1417464 (Refugee)

1417464 (Refugee) [2016] AATA 3298 (5 February 2016)
.
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1417464
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Christine Cody
DATE:5 February 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 05 February 2016 at 8:23pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A. In accordance with Ministerial Direction No. 56, the Tribunal has also taken into account the country information assessment prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Report Malaysia, 3 December 2014 (“the DFAT report”).
The applicants are a mother (hereafter referred to as “the applicant”) and her two children ([name] aged [age] and [name] aged [age]). They claim to be citizens of Malaysia. The father of the children is a Malaysian man of Malay ethnicity (a Muslim), who remains in Malaysia.
The applicants applied for the visas [in] March 2014[1], making refugee and complementary protection claims on the basis of religion. The delegate refused to grant the visas [in] October 2014.
[1] The third-named applicant was joined as an applicant after her arrival in Australia [in] August 2014.
The Tribunal has before it the Departmental file and the Tribunal file. The claims made to the Department were set out in the application form and a statement of the applicant. Supporting documentation was provided. The applicant attended an interview with the delegate. The delegate did not accept that the applicant faced persecution or significant harm. The delegate did not deal with any claims of the children other than as members of the family unit of the applicant whose claims had been unsuccessful.
The application for review was lodged [in] October 2014. No other documents were provided to the Tribunal at that time. The Tribunal informed the applicants that on the basis of the material before it, it was not satisfied that their application should be granted, and invited them to a hearing.
The applicants appeared before the Tribunal on 27 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [name], a [Church 1] leader who has known the applicants in Australia. At hearing the Tribunal was provided with a number of supporting documents attesting to the applicants’ Christian faith, as well as country information relating to apostasy, religious tensions between Muslims and Christians including because of attempts by Christians to convert Muslims, and poor conditions in Malaysian places of detention. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The Tribunal has not accepted all of the claims made by the applicants. Set out below are those claims as to background, harm and fear, which the Tribunal has accepted, and those that it does not accept.
Summary of Claims accepted by the Tribunal
While the Tribunal accepts some of the claims and background asserted by the applicants, it had concerns that the applicants had exaggerated and even fabricated some claims. For this reason, the Tribunal was reluctant to accept assertions made by the applicants if there was no other support for the assertions. The Tribunal accepts the following background, on the basis of the applicants’ and/or witness’s evidence, the supporting documents, corroborative country information, the consistency of evidence throughout the proceedings.
Country of reference
Having sighted their passports and considered their evidence, the Tribunal accepts that the applicants are citizens of Malaysia and are not nationals of any other country. The delegate noted, as does the Tribunal, that there is no evidence before it to suggest that the applicants have the right to enter or reside in another country. The Tribunal accepts that the applicants’ refugee claims and complementary protection claims are to be assessed against Malaysia.
The applicant
The primary applicant is the mother, born in [town], [City 1], Malaysia, in [year], now aged [age].
Her mother was [ethnicity] and her father was [ethnicity].. Her name at birth was [name] (confirmed by the birth certificate provided). She speaks, reads and writes in three languages: English, Bahasa Malaysia and Mandarin: the Tribunal notes that she gave evidence at the hearing in Mandarin. The Tribunal accepts that her ethnicity is Chinese.
Her parents both died in 2013 (this is supported by posts made on her Facebook page, which was accessed by the Tribunal).
She has [years] of education. She had a number of different employments before coming to Australia: including [occupation] in her home area, [City 1]. She started working in Kuala Lumpur from 1987, and had roles including [occupation] and [occupation] at resort hotels. From 2000 to December 2013 she was a [occupation].
The Tribunal accepts her claim that she was born and raised as a Christian by her parents (this is not inconsistent with the DFAT Report which notes that approximately 11% of ethnic Chinese identify as Christian)[2]. The Tribunal also accepts as plausible that she lost interest in Christianity in about 1980 (after she finished high school in started working).
[2] DFAT Report, paragraph 2.20
[In] November 1992, the applicant married an ethnic Malay and Muslim, [name]. He was not a practicing Muslim: he rarely went to the mosque, he ate pork and drank alcohol. She claimed that because his father was very religious, she was required to convert to Islam in order to marry him. She undertook her conversion at the Islamic Department of [City 2], JAIS. When she converted, her name was officially changed to [name] (see marriage certificate and name clarification document provided to the Department). She claimed that all female converts to Islam are given the name “Binti Abdullah”, meaning daughter of the followers of Allah. The marriage certificate shows that she was a Muslim at the time of the marriage. Her name remains as [name], which appears on her passport (provided to the Tribunal) and in her Malaysian identification card she is recorded as a Muslim.
The applicant claimed that she was not a believer in Islam; it was just something she did in order to marry the man she loved. Noting her claim that her husband was not a practicing Muslim when they married, the Tribunal is prepared to accept her claim that although she converted to the Islamic religion, she did not practice it (and she did not really consider herself to be a Muslim).
They were issued with a divorce [in] April 1999. The divorce certificate (provided) records that the father would pay maintenance for the two children (the second and third applicants in these proceedings), the mother had custody of the two children and the father was allowed to visit at reasonable times. The Tribunal accepts that the children remained living with their mother and that the father sometimes saw the children.
The Tribunal accepts that, at some stage after her first marriage ended, the applicant reverted to being interested in Christianity (the delegate also made such a finding). The Tribunal does not accept her claims as to the extent of her involvement in Christianity while in Malaysia, as discussed further below.
The Tribunal is prepared to accept the evidence of all three applicants that after the divorce, the father remarried and became a more devout Muslim (the applicant offered to show the Tribunal pictures on her phone of her ex-husband’s travels to Mecca). The Tribunal is also prepared to accept that the father wanted his children to be brought up as Muslims and that, through fear, the applicant and the children told him that the children were being brought up as “good Muslims”. They continued to deceive him from the year 2000 onward. The Tribunal accepts that when the children spent time with their father and his new wife and family, they followed Islamic rituals as required by their father (fasting, praying).
The youngest child [Child 1]
The child [Child 1] was born on [date] in [certain suburb] to Muslim parents; the applicant and an ethnic Malay father[3]. She had a passport (provided to the Tribunal) issued most recently [in] 2012 which records this as her name.
[3] As set out in the certificate provided to the Department, folio 4.
