1603997 (Refugee)

[2017] AATA 1927

1603997 (Refugee) [2017] AATA 1927 (13 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603997

CASE NUMBER:  1604824

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Sophia Panagiotidis

DATE:13 September 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that:

(i)Applicant 1 satisfies s.36(2)(a) of the Migration Act; and

(ii)Applicant 2 satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as Applicant 1.

Statement made on 13 September 2017 at 4:31pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Persecution by loan sharks – State protection available – Interfaith marriage – Application of Sharia Laws – Not a law of general application

LEGISLATION

Migration Act 1958, ss 5J, 5H, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA (2004) 217 CLR 387
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MZQAP v MIMIA (2005) 85 ALD 41
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Weheliye v MIMA [2001] FCA 1222

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

1. The two applications are related and the Tribunal has combined the relevant facts and matters into one decision statement.

   Applicant 1:

2. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant who claims to be a citizen of Malaysia, applied for the visa [in] November 2015.

4. The applicant first arrived in Australia [in] January 2009 and departed [in] January 2009. He arrived in Australia [in] August 2015 and has not departed since.

   The applicant's claims:

5. The applicant's claims are as follows:

   ·     The applicant’s brother in law borrowed money from money lenders and he was a guarantor.

   ·     When the debts accrued he and his wife husband[1] received threats and intimidation after his brother in law failed to pay the loan instalments. He had borrowed RM[amount] from a licenced money lender in 2013. Repayments were to be RM [amount] every week. When they failed to make the repayments, their life became horrible – the balance of the loan is RM [amount].

   ·     The applicant was threatened and they tried to force him to surrender the mortgaged home. When he insisted he did not want to do so, he was hit and tied her[2] up and hit on the head. His leg bones were cracked as they hit him with wood. They threatened to kill him if he cannot solve the problem of his brother in law’s debts. He is also tracked wherever he goes. He lives in fear and is confident they will kill him. He does not have the money and in addition there are increasing financial problems in his country.

   ·     If he returns to Malaysia he will not feel safe anymore because of the debt collectors. They are still hunting him and he is afraid they will try to threaten his family. They have splashed his car and house with red paint and have written abusive words to him and threatened to burn his house. The interest on the loan is increasing every day and he cannot afford to pay.

   ·     He made a report to the police but nothing has been done. The police accepted his report and requested he be patient until the case is settled. However until now his problem has not been solved and has even become worse. The police have not taken any action.

   ·     His brother in law cannot be found and he fears returning to Malaysia.

   ·     He is sure that even if he relocates the debt collectors will find him and he cannot take that risk.

   ·     The authorities will not be able to protect him completely because of this problem and so he decided to leave his country for protection.

   [1] Both applicants’ claims refer to husband and wife, but during the hearing it became apparent that they did not complete the application for the protection visa themselves. The evidence of both applicants was that the application was completed by an acquaintance and this claim was included in both applications. The Tribunal discussed this with each applicant during the hearing. 

   [2] This claim was included in both applications for the protection visa and was discussed with each applicant in turn. As noted earlier, the applicants had sought assistance by an acquaintance in completing the application and essentially the same claims were included for both.

6. The applicant has made an additional claim at the hearing on 1 March 2017 and the Tribunal adjourned the matter in order to provide him with the opportunity of obtaining advice and to make further submissions about this new claim. The new claim made is about a relationship with another Malaysian national who the applicant met while in Australia. The applicant claims that his relationship is with a non-Muslim and as a Muslim he and his wife will be persecuted if they return to Malaysia.

7. On 8 March 2017 the Tribunal received a submission in relation to the new claim:

   We both started as friends and committed to be in a relationship not long after we get to know each other. Despite our different religions, we found to have understood and accepted each other’s faith differences and at the same time, made an effort to overcome any faith or religion barrier that might exist. Problem began to arise when we expressed our wishes (to our parents personally) to get marry with a different religion partner.

   It is commonly understood that, in Malaysia, when a non-Muslim marries to a Muslim, the former must converted to Muslim, thus the non-Muslim left with no choice but to “becoming a Malay”. For us, we do not want this relationship to become a force because we want to practice freedom of religion. Malaysian constitution grants freedom of religion and makes it officially a secular State, while establishing Islam as the “religion of the Federation” to symbolize its importance to Malaysian society [Wiki]. But, when it comes to marry a Muslim, the only option left is to give up this love relationship or unwillingly convert the non-Muslim intended spouse to Islam if they want to settle in Malaysia.

   “A Muslim must register their marriage under Islamic Family Law Act 1984. A marriage between Muslims and non-Muslims is prohibited under Islamic law (see Koran 2:221 below), except in certain limited circumstances. A Muslim Man is allowed to marry a Kitabayah (People of the Book). A Kitabayah is a Christian woman whose ancestors were Christian before the prophet-hood of the Prophet Muhammad; or a Jewess whose ancestors were Jews before the prophet-hood of Jesus. With many other restrictions in place, in most cases, the non-Muslim needs to convert to Islam to register a marriage in Malaysia.” (Interfaith Relationships, 2016)

   In both our family, there are some of our relatives that got married to Muslims. As a result, the non-Muslims who converted got isolated and disowned by their families. The same thing will happen to us if we still want to proceed with this relationship as both our family did not want our marriage to happen. If a non-Muslim agreed to convert to Islam, they will be given RM1500 [AUD 447.23] as a gift. We personally do not reckon that religion is tradable, where you will be given a gift or money to change your religion for your love relationship. We decided to practice our own beliefs and get married. In order to do so, we cannot get married in Malaysia, because as a Muslim, he will get into custody for breaking the Islamic Family Law. If we ever get back to Malaysia (after marriage), it will not be recognised by the Islamic Family Law and I (non-Muslim) have to convert to Muslim in which I do not intend to do.

   We also recently registered our relationship at Registry of Births, Deaths and Marriages to validate our one year relationship status. (sic)

   The delegate’s decision:

8. The delegate has not had the opportunity to consider the additional claims and only considered the original claims in making the decision to refuse the visa. In doing so, the delegate did not consider that the applicant's claimed fear of persecution is for reasons of race, religion, nationality, membership of a particular social group or political opinion. It was for non-payment of a debt by the applicant's brother in law for whom the applicant is a guarantor. On the basis of the claims the delegate was unable to conclude that the applicant's fear of harm is for any of the reasons provided for in s.5J(1)(a) of the Act. Therefore the applicant is not a refugee as defined in s.5H or in s.36(2)(a).

9. In considering the applicant's claims under the complementary protection provisions and considering country information, the delegate considered that while he may not have absolute protection in Malaysian, the authorities are a able and willing to provide an adequate level of protection from the type of criminal behaviour feared. The delegate was satisfied that the Malaysian authorities are taking reasonable measures to protect the lives and safety of its citizens by maintaining a reasonably effective and impartial police and judicial system and investigating and penalising corrupt officials.

10. The delegate noted that the applicant had made a report to the police but they took no action but has not provided any further evidence to indicate that the Malaysian authorities would withhold protection from this type of harm. The country information does not support a finding that the authorities would withhold protection from this type of harm. The delegate concluded that the applicant could obtain protection from the Malaysian authorities such that there would not be a real risk he will suffer significant harm.

    Applicant 2:

11. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

12. The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] January 2016.

13. The applicant first arrived in Australia [in] August 2015 and departed [in] September 2015. She arrived back in Australia [in] December 2015. The applicant applied for a bridging visa with permission to return to Malaysia to visit her father who was ill but this was refused. The applicant has remained in Australia since her arrival in December 2015.

    The applicant's claims

14. The applicant's claims are as follows:

    ·     The applicant’s brother in law borrowed money from money lenders and she was a guarantor.

    ·     When the debts accrued she and her husband[3] received threats and intimidation after her brother in law failed to pay the loan instalments. He had borrowed RM[amount] from a licenced money lender in 2013. Repayments were to be RM [amount] every week. When they failed to make the repayments, their life became horrible – the balance of the loan is RM [amount].

    ·     The applicant was threatened and then forced her to surrender the mortgaged home. When she insisted she did not want to do so, she was hit and tied her up[4] and hit on the head. Her leg bones were cracked as they hit her with wood. They threatened to kill her if she cannot solve the problem of her brother in law’s debts. She is also tracked wherever she goes. She lives in fear and is confident they will kill her. She does not have the money and in addition there are increasing financial problems in her country.

    ·     If she returns to Malaysia she will not feel safe anymore because of the debt collectors. They are still hunting her and she is afraid they will try to threaten her family. They have splashed her car and house with red paint and have written abusive words to her and threatened to burn her house. The interest on the loan is increasing every day and she cannot afford to pay. She is very stressed because of this and cannot face it anymore and decided to leave with the financial help of her parents because she was afraid for her life.

    ·     She made a report to the police but nothing has been done. The police accepted her report and requested she be patient until the case is settled. However until now her problem has not been solved and has even become worse. The police have not taken any action.

    ·     Her brother in law cannot be found and she fears returning to Malaysia.

    ·     She is sure that even if she relocates the debt collectors will find her and she cannot take that risk.

    ·     The authorities will not be able to protect her completely because of this problem and so she decided to leave his country for protection.

    [3] Both applicants’ claims refer to husband and wife, but during the hearing it became apparent that they did not complete the application for the protection visa themselves. The evidence of both applicants was that the application was completed by an acquaintance and this claim was included in both applications. The Tribunal discussed this with each applicant during the hearing. 

