1618106 (Refugee)

1618106 (Refugee) [2018] AATA 3356 (18 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1618106
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Anne Grant
DATE:18 July 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

STATEMENT MADE ON 18 JULY 2018 AT 9:58AM
CATCHWORDS

Refugee – Protection Visa – Malaysia – Religion – Muslim convert – Desire to revert to Buddhism – Non-practising Muslim – Fear of harassment by religious authorities and community – Religious conversion due to marriage – Sharia law – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia applied for the visa on 22 July 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Migration Act 1958 and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to his receiving country, there is a real risk that the applicant will suffer significant harm.
The applicant attended a hearing on 19 June 2018 and gave evidence. He has provided identification documents including his Malaysian Passport to the Department with his application. At hearing, he provided, at the Tribunal’s request, his Malaysian identification card. The applicant gave evidence that he is not a citizen of any other country. The Tribunal is satisfied that the applicant is a Malaysian citizen and has assessed his claims on the basis that Malaysia is the receiving country.
In his application, the applicant stated that:
·In 2002, I told the Muslim Malay race married. Married a Muslim in Malaysia and is sure to follow Islam religion. I am no exception. We divorced in 2014. Because of the identity of Muslim life led me to a lot of inconvenience. So I want out of Islam. But cannot. Because Islam in Malaysia can only enter cannot quit. So I was frightened. The religious affairs illegal detention me and forced me to accept Islam counselling. I cannot take it anymore.
·I would be imprisoned and forced to accept Islam counselling (if return to Malaysia.)
·Says he was being detained, threatened and slapped in Malaysia.
·He did not seek help within Malaysia because religion is sensitive in Malaysia. He had no place to seek help.
·He did try to move to another part of the country to seek safety: I tried but throughout the whole of Religious Affairs in Malaysia.
·Yes, I believe I will be physically abused and spiritual harm (if return to Malaysia).
·I do not think there is a department that can protect me.
·I cannot relocate because I do not want to accept the mental torture.
No other information or submissions were received from the applicant prior to hearing.
At the hearing the applicant gave evidence with the aid of a Mandarin interpreter. In summary, his evidence was:
·The applicant was assisted in completing his application by a friend. The applicant is a Chinese Malaysian who was previously a Buddhist. He converted to the Muslim faith to marry a Muslim. He was young and didn’t think about the consequences. They married in 2002. He does not have the marriage or divorce certificates with him in Australia.
·Before they married, he had to undertake about one month of Islamic studies, including reading the Quran, learning the required prayers, how to wash your hands and how they expected him to behave. He indicated that he doesn’t know much about the Muslim faith, he only did what he had to, in order to get married.
·After his marriage, he chose not to practice as a Muslim, regardless of his conversion.
·He was never detained by religious authorities, forced to accept Islamic counselling, threatened or slapped. He is not sure why his friend wrote that on his application.
·Once his family discovered he had converted and married a Muslim, they were very angry and upset. His father beat him. This only happened once and at that time, he left the family home.   He and his new wife moved first to Kuala Lumpur and then to [Country 1], where their son was born.    He was born in [year] and they lived there until 2007. In 2007, his wife’s mother became ill and she wanted to return to Malaysia. They returned and lived in Kedah. He started a [business].   His family was around 10 minutes away and his wife’s family around 40 minutes away. His family was (and is) no longer angry with him; he found the birth of a grandchild had done much to resolve things with his family.
·His business was not doing very well and a friend asked if he wanted to travel to [Country 2] to teach [a specified course] there. He agreed. He went there in 2012 and travelled back and forth a bit for about one year. But his wife was working and while he was away, she started a relationship with a new man. When he discovered this, they quarrelled and separated. They did not have a court case about custody. They shared the care of the child while he remained in Malaysia.
·After his marriage ended in 2013, he was very sad in Malaysia. He decided to leave the country.