The child claims that her ethnic group is Malay (because she was born to her father) and her mother; the Tribunal notes that Article 160 of the Constitution provides that she is ethnic Malay[4] and the Tribunal is prepared to accept this. The Tribunal notes the suggestion in the delegate’s decision to Article 12(4) of the Constitution which it is suggested indicates that the minor’s parent or guardian have the right to determine the religion of minors under the age of 18 years. While this may suggest that the applicant had the right to determine that the children were Christian, the Tribunal notes that under Malaysia’s constitution, ethnic Malays are deemed to be Muslim by birth.[5] Further, having been born to two Muslim parents, the Tribunal accepts that the religion chosen by the parents for the children at birth would have been Muslim. The Tribunal has also had regard to their names (as recorded on their birth certificates and passports) which clearly identify them as Muslims; in particular the term “binti” has had a widespread connotation as denoting a Muslim[6]. A report appearing in the website of the Council of Churches of Malaysia, provides that
Government Authorities’ definition of Muslim
In Malaysia a person’s name is connected to his religion. Thus a person who has a Muslim name is deemed to be a Muslim and a person whose birth certificate shows that one of his parents had a Muslim name is also deemed to be a Muslim.[relevant to the children]
With the advent of information technology the moment a person converts to Islam, that conversion is recorded in the central computer maintained by the Registration Department and the religion of that convert will be changed to “Islam”.[ relevant to the applicant][7]
[4] Article 160: “Malay” means a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom and—
[5] Kassim, A 2010, Conversion into Islam and Inter-faith Marriages in Malaysia: An Exploratory Study, Tufts University, January, p.35 < Accessed 7 June 2013; Federal Constitution (Malaysia) , 31 August 1957 (Amended up to 20 July 1995), Article 160 (2); US Department of State 2013, International Religious Freedom Report 2012 – Malaysia, 27 May, Executive Summary
[6] 15 December 2012: “Bin and Binti does not mean Muslim”. This article indicated that the term Bin means "the son of" for males and binti means "daughter of" for females, and that these terms have had Muslim connections. After agitiation by certain indigenous communities, the Federal BN government has conceded an important matter for the non-Muslim indigenous communities in Sabah and that is the use of the terms "bin" and "binti" can be removed from their Mykad identity cards: Teoh, L. 2003, ‘Understanding Islamic Jurisprudence’, News, December, Council of Churches of Malaysian >
The Tribunal thus accepts that as far as the law, government and society is concerned, [Child 1] is considered to be Muslim.
It was claimed that [Child 1] was the most religious of the family in Malaysia, and the Tribunal accepts the claim that in Malaysia, as a child, she became very involved in Christian groups and she attended Christian conferences: [name] church camp in December 2009, [name] church holiday program from March 2010, [name] in December 2012 for a church outreach mission[8]. The Tribunal also accepts that she attended church in Malaysia on a regular basis. The delegate was concerned that [Child 1]’s father may have had to know about the reason for these trips; however the Tribunal accepts that it was possible he did not do so, given he did not have a lot of contact with the children when they were growing up.
[8] The Tribunal notes that the [name] conference is mentioned on the applicant’s Facebook page with an entry on [date] December 2012 as follows: “[entry].......”
The Tribunal accepts that, as claimed in her application form, [Child 1] considers her religion to be Christian.
The Tribunal accepts that she was educated until [year] in Malaysia, and that she came to Australia as a [age] with her mother.
The eldest child [Child 2]
The eldest child [name] was born on [date] in [City 2] to the applicant and her then husband.
Similar to the findings above, the Tribunal accepts that her ethnic group is Malay and that her official religion is Muslim. She remained in Malaysia after her mother and sister left for Australia, in order to finish her studies. During that time she stayed in a hostel next to her university. She continued to attend church regularly while she lived in her hostel and studied. The Tribunal accepts that she considers herself to be a Christian.
She was issued with a passport [in] 2014 (her name as set out above appears on her passport which was provided to the Tribunal). She left Malaysia [in] August 2014, joining her mother and younger sister in Australia. Her application form was lodged [in] September 2014.
Summary of further claims made relevant to persecution
The Tribunal notes the following claims made, but not accepted (other than as found later below).
The applicant claims she is a Muslim in her official identity but she is actually a practicing secret Christian believer. Her ex-husband threatened to go to JAIS to take custody of their Christian daughter [Child 1] (who is also Muslim in her official identity) and force her to practice Islam. She claims that she had to live outwardly as a Muslim while secretly being a Christian. Her secret believers group was raided by JAIS and forced to disperse. Believers were harassed and interrogated. She lived in fear and suffered health problems due to stress of life as a secret believer.
She left Malaysia to protect her daughter [Child 1] from forced conversion as threatened by her father. She is afraid her daughter will be taken away by her father and JAIS and forced to abandon her Christian faith and forced to follow Islamic practices. She fears that she herself will be harassed and interrogated by her father and JAIS. Her ex-husband had discovered that the children were Christians because the younger daughter had been posting Christian material on Facebook. She claimed that this was discovered by him in about July 2013, and that he had made threats that if he had proof of their Christian involvement, he would report them to JAIS.
She fears harm/mistreatment from her ex-husband and JAIS because women have no rights
Concerns with the applicant’s credibility
The Tribunal did not consider the applicant to be a particularly credible witness. For example, she portrayed herself as someone who barely had any support in Malaysia, and would be alone and without support if returned. She continued these assertions in her evidence to the delegate, and in her evidence to the Tribunal. The Tribunal however has accessed her public Facebook page (in the name of [the applicant]) which clearly shows that she had, while in Malaysia, numerous friends and contact with relatives[9], and the contact was close and supportive. According to the Facebook entries, the close and supportive contact has continued in Malaysia. The trib finds that the applicant has exaggerated and misrepresented the situation of her friends and family in Malaysia, which undermines her credibility as a witness.
[9] The Tribunal asked her about certain people who she claimed were distant relatives with whom she had no contact, or rare contact, was clearly incorrect according to her Facebook entries and comments on her Facebook page by her relatives and friends over a number of years.
The Tribunal considered the applicant’s evidence to be less than satisfactory in relation to her religious (Christian) observance in Malaysia, especially in relation to the claimed attendance at a “secret” church. She claimed to the Tribunal that she had regained her interest in Christianity in 2000. Her evidence in this regard was vague and inconsistent, as set out below.
·     The applicant told the Tribunal at the commencement of the hearing that she attended Christian services at an underground church, with [Pastor A], from 2010 to 2013 (a three year period), every Sunday. She confirmed to the Tribunal, when asked, that she attended his services the whole time. She said that there was an error made by the delegate in the decision record (where it was written that she attended services on Saturday with [Pastor A]). However, according to the letter she produced from [Pastor A], he claimed that she attended services every Saturday. In response, she said Saturday or Sunday, she can’t remember. The Tribunal considers it highly unlikely that she would forget which day she had attended church services.