    [4] This claim was included in both applications for the protection visa and was discussed with each applicant in turn. As noted earlier, the applicants had sought assistance by an acquaintance in completing the application and essentially the same claims were included for both.

15. The applicant has made an additional claim at the hearing on 1 March 2017 and the Tribunal adjourned the matter in order to provide her with the opportunity of obtaining advice and to make further submissions about this new claim. The new claim made is about a relationship with another Malaysian national who the applicant met while in Australia. The applicant claims that her relationship is with a Muslim man, however she is a Christian. As a Muslim she and her husband will be persecuted if they return to Malaysia.

16. On 8 March 2017 the Tribunal received a submission in relation to the new claim as outlined in paragraph 7 above.  

    The delegate’s decision

17. The delegate has not had the opportunity to consider the additional claims and only considered the original claims in making the decision to refuse the visa. In doing so, the delegate did not consider that the applicant's claimed fear of persecution is for reasons of race, religion, nationality, membership of a particular social group or political opinion. The delegate considered ‘membership of a particular social group’ and whether there was a nexus with a Convention ground.

18. In considering the applicant's claims under the complementary protection provisions and considering country information, the delegate considered that she could obtain protection from the Malaysian authorities such that there would not be a real risk she will suffer significant harm.

    The hearings

19. There were two hearing held in this matter, the first being on 1 March 2017 when the applicant attended and the Tribunal discussed the original claims. The applicant's partner (applicant 2) attended as a witness and the Tribunal discussed aspects of her original claims with her. A further hearing was scheduled to discuss the further claims with both applicants after they had an opportunity to obtain legal advice. The Tribunal also spoke to each applicant separately about their respective claims.

20. At the first hearing, the applicant confirmed he is in a relationship with another Malaysian national and they met in Australia. He told the Tribunal that someone assisted him with the application for the protection visa and the same person assisted his partner with hers. He did not realise that the person included the same claims for him and his partner. He does not speak or read English very well and did not look at the application closely.

    Evidence of applicant 1

21. The applicant confirmed he was born in Sabah in [year] and his ethnicity is Malay and he is a Muslim. He went to university where he studied [subjects]. He has [siblings] and they are all in Malaysia. His father was [an occupation] but has been ill since 1989 and does not work. Both parents live in Malaysia. He originally worked in a [company] for a [business] from 2011 to 2014 and then he established his own [company]. He is not married and has no children. He confirmed that he had previously travelled to Australia for a holiday while he was at university in 2009.

    Debt to unlicensed money lender

22. The applicant told the Tribunal he cannot return to Malaysia because he has a debt problem. It relates to his cousin’s husband who took out a loan using the applicant's company as a guarantor. The name of his company was [name deleted]. He has had this company for four years and it was based in Kota Kinabala. With the help of a friend he set up his [business]. His business [details deleted]. After a while he started to make a profit and set up his own business independently and registered his business. He did not have a [workplace] but used a student space at the [location] and had a small office which he rented. He promoted his business [with other businesses] and the agreement was that after three months the rate of his fees would increase to the normal rate instead of the half rate. He had people who worked for him, such as university [students]. [Details of work deleted].

23. The applicant said that in 2015 his cousin’s husband wanted to borrow money from his company but he did not have much and so could not lend him the money, so he refused. His cousin’s husband then asked if the company could act as a guarantor for a loan. His cousin’s husband wanted to set up his own company and his wife was to work with him. At first his cousin’s husband wanted RM [amount] to [amount] from the applicant but he did not have this. He told the applicant he knew someone who could lend him the money but he needed someone to be his guarantor. The applicant met with the lender and signed documents that he would be a guarantor. The lender also took the applicant's photo when they met. They did not meet in an office, but in a coffee shop. Both he and his cousin’s husband signed the documents.

24. The applicant was asked about the nature of the business proposed by his cousin’s husband. He said that his cousin and her husband lived [in] Sabah and were planning to sell [products]. They were already in [the industry] and wanted to expand [this].

25. The applicant was asked if he understood what the responsibilities of a guarantor were. He said that the lender explained that if his cousin’s husband defaulted on the loan then he would be responsible for the loan. He said his mistake was to believe his cousin’s husband. He had asked him how he intended to repay the loan and about his financial situation. His cousin’s husband told him that he would make repayments to the lender every week and he would take the applicant along with him to the lender when he did so.

26. The applicant said that after his cousin’s husband got the loan, in the first two months he bought a second hand lorry [and] proposed buying some [property]. He had promised to take the applicant along to witness the purchase of the [property]. He said he was happy to see that his cousin’s husband was enthusiastic about his business but he did not do any of the things he promised. After a while, the lender contacted the applicant and told him that his cousin’s husband was in arrears and it had been six weeks since he had made a repayment. At the time of the call the applicant was busy with [work] but he tried to contact his cousin’s husband and his cousin’s wife or her brother. He told the lender he would try to contact his cousin’s husband and asked for a week to get a hold of him but he was unable to do so. He eventually went to their home and found they were no longer there. That worried him and the lender started to call him regularly.

1. The applicant told the Tribunal that when he first met the lender, he showed him his licence and he assumed he was a licenced money lender. He saw that the licence had been issued by the Malaysian Ministry of Finance. He said he did not know if this licence was genuine. When the lender rang him, he tried to arrange a meeting at his offices but he suggested they meet outside which worried him.

2. The applicant said his cousin’s husband eventually contacted him once using a private number and told him he had contacted the lender and not to worry. He also told him he was in Tawau and not to tell anyone about his situation but that he had a huge problem. He said he would tell him about it when he came to Kota Kinabala. He said he told his cousin’s husband to settle the arrears because the money lender was harassing the applicant. He said he believed his cousin’s husband would do so. However two weeks after that, during one of his performances, three men came to see him. They were aggressive and threatened him and he became scared. He asked them for another two weeks to try and look for his cousin’s husband; however he was unable to find him. He was told that as a guarantor he was responsible for the loan. The applicant said that the money lender kept on harassing him and once followed him while he was driving. He started to avoid his calls and was afraid because he did not have the money to repay the loan. He was still hoping he would find his cousin and her husband. On the day he was followed by the money lender, he was made to stop at the road side and they roughed him up a bit. They demanded to know where his cousin’s husband was and gave him a week to find him. On another day the money lender had some paint thrown over his car and damaged it. He reported this to the police and they took a statement. They also asked for the money lender’s details. He gave them what details he had but told them he did not have an address. For the next two weeks the police would patrol the area near his home and he felt safe and he did not get any calls from the money lender. After that, however the money lender splashed paint on the steps of his house and started following him again. He managed to avoid being stopped but he got a note threatening to kill him if he didn’t tell them the whereabouts of his cousin’s husband. He became very scared and sold the car. He decided it was not safe for him to remain at home and he decided to go to the police again.

3. The applicant was asked about his cousin and her husband’s assets. He said they had a [property] and a house but these belong to their family not to them. He does not know if the money lender has attempted to seize these assets. The applicant said he did not make any repayments to the money lender as he could not afford to do so. He said his family does not know about the problem with the money lender and his cousin’s husband had made him promise not to tell them. However, he did tell his family about the situation prior to leaving Malaysia. His father was very upset. He said that since he left Malaysia his father has attempted to get a hold of his cousin and her husband but has been unable to do so.

4. The applicant was asked why he decided to leave Malaysia. He said he had become very scared and did think about filing another police report but they did not do much when he had previously done so. He was afraid he might be killed as he has read about such things happening. He thought about going to [another country] but he thought they could still find him. He knows this is irrational but that is what he believed at the time. He was asked how many times he contacted the police. He said that he had done so only the one time. When he was stopped and roughed up he did call but did not go in to make a formal complaint because the police did not help him much after the first time. He agreed that after the first complaint the police increased the patrols to his home and he had given them all the details he had about the money lender and his cousin and her husband. He did not give a copy of the contract he signed to the police because he was not asked for it. In any case he said there was no address on it.

5. The applicant was asked if he had considered complaining to the Finance Department who issued the licences to money lenders. He said that he did not and now realises that the licence he was shown was probably not genuine.

6. The applicant was asked why he thought the police would not have helped him if he had followed up after the second incident. The applicant said that they appeared to have done nothing after the first report. He has no faith in the police and that these illegal lending practices are increasing as are the murders because people are unable to pay their debts. There is also corruption which is perpetuating the rise in crime. He said he does not criticise the government lightly but the police are not doing their job.

7. The Tribunal put country information to the applicant regarding police efforts in combating unlicensed money lending and organised crime as well as information about the police and asked him for his comment. The applicant said that he is now safe and before he left he was very stressed. It seemed to him the police were not taking enough action to help him. although the Tribunal has referred to the police operation in targeting money lenders, before he left there were many posters for money lending all over the place in Sabah both in rural and urban areas. He did not think the police operations were being effective.

8. The applicant was asked if any of his cousin’s family were approached about finding her and her husband. He said that his cousin’s mother and his mother are sisters but they are estranged.

9. The applicant was asked how much of the loan was outstanding. He said he believed it was around RM [amount] to [amount].