·The applicant said that, when he went out for a drink, or was with a lady, ‘the religious authorities can’ arrest him because he had converted to Islam. One time he was out with a Chinese lady, and the religious police chased after him. However he drove away. He assumes they wanted to check if he was breaking the law and to check identification cards. He noted that it didn’t matter that he was divorced, or that the women he was with were not Muslim ladies. The Muslim law applied to him. The applicant said that he doesn’t really know what would have happened to him if they had caught him, because he ‘doesn’t really know much about Muslim law.’    As noted above, he said he had never been slapped, threatened or detained, despite this claim being in his application for protection. He appeared surprised that those claims were in his application.
·The applicant gave evidence that he had tried to save money to engage a lawyer and had enquired about proceedings to convert back to Buddhism but was told it is ‘not possible.’ His belief was that there was only one case in the whole history of Malaysia which had been successful in allowing a person to leave the Muslim religion.   He did not agree with the country information which stated that more than one hundred and sixty Muslim converts in similar situations to him had been allowed to revert to their original faith by the Sharia courts.
·When asked about what he fears about returning to Malaysia, the applicant said he fears, if he returns, that he will be harassed by the religious authorities because he is not obeying Muslim rules. The applicant said that he found the restrictions due to his being officially a Muslim very frustrating. He wasn’t allowed to have a drink, or to be alone with a woman, even if she was a Chinese woman and a non-Muslim. He is not supposed to, for example, go to a non Halal restaurant, the owner might refuse to serve him.
·The Tribunal asked why a restauranteur would question him if he was out with non- Muslim friends. He responded that his Chinese friends will tease him in a non-Halal restaurant.
·The applicant said he cannot simply live as a non-Muslim without risking being stopped by religious authorities, because his identification card says he is a Muslim. If he is ever questioned, and is alone with a woman not his wife, he will be subject to being dragged before the Sharia courts. When asked about the possible consequences if this occurred, the applicant said he didn’t really know, he had always managed to avoid it (though he had only been approached by the religious police that once.)    The applicant repeatedly stated during the hearing that when he goes out for a drink, he ‘could’ get arrested. He also stated that, because he doesn’t attend Friday prayers, they will come and ask him why. He gave evidence that this had never happened. He confirmed that if it did, he would just make up an excuse about being sick or having to work. In his evidence, the applicant gave the clear impression that he was not actually fearful about being arrested, prosecuted, punished, detained, subject to Islamic re-education, but considered such things ‘possible’.
·The applicant gave evidence that Muslim people (60% of the population) will look down on him because he was not born a Muslim and non-Muslims will look down on him because he has converted to Islam. He also stated that women (non-Muslims) will not accept him because he is a Muslim convert. However, on this last issue the applicant later informed the Tribunal that he has fallen in love with a Malaysian woman who is not a Muslim (he was unsure of her faith but said that she follows the Goddess) and that they spent time together when he was in Malaysia. They are very good friends and get on well. She has not visited him in Australia, and they have not talked of marriage. They are both divorced and had that in common.
·In response to the Tribunal’s suggestion that the matters he has described himself as fearing due to his conversion to the Muslim faith are more matters of inconvenience, and that they might be considered to fall far short of persecution, the applicant re-stated that, as a convert to the Muslim faith, he was not considered ‘a true Muslim’ by Muslims and would not be accepted by non-Muslims either. He gave no examples of where this had occurred prior to him leaving the country.
·When asked if he could relocate to larger cities, the applicant did not think that he could live in a larger urban environment like Kuala Lumpur. He noted that Muslims are the largest population group in Malaysia and so lived throughout the country. He felt that he was vulnerable to the oppressive Muslim requirements and laws, wherever he was. He said he did not want to live in Malaysia. He prefers Australia where there is social freedom and would like to live in Australia for another [number] years. Once his son is 18 years old, his son will be entitled (because he was born in [Country 1]) to apply for citizenship there. Then they will move to [Country 1].