·     Her claim to have attended services with him from 2010 to 2013 was inconsistent with her later evidence that she attended services at an underground church with [Pastor A], from 2001 to 2013 (a twelve year period). The Tribunal considers this undermines her claims that she attended an underground church.
·     Further, her claim that [Pastor A] was her pastor the whole time (from 2001 until 2013 or 2010 until 2013) was inconsistent with her own statement, where she claimed that after the JAIS raid in 2011, [Pastor A] fled Malaysia for three years because the JAIS were actively looking for him. The Tribunal noted this would mean that he was not in Malaysia at a time that she claimed that she was attending his services every Sunday. The Tribunal considered that she did not provide an adequate response to its concerns. The Tribunal considers the applicant’s evidence undermines her credibility, and her claim that she attended services conducted by [Pastor A] at a secret underground church, and that her Pastor was raided and had to escape Malaysia.
·     Further, [Pastor A] indicated in his letter that she had started attending services with him in 2003, yet she now claimed she started in 2001. He did not mention in his letter that she had attended an underground church.
·     She produced a Certificate of Baptism dated [in] October 2006. When asked why it took six years to be baptised, and whether she had previously been baptised as a child (given her claim that she had a Christian upbringing), her evidence was confused and changing.
The Tribunal places no weight on the documentary evidence produced by the applicant indicating that she was baptised [in] October 2006 by [Pastor A].
If not for the applicant’s public Facebook pages, the Tribunal would have found it very difficult to accept her claim to have been a Christian in Malaysia. However, the Tribunal has accessed her public Facebook page (in the name of [the applicant]) which contains many statements clearly referencing Christianity (for example referring to God’s Grace, people being blessed by God, God’s love, publishing quotes etc). These sentiments were expressed before she came to Australia (back to 2009), and they have continued since she came to Australia. The Tribunal is thus prepared to accept that the applicant believed in Christianity, and expressed Christian sentiments on Facebook which were publicly accessible, without difficulties, in Malaysia. The Tribunal does not accept that she regularly attended Christian church services, nor that she attended any in secrecy as claimed. However, the Tribunal also accepts that, noting her children’s church involvement, she may have taken her children to church sometimes; and then allowed them, as they got older, to attend Christian gatherings without her.

The Tribunal thus considers that while the applicant was prepared to post Christian sayings on Facebook, she had a limited interest in Christianity while she was in Malaysia.
Claimed past problems in Malaysia
The Tribunal also considers that the applicant made up claims about past problems she and the children had experienced as a result of their practice of Christianity in Malaysia. One claim was that a friend at work was going to report her to JAIS in 2001 for converting to Christianity. Another claim was that she had narrowly avoided being caught up in a JAIS raid in 2011 (which had led to [Pastor A] being forced to flee Malaysia for three years).
Despite these claims, indicating the dangers of practising Christianity, she claimed in her statement that in early 2013 she started attending (openly) a Christian Church in Kuala Lumpur. The Tribunal considered this to be inconsistent with her claim that she had to practice Christianity in secret.
Further, the Tribunal considered it unlikely, in the circumstances, that the applicant would have allowed [Child 1] to post details of her Christian activities on Facebook, and that as a result the children’s father had found out and threatened her and the children.
The Tribunal considers that the claimed threats from the father were not credible. It was claimed by the applicants that enough information had been posted on [Child 1]’s Facebook page to indicate that she was a Christian who had been attending various Christian gatherings. Yet it was claimed that the father had threatened that if he had evidence they were Christians, he would report them to JAIS. As the Tribunal pointed out to the applicants, it appeared that he would have had the required evidence if [Child 1]’s Facebook postings were true.
The Tribunal considers that the mother’s delay in leaving Malaysia with the younger daughter (noting the claimed threats in July 2013, the passports and visas being issued [in] 2013, and then the delayed departure in December 2013, waiting until after the youngest child had finished her schooling), as well as having left the elder daughter in Malaysia to continue her studies until [year], undermined the claim that the father had, at that time, an awareness of [Child 1]’s Christian activities, or any intention to report them for Christian activities.
Further, the Tribunal also notes that the applicant posted, in November 2013, on her publicly accessible Facebook page, a picture of herself and the two children, all wearing minimal clothes (exposing skin), in public, with the caption clearly referring to the daughters: “[caption]”. The Tribunal considers that if, as claimed, their father had discovered their Christianity through the younger applicant posting Christian photos and comments on Facebook pages, and had threatened to report them to JAIS, the mother would not have taken such a blatant risk as to publish such a photo and caption of herself and the two children. The Tribunal considers that the claim about the father discovering the younger child’s Facebook posts, which led to threats of harm (by reporting the mother and the daughters to the religious authorities) to be a fabrication by the applicant and the children.
Despite its concerns that the applicants have exaggerated and made up claims, the Tribunal’s task is to consider whether they face a real chance of serious harm or a real risk of significant harm, as set out further below.
Australian activities
The Tribunal accepts that [Child 1] in particular has continued to be an active Christian in Australia. The Tribunal has seen evidence on her mother’s Facebook page of [Child 1]’s baptism at [Church 1] on [date] November 2015. The Tribunal has also seen the applicant’s Facebook page showing the attendance of herself and [Child 2] to a [Church 1] conference on [date] July 2015. It has heard the witness’s evidence about their faith being strong and attending [Church 1] in Australia The applicant gave evidence about her knowledge of Christianity to the delegate, and the Tribunal has listened to that interview. The Tribunal considers that her knowledge shown at the interview was consistent with the Tribunal’s findings that she has had some minimal and somewhat superficial involvement in Christianity in Malaysia, but that she has increased her involvement and interest in Christianity since she arrived in Australia, over two years ago.
The Tribunal has considered whether the applicants have undertaken Christian activities in order to strengthen their claims. In this regard, the Tribunal notes it accepts that the applicants have considered themselves as Christians prior to coming to Australia; it has accepted the witness’s opinion that the applicants are genuine committed Christians; it has also considered the Facebook entries it has accessed[10]. Although the Tribunal considers that the applicant has increased her Christian involvement in Australia, given that she was already a Christian before coming to Australia, the Tribunal is prepared to give her the benefit of the doubt and accept that her increased involvement in Christianity in Australia is not for the purposes of strengthening her claims. Similarly the Tribunal does not consider that the children have undertaken Christian activities in Australia in order to strengthen their claims. Accordingly, the Tribunal finds that s.91R(3) of the Act is not applicable.