10. The applicant was asked about his business and what had happened to it. He said he had abandoned it.

11. The applicant was asked if he considered relocating to another part of Malaysia to be safe. He said he concluded that there were loan sharks everywhere and they would find him; because of their wide networks and contacts throughout the country. The applicant was asked that if he were to return is there anywhere in Malaysia he would be safe from the money lender. He said he had not given it much thought because he is now safe here. In any case, his family is in Sabah and he does not know anyone in another part of the country.

12. The Tribunal expressed concern that the applicant does not really appear to have availed himself of the protection by the authorities as he had not followed up with complaints about the second and third time he had been threatened when he had been stopped while driving and when paint was poured over the steps of his house. He had also not told the police about the threatening phone calls. Further the Tribunal was concerned that although the applicant's cousin and her husband as well as her family have assets, his family do not appear to have made a concerted effort to find them and persuade them to resolve this issue. The applicant responded by saying his father is too ill to do much and his mother is unable to look for his cousin and her husband. Further loan shark activities are increasing all the time and the police have not been effective in curbing it.

    Relationship with a non-Muslim woman

13. The applicant said he met his partner around December 2015 in [City 1 in Australia]. He was in the city walking and looking for somewhere to eat near some cafes. The applicant had just arrived in Australia and he recognised they were both Malaysians and they started talking. He told her he lived in [City 2] and they exchanged telephone numbers. She told him she was staying at a backpacker’s hostel and that she wanted to come to [City 2] but did not know anyone there. They decided to travel to [City 2] together. He was living in [a suburb] and had been sharing a house with his landlord for three months. The applicant stayed with him for one week and they had to look another place because his room was small. They moved out together to a new place and had the new place to themselves. He was working in a [factory] and as she did not have work or much money he helped her financially. They got to know each other and around February or two or three months after they met they started a relationship. At first he didn’t want to ask her about her situation and why she had come to Australia but later when they were more comfortable and she told him some things regarding financial problems in Malaysia. She told him she had agreed to be a guarantor and her trust was abused and she had to leave. He told her he was facing similar problems. He knows that the applicant comes from Sarawak.

14. The applicant told the Tribunal that he was attracted to the applicant because she is gentle and a good listener and most of all she fits the type of woman he likes.

15. The applicant was asked if he was concerned that the applicant was not a Muslim. He said he had previously been in relationships with two women who were not Muslims and his father told him he had to find a Muslim girl. Originally he had not really considered her religion. In Malaysia dating a non-Muslim girl is not really a problem and is prevalent and there a many of his friends who have relationships with non-Muslims but generally people in such relationships keep them discrete. He said it becomes a problem when the relationship becomes known because families will not agree to them and it is also against the law. He has friends who have married non-Muslims. In Kota Kinabalu one of his friends had a girlfriend who was a Muslim and she became pregnant and he decided to tell her parents. Her father was furious and some members of the village came after him and tried to kill him and he escaped. He knows the girl because they are from the same [place]. Three or four years later he received a wedding invitation and she married someone else. Her parents prevented her from marrying his friend and forced her to marry someone else. There had been a fight over the custody of the child and the father, his friend took the girl and child and they have gone to live in [another country]. He said that normally in these situations, the child would be regarded as Muslim, although the father is Christian. Her family has been looking for him. If they remained in Malaysia they would always be in danger from the girl’s family. If they were caught he would be killed and the girl harmed. He knows she was beaten and that is one of the reasons they ran away. All of this happened in 2010.

16. The applicant said he is [age] years old and his family do not know he is in a relationship with the applicant. If they knew they would not bless the relationship and will want him to end it. He and the applicant want to get married because he loves her. In the past he has had two previous relationships with non-Muslim women but ended them because of pressure from his family. His father also scolded him and he wanted to do what is right as a son at the time, but now he has a good relationship with him but don’t know how to tell him. He has to figure out a way to break the news to him. He will be upset with him and will cause tension in their relationship. His father will never accept his son’s relationship with a non-Muslim.

17. The applicant said he and his partner have discussed marriage and want to get married in August 2017. She has agreed to this.

18. The applicant was asked if they had discussed having children. He said he would want their children to make up their own mind about religion when they are older. He would want the child to be a Muslim but his partner wants them to be Christian. His problem would be solved if she converted but she does not want to convert so they decided to let the child choose. He does not want tension in the relationship. He said his partner is a devoted Christian. He does not think of himself as particularly religious but is committed to being a Muslim. 

19. The applicant was asked if he and his partner were to marry and return to Malaysia what he believes will happen. He said her family would be very unhappy and he would be threatened and he worries they will harm him. They would do this because her family are against her having a relationship with a Muslim. She has not told them about their relationship. She has [siblings] and they were scolded for having a Muslim boyfriend and one of her sisters was beaten for having a Muslim boyfriend. His family would not accept it either. Registering the marriage is not possible in Malaysia and would not be recognised. Sooner or later they will be found out and will be charged for living together and detained by the religious department for co-habiting without marriage. If they have children there would be problems for them because of national ID and birth certificates which would impact on their future and education. Their children would not be able to get proper identity cards and birth certificates because their parents would be considered as not having married. He said that birth certificates are not given unless the marriage is recognised. The consequences for their children would be bleak and their education may be affected and this may limit their prospects. He is not sure what the penalties are for non-married people cohabiting but he knows he will be detained. He and their children will come under the jurisdiction of the religious police.

20. The applicant told the Tribunal that at the moment he and his partner are living together and sharing a house with other people and this has been the case for about a year. One of their housemates is Malaysian and the other one is from [another country]. He said he and the applicant are living as a couple and their friends recognise them as a couple. They socialise as a couple and they like going out to eat and talk. They don’t know many people in Australia.

21. The applicant was asked about their future plans. He said that he and his partner want to get married and to seek protection for their peace of mind and have their children here. He has always believed in moderation and wants to live modestly.

22. The applicant was asked about any joint assets. He said they share a car. His partner is working in a [workplace] and they share their finances. He was asked if they had any joint bank accounts. He said they did not but his partner arranges for payment of bills such as rent and utilities directly from her account. He pays for food and petrol. He bought the car but it is insured in both names. They have jointly bought a television and a bed. They help each other financially and will help each other if they are short when the rent is due or buying food.

23. The applicant said he is in the process of looking for a college that offers [a certain course] and has discussed this with his partner who supports his wanting to do further study. The applicant is studying at [a] College in [a subject] because she felt working at [that workplace] is not something she wants to do for a long time. He is supporting her with her studies. His priority at the moment is his partner and supporting her wish to study. Once she has finished her course, he will undertake to do further study himself.

24. The applicant said that in the long term there is a big cloud over their relationship because of his family and his fear they will not accept his partner. He calls his family frequently. He is prepared to face the fact he will not be able to see his family for many years. He and his partner have discussed this. He believes he is stronger than her and his siblings are all married and not very close to them but she is closer to her family and requires more emotional support. He is finding that at the moment she is having a very difficult time. This is the sacrifice they are both making for their relationship. If they return they will not be able to be together. He wants their relationship to work out and he is hoping that the Australian government will give them protection to enable them to continue their relationship. He is sure and secure about the relationship.

    Evidence of Applicant 2

25. At the first hearing, the applicant confirmed she is in a relationship with another Malaysian national and they met in Australia. She told the Tribunal that someone assisted her with the application for the protection visa and the same person assisted her partner with his. She told the Tribunal she did not realise that the person included the same claims for her and her partner. She indicated that her English is limited and she did not look at the application properly before it was submitted.

    Debt to unlicensed money lender

26. The applicant confirmed she was born in Sarawak in [year] and her ethnicity is [deleted]. She is a Christian and belongs to [an] Evangelical Church. She confirmed she completed university [and] has two sisters and her parents living in Malaysia. She previously lived in Kuching prior to coming to Australia. She worked [selling] [products]. This was part time and she also worked as [an occupation] for two months with [an] [Association].

27. The applicant confirmed her original claims and said that her brother in law wanted to borrow money because her sister was not working. He wanted to borrow RM [amount] in May or June 2015. Her brother in law wanted to get involved in a joint venture with a friend to sell [product]. He came to her and asked her to be a guarantor and he was convincing about the business and she agreed. She is unsure if the money lender has a licence or not. She gave a copy of her identity card when she agreed to be guarantor but never signed a contract. However her brother in law got into difficulties and was unable to make the repayments and his business partner deserted him. Her sister and her brother in law separated and are now divorced and this was mainly due to the stress and problems this loan created. Her brother in law is no longer in their lives. She felt unsafe in Malaysia. She believes the matter has not been resolved as the money lenders still have her name. She confirmed that she did not sign a contract but felt afraid all the time she was there. She reported the damage to her car to the police and gave them details of who she believed had caused the damage but no action was taken. She does not think the police can protect her. One of these money lenders went to her university looking for her. She does not know how they found out where she was and she was told that a person was looking for her and was asking people if they knew her. She told the Tribunal that on one occasion last year someone tried to break in to her house while her mother was there alone. She is not sure if this was related to the money lender. Her mother reported this to the police and they increased the patrol at night. She believes the police are ineffective because she was continuously harassed while in Malaysia. She believes they could not protect her all the time and did not feel safe. She believes that even if she were to relocate, these money lenders have networks and would be able to find her.