·When asked if he had any other reasons why he couldn’t return to Malaysia, he responded that this was the only problem he had – he had no others.
·The applicant said he has no current entitlement to live or reside in any third country but he believes that, if he applied, he might receive a ‘green card’ in [Country 2], as they have stated they are willing to accept applications from Malaysia. He is hopeful that he can stay in Australia for another [number] years and once his son becomes a [Country 1] citizen, he might be able to settle there. When the Tribunal noted that it had no role in considering visas other than this application for protection, the applicant responded that he ‘did not really have much about protection’. He plans to move to [Country 1] once his child reaches adulthood and settle there, and wants [number] more years in Australia before then.
The Tribunal accepts that the applicant was being truthful in his evidence at hearing, but, based on his own evidence, finds that some of his claims in his written application were not true. The Tribunal accepts that the applicant converted from Buddhism to the Muslim faith after falling in love with and marrying a Muslim woman in 2002. The marriage ended in 2013. The Tribunal finds, based on his own evidence, that the applicant has not practised the Muslim faith after his conversion. He has not attended prayers, or obeyed behavioural laws and rules such as avoiding alcohol, eating only Halal food, and socialising with unmarried women.
The applicant’s evidence throughout the hearing was particularly focused on his desire to be free to drink and socialise with whomever he wanted. He noted that he enjoyed the social freedom in Australia and in [Country 2] when he was there. Nonetheless, he also described socialising with his non-Muslim friends while in Malaysia, who frequently teased him about his conversion. He also described socialising with women including his non-Muslim female friend/girlfriend. The evidence suggested that he continued to live his life without modifying his behaviour in any way – such as by restricting his alcohol intake or limiting his social interactions in the period before he departed Malaysia.
The applicant referred to no religious beliefs which he shares or feels restricted in expressing during the hearing. The Tribunal concludes, based on his evidence overall, that the applicant is not pious in any faith but considers himself a Buddhist and would officially leave Islam if he could do so easily to avoid the expectation of obeying its laws and rules. The Tribunal accepts that his identification card says he is a Muslim. The applicant professed not to ‘know much about sharia laws’. Based on his evidence, the Tribunal is satisfied that the applicant has not practised the Muslim faith despite being a converted Muslim and living in the country from 2007 to 2013. The Tribunal finds that the applicant has not taken any legal steps to convert back to Buddhism from Muslim. Once his marriage ended, he decided instead to leave the country because of his sadness after the separation.
The Tribunal is satisfied that the applicant fears that he might be randomly stopped and questioned about whether he was obeying Muslim rules and laws if he were to return to Malaysia. He also fears that he will be ostracised and discriminated against by both the Muslim and Chinese communities due to his conversion to the Muslim faith. The applicant fears that, if he is unable to convince the authorities that he is behaving appropriately, he would be prosecuted and taken to the Sharia court for punishment. The Tribunal is satisfied that being discriminated against and ostracised due to his choice to convert to the Muslim faith or his decision not to practice that faith, and being prosecuted for breaking religious laws (including by caning and fine), detained, physically assaulted, and forced to attend religious re-education as described by the applicant would constitute ‘serious harm’ as described in s5J(4) of the Act. The Tribunal is not satisfied that being stopped occasionally and questioned about his religious practice amounts to significant physical harassment of the applicant or would otherwise amount to causing the applicant serious harm.
The applicant was beaten once by his father in around 2002 when his family discovered his conversion. However he has long since resolved any dispute with his family. He confirmed and the Tribunal is satisfied that he has no fear of harm from them if he returns to Malaysia. The Tribunal finds that there is no risk of harm from the applicant’s family due to his religious conversion now or in the foreseeable future.
The Tribunal finds that the applicant has never been stopped and questioned, prosecuted, taken to a court or assaulted, been taken for ‘Islam Counselling’ or detained by the Religious Department or other authorities about his lack of Islamic commitment or breaches of Sharia law. Only once was an attempt made to stop him by the authorities and he drove away and avoided it. He has not been forced to undertake any form of re-education apart from the religious instruction he received before his marriage and conversion, and has not been tortured, (physically or mentally) due to his conversion, his failure to obey Muslim laws and customs or his desire to leave the Muslim faith.
The Tribunal finds that the applicant has not been modifying his behaviour whilst in Malaysia to avoid the harms he fears. The Tribunal finds that the principal harm the applicant fears if he returns to Malaysia is that he will be inconvenienced in going about his daily business because he might occasionally be stopped and questioned about his (lacking) Muslim practice.

The Tribunal has had regard to the Department of Foreign Affairs and Trade report dated 19 April 2018. It contains the following summary in relation to religion in Malaysia for Muslims:
RELIGION
3.26 While the Constitution guarantees freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. Laws such as Selangor state’s Non-Islamic Religions (Control of Propagation amongst Muslims) Enactment (1988) control and restrict the propagation of other religions, including non-Sunni versions of Islam. Several organisations advocate the rights of minority religions, including the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism, an inter-faith committee established in 1983, which continues to have an active relationship with the Malaysian government.
3.27 The government automatically classes individuals born in Malaysia of Malay ethnicity 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 Shi’a Muslims. Cards identify Muslims on their surface, but record other religious affiliation in encrypted form on a smart chip. Married Muslims must carry a photo identification of themselves with their spouse as proof of marriage.
3.28 Malaysia has a two-track legal system: common law, administered at federal level; and sharia-based law, administered at the state level, which varies by jurisdiction. 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 the ‘determination 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.
3.29 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.
…
3.32 While the government rarely intervenes in instances of religious persecution, harassment or criticism of non-Muslims, there are increasing reports of non-Muslims being censured for commenting on any matter pertaining to Islam. Islamic groups and leaders have criticised, and in some cases harassed, commentators and community groups for expressing concern over a perceived increase in the Islamisation of government and shrinking space and freedom for non-Muslims to practise their faith. In 2016, the Mufti of Pahang labelled DAP leaders as ‘Kafir Harbi’ (non-Muslims against Islam) for protesting a private member’s Bill seeking to extend and increase punishments under sharia-based law. DFAT is aware of few reported incidents of violence against religious ‘dissenters’.
Islam
3.36 Several political parties in Malaysia have placed greater emphasis on Islam in order to attract the majority (Malay-Muslim) vote in recent years, particularly around federal election campaigns. Since the 2013 election, Prime Minister Najib has promoted UMNO as the defender of the ‘sanctity and dignity’ of Islam against ‘deviant’ interpretations. The government has banned Shi’a Islam, Ahmadiyah and Al-Arqam on these grounds.
3.37 Several high profile incidents during 2017 illustrate an increasing trend and tension in Malaysian Islam. In September 2017, state religious authorities detained a visiting academic during a speaking tour of Malaysia organised by the Islamic Renaissance Front. The government censor banned his books, along with around a dozen other titles, for challenging Malaysia’s conservative Islamic approaches: according to the Deputy Prime Minister, the books were ‘against societal norms’. Authorities banned a beer festival, despite it having run for the past few years, and a gay dance party. Two public laundries restricted their customers to ‘Muslims Only’, attracting significant media attention; following a Royal rebuke, the owner apologised and re-opened his shop to all although the Royal rebuke was itself criticised by the Minister for Islamic Affairs.
3.38 Muslims who have strayed from accepted Sunni principles– including those from so-called ‘deviant sects’ – can be prosecuted by government for apostasy under state sharia-based laws, with punishments including fines or prison terms. Those convicted can also be subject to mandatory religious rehabilitation. According to the US State Department, in 2014, authorities sentenced the widow of the founder of a banned Islamic sect and 18 followers to 500 hours of rehabilitation. Religious rehabilitation programs can last for up to six months and are designed to ensure the detainee adopts the government’s official interpretation of Islam. The government does not release statistics on the number of persons sent to religious rehabilitation.
3.39 In April 2017, the leader of the Pan-Malaysian Islamic Party (PAS) Abdul Hadi Awang tabled a private member’s bill in parliament to increase sharia courts’ punishment powers. The bill seeks to raise those limits to 30 years in prison (up from three years); RM 100,000 (approximately AUD 32,814) fines (up from RM 5,000, approximately AUD 1,640); and 100 strokes of the cane (up from six strokes). As of March 2018, the federal parliament had not debated the bill.
3.40 In light of the increasing influence of conservative Islam over recent years, pressures to display religious piety have increased within Malaysia’s Muslim community. DFAT is aware of reports of individuals notifying religious enforcement officers (see State Islamic Religious Departments) if community members do not attend mosque. DFAT is not aware of the response by authorities to such reports…
Religious Conversion and Apostasy
3.57 Conversion from Islam is extremely difficult. In May 2014, Prime Minister Najib said the government would ‘not tolerate any demands or right to apostasy by Muslims’. An ‘apostate’ is a person who formally attempts to renounce their Muslim status. Despite the guarantee of freedom of religion under Article 11 of the Constitution, the civil courts have ruled that they have no power to intervene in apostasy cases that fall under the jurisdiction of Malaysia’s sharia courts.
3.58 Several sharia-based laws apply to Muslims at state level. State governments do not recognise marriages between Muslims and non-Muslims and children born of such marriages are considered illegitimate. DFAT is aware of cases where one spouse has converted to Islam, and subsequently claimed that non-Muslim family members lose all rights to inheritance and custody of children. In January 2018, the Federal Court ruled that both parents had to consent to change a child’s religion (see Unilateral Religious Conversion of Children). While it is relatively common for individuals to convert to Islam for marriage, families in some communities may view this negatively.
3.59 Individuals who have attempted to convert from Islam have faced long and expensive legal battles, involving both the federal civil courts and state sharia courts. An individual wishing to convert from Islam must first obtain permission from a state sharia court. The court will declare them an apostate. State sharia courts rarely grant such declarations and, in some states, including Melaka, Pahang, Perak and Sabah, apostasy is a crime punishable by fine, a jail sentence, or caning. In Kelantan and Terengganu, state laws allow the death penalty for apostasy although federal law does not allow its implementation. In 2016, the US State Department reported cases where individuals who attempted to convert from Islam were compelled to attend religious rehabilitation centres. In many cases, converts concealed their new beliefs. Muslim women and girls face social pressure to continue wearing a headscarf (‘tudung’).
3.60 Only 168 of 863 Muslims who attempted to convert between 2000 and 2010 received permission to do so. In these cases, the sharia courts determined that all 168 applicants had not been Muslim to begin with, which thereby prevented any legal precedent supporting conversion from Islam. The landmark case of Lina Joy, a Muslim who converted to Christianity to marry a Christian in 1998, demonstrated the impediments to conversion from Islam. The federal court found in 2007 that she was legally a Muslim and her religious status could not be removed from her national identity card, as ‘a person cannot, at one’s whim and fancies renounce or embrace a religion’. She was thus unable to marry her Christian partner.
3.61 Conversely, in December 2015, a 40 year-old man in Sarawak, who had been a Christian until his parents converted to Islam when he was eight years old, received a letter of release from Islam by the civil court on the basis that his conversion occurred when he was a minor, and had no choice in the matter. The civil court judge ruled that the sharia court had no jurisdiction and the ‘Lina Joy’ case did not apply, as he was not a Muslim from birth.
3.62 DFAT assesses that Muslims who attempt to convert from Islam or marry a non-Muslim face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert and potential punishment for apostasy in some states.
The Tribunal notes, from the country information, that there has been some hardening of the Religious Department and societal approach to Muslims failing to follow Muslim laws and codes of behaviour, such as those described by the applicant. The Tribunal is satisfied that there is therefore some risk that the applicant might be questioned if he returned to Malaysia about his potential failure to follow those laws and rules.
The applicant repeatedly referred to not being allowed to drink or mix with non-Muslim women to whom he is not married, but it was clear from his evidence and the Tribunal finds that he undertook those activities, regardless of his ‘not being supposed to’. He referred to being expected to attend Friday prayers but it was also clear that he had not done so, or at least not for some time prior to his leaving the country. He also said his Chinese friends might laugh at him or tease him (because they had in the past) if he goes to a non-halal restaurant because they know of his conversion.
The Tribunal has found that the applicant has not experienced any physical harm, ill treatment, torture (physical or mental) or harassment prior to leaving Malaysia due to his conversion from Buddhism to Muslim or due to his desire to revert to the Buddhist faith, apart from one occasion where his father hit him on learning of his conversion. He does not fear physical harm from his father or any of his family or friends due to his conversion to Islam if he returns to Malaysia and the Tribunal finds that there is no risk of that harm occurring.
The fear that the applicant repeatedly expressed during hearing was a fear of being stopped and questioned by the religious authorities, and possibly prosecuted for some breach of Muslim law if that occurs. He was not aware of any potential penalties because he clearly paid very little regard to and had a limited knowledge of ‘Muslim law’. The Tribunal is satisfied that, if the applicant were to return to Malaysia, the applicant would continue to associate freely with his non-Muslim friends (including his non-Muslim divorced girlfriend) and would not comply with Islamic faith requirements – such as Friday prayers, avoiding socialising whilst unmarried with women, alcohol and non-halal foods. Given that he would continue to behave in that manner, there is some possibility, based on the country information, that the applicant might be stopped at some point in the future by religious authorities and questioned about his adherence to Muslim rules and laws.
The Tribunal also considered the applicant’s evidence that he fears not being considered and accepted as a ‘true Muslim’ due to not being born a Muslim and not being accepted by his Chinese community (including women) because of his conversion. At its highest, the applicant’s evidence on this last point was that he felt that he might be the subject of disdain and ostracism from both communities in future. Apart from mild teasing from his friends about eating in a restaurant or restaurants that was not Halal, the applicant did not claim that this had actually happened in the past and, the Tribunal finds that it had not. The Tribunal relies on the applicant’s own evidence that he continued to associate with friends as he wished, and also maintain his friendship/relationship with the woman he described during the hearing, and that, in the years before he left Malaysia, he was not ostracised or rejected by anyone, either due to his conversion to the Muslim faith, his failure to adhere to Muslim rules or laws, or his desire to leave that faith. The Tribunal accepts that he was on occasion teased by his non-Muslim friends about his choice to eat non-Halal food, but he gave no evidence of ever having been refused service on that basis. The Tribunal finds that there is not a real chance that the applicant will be subject to discrimination or ostracism by members of either the Muslim community or the Chinese community due to his conversion if he were to return to Malaysia.
The Tribunal is satisfied that the evidence of the applicant suggests that he is not particularly pious in any faith and has no intention of ever practicing the Muslim faith or adhering to its behavioural laws and rules, and the Tribunal so finds. The applicant’s evidence also suggests and the Tribunal finds that the applicant has no real ethical or faith-driven desire to leave the Muslim faith due to a wish to return to practice as and identify as a Buddhist.
The Tribunal has found that there is at least some risk that the applicant may be stopped and questioned about his practice of Muslim law and custom, if he were to return to Malaysia. However, based on his evidence of his direct experience prior to leaving the country, the Tribunal considers that the possibility of that occurring in the applicant’s day to day life is virtually non-existent, due perhaps to his mingling mainly with Non-Muslims by choice. There is no evidence that he is of any unusual interest to the Government of Malaysia or the Religious Department.