[10] The Tribunal has printed out some of the applicant’s Facebook pages, located on the file.
The Tribunal finds that the applicants are committed Christians in Australia who regularly attend church and other activities.
The Tribunal accepts that the girls have been brought up as Christians; that [Child 1] has attended numerous Christian conferences; that both girls attend an evangelical church; and that it is their wish to continue to manifest their religion in the same way they do in Australia: by attending church, choir and Christian conferences openly, and by discussing their religious views openly with whomever they meet. The Tribunal accepts that they have had to keep a low profile concerning their religious observance previously in Malaysia in order to hide it from their father.
The Tribunal also accepts that the applicant would wish to continue to attend church in Malaysia.
Future harm
The Tribunal has accepted that the applicant’s ex-husband has become more strictly religious since he remarried; that the applicant and the children have deceived the father, while the children were growing up into thinking that they were being brought up as Muslims. In this regard, the Tribunal is prepared to accept the evidence that the girls had to submit to Islamic practices whenever they stayed with their father, including fasting, praying and wearing conservative clothing, which was against their wishes and the religion they believe in. While the Tribunal has found that a number of claims made were not true, the Tribunal is prepared to accept that the applicant was concerned about the religious ideology of [Child 1], who was [age] when they left, coming to the attention of the children’s father, and that this was a significant factor in them leaving Malaysia. The Tribunal considers that all three applicants do have genuine concerns about the father’s views on Islam, and what he may do if he discovers that his daughters, who are growing up and becoming independent, have “converted” to Christianity from Islam.
As set out above, the Tribunal has accepted that the applicant is considered officially (and by society generally) to be a woman who converted from Christianity to Islam (in 1992), and that her religion is identifiable by her name (as recorded on her identity documents). The Tribunal accepts that by virtue of her name, she is legally (and imputed) to be a Muslim. The Tribunal has found that she had low level, occasional, Christian involvement in Malaysia, and that she did not suffer any harm for this reason. The Tribunal finds that she was able to work and support herself and her two children, and to live her life in Malaysia, but that she did not draw any attention to herself by her low level practice of Christianity and her Facebook comments indicating that she is a Christian.
The children
The Tribunal has considered the situation of the children, who are both young girls and whom the Tribunal finds will continue living with their mother in Malaysia, and being under her responsibility. The Tribunal accepts that they are officially considered to be Muslims and ethnic Malays, and that their names and parental details suggest generally that they are Muslims.
Although the Tribunal has not seen the girls’ identity cards, the Tribunal accepts that they will be identified as Muslim on their identification cards (which records the Muslim religion), which they must carry with them at all times, and which is an important card with many purposes (providing proof of citizenship, for employment, and to obtain basic services)[11].
[11] DFAT Report – see Annexure B
Having heard their evidence, and considered their Facebook pages (insofar as some pages are publicly available), the Tribunal considers that these young girls are strong-minded and determined, that they are committed practicing Christians who share their faith with friends and others freely, that they dress in a non-conservative, western manner (as evidenced by their Facebook posts). The girls have now finished school and will now do further education or obtain work. The Tribunal accepts that although they are officially (and in Malaysian society) regarded as Muslims, they do not consider themselves to be Muslims.
The Tribunal accepts that there is a real chance that, in putting themselves out in society, they will be identifiable, by both society and officials as (legally and actually) Muslim, from their Muslim names and identity documents, but that they will present as young, independent, females, with a non-Muslim, non-conservative manner of dressing, that they do not wish to identify or act as Muslims, and that they would be open about their non-Muslim, Christian identity, unless, in a situation of fear of possible consequences, such as with their father where they have pretended to be Muslim.
While the Tribunal does not accept the claimed threats were made by the father, as it does not accept that [Child 1]’s Facebook page was accessed, the Tribunal accepts that the father is a strict Muslim who will not accept his daughters (who are growing up and becoming independent) expressing themselves or portraying themselves in society as Christian converts (which is how they face being considered by both society and officials).
The Tribunal has considered the consequences for the children in their encounters with their father and his new family (contact is maintained), society generally, and official encounters (noting that they will have to show their identity card to obtain basic services), given the real chance and real risk that they will be considered as converts in the reasonably foreseeable future.
The Tribunal notes attitudes towards the practice of Christianity and conversion from Islam are referred to in the DFAT Report (and in other country information) which states, by way of background information:
Religion
3.15 Islam (Sunni) is the state religion of Malaysia and freedom of religion is guaranteed under the Constitution. However, the propagation of other religions, including non-Sunni versions of Islam, is illegal.
3.16 Individuals born in Malaysia of Malay ethnicity are automatically classed as Muslim. Their Muslim status is recorded on their birth certificate and on their national identification card. National identification cards do not distinguish between Sunni and Shia Muslims and do not record other religions.
3.17 Malaysia has a two-track legal system comprising civil law, based on English common law at federal level, and sharia-based law, administered at state level. Islamic laws at state matters relate to: succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and, broadly, the “deterioration of matters of Islamic law and Malay customs”. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Advancement (Jakim) and the National Fatwa Council. These bodies sit within the Prime Minister’s portfolio.
3.18 Sharia-based law applies only to “persons professing the religion of Islam”. However, the enforcement of sharia sometimes affects non-Muslims, particularly on matters involving religious conversion and family law.
…….
Religious Conversion
3.24 Converting from Islam is extremely difficult in Malaysia. In May 2014, Prime Minister Najib said the Malaysian government would “not tolerate any demands or right to apostasy by Muslims”. In Malaysia, an “apostate” is a person who formally attempts to renounce their Muslim status. Ethnic Malays are considered to be Muslim at birth, which is recorded on their birth certificate and on their national identification card. Despite the guarantee of freedom of religion in Malaysia’s Constitution, the civil courts have ruled that they have no power to intervene in apostasy cases which fall under the jurisdiction of Malaysia’s sharia courts….