28. The applicant was asked why she left Malaysia. She said she did so because of the harassment she endured from the money lender. A debt collector came to her workplace and flattened her car tyres and also splashed red paint over it. She lived at home with her parents and her [sister]. She said that three people threatened her. She started to receive calls in September 2015 and was told she had to repay the loan in weekly instalments of RM [amount] and she refused. After that they started to harass her and started to follow her. They came to her workplace twice, the first time they left a letter on her car’s windshield telling her she had to repay the loan or else she would be “dead”. The second time they flattened her tyres and splashed paint on the car. She said her brother in law has disappeared in around August 2015 and her sister now lives alone. They did not have any assets. She said she complained to the police and was told this was a consequence of her borrowing money and she should notify them of the damage done to her car. They took her statement, a copy of which is at home. She said she did not keep the threatening letter but threw it away and she did not tell the police about the calls because she did not have confidence they would be able to do anything. She did not feel safe. She said that the amount owing is around RM [amount].

1. When arrived in December 2015 in [City 1] at a back packers intended to explore [City 1] and have a break. She decided she could not return to Malaysia because she was not feeling safe and at peace. It was after she came to [City 2] that she made the decision not to return. While she was in [City 2] she got a call from the money lender looking for her and they said they would find her wherever she goes. She told her parents she will stay and ask for protection because she was scared to return and they agreed because they want her to be safe.

2. The applicant confirmed she had previously travelled to Australia for a holiday.

   Relationship with a Muslim man

3. The applicant told the Tribunal that her parents do not know of her relationship with her partner. She has broached the issue of interfaith marriage with her family and they said they would not accept it and would reject a man who is not a Christian and they would reject her as well. She said she has a cousin on her mother’s side of the family who converted to Islam because she had a child out of wedlock and the father is a Muslim and they had to marry. He left her after a few months. Her family has a bad perception of Muslims. Her cousin is now a Muslim by law but in practice is a Christian. The child is considered to be a Muslim. Her cousin is now living with her grandmother.

4. She is a Christian and part of an evangelical church and was born into that. She attends church and attends [Church] most Sundays if she is not working. Her partner stays outside. He asked her to convert but she said no and he respects her decision. She cannot convert because she is Christian. She listened to Islamic sermons with her partner and it did not persuade her. She is fine with him being a Muslim, however if she returns to Malaysia she cannot marry him unless she converts. She said that an Australian marriage is not recognised by Malaysian law. She has a cell group and they pray together and share the gospel and they are expected to talk to friends about the church and invite them to church.

5. When she came to [City 1] she did not know anyone and she met her partner. She thought he was Malaysian as he looks like a Malaysian and she approached him and spoke to him. They met him on the street and they were both looking for food and they went to a Malaysian restaurant together. She thought he was a nice man. They went out at night for a walk. He was going back to [City 2] and she asked to come too. She did not know anyone in [City 2] and she asked him to find somewhere to live and he did. She stayed with him and then they looked for somewhere else. They did not stay at his original place for long. He decided he wanted to live at the same place as her because they were interested in each other. A few months later she decided she wanted to have a relationship with hm. In June they started a serious committed relationship. He asked her a few times to marry but she told him she did not want to convert. At first he asked her to convert because it is a requirement for the partner to convert if they want to get married. She had to think about it and how she would explain it to her family and whether she was prepared to convert because of love. Last year, they finally decided they would get married last year as their relationship has always been serious. They decided to register their relationship to acknowledge it was a serious one and they intend to get married. They will marry in a civil ceremony and they have not decided what to tell their respective parents.

6. The applicant told the Tribunal that she has thought about what it means for her future. She said that if she remains in Australia she does not have to convert or be forced to learn about another religion she does not believe in. She knows that by marrying her partner it will be a problem because she will not be able to see her family. She said that she and her partner have discussed having children and decided that they will be free to choose a religion when they are old enough. She would prefer it if they were Christian but he would prefer it if they are Muslim so they will leave it up them. She said that although her partner is religious and believes in his religion, he does not force her to believe the same as him.

7. The applicant said she and her partner are living together and share with two house mates. She said that others in their household and friendship circle see them as a couple because they are always together. The applicant said they share their finances and expenses. She said that in Malaysia joint accounts are not common and they have not thought or done anything about this. In Australia they have jointly purchased a car and a television but the car is registered in her partner’s name and her name is on the insurance. The lease on their home is in the names of all the tenants.

8. If she returns to Malaysia and marries her partner, she would be forced to convert because the marriage not recognised and the children will be stateless because they would not be considered to be married. If she refused to convert she believes that extremist elements will harm her and her husband and even friends who are religious would question them as well. Her children would not be recognised and without this they would not have access to education and welfare. If he was not a Muslim it would not be an issue. However in Malaysia, if living next door to a Muslim neighbour, that person may complain to the Islamic authorities and they will be detained for living in “close proximity”. She is not sure if she would get into trouble but her partner will. She believes she will be forced to convert. If she does so, her family will disown her.

9. The applicant said that when she was a teenager she had a relationship with a Muslim boy and her mother chased her with a cane and she was beaten and they didn’t talk for months and she was therefore was physically and mentally tortured. That is what she is afraid of happening again, maybe not physical punishment but mental and psychological punishment by her family. She said that her partner’s family would not be happy either. His friend had a relationship with a Muslim girl and he was ostracised. Then the girl’s family accepted him because he converted. However her family would not be happy if she converted.

10. The applicant said she is committed to this relationship. They have discussed their relationship and thought long and hard about it and they want to get married. He wanted them to marry earlier but she refused because she is concerned about her religion and wants her family’s blessing. She feels very deeply for him and they will get married. She is prepared to sacrifice her family and life in Malaysia for the relationship.

11. The applicant said she is currently working in a [workplace] and wants to upgrade her skills. Her partner is supporting her in this. She said her partner is passionate about [his industry].

    Evidence provided to the Tribunal

12. The applicant provided the following additional evidence to the Tribunal:

    ·A statement by the applicant and her partner in which they state:

    Freedom of religion of belief is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship and observance. It also includes the freedom to change one’s religion or belief.

    The problem which confronts our interfaith marriage

    Conversion to Islam

    A non-Muslim person who wishes to marry a Muslim person in Malaysia must convert to Islam before the marriage can be recognised as legally valid. As our points of view, one must not be force[d] to convert just because they are not from the same religion or because of the Constitution of the country declares that particular religion is the official religion. In Islam, a Muslim man is allowed to marry a woman from any Abrahamic religion apart from Islam provided her religion does not affect their children, but unfortunately this is not allowed in Malaysia. Any non-Muslim woman who wishes to marry a Muslim man has to convert to Islam before getting married.

    Malaysian citizens are given an identity card (MyKad) of which Muslim’s MyKad states religions as “Islam” while other religion[s] such as Christian will only be written as “K” the capital letter of Christian (Kristian-Malaysian national language). We see this as a bias to other religion[s] as Malaysia claims that it is a multicultural country. A marriage registered outside Malaysia will not be able to register their Muslim to non-Muslim marriage in Malaysia and their children will not have the benefit of Malaysian citizenship. If the Muslim/non-Muslim couple [are] married overseas and comes to Malaysia, and someone called the authorities on them, the Syariah Authority will likely to arrest the Muslim Partner for fornication (zina) and close proximity (khalwat).

    This will create problems later for our children where they will be treated in Malaysia as stateless and thereby deprived of health, education and other facilities. Interfaith marriage is not recognised in Malaysia by the government and resulted in undocumented stateless children. Even if we get married, overseas, our child will be consider[ed] to be born out of wedlock.

    Opposition from family and community

    Both our famil[ies} are strictly forbidding one of the family to convert to Islam just because of love. Our non-Muslim family would likely to disconnect the relationship with us if one has conver[ted] to Islam. Family should not be separated because of interfaith marriage. We do not want this to happen as we want to take good care of our elderly even we are having interfaith marriage and religion should not be a problem. We want that our marriage be blessed by both our parents and family as long as we can continue to practice our religion freely. We will also be humiliated and mentally abused if we are not following the government rules of marriage in Malaysia by Islamic activist[s].

    We would like to seek protection for our family in future in which our decision to have interfaith marriage to be respectful. (sic)

    ·A statutory declaration by one of the applicant's housemates [dated] [May] 2017 who states she knows and recognises the real relationship between the applicants for more than a year.

    ·A relationship certificate issued by the Registry of Births, Deaths and Marriages [in] April 2017 showing that the applicants registered their domestic relationship and applied to the registry to do this [in] March 2017.

    ·An article Marriage between Muslim and non-Muslim Illegal, says Jakim (Malaysian Islamic Development Department (dated September but not year given) which states that:

    Any marriage between a Muslim and a non-Muslim is disallowed and is not recognised in this country and action can be taken by the state Islamic religious authorities, said Malaysian Islamic Development Department (Jakim) director-general Datuk Othman Mustapha.

    He said Islamic family laws state no Muslim man can marry a non-Muslim woman and no Muslim woman can marry a non-Muslim man.

    “A marriage between spouses of different religions is completely prohibited and against the principle of beliefs of the Shafie sect (Ahli Sunnah Wal Jamaah) in Malaysia,” he said in a statement here today.

    He was commenting on a Universiti Malaya study on the issue of liberalism in Muslim marriages with non-Muslim spouses not having to convert from their religions.

    Two days ago, University Malaya Academy of Islamic Studies, department of Akidah and Islamic Thought Associate Prof Dr Khadihah Hambali told religious authorities in the country to carry out specific measures to curb the phenomenon – Bernama (Ref: [5]

    ·A country report on Malaysia which refers to religion, which is undated and the source appears to be the US Department of State.