Based on the applicant’s past ability to freely live his life without official interference or sanction (except for one occasion which he was able to avoid questioning anyway) in the period prior to leaving Malaysia, and his ability to leave the country with no official difficulty, the Tribunal finds that the applicant is not of any particular interest or likely to come to the special attention of the Malaysian religious authorities. The Tribunal considers that the applicant could live in relative anonymity without modifying his behaviour in any way and, whilst he might be occasionally questioned about his Muslim practice, this occasional questioning does not amount, in itself, to serious harm. For example, it is no more intrusive than being stopped by police and asked for your driver’s licence whilst driving a car. Based on the applicant’s own evidence about his past experience in Malaysia, the Tribunal finds that there is only a remote risk of the applicant being arrested, physically assaulted, prosecuted, detained and ‘re-educated’ in relation to his conversion to the Muslim faith and failure to accord with Muslim laws and rules if he were to return to Malaysia.
The Tribunal finds that there is not a real chance that the applicant will be discriminated against or ostracised by members of the Muslim and non-Muslim communities in Malaysia due to his conversion to the Muslim faith. The Tribunal also finds that there is not a real chance that the applicant will be arrested, physically assaulted, prosecuted, detained and subjected to Islamic re-education if he were to return to Malaysia. The Tribunal finds that there is a real chance that the applicant will be occasionally stopped and questioned about his practice of Muslim faith and that he may be teased by his non-Muslim friends if he were to return to Malaysia. Before determining whether there is a real chance of persecution, the Tribunal must be satisfied that the harms which a person actually faces a real chance of suffering amount to persecution. Persecution must involve “serious harm”, as noted in s.5J(4)(b) and described in s.5J(5). Serious harm includes a threat to the person’s life or liberty, significant physical harassment of the person, significant ill-treatment of the person, significant economic hardship or denial of access to basic services that threatens the person’s capacity to subsist, and denial of capacity to earn a livelihood of any kind where the denial threatens the person’s capacity to subsist.
The Tribunal has found that there is a real chance that the applicant will be stopped and questioned occasionally about his practice of the Muslim faith and that he will be teased by his Chinese friends about his failure to follow Muslim rules. The Tribunal does not consider that, even if these things do occur when he returns to Malaysia, that they would constitute ‘serious harm’, even when considered cumulatively.
Consequently, the Tribunal finds the applicant does not have a well founded fear of persecution if he were to return to Malaysia.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For Australia’s complementary protection obligations to be satisfied, there must be substantial grounds for believing that there is a real risk that the person will suffer ‘significant harm’ if he or she is returned to his or her country. The term ‘significant harm’ is described in s.36(2A). A person will suffer significant harm if they will be arbitrarily deprived of their life; the death penalty will be carried out on the person, they will be subjected to torture or cruel or inhuman treatment or punishment or subjected to degrading treatment or punishment.
The Tribunal has found that there is a real chance (and finds that this equates to a ‘real risk’) that the applicant will be stopped and questioned occasionally about his practice of the Muslim faith, and that he might be teased by his Chinese friends about his failure to adhere to Muslim rules. The Tribunal has also found that there is not a real chance (and therefore there is not a real risk) that he will be prosecuted, imprisoned, physically assualted and forced to undergo religious re-education due to his desire to leave the Muslim faith or because of his failure to live according to strict Muslim values. The Tribunal has found that there is not a real chance (and therefore not a real risk) that the applicant will be socially ostracised or discriminated against by members of the Muslim or Chinese communities if he returns to Malaysia due to his conversion to the Muslim faith. The Tribunal finds that being randomly (and very occasionally) questioned by the religious authorities, and of being teased by his Chinese friends about his conversion, even if borne out on his return, would not constitute ‘significant harm’, even considered cumulatively.
The Tribunal finds that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if he is returned to Malaysia.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
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.
…

[2018] AATA 3356

18 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Appeal