3.26 Individuals who have attempted to convert from Islam have faced long and expensive legal battles, involving both the federal civil courts and state sharia courts. An individual wishing to convert from Islam must first obtain permission from a state sharia court. The court will declare them to be an apostate. State Sharia courts rarely grant such declarations and, in some states, including Melaka, Pahang, Perak, Sabah, Kelantan and Terengganu, apostasy is a crime punishable by fine, a jail sentence, caning or, in two states, the death penalty (Terengganu and Kelantan). There are no records of the death penalty being applied in relation to apostasy. Individuals who attempt to convert from Islam have been compelled to attend religious rehabilitation centres. The government does not release statistics on the number of persons sent to religious rehabilitation centres. [emphasis added]
3.27 Only 168 of over 800 Muslims who attempted to convert between 2000 and 2010 were given permission to do so. In these cases, the sharia courts determined that all 168 applicants had not been Muslim to begin with, thereby avoiding a legal precedent supporting conversion from Islam. A well-reported case was that of Lina Joy, who attempted to convert to Christianity and marry a Christian in 1998. By law, she was unable to marry a Christian unless her conversion was recognised by the state. Her case culminated in a 2007 Federal Court decision which found that she remained a Muslim and her religious status should not be removed from her national identity card, as “a person cannot, at one’s whim and fancies renounce or embrace a religion”…
3.29 DFAT assesses that individuals may face high levels of official discrimination under Malaysian law if they attempt to convert from Islam or to marry a non-Muslim, or if their partner converts to Islam, resulting in the loss of child guardianship rights for the non-Muslim parent.
…
Places of Worship
3.30 While there are many non-Muslim places of worship in Malaysia, credible local sources advised DFAT that procedures and processes for building new non-Muslim places of worship has become increasingly restrictive. A mosque can legally be built in any neighbourhood, Muslim or non-Muslim, however other non-Muslim places of worship could not be built within 100 metres of a Muslim neighbourhood.
3.31 Local authorities have on occasion prevented or delayed the construction of non-Muslim places of worship. State authorities prevented the construction of a church in Kelantan in September 2010 without explanation. Some Christians disguise places of worship as businesses to provide a permanent location for their congregation. Credible local sources advised DFAT of a Methodist church disguised as a shopfront in Kuala Lumpur.
Malaysian Christians
3.32 Malaysian Christians represent close to 10 per cent of the total population. A broad range of ethnicities practice Christianity.
3.33 While Christians are generally free to practice their religion, official impediments have been placed on their use of the word “Allah” (Arabic for God). Malaysian Christians claim to have used the word “Allah” for centuries to practice their religion. The Home Affairs Ministry banned the Catholic newspaper, The Herald, from using the word “Allah” under the Printing Presses and Publications Act 1984 in 2008. The Malaysian Court of Appeals and Federal Court upheld the ban.
3.34 The ban has occasionally been enforced by law enforcement authorities. The President of Perkasa Malaysia (a Malay rights NGO), Ibrahim Ali, called on all Muslims to seize and burn copies of Bibles that contain the word “Allah” and other Arabic verses in January 2013. In response, two policemen and approximately 20 officers from the Selangor Religious Islamic Department (JAIS), raided the offices of the Bible Society in Malaysia (BSM), seized hundreds of bibles translated into Bahasa Malaysia and Iban and arrested the President and Manager of BSM. In response, the federal government ordered the JAIS to return the bibles and to consult before carrying out any such future raids. The Selangor Islamic Affairs Department raided the office of the Bible Society of Malaysia in January 2014 and seized bibles. The Selangor State Government publicly criticised the raid and disallowed charges against Society members.
3.35 Despite these incidents, DFAT assesses that Malaysian Christians are generally able to practice their religion without interference and do not face discrimination or violence on a day-to-day basis. Christians occasionally face societal violence in Malaysia. Two nuns were assaulted by unknown assailants outside the Church of the Visitation (Catholic faction) on 14 May 2014 in Seremban. At 6 am, Sister Juliana Lim Nyo Nya (69 years of age) and Sister Marie Rose Teng (79 years of age) were assaulted when opening the church for morning prayers. Sister Juliana later died of her injuries. At the time of writing this report, the Seremban police were investigating the incident. Credible local sources, including religious experts, informed DFAT that this type of attack was not common and that the police were known to conduct thorough investigations in response.
….
State Islamic Religious Departments
5.8 Religious enforcement officers, known locally as religious police officers, have a range of powers, depending on the particular Islamic laws that apply in each state. State religious officers are not permitted to police non-Muslims. However, non-Muslims can be directly affected (see ‘Religious Conversion’, above). Religious enforcement officers have the authority to detain and charge individuals to go before sharia courts. A range of penalties can be given to an individual convicted under sharia-based law (see ‘Sharia Courts’, below).
5.9 Misconduct by religious enforcement officers can technically be investigated by relevant state religious departments or the RMP. However, the RMP is generally not willing to get involved in state religious matters. The majority of complaints made against religious enforcement officers related to mistreatment of transgender individuals, domestic violence victims and non-Muslim parents in situations of unilateral child conversion to Islam.
While the Tribunal accepts the DFAT assessment that generally, Malaysian Christians are able to practice their religion, the Tribunal considers that this is not the situation for the children, for the reason that they are officially Muslims and ethnic Malays (and young females in non-Muslim, western dress). The Tribunal considers that as they are growing into young ladies, who will be out in society and who refuse to behave or present as Muslim, there is a real chance that they will be considered to be apostates, and to be proselytising, which is considered to be an offence. Annexure C contains other reports with more detail on conversion, perceived or otherwise, as well as apostasy, proselytising, and increasing religious tension in Malaysia.

Having considered the country information, the Tribunal considers that, having regard to the children’s character and characteristics (strong-minded young female Christians who have now reached an independent age, yet barely and are still vulnerable, who are proud of their Christianity and who proselytise, yet who have Muslim names and are legally Muslims, but they also dress as westerners), they face a real chance of being reported either by their father, or by officials or members of society for their failure to conform to expected norms concerning religion, conversion and proselytization, and that such reporting would lead to a real chance of being forced to attend a religious rehabilitation centre (as referred to in the DFAT Report), where they will be held against their will, and forced to renounce their Christian views, and to accept to lead their lives as good practicing Muslims.
The Tribunal considers that the girls thus face a real chance of serious harm including a threat to their liberty (s.91R(2)(a) of the Act). The Tribunal accepts that the essential and significant reason for this serious harm is the Convention reason of religion (in their particular circumstances of being considered Christian converts while officially Muslims) (s.91R(1)(a) of the Act); an additional reason, if one was necessary, may be that they are young ethnic Malay women[12] in Malaysia, who will appear westernised; however it is not necessary to determine this.
[12] The Tribunal refers to information set out in Annexure D concerning women in the workforce.
The Tribunal has considered whether the serious harm faced by the children is systematic and discriminatory. The Tribunal considers that the children face a real chance of serious harm, namely being subjected to forced religious re-education against their will, because they are (young female ethnic Malay) Muslims presenting as Christians converts. The Tribunal considers that the government’s conduct is systematic in the sense of being deliberate and premeditated (see VSAI v MIMIA [2004] FCA 1602) and discriminatory in the sense that it would be directed at the applicants in a non-random way because of their religion (MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95]) (s.91R1)(c) of the Act.
The Tribunal finds that there is a real chance on the basis of the above findings and the country information that the children will suffer persecution in Malaysia in the recently foreseeable future.
The Tribunal considers that the applicant, who is the mother of the children, faces a real chance of serious harm by being interrogated for the conduct of her daughters, for whom she is responsible, and that as a result of the interrogation, there is a real chance that she too will be discovered as a Muslim presenting as a Christian convert. In the circumstances, the Tribunal considers there is a real chance that the mother will also be forced to attend a religious rehabilitation centre against her will. While the Tribunal notes that the delegate put to the applicant at interview that country information indicated that women who had converted to Islam in order to marry, were one of the few categories who would be able to convert back to their religion after a divorce, having considered the difficulties for people to convert as set out in the DFAT report, the Tribunal does not consider that this would negate the real chance of serious harm faced by the applicant in the recently foreseeable future.
For the same reasons as set out above, the Tribunal finds there is a real chance that the applicant will suffer persecution in Malaysia.
As the harm feared emanates from the state’s religious rehabilitation centres, the Tribunal is not satisfied that the applicants can access adequate and effective state protection; nor does the Tribunal accept that they can escape the feared harm by relocation.
The Tribunal is satisfied that the applicants have a well-founded fear of persecution for Convention reasons. Accordingly, the Tribunal finds that the applicants are refugees as they meet the refugee criterion (s.36(2)(a)).
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention, therefore they do satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Christine Cody

Member
ANNEXURE A – RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition – race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Member of family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children under the age of 18 years.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – and any country information assessment 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.
ANNEXURE B – DFAT REPORT
NATIONAL IDENTITY CARDS
5.26 National identity cards are compulsory for all citizens 12 years and above. The National Registration Department introduced the MyKad system in 2001, replacing an earlier identity card. At the time, Malaysia became the first country in the world to use an identification card incorporating both photo identification and fingerprint biometric data on an in-built computer chip.
5.27 The MyKad shows an individual’s name, address, biometric data (including photograph and fingerprints) and their status as a Muslim (and by omission, it signals an individual’s status as a non-Muslim). The main purpose of the card is to provide proof of citizenship, the only other method of which is a birth certificate. The MyKad also serves many important functions including acting as an alternative driver’s license, an ATM card, a payment card for tolls and other taxes and several other applications.
5.28 Malaysian children are issued with a MyKid card at birth, which is upgraded to a MyKad at 12 years of age. It is a requirement that the photograph remain valid and the MyKad must be updated when an individual reaches 18 years of age and periodically thereafter. The MyKad card must be carried at all times and a failure to do so attracts a fine of between RM 3000 (approximately AUD 990) and 20,000 (approximately AUD 6,605) or jail term of up to three years. It is also a legal requirement for the card holder to keep their residence up to date. Given Sabah and Sarawak maintain separate immigration controls, citizens who have permanent residency in these states are denoted by the letters “H” and “K” respectively on the bottom right corner of their card.
5.29 It is possible for individuals to ‘rent’ or ‘buy’ another person’s identity and to then utilise that person’s MyKad card to obtain other documents fraudulently, including passports. While it would be possible to fraudulently obtain a MyKad card, DFAT assesses it is relatively rare given personal identity and other records are cross-checked by the Ministry for Home Affairs. Instances of fraud are investigated by the Royal Malaysian Police.
ANNEXURE C
83.Freedom House notes that civil courts continue to refer cases of conversion from Islam to Shari’a courts:
“When it comes to conversion, it seems that freedom of religion exists only for non-Muslims in Malaysia. Civil courts have set precedents for referring cases of conversion from Islam to Shari’a courts, and the government maintains that renouncement of Islam cannot be recognized without an order from a Shari’a court, despite the fact that such courts have no mechanisms for accepting these conversions. In fact, Shari’a courts view deliberate departure from Islam as apostasy, a serious and punishable offense.[13]
[13] Freedom House 2010, Policing Belief: The Impact of Blasphemy Laws on Human Rights – Malaysia, UNHCR Refworld, 21 October < Accessed 6 June 2013
84.Freedom House 2015 report:
The government increasingly targeted regime critics and those challenging conservative societal norms in 2014….Books and films are directly censored or banned for profanity, violence, and political and religious content. Publications often face harassment from the government….The government engages in legal harassment of bloggers, activists, academics, lawyers, and journalists who post critical content, charging them under defamation laws, the Official Secrets Act, and the Sedition Act, all of which include imprisonment as a possible penalty. As of fall 2014, 15 people faced sedition charges in Malaysia. In September, two students were charged under the Sedition Act: Safwan Anang and Adam Adli were sentenced to ten months and one year in prison, respectively, for public remarks made in 2013 about the general election and the government….In June, Malaysia's highest court upheld the reinstatement of a ban, made by an appeals court in 2013, on non-Muslims using the word Allah to refer to God. The decision was a devastating blow to freedom of religion and private discussion, as Malay-speaking Christians widely used the word in their scriptures, including Christian bibles, and in daily life. In October, prominent officials defended a call by a far-right politician to burn bibles containing the word Allah.
Teachers and students espousing antigovernment views or engaging in political activity are subject to disciplinary action under the Universities and University Colleges Act (UUCA) of 1971. [14]
[14] 5 May 2015 - Freedom House, Freedom in the World 2015 - Malaysia,
85.US International Religious Freedom Report
In terms of penalties, Freedom House advises that apostasy is an offence at the state level. Those “accused and convicted of apostasy are required to repent, and even if they do so, they can be sentenced to imprisonment for up to five years, depending on the state”.[15] In the states of Perak, Malacca, Sabah and Pahang, apostasy is punishable by a fine or imprisonment. In Pahang, up to six strokes of the cane may also apply.[16] Kelantan and Terengganu states have passed legislation making apostasy a capital offence, however these laws cannot be enforced without a constitutional amendment.[17]
[15] Freedom House 2010, Policing Belief: The Impact of Blasphemy Laws on Human Rights – Malaysia, UNHCR Refworld, 21 October < Accessed 6 June 2013
[16] US Department of State 2013, International Religious Freedom Report 2012 – Malaysia, 27 May, Section II
[17] US Department of State 2013, International Religious Freedom Report 2012 – Malaysia, 27 May, Executive Summary, Section II
Additionally, Shari’a courts may send apostates to religious rehabilitation programs. These programs reportedly vary in length but may often last approximately six months, during which time participants are not permitted to leave rehabilitation centres.[18] Freedom House explicitly notes that while converts from Islam may be held in “reeducation centres”, these centres are not labour camps.[19]
[18] US Department of State 2013, International Religious Freedom Report 2012 – Malaysia, 27 May, Section II
[19] Freedom House 2012, Countries at the Crossroads 2012 – Malaysia, 20 September
86.According to the 2015 USCIRF Report,
The government, ruling party, and religious leaders put forth laws, policies, statements, and fatwas (religious edicts) broadening the application of Islam and potentially limiting religious freedom. Both civil and Shari’ah courts have the power to police religious belief and expression; in 2014 the government sought to expand this power through the establishment of a religious police force. and by amending the Sedition Act to restrict speech to prevent perceived insults to Islam…. National and state-level efforts to address the perceived liberalization of Islam, particularly by non-Muslims and non-Sunni Muslims, have resulted in increased fatwas and even stronger appeals among Islamic political parties, both ruling and opposition, to their more conservative base…. The commingling of politics, religion, and ethnicity has a negative effect on religious freedom in Malaysia…. Muslims are allowed to proselytize to non-Muslims, but not vice versa….. Those considered to have strayed from Sunni Islam, including individuals from “deviant” sects or those who seek to convert from Islam, can be forced into “rehabilitation” centers by the government or state-level Shari’ah courts, and/or face fines or prison sentences….
In addition to the aforementioned restrictions on apostasy and proselytization, both civil and Shari’ah courts in Malaysia have the power to punish blasphemy and religious insult. In 2014, the prime minister’s office progressed with its controversial proposal to establish a formal religious police force at both JAKIM and state level religious departments. The new personnel will have authority to enforce Islamic laws against Muslims only. The move is the latest in a series of steps in recent years to expand JAKIM’s powers.
Malaysia’s vaguely-worded Sedition Act is frequently used as a means to suppress political and religious dissent. In November 2014, Prime Minister Najib announced that the government would strengthen the law to cover any insults to Islam; the amendments are expected in the spring of 2015. Approximately 40 people were investigated or charged under the Act in 2014, including civil society activists, religious leaders, politicians, journalists, and academics. Among them was human rights lawyer Erik Paulsen, who in February 2015 was charged with sedition for criticizing JAKIM for promoting extremism. Critics of the Act have noted that its use is one-sided. For example, in October 2014, the government refused to bring sedition charges against Ibrahim Ali, a former member of parliament and the founder and head of Perkasa, a Muslim rights group closely tied to BN. In 2013, Ibrahim had called for Bibles to be burned and has also said that the use of the word “Allah” in the Bible is a religious provocation against Muslims…. Malaysia is known for its efforts to prevent radicalism and violent extremism from taking root within its borders, particularly with respect to ISIL (the Islamic State of Iraq and the Levant), and is often praised for its moderation and pluralism. However, human rights advocates note that a moderate, pluralist approach is not applied when it comes to the tolerance of religious and ethnic minorities among its own people. Critics also point out that by expanding the Sedition Act and by allowing the conviction against Malaysian opposition leader Anwar Ibrahim to stand, Prime Minister Najib has eroded his country’s reputation as moderate and tolerant[20].
[20] United States Committee on International Religious Freedom Report 2015, to Asian Correspondent,
Apostacy of Malays to Christianity is a controversial issue in Malaysia. It tugs at the very essence of Malay identity, as a Malay in Article 160 of the Federal Constitution is defined as someone who practices Islam, speaks Bahasa Melayu, and follows the Malay culture.
According to the above definition, a Malay must be a Muslim. Malay society is very insular in the sense that most believe that following any other faith other than Islam is the wrong path. Conversion to any other religion would be socially very difficult, as it would be seen as being a traitor to one’s own race. Apostasy is seen as turning one’s back on Malay culture, where family and friends would most probably treat that person as an outcast.
Apostasy is also criminalized within Malaysia, with the death penalty actually standing on the statute books in states of Kelantan and Terengganu (yet to be constitutionally approved). The only state where one can legally apply to leave Islam is in Negeri Sembilan.
However, converting away from Islam through the Sharia Court system is almost impossible. There have been a number of high profile cases such as the Linda Joy case, which were rejected by the Malaysian courts.
“Estimates of apostasy to Christianity vary from a few thousand to well over 250,000, depending upon who provides the estimate.”
Many apostolates are arrested for apostasy and interned in one of the religious rehabilitation centres for up to 36 months around the country, where contact with relatives and the outside world is greatly restricted. Once released, if married to a non-Muslim, the couple is forbidden to live together under one roof, thereby breaking up the family.
Consequently, most choose to live and practice their new faith in secrecy, even from their immediate families.
Individuals and congregations of suspected Christian Malays are harassed by the Sharia police. A few years ago, a number of high profile raids were made on suspected Christians around Petaling Jaya and Kelana Jaya in Selangor, under the pretext that there was a highly organized Christian group targeting Malays for conversion to Christianity. Some of these raids came under criticism for the heavy handed tactics used by the authorities.
There is been a marked increase in apostasy in Malaysia. This has been the case since 9/11. Other reasons cited for Malay Muslims converting to Christianity include those from failed marriages who want to revert back to their original religion, those with little knowledge about Islam, those influenced by peer pressure, those wishing to marry a non-Muslim, and those proselytized by missionaries.
Rumours within Malay society circulate about who may be a closet Christian in Malaysia. Even a member of a Royal family was rumoured to have converted to Christianity. Any long-time resident of Kuala Lumpur, Penang, Ipoh, or Johor Bahru, who is close to the Malay middle class would have most probably heard about groups of Malays who are believed to be closet Christians, practising their new found faith in the utmost secrecy.
There have been no formal studies on how many Malays have converted to Christianity. Not many Malays would admit to it, in fear of being outcast from society and prosecuted. However, there is lots of anecdotal evidence that this phenomenon is going on within Malaysia today.
Estimates of apostasy to Christianity vary from a few thousand to well over 250,000, depending upon who provides the estimate. Some quarters have purposely quoted high figures, to use apostasy as a political issue……
…..Ultra Malay group PEKASA and Islamic groups like Hizbat Tahrir have used Christianity as a ‘boogyman’ to scare and garner support from the Malay community. The concept of Christianity is being reframed to mean ‘western values’ that affront the Malay culture and identity.
The Qu’ran itself states that there should be no compulsion in religion (2:256). Although Islam is the official religion of Malaysia, Article 11 of the Federal Constitution guarantees freedom of religion. Yet section 4 of article 11 somewhat negates this. In addition, according to the definition of a Malay within Article 160 of the Constitution, those who leave Islam would cease to be a Malay.