    [5] The Tribunal conducted an on-line search of this article and found references that it was published in September 2013 see:

    Country information

    Loan sharks

13. Illegal money lending or loan sharking, colloquially known as ‘Ah Long’ in Malaysia, is an offense under Section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than RM20,000 and not exceeding RM100,000 or imprisonment of up to five years can apply.[6]

    [6] ‘KL Consumer Safety Association - No need to fear the loan sharks’ 2015, Bernama (Malaysian National News Agency), 17 February CXBD6A0DE1580

14. In October 2013, The Sun Daily reported that figures supplied by the Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, showed that ‘The loan shark menace is worsening with Malaysians expected to be in debt by more than RM40 million this year – compared to last year’s RM39.5 million’. Loan sharks reportedly lent RM34,400,000 to financially-strapped Malaysians up to September 2013, and at the time of the article, ‘426 people were in debt to loan sharks, with each person owing an average of RM80,751’. According to Chong, ‘people continued to borrow from loan sharks despite continuous reminders by the authorities of the repercussions of doing so’. He also said that ‘of the 426 cases, 80% were by gamblers while the rest were drug abusers, failed businessmen and those living beyond their means’. Seven per cent or 32 people were reported to be repeat borrowers, and Chong said that ‘most of the repeat borrowers were involved in drug abuse and that their families were the ones who ended up being harassed by loan sharks’. Chong also said that the ‘police were powerless against loan sharks as the transactions were on a “willing seller willing buyer” basis’. Police, however, ‘can take action if loan sharks resort to violence or extortion to recover their money’.[7]

    [7] ‘Loan shark menace worsens in M’sia’ 2013, The Sun Daily, 2 October CX320169 

15. Various media reports indicate that the practice of illegal money lending is widespread in Malaysia and that police operations targeting Ah Long are not uncommon. According to a Daily Express 22 April 2014 report, ‘police are tracking down members of unlicensed moneylending syndicates … through contact numbers printed in their advertisements, including flyers, posters, banners and business cards...’ The article notes that one of the most significant barriers to prosecuting Ah Long syndicate members is the ‘lack of cooperation from the public, especially those who had fallen victims to the syndicate.’ This problem stems from threats by syndicate members. Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.[8]

    [8] ‘Police cooperate with Council to wipe out loan sharks’ 2013, Daily Express, 28 December CX320164

16. Police action against the Ah Long includes a police operation in Kuching, conducted from 23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in the 135 police raids conducted.[9] In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’.[10] The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials.[11] Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 ‘posters, banners and name cards of illegal money lenders’.[12] Reportedly, ‘City Police chief ACP M. Chandra said the police and City Hall had carried out numerous operations under Ops Vulture’.[13]

    [9] ‘57% drop in commercial crime losses, say cops’ 2014, The Star Online, 2 July CX1B9ECAB11425

    [10] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April CX1B9ECAB11426

    [11] Tan, S C 2014, ‘Crackdown on Ah Long’, The Star Online, 25 April Accessed 30 August 2016 CX1B9ECAB11426

    [12] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May CXBD6A0DE13537; ‘2,700 Ah Long materials removed’ 2015, Daily Express, 28 May Accessed 2 June 2015 CXBD6A0DE7469

    [13] Gomes, E 2015, ‘6,700 ‘Ah Long’ posters, banners, name cards seized’, The Borneo Post, 28 May CXBD6A0DE13537

17. Numerous media reports were located regarding the effectiveness of police investigations and arrests related to Ah Long syndicate crimes. Police in Sabah reported that ‘16 men believed to be Ah Long members were arrested in 2013 compared to 12 arrested in 2012’ during Operation Vulture.[14] In 2013, Malacca police investigated 29 Ah Long related cases and arrested 20 people. Thirteen cases involved preventative measures with cases being ‘investigated under Section 5(2) of the Money Lenders Act 1951 for operating without a licence’.[15] Additionally, ‘four more cases and seven individuals were investigated under Section 29AA of the same Act for putting up posters.’[16] The Malaysian Digest reported on 16 October 2014 that ‘police rescued a 21-year-old after he was abducted by three men, believed to be loan sharks … One day after the incident, police apprehended a 24-year-old man and a 29 year-old woman … believed to be involved in the incident’.[17] The Malaysian Star reported on 29 May 2015 that two loan sharks were arrested during a police surveillance operation when collecting money from a victim. The arrested persons were wanted by police ‘for suspected involvement in several other cases of illegal moneylending in the district.’[18]

    Law enforcement and the legal system in Malaysia

    [14] ‘Sabah Police probe nine Ah Long cases in 2013’ 2014, The Malaysian Times, 3 January CX1B9ECAB11427

    [15] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December CXC28129414704

    [16] ‘Malacca police investigates 29 Ah long cases since January’ 2013, Malaysia Edition, 28 December CXC28129414704

    [17] ‘Police Free Man Abducted By Loan Sharks’, 2014, Malaysian Digest, 16 October CX1B9ECAB11430

    [18] ‘Loan sharks caught red-handed’ 2015, The Star Malaysia, 29 May CXBD6A0DE13543

18. The Tribunal notes the most recent (19 July 2016) Malaysian country information report by the Department of Foreign Affairs and Trade (DFAT) remains essentially unchanged regarding law enforcement, police corruption and the legal system in Malaysia. Law enforcement entities in Malaysia operate at both federal and state level. In relation to the Royal Malaysian Police (RMP) DFAT reports that credible local and international sources consider it to be a professional and effective police force:

    Royal Malaysian Police (RMP)

    5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP’s responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see ‘Police Integrity and Accountability’, below). The RMP is 80–85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.

1. In relation to police corruption in Malaysia, the Tribunal notes the following information by DFAT:

   Police Integrity and Accountability

   5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.

2. The Tribunal also considered a report by Human Rights Watch in 2014 which has credited the Malaysian government for implementing many of the Royal Commission’s recommendations but have also noted that some of the key recommendations including improving investigative capabilities of the police and creating effective external accountability mechanisms have not been implemented.[19]

   [19] No answers, no apology: Police abuses and accountability in Malaysia, Human Rights Watch, 2 April 2014 pp 22-23.

3. In its Country Information Report – Malaysia, DFAT provides the following summary regarding Malaysia’s judicial system:

   Judiciary

   5.11 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level and subordinate courts. Sharia courts operate at state level with jurisdiction over Muslims. The majority of Malaysia’s criminal, civil and family law matters are heard in the subordinate civil courts. Judicial appointments are made by a Judicial Appointments Commission; however the Prime Minister has final approval. The majority of the members of the Federal Court are Malay Muslims. Malaysia’s highest courts are somewhat influenced by political or religious affiliation. For example, credible local and international human rights organisations considered the prosecution of Anwar Ibrahim to be politically motivated (see ‘Political Opposition Members’, above). In July 2015, the government removed the Attorney General, Abdul Gani, who had been leading an investigation into 1MDB.

   5.12 Credible sources advised that defendants generally had adequate time to prepare a defence, particularly where they had financial means to engage private counsel. Government legal aid resources were limited and generally of poor quality. Strict rules of evidence apply in court. However, state-held evidence was not consistently made available to the defence. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods; the International Center for Prison Studies reported that in mid-2014 24.8 per cent of the total prison population were pre-trial detainees.

   5.13 The ability for individuals to seek legal redress through Malaysian courts is mixed. Judges receive relatively low salaries, limited training, and appointments were often made directly from university. Selective prosecution and arbitrary verdicts occurred, particularly in instances involving high-profile opposition politicians and human rights defenders. However, the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure.

   Interfaith relationships

4. In its most recent report on Malaysia, DFAT provides the following advice:

   3.20 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. Muslims are identified on the card’s surface but for members of other religions, it is encrypted in the card’s smartchip. Married Muslims must carry a special photo identification of themselves with their spouse as proof of marriage.

   3.21 Malaysia has a two-track legal system comprising civil law, based on English common law at federal level, and sharia-based law, which is administered at state level and varies state by state. Matters considered by states under sharia-based law 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 Development (JAKIM) and the National Fatwa Council. These bodies sit within the Prime Minister’s portfolio.

   3.22 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…

   3.36 DFAT assesses that Muslims face high levels of official discrimination under Malaysian law if they attempt to convert from Islam or marry a non-Muslim…

   5.9 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 for a range of reasons, such as indecent dress, alcohol consumption, the sale of restricted books, or close proximity to members of the opposite sex. A range of penalties can be given to an individual convicted under sharia-based law..[20]

   [20] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 19 July 2016

5. According to the US Department of State’s 2016 Religious Freedom Report on Malaysia:

   The constitution states Islam is the “religion of the Federation; but other religions may be practiced in peace and harmony.” Federal and state governments have the power to control doctrine among Muslims and promote Sunni Islam above all other religious groups. Other forms of Islam are illegal and subject to action by religious authorities. The government maintains a parallel legal system, with certain civil matters for Muslims covered by sharia. The relationship between sharia and civil law remains unresolved in the legal system…

   Local human rights organizations and religious leaders stated that society continued to become increasingly intolerant of religious diversity…

   Federal law has constitutional precedence over state law, except in matters concerning Islamic law…

   The law does not restrict the rights of non-Muslims to change their religious beliefs and affiliation. A non-Muslim wishing to marry a Muslim, however, must convert to Islam for the marriage to be officially recognized…

   Muslims who seek to convert to another religion must first obtain approval from a sharia court to declare themselves “apostates.” Sharia courts seldom grant such requests and can impose penalties on apostates, including enforced “rehabilitation.” In the states of Perak, Melaka Sabah, and Pahang, conversion from Islam to another religion is a criminal offense punishable by a fine or jail term. In Pahang, up to six strokes of the cane may also be imposed. Nationally, civil courts generally cede authority to sharia courts in cases concerning conversion from Islam, and sharia courts remain unwilling to allow such conversions for those who are born Muslims and reluctant to allow conversion for those who had previously converted to Islam. In the states of Perak, Kedah, Negeri Sembilan, Sarawak, and Melaka, sharia allows one parent to convert children to Islam without the consent of the second parent…

6. In relation to interfaith relationships in Malaysia, the Tribunal noted the following country information. ‘Khalwat’ requires that males and females who are not married or closely related must not be found in each other's company. Under Syariah law applicable to Kuala Lumpur, persons found guilty of being in contravention of khalwat are subject to a fine of 3000 ringgit and a gaol term of "not more than two years" under the Syariah Criminal Offence Enactment 1995.[21] ‘Zina’ refers to sexual intercourse between a man and a woman out of wedlock.[22] Sexual relations out of wedlock are classified as an Islamic offence in a number of Malaysian states. ‘Hudood’ refers to a type of punishment for committing serious crimes.

   [21] CIS27501: The Commissioner of Law Revision, Malaysia, "Laws of Malaysia - Act 559 - Syariah Criminal Offences (Federal Territories) ACT 1997 (Incorporating all amendments up to 1 January 2006)", The Commissioner of Law Revision, Malaysia, 01 January 2006

   [22] Ibid

7. According to a 2013 article in the Journal of Malaysian Studies, Kusrin, Nasohah, Samuri and Ma-A; Z outline the legal provisions in relation to apostasy in Malaysia:

   APOSTASY IS DEEMED A CRIME IN SYARIAH LAW

   According to Syariah Law, the act of changing religion or leaving Islam is a grave offence and is included in the category of a hudud crime; if, after conviction, the accused refuses to repent, it is punishable by death (al-Qur'an, al-Baqarah, 2: 217). In Malaysia, legal provisions regarding the offence of attempting to abandon Islam or apostasy are included in state enactments. Only two states in Malaysia, Kelantan and Terengganu, have a provision for the death penalty for apostasy. These two states use the words apostasy or irtidad for the act of leaving Islam, whereas other states use the phrase "conversion out of Islam." However, legal limitations on the state's jurisdiction, which limit the maximum sentence to three years' imprisonment, whipping not more than six times and a fine of not more than RM5,000, have resulted in the hudud sentence enshrined in Islamic hudud to be reduced to takzir. For example, in the case of Kamariah Ali & Yang Lain lwn. Kerajaan Negeri Kelantan & Satu Lagi [2004] 3 Current Law Journal, 409, which occurred in the state of Kelantan, the sentence for the appellants, who had declared themselves apostates, was a prison term of two years. On appeal to the Kelantan Syariah Appeal Court, the court affirmed the conviction but reduced the sentence to one year, requiring them to be bonded for good behaviour for a period between three and five years.[23]

   [23] Kusrin, ZM, Nasohah, Z, Samuri Ma-A; Z MNM 2013, ‘Legal provisions and restrictions on the propagation of non-Islamic religions among Muslims in Malaysia’, Journal of Malaysian Studies, Vol 31, Iss 2, pp 1-18 CIS36DE0BB1729

8. The Tribunal has considered advice provided to the Tribunal in another matter, but relevant in this case, about Muslim and non-Muslim relationships in Malaysia by Dr Amanda Whiting, Associate Director, Malaysia, Asian Law Centre, University of Melbourne[24]. Dr Whiting’s advice was essentially that a marriage between a Muslim and non-Muslim was not legal and would not be recognised in Malaysia and that Muslims are under an obligation to report void marriages. Dr Whiting advised that such relationships are considered irregular, a co-habitation not recognised by law, and hence subject to penalty under any law criminalising extra-marital intimate relations. Dr Whiting goes on to advise that punishment for ‘sexual intercourse outside wedlock’ (zina) and being with a woman ‘in a secluded place or in a house or under circumstances which may give rise to suspicion that they were engaged in immoral acts’ (khalwat) was provided however it was difficult to determine how many occasions such laws were used and it was noted that prosecutions are selective with women being prosecuted more than men and bribes may be paid. The applicant would not be affected as she is not a Muslim, but the applicant's partner who is a Muslim would be affected.

   [24] RRT Case number 1420549, decided on 16 February 2016

9. In a detailed analysis of the Malaysian legal system, including the status of Islamic Law in Malaysia Dr Whiting advised that Islam is mentioned in the Federal Constitution as the religion of the Federation[25]. The Federal Court system is also established in the Constitution. Article 160 of the Constitution stipulates that all Malays are deemed to be Muslims. A Federal Court case from 2007 determined that only an Islamic Court can give consent for someone to depart Islam, which is never given to a Muslim by birth. The 9^th Schedule List I of the Federal Constitution provides the list of powers exclusively available to the Federal Parliament, as opposed to the State Parliaments. The 9th Schedule List II of the Federal Constitution provides the list of powers exclusively available to the State Parliaments. The first item on List II provides that ‘Islamic law and personal and family law of persons professing the religion of Islam’, and lists the areas that these covers. It includes the establishment of Islamic Law courts to preside over the limited subject matter jurisdiction provided by the List, and only including those professing the religion of Islam. The Federal Parliament is provided the same powers over Federal Territories, in a similar manner to that provided to the States. The Islamic courts are then created by Enactment (State Parliaments) or Acts (Federal Territories) and exercise the powers as provided by the Federal Constitution.

   [25] Article 3

10. In the same Tribunal case, advice by Emeritus Professor Clive Kessler[26] regarding the law of Malaysia and its imposition was considered. He noted that partners to mixed faith relationships are denied the right to register their marriage. He advised that there is some informal vigilante action that occurs and advised that mixed faith relationships can only continue until they are exposed. In further advice from Professor Kessler dated 29 January 2016, which included a perspective from being resident in Malaysia for two periods (in July/August 2015 and December 2015/January 2016), he noted a dramatically increased determination, political and legal, to further the assertion of Islamic legal supremacy. In the Tribunal’s case, the applicant would be viewed as having failed his duties as a Muslim in continuing the relationship and not requiring his wife to convert and that he had denied his children the ability to have a true Muslim identity; that the applicant’s wife had led to the subversion of the applicant, and each is aiding and abetting in the defiance of Islam. If those applicants had to return to Malaysia they would have to undertake certain tasks, including the applicant’s wife converting, a proper Islamic wedding, and official registration of the children as Muslims by birth.

    [26] Emeritus Professor Clive Kessler, Sociology and Anthropology, University of New South Wales

    CRITERIA FOR A PROTECTION VISA

11. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

12. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

13. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

14. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

16. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is whether the applicant meets the criteria for a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of reference

18. The applicants claim to be citizens of Malaysia and have provided the Department certified copies of passport and identity documents. The Tribunal was also provided with the applicants’ passports and identity documents at the hearing. On the basis of the available evidence, the Tribunal finds that the applicants are citizens of Malaysia and that Malaysia is the applicants’ receiving country for the purposes of the refugee and complementary protection assessment.

19. There is no available evidence before the Tribunal to suggest that the applicants have a current right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims and findings

20. The Tribunal asked both applicants if they had completed the application for the protection visa themselves. They both indicated that they had help from an acquaintance who had completed the application after they had outlined each of their circumstances.

21. The Tribunal expressed concern that the claims in both applications were exactly the same and asked each applicant for an explanation. Applicant 1 told the Tribunal that perhaps the form was the same because their situations were similar. He confirmed he left Malaysia because of harassment and threats by a money lender after he agreed to be a guarantor for a cousin who has since absconded and he had no capacity to pay the loan.

22. Applicant 2 told the Tribunal that she left Malaysia because of problems with a money lender as did her partner. Although they did not know each other in Malaysia they discovered they had similar issues and reasons for leaving Malaysia. She believes that the acquaintance completed the form in a way that tried to summarise her claims as well as those of her partner. The applicant confirmed that she left Malaysia because of harassment and threats made by a money lender after she agreed to be a guarantor for her former brother in law.

    Fear of harm from money lenders

1. Having determined that there is a real chance that the relationship between the applicants will be disclosed, the Tribunal next considered the implications of such a disclosure. The question as to whether the family and criminal laws in Malaysia are laws of general application is complex and there is limited guidance on this point. The laws regarding marriage and personal relationships apply to all Muslims in Malaysia, however not all Malaysian citizens are Muslim. In such situations, the Tribunal considers that a law that only applies to a particular percentage of the population should not be characterised as a law of general application for the purposes of assessing whether a person is owed protection. The Tribunal considers that it is required to consider whether the law applies to the entire population and not to a particular segment of the population and ultimately whether the relevant law is a law of general application is a question of fact based on the evidence before the Tribunal. [30]

   [30] Weheliye v MIMA [2001] FCA 1222 (Goldberg J, 31 August 2001), at [51] and Chen Shi Hai v MIMA (2000) 201 CLR 293, per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [19] to [21]

2. In this instance, Syariah law only applies to Muslims in Malaysia, notwithstanding it applies to all Muslims in that country and that Muslims account for over half of the population. There are federal laws dealing with civil and family law matters of non-Muslims, such as the Law Reform (Marriage and Divorce) Act 1976, which is the applicable law governing the applicants should they seek to marry. This federal law specifically states that it does not apply to Muslims. Country information confirms there are two sets of laws relating to family law and the application of which law is determined by a person’s religion. The applicants therefore have different laws applicable to them. The criminal law in Malaysia is more complex as there are federal criminal laws, such as the Malaysian Penal Code, which applies to all Malaysian citizens. For Muslims, there is a further set of criminal laws that only apply to them. For Applicant 1 the applicable law is the Syariah Criminal Offences (Federal Territories) Act 1997 and he has committed crimes as set out in the Syariah laws, not the Penal Code. There are no concomitant laws that apply to Applicant 2 for being in this relationship as she is not a Muslim. The facts of this case demonstrate that a law of Malaysia applies to the Applicant 1 and not to Applicant 2. Accordingly it cannot be said that it applies to all people in Malaysia as this factual situation demonstrates. The Tribunal considers that in this case, it is not a law of general application.

3. Having concluded that the law is not a law of general application, the Tribunal has considered whether it is ‘appropriate and adapted to achieving some legitimate object of the country’, before making a finding as to whether it amounts to persecution.[31]

   [31] Applicant A v MIEA (1997) 190 CLR 225, per McHugh J at [258]; Chen Shi Hai v MIMA (2000) 201 CLR 293 per Gleeson CJ, Gaudron, Gummow and Haune JJ at [28]

4. Whether a law or its enforcement is ‘appropriate and adapted’ to achieving a legitimate object involves consideration of proportionality of the means used to achieve that object.[32] A legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. Thus, enforcement of a generally applicable criminal law, or the enforcement of laws designed to protect the general welfare of the state, would not ordinarily constitute persecution.[33] Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.[34]

   [32] See Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]; in MZQAP v MIMIA (2005) 85 ALD 41, the Full Federal Court held the test of ‘appropriate and adapted’ involves the nature and reach of the law itself and the actual manner of its application: at [20]

   [33]Applicant A v MIEA (1997) 190 CLR 225, at 258

   [34] Applicant S v MIMA (2004) 217 CLR 387 at [44], referring to Applicant A v MIEA (1997) 190 CLR 225, at 258

5. However, a law or its purported enforcement will be persecutory if its real object is not the protection of the state but the oppression of the members of a race, religion, nationality etc. Generally, sanctions aimed at persons for reasons of race, religion or nationality will not be an appropriate means for achieving a legitimate government object and are likely to amount to persecution. Where political opinion or particular social group are involved, the issue of legitimacy and proportionality may be more complex. In Applicant A, McHugh J explained:

   … where a racial, religious, national group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. ... Only in exceptional cases is it likely that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving a legitimate government object and not amount to persecution.

   In cases concerned with political opinion and the membership of particular social groups, the issue of persecution may often be difficult to resolve when the sanctions arise from the proper application of enacted laws. Punishment for expressing ordinary political opinions or being a member of a political association or trade union is prima facie persecution for a Convention reason. Nevertheless, governments cannot be expected to tolerate political opinion or conduct that calls for their violent overthrow. Punishment for expressing such opinions is unlikely to amount to persecution. Nevertheless, even in these cases, punishment of the holders of the opinions may amount to persecution. It will certainly do so when the government in question is so repressive that, by the standards of the civilised world, it has so little legitimacy that its overthrow even by violent means is justified. One who fled from the regime of Hitler or Pol Pot could not be denied the status of refugee even if his or her only claim to that status relied on a fear of persecution for advocating the violent overthrow of that regime.[35]

   [35]Applicant A v MIEA (1997) 190 CLR 225, at 259

6. In determining whether prosecution and penalty under a national law can properly be regarded as appropriate and adapted to achieving a legitimate object of the country, international human rights standards as well as the laws and culture of the country are relevant matters.[36] In Chen Shi Hai v MIMA, it was stated that:

   [w]hether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.[37]

   [36] Appellant S395/2002 v MIMA (2003) 216 CLR 473 per McHugh and Kirby JJ at [45]

   [37] Chen Shi Hai v MIMA (2000) 201 CLR 293 at 29, cited with approval in Applicant S v MIMA (2004) 217 CLR 387 at [45]

7. The Tribunal considered whether the law applicable to Muslims is a legitimate object of the country’s law. Clearly Islam is the ‘religion of the Federation’, however Malaysia has been found to be a secular state[38]. The Constitution allows for laws to be made to apply to Muslims solely, and not the 40% of the population who follow other religions or have no religion. As discussed above, someone born a Muslim cannot leave or ‘not believe’ in Islam, they will always be a Muslim in the eyes of the Syariah Law.

   [38] Che Omar bin Che Soh v Public Prosecutor [1988] Malaysian Law Journal 55

8. Emeritus Professor Kessler advice (see country information) provides some guidance as to the object of these laws. He states that they exist ‘to maintain a complete distinction and separation between Muslim and non-Muslim families and their “legal zones”’. Emeritus Professor Kessler notes that even the principle in Islamic Law that a Muslim man could marry a woman who is ‘ahl-al-Kitab (people of the book – i.e. Jewish or Christian) is illegal in Malaysia, with legal sophistry requiring a person to prove they are a genuine Kitabi woman, that all of their ancestors at the time of Muhammad were Jews or Christians, and all their relatives ever since which is an impossible task. This is an example of the extent to which the separation of mixed-religions is enforced. The Tribunal also notes that laws exist in Malaysia to promote ethnic Malay (Islamic) interests over other ethnic groups, in education, housing, public service employment, commercial opportunities[39] and to an extent, in politics. The DFAT Country Report on Malaysia states that:

   2.21…The Malaysian Constitution forbids discrimination against citizens on the basis of         gender, religion, and race; however it accords a ‘special position’ for bumiputera, permitting affirmative action policies that favour ethnic Malays. [40].

   [39] Department of Foreign Affairs and Trade, DFAT Country Report Malaysia, 19 July 2016, 3.1-3.3

   [40] Department of Foreign Affairs and Trade, DFAT Country Report Malaysia, 19 July 2016

9. The evidence of the applicants and country information considered by the Tribunal demonstrates that there is an increased zeal in the practice of Islam in Malaysia. The Tribunal notes country information that shows that prosecutions for khalwat has increased, certainly the greater reporting of these incidents have occurred, however there is limited data as to how many such prosecutions have occurred, as the religious courts do not keep records. The Tribunal notes that prominent scholars, academics, judges and lawyers who had spoken out about the influence and use of religious laws, known as the  ‘G25[41]’ being targeted by Muslim gangs, criticised by Muslims groups and prosecuted under sedition laws for criticising Syariah.

   [41] The original group of 25, which comprises retired civil servants and influential leaders, had published an open letter on December 8 asking for a rational dialogue on the position of Islam and Islamic law in a constitutional democracy. In their open letter, they had asked Prime Minister Datuk Seri Najib Razak to address religious and racial tension and exercise leadership in guiding Malaysia back to moderation. The letter decried the "lack of clarity and understanding" on the place of Islam within Malaysia's constitutional democracy, as well as a "serious breakdown of federal-state division of powers, both in the areas of civil and criminal jurisdictions". It also expressed concern at how religious authorities were "asserting authority beyond their jurisdiction" and that fatwa issued had violated the Federal Constitution as well as the consultative process:

10. The DFAT report on Malaysia notes that the Pan-Malaysian Islamic Party (PAS) ‘has reintroduced a conversation on the application of hudud in Malaysia, a hard-line interpretation of the ancient Islamic penal code that prescribes corporal and capital punishment’.[42] Prime Minister Najib has stated that the Malaysian government would “not tolerate any demands or right to apostasy by Muslims.”[43] Prime Minister Najib has also courted the PAS position in an attempt to stabilise his and UNMO’s position in wake of the bribery scandal in Malaysia:

    As an additional buffer, he is bringing Umno closer to the main opposition Islamic party. That could help rally the Malay vote ahead of an election due by 2018. Umno, in power since independence in 1957, won the 2013 ballot with its slimmest result yet as Chinese and Indian electors deserted Najib’s coalition, and since then he’s embraced policies that play to his support base of Malay voters.

    A closer working relationship with Parti Islam se-Malaysia (PAS) could have dual outcomes - further help Najib fend off the funding scandal and lead to more hardline policies. PAS has advocated Shariah law - which allows for stoning or amputation for certain crimes - in a state it governs, while Najib has already made greater use of the country’s Sedition Act with the detention of media executives and political opponents.

    “Communal politics is on the rise in Umno and they know they cannot depend on the Indian and Chinese votes any more,” said Wan Saiful Wan Jan, head of the Institute for Democracy and Economic Affairs (Ideas). “Najib is leading a political party that wants to move to the right. People are reacting to fear-mongering and fearful of the implications if they change their attitudes.”

    Najib has reached out to PAS and proposed the parties work to promote Islam’s doctrines. Beware the possibility of the country being governed by a party that is not Islamic, he told about 2,700 party elites at the Umno congress.[44]

    [42] Department of Foreign Affairs and Trade, DFAT Country Report Malaysia, 19 July 2016, 3.25

    [43] DFAT Country Report Malaysia December 2014, 3.24

    [44] Najib draws Islamic parties together, tightening grip, Bloomberg, 14 December 2015,

11. Malaysia is not a signatory to the International Covenant on Civil and Political Rights (ICCPR), so the Tribunal has to be cognisant that Australia’s acceptance of the ICCPR and the freedoms provided by this are of limited relevance in these circumstances. However the Tribunal is concerned that if elements of the Malaysian community, including actors of the state, have decided to use certain religious laws to enforce a conservative brand of Islam, and that the imposition of these laws, with these social objectives, have been to some degree, used to enforce this ‘conservative’ Islamic perspective, this is not a perspective that all Malaysians, and crucially, not all Muslim Malaysians, agree with. In an article written in a national newspaper on the issue of hudud in Kelantan, the writer states:

    In every religion there are the extremists, moderates and progressives. Often it is the extremists, without will threaten with use of force to get their way. What we are seeing today is that the militant faction of Islam seems to be holding the rest of the Muslims (the silent majority) to ransom. Isn’t this why Zaid Ibrahim is urging the silent majority (assumed as moderate Muslims) to speak up? Or is the silent majority secretly agreeing with them?[45] [46]

    [45]Hudud: The Malaysian dilemma, Free Malaysia Today. 2 May 2014

    [46] Zaid Ibrahim is a prominent Malaysian lawyer turned politician, based in Kelantan, critical of UNMO and extremism in Islam.

12. The Tribunal is concerned that the increase in khalwat prosecutions, the unprecedented imposition of caning sentences against women convicted of breaching Syariah law in recent years, and even the death of some people who attempted to escape prosecution under Islamic laws demonstrates a stricter imposition of these laws is in progress, reflecting the political positioning of political parties like PAS who are pushing this more conservative societal attitude. The Tribunal notes that the state is acquiescent in this by permitting the religious courts, established under the law, to impose such sentences.

13. The Tribunal considers that the use of these laws can be seen as a political act by those who seek a more traditional and conservative practice of Islam, against more moderate and permissive Islamist perspectives, as espoused by the G25 group. The Tribunal notes the rise of the conservative PAS party, who have greater political influence as the bribery issues affecting UNMO and Prime Minister Najib weakens the governing coalition. As detailed above, Prime Minister Najib is moving towards PAS to ensure he maintains the Islamic vote. The Tribunal considers that this is more likely to lead to compromise with PAS and their conservative position on Islam in society, as opposed to a more moderate influence, as has existed in the past.

14. The Islamic laws in this instance are being used to deny the human rights of two people, a Muslim and a non-Muslim to choose to live together, to marry and have a family. The applicants have not given offence to any other person in the community or the state in general by their actions. Their decision to keep their relationship from their friends and family in Malaysia has demonstrated this, but when they are discovered, the Tribunal considers the real chance that Applicant 1 will be made an example of by the religious authorities given the extent of his transgression. Given that these laws are being used in such a manner, it is debateable, and therefore legitimate to question, whether they are appropriate and adapted to a legitimate object of the country. In the present factual circumstances, the Tribunal considers they would not being used for such an objective, and the applicants’ situation is an example where it would be used for a non-legitimate object, to overly punish a person for a breach of Islamic law to emphasize the primacy of a conservative position of Islam.

15. The Tribunal finds, in this instance, that this is not a law of general application appropriate and adapted to achieving a legitimate object of the country.

16. The Tribunal has considered the penalties that can be imposed for zina and khalwat as outlined earlier and accepts that the applicant’s partner faces criminal sanction under Federal Act 355: (Syariah Courts (Criminal Jurisdiction) Act 1965, which provides for maximum penalties of 5000 MYR, and/or 3 years jail, and/or 6 strokes of the cane.

17. The Tribunal considers that in the circumstances of this case, Applicant 1 would be determined to be worthy of such a penalty. The Tribunal considers that the circumstances of the offending of Applicant 1 would become public knowledge. The Tribunal considers that the chance of Applicant 1 being sentenced and punished for zina and khalwat can be described as real. The Tribunal finds that he would be fined, jailed and caned for his breach of these laws.

18. Information about judicial caning provides the following details. A 2010 report by Amnesty International described the severity of judicial caning as follows:

    In Malaysian prisons specially trained caning officers tear into victims' bodies with a metre-long cane swung with both hands at high speed. The cane rips into the victim's naked skin, pulps the fatty tissue below, and leaves scars that extend to muscle fibre. The pain is so severe that victims often lose consciousness.[47]

    [47] Malaysia: Torture practiced systematically in widespread caning" Amnesty International, 6 December 2010. CX255159

19. The Tribunal notes that there is information that caning for zina is carried out and has considered a report describing the caning of three Muslim women in 2011. The Tribunal notes that An Agence France Presse article from May 2011 stated that this was ‘the first such punishment under Islamic law in Malaysia’ and that it had ‘fuelled debate over rising “Islamisation” of the multi-ethnic nation’.[48] However the Tribunal notes that this article discussed the caning of women, which was so exceptional in Malaysia, however caning of males is more common.

    [48] ‘Ex-policeman dies fleeing Malaysian morality raid’ 2011, Agence France Presse, 18 May, Manager Online website CXCB3E63420449

1. Section 5J(5) of the Migration Act sets out what is meant by serious harm which, without limiting what is serious harm, includes a threat to a person’s life or liberty, significant physical harassment of the person, significant ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of basic services, where the denial threatens the person’s capacity to subsist and a denial of a capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

2. In MIMA v Haji Ibrahim McHugh J emphasised the degree of harm that would be required to constitute persecution. His Honour explained:

   The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention.[49]

   [49] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55]

3. The Department’s guidelines with respect to significant physical ill treatment reflect this test.[50] Clearly, the caning as a form of corporal punishment of an individual meets the definition of significant physical ill-treatment of the person.

   [50] PAM Refugee Law Guidelines, CH 11 - Persecution

4. The Tribunal has further considered the implications of this breach of religious law in Malaysia. The Tribunal considers that in the increasingly conservative Islamic religious environment a prosecution of Applicant 1 could lead to violence against him and the applicant in the community. According to Emeritus Professor Kessler, in this advice referred to earlier, the possibility of ‘vigilante action by the violent ‘street enforcers’ of ‘right-thinking virtue’ exists. This form of violence has the potential to harm Applicant 2 as the partner as she may be blamed for the breach of Islamic laws and her partner as the transgressor of the law. The Tribunal considers that the authorities could not provide the adequate protection for the applicants in this particular circumstance. The Tribunal cannot discount the possibility that the applicants will be seriously harmed in the community for their actions.

5. The Tribunal discussed issues regarding the possibility of conversion to Islam by Applicant 2. She provided cogent reasons as to why she did not want to convert, that she was born a Christian, belongs to an evangelical church and continues to actively follow her beliefs. She told the Tribunal that she is unable to convert to a religion she does not believe in and is not willing to consider it. The Tribunal accepts that Applicant 2 cannot convert to Islam simply to mitigate the penalty facing her partner, and it is not reasonable to expect her to do so.

6. The Tribunal considers that this case demonstrates the difficult circumstances that individuals face in similar circumstances. The Tribunal finds that there is a real chance that the applicants will be discovered to be in a relationship, in contravention of the laws relating to Islamic relationships in Malaysia. The Tribunal considers that Applicant 1 will be prosecuted for this contravention and pressure may be exerted on Applicant 2 to convert to Islam in order for her partner to be spared the punishment. If she does not do so, her partner is likely to be given a penalty, including imprisonment, a fine and relevantly, caning. The Tribunal finds that the caning constitutes serious harm. The Tribunal also finds that it is not a law of general application or for a legitimate object for the country.

7. The Tribunal finds that the Applicant 1 does face a real chance of serious harm for the purposes of s.5J of the Act for reasons of religion and membership of a particular social group. The Tribunal finds that Applicant 1 has a well-founded fear of persecution for these reasons.

8. The Tribunal has considered the issues of relocation and state protection. The Tribunal notes that Islamic law exists in all provinces and areas of Malaysia. No location is without religious police and Islamic courts. Accordingly the applicant cannot relocate to another area of Malaysia where he would not face such persecution.

9. Further, the persecution is being conducted by elements of the state itself. Applicant 1 would not be able to avail himself of state protection, such as by the Royal Malaysian Police, as they would identify the applicant and her partner as being in contravention of the law, and draw their circumstances to the attention of the religious police. The Tribunal is satisfied that Applicant 1 will not be provided state protection.

10. For the reasons given above the Tribunal is satisfied that the first named Applicant 1 is a person in respect of whom Australia has protection obligations. Therefore he satisfies the criterion set out in s.36(2)(a).

11. The Tribunal is not satisfied that Applicant 2 is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). This is essentially because the Islamic laws cannot be enforced in her situation. She may face harassment or pressure to convert in order to maintain her relationship with Applicant 1. However, the risk to her is much less than that faced by her partner.

12. The Tribunal is however satisfied that Applicant 2 as the partner of Applicant 1 is a member of the same family unit for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the application of Applicant 1. It follows that Applicant 2 will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met as Applicant 1 holds a protection visa of the same class as applied for by Applicant 2.

    DECISION

13. The Tribunal remits the matter for reconsideration with the directions that:

    (i)Applicant 1 satisfies s.36(2)(a) of the Migration Act; and

    (ii)Applicant 2 satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as Applicant 1.

    Sophia Panagiotidis
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

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

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …