transgender individuals, women escaping domestic violence or Muslims wishing to marry a non-Muslim, often move to large urban centres to avoid attention. People also move to different parts of Malaysia, generally larger urban areas in peninsula Malaysia, for economic reasons.

I discussed with the applicant the possibility that she could relocate within Malaysia without facing significant harm and the relocation advice given by DFAT above. Her response was that they had tried to relocate and had been found already - and that she believed that wherever they went, they would be unable to avoid being located as his persecutors appear determined to find them.

I discussed with the applicant the possibility that he could relocate within Malaysia to an area where he would not be at risk of significant harm, and the relocation advice given by DFAT above. His response was that he had tried to relocate and had been found already - he believed that wherever he went, he would be unable to avoid being located as his persecutors appear determined to find him. They also contacted his wife twice after he had left and threatened her and his son with harm if she did not reveal his whereabouts, and later, they contacted his mother in law.

I have taken into account the fact that the applicants were located in Kuantan Pahang, and that their persecutors have tried to locate her husband by threatening the health and safety of the applicant and their young son after he had fled. I do not consider that locating the applicant (and her husband) at their only known addresses indicates any great capacity in their attackers to find them 'throughout the country'. I note that they were trying to locate the applicant's husband through her mother (at the same address where she was living before coming to Australia) as late as 2018, but, on the applicant's evidence, they have not contacted other members of their respective families. I have also taken into account her evidence that her husband was not located by his attackers after he fled. I note that her husband's stay in Kuala Lumpur was a short stay only, but nonetheless, and bearing in mind the size of Kuala Lumpur, I consider that the fact that he was not located there is a reasonable indicator that there is not a real risk that the applicant would be located by her persecutors if she was to return to Malaysia and relocate there. After all, their persecutors clearly had not even ascertained that he had departed the country by 2018, which suggests that his attackers have no capacity to ascertain his whereabouts using 'official' or corrupt official links. I have found that the applicant has not provided evidence capable of establishing that the Malaysian police might be or have been corrupted or would assist her persecutors to locate her, or that there are any 'gang' links between the attackers and other gangs in or outside Malaysia which might facilitate her being 'traced'.

I have taken into account the fact that he was located in Pahang, and that his persecutors have subsequently tried to locate him through his wife and have threatened to harm her after he had fled. I do not consider that locating the applicant (and his wife) at his only known addresses indicates any great capacity in his attackers to find him 'throughout the country'. I note that they were trying to locate the applicant through his wife's mother (at the same address where his wife was living before coming to Australia) as late as 2018, but, on the

applicant's evidence, they have not contacted other members of their respective families. I have also taken into account his evidence that whilst hiding in Kuala Lumpur he was not located by his attackers and that the applicant himself believed that he would be able to return and relocate to another part of the country after a short stay in Australia. I note that

his stay in Kuala Lumpur was a short stay only, but nonetheless, and bearing in mind the size of Kuala Lumpur, I consider that the fact that he was not located there is a reasonable indicator that there is not a real risk that he would be located by his persecutors there. After all, his persecutors clearly had not even ascertained that he had departed the country by 2018, which suggests that his attackers have no capacity to ascertain his whereabouts using 'official' or corrupt official links. I have found that the applicant has not provided evidence capable of establishing that the Malaysian police might be or have been corrupted or would assist his persecutors to locate him, or that there are any 'gang' links between his attackers and other gangs in or outside Malaysia which might facilitate his being 'traced'.

In considering the risk of significant harm to the applicant in other parts of Malaysia, I have considered the information and articles provided by the applicant in support of her case. I accept that crime takes place in Malaysia just as it does in every country, and that the applicant and her husband are fearful for their safety and that of their children. However I do consider that the extent of their fear of general violence is not justified by reference to the articles they provided. I do not accept that crime (particularly murder and kidnapping) is 'rampant' and unhindered by effective police, which was the applicant's submission at hearing. I do not accept that the victims of the kidnapping and murder crimes referred to in the articles provided by the applicants have any particular racial or religious profile. They appear to be from all groups within society, and many indeed were of Muslim Malay ethnicity. I also note in many of the articles, the person abducted was recovered safely, and that kidnappers and murderers were actually apprehended and charged by police, which mitigates against the applicant's argument that the police would ignore or be unable to action their reports of threats and would fail to act to protect them. I do accept that the applicant holds a perception that citizens of Indian ethnicity might be subjected to abuse by police. However, in the applicant's husband's only interaction with police reported to me, he was not abused by police. Neither was the applicant when she reported the threats to police. In the circumstances of this case, I do not accept that the applicant's ethnicity and religion (and that of her husband and children) places her at any increased risk of harm outside her home areas (or even within them). I do not accept that the news articles provided establish that the applicant and her family have a profile such that they are at any particular or heightened risk of harm (significant or otherwise) when compared to other members of Malaysian society, if they were to return to Malaysia and live outside of their former residential areas.

In considering the risk of significant harm to the applicant in other parts of Malaysia, I have also considered the information and articles provided by the applicant in support of his case. The news articles are of a general nature about various incidents of violent crime over many years. I accept that crime takes place in Malaysia just as it does in every country, and that the applicant and his wife are fearful for their safety and that of their children. However I consider that the extent of his stated fear of general violence in the form of child abduction and murder is not justified by reference to the articles he provided. I do not accept that crime (particularly murder and kidnapping) is 'rampant' and unhindered by effective police, which was the applicant's submission at hearing. I do not accept that the victims of the kidnapping and murder crimes referred to in the articles provided by the applicants have any particular racial or religious profile. They appear to be from all groups within society, and many indeed were of Muslim Malay ethnicity. I also note in many of the articles, the person abducted was recovered safely, and that kidnappers and murderers were frequently apprehended and charged by police, which demonstrates a willingness and ability on the part of the authorities to protect citizens from that type of offence. The applicant holds a perception that citizens of Indian ethnicity might be subjected to abuse by police throughout the country. In support of this perception, as noted above, he provided an article about police mistreatment of Tamil/Indian citizens in the period 1998 to 2009. According to that information, there were 19 incidents over 11 years. I do not accept that this is evidence tending to show an endemic or even widespread problem, when compared to the size of the Malaysian population and noting that the incidents referred to in the article were in the period up to 2009. I also note that, in the applicant's only interaction with police reported to me, he was not abused by police. Neither was his wife when she reported the threats to police. In the circumstances of this case, I do not accept that the applicant's ethnicity and religion (and that of his wife and children) places him at any increased risk of significant or any harm in Malaysia in any of the areas to which the applicant would be likely to return (that is, outside of Johor Bahru and Kuantan Pahang.) I do not accept that the news articles provided establish that the

applicant and his family have a profile where they would be at any particular or heightened risk of harm (significant or otherwise) when compared to other members of Malaysian society, if they were to return to Malaysia and live in a part of Malaysia outside of their

The applicant's husband has work experience as a port/truck driver in the Singaporean port in 2011 and later in the Johor Bahru port. He had been doing that work for several years. He lived in Johor Bahru and travelled to work in Singapore. The applicant worked at Singapore Airport prior to giving birth to her first child. Their children are young but in good health. Although the applicant's surviving family (and that of her husband) are located in Kuantan Pahang, the applicant and her husband have a history of living independently from their families, with extended periods of residence in Johor Bahru, Singapore and now Australia. The applicant did not raise any specific personal characteristics for herself or her husband which would impact on their capacity to relocate and re-establish themselves throughout Malaysia, apart from her fear that they would be located and face significant harm from their persecutors, a risk that I have determined is remote outside his home areas of Johor Bahru and Kuantan Pahang. The applicant's husband has worked in Australia, the applicant and her husband have contributed to the community here and proven to be resilient and resourceful. I consider that these qualities, along with the support of their family including of course her husband and young family, would stand the family in good stead in terms of re-establishing themselves in Malaysia. There is no information or evidence before me which suggests that conditions relating to housing, employment, schooling in Kuala Lumpur or other parts of Malaysia would render relocation unreasonable. I find that the applicant (and her family) could reasonably relocate within Malaysia where they would not face a real risk of significant (or any other) harm.

The applicant has work experience as a port worker and driver. His wife has experience working at Singapore Airport. Their children are young but there are no reported health concerns. Although the applicant's surviving family (and that of his wife) are located in Kuantan Pahang, they have a history of living independently from their families, with extended periods of residence in Johor Bahru, Singapore and now Australia. The applicant did not raise any specific personal characteristics which would impact on his or his wife's capacity to relocate and re-establish themselves throughout Malaysia, apart from his fear that they would be located and face significant harm from his persecutors; a risk that I have determined is remote outside his home areas of Johor Bahru and Kuantan Pahang. The evidence before me does not suggest or establish that the applicant and his family would

face any other harms (significant or lesser harms) in other parts of the country. The

applicant has worked in Australia, has participated in the community here and has proven to be resilient and resourceful. I consider that these qualities, along with the support of his family including of course his wife and young family, would stand him in good stead in terms of re-establishing himself in Malaysia. There is no information or evidence before me which suggests that conditions relating to housing, employment, schooling in Kuala Lumpur or other parts of Malaysia would render relocation unreasonable. I find that the applicant (and his family) could reasonably relocate to an area of Malaysia where they would not face a real risk of significant (or any other) harm.