Although the Federal Constitution professes freedom of religion, various state acts criminalize apostasy, raising constitutional law issues the court system has been reluctant to uphold.
Laws also strictly prohibit the proselytizing of Muslims by non-Muslims, although the reverse is permissible.
Malaysia’s Federal and State laws in regards to apostasy have been criticized by Freedom House for contravening human rights, because they have placed undue limitations on freedom of opinion, expression, religion and belief. Although Malaysia is a member of the UN Human Rights Council, it has not ratified several human rights treaties, which include the International Covenant on Civil and Political Rights (ICCPR). Malaysia is on a watch list by an advisory body of the United States Government over concerns about lack of freedom of religion, putting it on a par with Saudi Arabia, Afghanistan, Cuba, Iran, Nigeria, and Yemen.
The network of Religious Rehabilitation Centres around Malaysia shows that apostasy is an issue taken seriously by the Malaysian Government today. Malay Muslim Background Believers (MMBB) do exist within Malaysia, but are not the threat made out to be by certain ‘ultra’ quarters within the Malaysian political scene.
One cannot read whether the opposition to these small groups is based on fear or opportunity. Fear that opening a ‘pandora’s box’ may lead to a mass exodus of Malay Muslims to Christianity, or opportunity to use this fear for political gain within the Malaysian political narrative to ‘harness’ the Malay vote for a tired government that has been in power for more than 55 years[21].
[21] Closet Christians in Malaysia: Proselytism or politics?, Asian Correspondent, 20 November 2015. type="1">
Multiple sources report heightened tension between Christians and Muslims across Malaysian states in recent years. Freedom of religion is protected by the Malay constitution.[22] However, according to Minority Rights Group International in 2005, “the Constitution itself may be discriminatory and violate freedom of religion, as it defines all Malays as necessarily being Muslims and speaking the Malay language”.[23]
[22] Constitution of Malaysia 1957 (Malaysia), adopted 31 August 1957, World Intellectual Property Organisation website < Accessed 19 July 2012
[23] Minority Rights Group International, World Directory of Minorities: Malaysia Overview < Accessed 19 July 2012
The Malaysian Insider reported on 28 March 2012 that, in recent years, “a number of conservative Muslim groups have … accused Christians of attempting to convert Malays, resulting in heightened tension between followers of the two religions”.[24] Similarly, The New York Times reported on 12 December 2011 that there is currently an increasing climate of religious tension directed towards Christians in Malaysia. The newspaper reported the “unease many Christians in Malaysia are feeling this season, following accusations that they are trying to “Christianize” this Muslim-majority country by converting Muslims, which is illegal”.[25] Reuters reported that despite the “ethnic strife” and heightened racial tensions that exist between the Malays, Chinese and Indians, it is “the squabble between Muslims and Christians” that has “taken centerstage” in recent years, “amid a rash of church bombings, the seizure of Bible shipments and legal action over the Christian use of the word “Allah”.”[26]
[24] Shukry, A 2012, ‘‘Christian threat’ seminar in Johor sparks religious row’, The Malaysian Insider, 28 March < Accessed 17 July 2012
[25] Gooch, L 2011, ‘For Malaysian Christians, an Anxious Holiday Season’, The New York Times, 12 December < Accessed 18 July 2012
[26] Ahmad, R 2011, ‘Malaysian Muslims denounce Christian conversion efforts’, GMA News, 22 October, Reuters < Accessed 18 July 2012
The New York Times reported in 2011 that “recent statements by Muslim politicians and [g]roups promoting Islam have left many Christians, who make up just 9 percent of the population, feeling victimized” and that “many are convinced that they are being used as political pawns to win support among Muslim voters in advance of the next general election”. The article quotes Reverend Thomas Philips as stating: “I think Christians are generally feeling that there is kind of a Christian-bashing going on”.[27]
[27] Gooch, L 2011, ‘For Malaysian Christians, an Anxious Holiday Season’, The New York Times, 12 December < Accessed 18 July 2012
ANNEXURE D – WOMEN
According to the DFAT report:
Sexual Harassment
3.66 Despite increased legal protections, sexual harassment remains a barrier for women’s participation in the workforce. The government has taken several steps to address the issue. Malaysian law prohibits a person in authority from using their position to intimidate a subordinate into having sexual relations. Amendments were made to the Employment Act in 2012, making certain forms of sexual harassment in the workplace illegal. The Government introduced a voluntary code of conduct for the civil service, defining sexual harassment and raising public awareness.
Economic Overview
2.3 Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy, with real GDP growth in 2013 of 4.7 per cent, following growth in 2012 of 5.6 per cent. Since independence, Malaysia has been transformed from a commodity-based economy, focused on rubber and tin, to a leading producer of electronic parts and electrical products and exporter of palm oil, oil and gas. Manufactured goods made up 67 per cent of Malaysia’s exports in 2012. …
2.5 The Malaysian Department of Statistics reported labour force participation in February 2014 as 67.40 per cent. Malaysia’s female participation rate is the lowest in Southeast Asia at 33 per cent in 2010, while the male participation rate was 77 per cent. Urban-based females in Malaysia had a higher rate of participation (48.5 per cent), compared to their counterparts in the rural areas (41.2 per cent). The Malaysian Government introduced policies to ensure equal pay for equal work and programs to promote full and equal participation by women in early 2014.
92.According to the US Country report on human rights practices for 2014,
NGOs reported, however, continued discrimination against women in the workplace in terms of promotion and salary.
Women experienced some economic discrimination in access to employment. The UN Development Program Country Program 2013-15 report noted participation in the labor market for women was 46.1 percent, compared with 78.7 percent for men. The government continued to seek to increase female labor force participation. According to the Prime Minister’s Department, as of 2013 women held only 7 percent of board seats in listed companies.
The law provides that women in the private sector are entitled to 60 days’ maternity leave, and women in civil service are entitled to 90 days’ maternity leave. Men are not entitled to paternity leave. Some pregnant women experienced employment discrimination. Employers routinely asked women their marital status during job interviews[28].
[28] was before Merdeka Day born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore, or is on that day domiciled in the Federation or in Singapore; or
(b) is the issue of such a person.(

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Actions
Download as PDF Download as Word Document

Citations
1417464 (Refugee) [2016] AATA 3298

Cases Citing This Decision
0

Cases Cited
2

Statutory Material Cited
0

VSAI v MIMIA [2004] FCA 1602

Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55

Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55

[2016] AATA 3298

5 February 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction