1618769 (Refugee)

[2018] AATA 5982

1618769 (Refugee) [2018] AATA 5982 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618769

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Anne Grant

DATE:9 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

STATEMENT MADE ON 09 JULY 2018 AT 2:23PM

CATCHWORDS

REFUGEE – protection visa – Malaysia – religion – conversion to Christianity – action by the Religious Department – apostasy – Sharia courts – removal of children from family – fear of detention – fear of killing – threats from relatives – 2019 change of government – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 October 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Malaysia applied for the visas on 1 March 2016.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. This review is about the rejection of protection visas for [the applicant] and [his wife] and their [children].  [The applicant] and [his wife] married in August 2000.  Their children are [names and dates of birth].

1. The applicants have provided information suggesting that they have been baptised at the [Church 1] in Kuala Lumpur, Malaysia, in June and September 2015, prior to travelling to Australia.  During the review process, they have indicated that they have subsequently adopted Christian names and that they would prefer to be known by those names.  [The applicant] is now known as [name].  [The applicant’s wife] is known as [name].    The children (in age order) are now known as [names] – and all children share the [surname].

2. Due to the use of their official former names on their application for protection and all identification and Departmental documents, the Tribunal will describe the applicants using their official names and not their adopted names where necessary in this decision to ensure consistency and clarity.

3. The issues in this review are whether the applicants have 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 the receiving country of Malaysia, there is a real risk that the applicants will suffer significant harm.

4. The applicants have provided the Department with evidence demonstrating that they are citizens of Malaysia.  In the claim for protection visas, they also stated that they are not entitled to enter or reside in any third country.  The Tribunal is satisfied that the applicants’ claims should be assessed against Malaysia as their country of nationality.  

5. The parent applicants attended a hearing on 13 June 2018 and each gave sworn evidence.  [Pastor A] from [Church 2] and [Pastor B] from the [Church 3] attended the hearing to provide the applicants with support and also gave evidence to the hearing.  The applicants were represented by [his representative] from [agency name], who also provided a submission for consideration by the Tribunal on 6 June 2018.

The Applicants’ claims for protection.

1. The basis for all [the] applicants’ claims for protection is (in summary) that they have converted from the Muslim faith to the Christian Faith, which is not allowed in Malaysia.  They claim that they have been persecuted as a consequence by family members and members of the Muslim community in Malaysia and that they will be in the foreseeable future by those same people and also the Religious Department and Malaysian authorities if they return to Malaysia.  They claim that they cannot freely practice their chosen faith if they return to Malaysia as it is illegal for Muslims to convert to Christianity.  They claim that if they return to Malaysia, they will face ongoing persecution by the Religious Department and Sharia courts due to their conversion.  The parent applicants claim that they have been threatened with removal of their children from their care if they return by family members and that they also fear being imprisoned, prosecuted and/or detained in a religious ‘re-education’ institution by the State on return. They also fear that all of the family will be unable to freely practise their Christian faith and that they may be assaulted or killed by religious fundamentalists in Malaysia.

10.  The documents provided by the applicants at the time they lodged their claim for protection on 1 March 2016 reflect that the primary applicants were baptised by [Pastor C] and [Pastor D] of [Church 1] in Kuala Lumpur [in] June 2015.  The children, on the other hand, were each baptised or ‘dedicated to the Lord Jesus Christ’ [in] September 2015 by those same pastors.

11.  The file also includes a letter from [Pastor C], provided at the time of claim (date) which is undated, but which states that:

“I would like to ensure that [the applicant] and his wife is from Muslim background has accepted Christ and baptize by me.
[In 2016] [the applicant] call me by phone to help him to give him shelter at my home because their family is going to attack them and take all of their children because their family know that they has convert to Christianity.
Then I take all of them with their [children] [family composition] to stay with me until [the date] that they when to Australia.
I hope an Australian side will understand and give help to this family.”

12.  [The applicant and his wife] have each provided Statutory Letters dated [in] January 2016, signed before [an official] in Malaysia in which they declared that:

• They are of Malay descent and born in a Muslim family but never received, in accordance with the teachings and practice of Islam.

• At the time of making this declaration they were converted to Christianity and receiving and following the teachings and practice of Christianity.

• They don’t believe As Al-Quran is the Holy book of God, As “Allah” is the Only God as written in Al-Quran and Muhammad is the saint of “Allah” or towards the six Kalimas and the confession and the teaching, practice and confidence in Islam.

• They have embraced and practice Christianity and attend church service by their own volition and without anyone’s compulsion or flattery;

• They believe that they are not Muslim and no more in the Muslim practice. 

13.  The applicants have also provided a letter on the letterhead of [Church 1], [in Malaysia] dated [in] February 2016.  This letter confirms that the applicants used to worship at that church and also attended a discipleship course there.  The letter, signed by [a named leader], also states that subsequent to their conversion from Muslim to Christianity, they have been persecuted by family in Malaysia.  [This leader] asserts that the applicants are at risk of being tracked, detained and taken into custody by Malaysian Government at immediate effect. 

14.  [The applicant] has provided a Statutory Declaration, made on 26 February 2016, with his application for protection.  This declaration describes his family’s history and includes the following information: 

• Since marriage, their life has been challenging and full of misery, sadness and contempt.  He declares that although he prayed to God, things still got worse.  He would pray 5 times a day, fast, give to the poor and to others as required.  However he still lived with a lack of direction and sadness.  Allah never responded to him. 

• [The applicant’s wife] was very upset with the family situation.  She began to hate Allah and lost faith and didn’t believe in him.  After a few days, Lord Jesus came into her dream and told her to search for him.  She met [Pastor C] within a couple of weeks.  At that time, the applicants were fighting and quarrelling with each other.  [The applicant] was very sad and prayed to Allah to save his family, but nothing happened.

• In discussions, [the applicant’s wife] told him she wanted to convert to Christianity.  She said if he wanted to divorce her, she would be ready for that and was ok with it and would let the children be under his care but one day she would come back and take them.  After he thought about it, he knew about some couples in Malaysia who got married and became husband and wife even though they were different religions.  He suggested that they could live together even if she became a Christian while he still practiced Islam.  She agreed.  They made arrangements for him to take her to [Pastor C] for her baptism.

• One week later, he took her to the Pastor’s house in [location].  He doesn’t know why, but he went into the house, sat quietly and listened.  The Pastor later asked if he had questions.  He had many and asked them and the Pastor answered them well.  Through this, he ‘came to know who Lord Jesus is.’  When the Pastor was taking his wife to be baptised, he asked [the applicant] if he wanted to be baptised as well, and he agreed.

• Since then, they lived as Christians without informing their children.  They did not fast during Ramadan.  The children became curious.  They saw that their parents were slow to anger, asked for forgiveness, taught them to love their neighbours, not to become aggravated but to turn the other cheek, and to treat those who despise them with the utmost love.    They became excited and wanted to know more about the teaching.  The applicants sent the children to the Pastor.  The oldest son was very happy after visiting the pastor, and discussed it further with his siblings.  After a few weeks, they all wanted to convert to Christianity.  They were baptised [in] September 2015.  

• They have faced a lot of challenges.  They cannot simply worship in church.  If the National Religion Department of Malaysia finds out about their situation, they will take strict action on them.  There are cases where they are sent to detention.  They have to go to church in secret, and have to pretend they are Muslim, to ensure their safety and that of the children.  At home, they cannot display Christian icons because of visitors.  At work, [the applicant] had to pretend to be Muslim, including reading Al-Quran verse.  They told the children to keep quiet about religion in school. His children [named] were punished because they refused to attend Islamic prayer sessions.  They repented and were forced to get involved in Islamic Sessions at school.  They started to hate going to school.  

• [The applicant] further states that [his wife] was forced by [the applicant’s] family to wear the ‘Tudung’ and pray 5 times daily and read the Al-Quran.

• [The applicant] states that “once the government knows about our Christianity, they will take away our children by force.”  He claims that the children can’t marry because their ID card says that they are Muslim, so they can’t marry another Christian.  They are also at a disadvantage such as inheritance, schooling and banking.  He said that “for our family situation generally, we have to pay Zakat and attend Islamic events, fast during Ramadan, pray 5 times daily and also visit Kaabah.”  This makes their life difficult. 

• [The applicant] states that in early January 2016, one of [the applicant’s wife’s] best friends ‘spread the news’ that they had converted into Christians.  Then her brother rebuked her on [social media] [in] January 2016 and wrote a lot of terrible words to her and told his mother and [a family member].  [The next day], [the applicant’s wife’s] brother [named] also scolded her on [social media].  The next day [he] said he was going to take all of the children because of their conversion, to ‘save them’.    [Days later] he again threatened them using [a family member’s] account name, saying ‘parents who convert their children to another religion are not entitled to take care of their children.’  On that same day they went to [Pastor C] for [several] weeks before they came to Australia.   They had to be safe so that they did not get captured.  Their phones did not stop ringing.  

• They fear that the National Religion Department will take action by sending them to detention and their children will be taken.  They also fear that they will be killed. 

15.  During an interview with the Delegate, the applicants gave evidence of the process by which they came to convert to Christianity.  The record of that interview is incomplete due to a malfunction of the recording device.  The Tribunal has listened to the available recording and the information in the delegate’s decision reflects the information given by the applicants in the recording.  In summary, that information is:

• [The applicant’s wife] was the person who decided to convert to Christianity.  She had been unhappy for many years, and blamed Allah for failing to answer her prayers and for her hardships.

• Her feelings towards the Muslim faith had become quite extreme.  In around June 2015, she experienced a dream where a man told her to ‘come find him’ and after that, using social media, she came to understand or believe that this man was Jesus.  She discussed him with some friends and was referred to [Pastor C] at [Church 1].  She contacted him and he sent her some information in the form of [a book] about Christianity.  In her discussions with the delegate, [the applicant’s wife] suggested that it was the inclusiveness of Christianity that she liked, when compared with the rejection by the Muslim faith of any other form of religion. 

• [The applicant’s wife] said that she ‘tested’ her new found faith by praying to Jesus and that he answered her prayers.  This took the form of her husband getting [an overseas] job offer that he had been waiting on and also a [Country 1] university place and scholarship he had been unable to obtain.  These answered prayers reinforced in her a desire to leave the Muslim faith. 

• Once [the applicant’s wife] decided to leave the Muslim faith, she told her husband, who was shocked at the news.  She said she told him that she would leave the children with him initially but would later return to collect them.  To avoid a separation, [the applicant] agreed for them to live together as ‘two different faiths’, and in the interests of family harmony, encouraged her to pursue her conversion to Christianity.   She made an appointment with [Pastor C] and [the applicant] accompanied her, to provide her with support.  However once there, as he listened to the Pastor, [the applicant] became convinced of the merit of Christianity and decided to convert and be baptised with his wife.  He said that the Pastor answered all of his questions.

• After this, they ceased practising Muslim religious habits at home but had to keep up a public pretence of doing so at work ([the applicant]) and at social functions.  The children saw what was happening and became interested in what their parents were doing.  The oldest child spoke to the Pastor and also to the other children and they ‘all decided to become Christians’.    [The applicant] and [his wife] said that they told the children not to discuss their faith at school but nonetheless, they avoided Islamic lessons and then were made examples of and bullied by the teacher until they participated.  Their evidence was that they (the whole family) were living ‘double lives’.

• In January 2016, one of [the applicant’s wife’s] ‘friends’ told other friends and family that they had converted to Christianity.  They started receiving texts and social media abuse including threats from family that they would ‘take the children’ to ‘save them’.  The applicants have provided untranslated texts and social media records which they say contain constant abuse and threats of harm from former colleagues, family and friends.  Consequently, they went to [Pastor C] for protection and stayed ‘in hiding’ with him until they were able to leave the country. 

16.  The application for protection was made on 1 March 2016 and the supporting letters and declarations referred to above were therefore made prior to then.  The interview by the delegate was held on 19 August 2016. This is of particular note in this case because of events which have transpired in Malaysia since the applicants left the country. 

17.  [Details deleted.][Christian pastors] have [been abducted] over 2016.  [Details deleted].   This is confirmed in the country information, including [source deleted].

18.  Prior to hearing, the applicants also provided a letter from [Church 2] in [Australia].  [Pastor A] in that letter confirms that the applicants and their children are members of his church.  They were baptized in their new faith last year in that church.  They are devoted to their new faith.  [Pastor A] offers the opinion that they would be an asset to Australia.  He adds:

“If there is any potential danger to them due to their leaving Islam if they were to return to Malaysia, then I urge the decision makers to show kindness to this family and grant that they may stay in Australia.”

19.  At hearing, [Pastor A] gave sworn evidence that he had known the applicants for around 2 years. They attend his church and also that of [Pastor B], even though they are not affiliated churches.   He described the applicants as genuinely converted to Christianity and gave his opinion that they were very devout.  He noted that they hold their faith as the number one aspect of their life, and at the core of their belief systems.

20.  At hearing, [Pastor B] also gave sworn evidence and observed that he has almost daily contact with the applicants and their children.  He gave evidence that [Church 3] is an evangelical church which is open to everyone who wants to learn about Christ.  [Church members] are expected to invite people into the church.  He gave evidence that [the applicant] had become a leader within the church (at the pastor’s recommendation) to assist him to bring members of the Muslim faith to Christianity.  His capacity to talk to them in their own language is an asset.  He preaches about once a month and accompanies [Pastor B] on visits in the congregation. 

21.  Both pastors confirmed that, in their opinion, the applicants’ (and that of their children) conversion to Christianity was a genuine conversion, and that they are and intend to live their lives as Christians.  

22.  Prior to hearing, the applicants also provided further photographs or copies of text and [social media] messages.  At hearing, they confirmed that those are additional examples of the threatening and abusive type of messages they received during 2016. They also provided a copy of a [social media] post which, as explained at hearing, was made by a person who continues to persecute the family online, and describes schools in [their area], attended by the children of the applicants and refers to them ‘hiding’.  [The applicant’s wife] said that she has been shaken by this and the ongoing campaign to abuse and threats of harm directed at the family, who just want to be left alone.  She has sought medical help for anxiety because of her fear of being found and harmed, even in Australia.

23.  At hearing, the applicants each gave evidence which was consistent with the written and documentary evidence related above, including the interview with the delegate.   [The applicant’s wife] gave evidence in the absence of [the applicant] but remained present when he gave his evidence.  Additional clarification and evidence in response to questions from the Tribunal by those applicants was provided as follows:

• [The applicant’s wife] gave additional and detailed evidence about her personal history.  She said that she [details deleted] and as a consequence her mother treated her poorly, abused her and considered her a ‘step child’.  She experienced abuse at the hands of her parents.  They arranged for her to be married to a cousin at a young age, but she was unwilling.  She met her husband, they became involved and she became pregnant at [age].  She confirmed that she had never considered herself particularly religious as a young person. One side of her family was more pious than the other. In any event, she saw the marriage to [the applicant] as ‘a way out’ of her controlling and abusive home life. They planned to run away to [a named country] to marry, but when she became pregnant, that wasn’t really possible. 

• [The applicant’s] family have never accepted her.  They wanted him to marry someone else and even after they were married, his mother urged him to choose a second bride and divorce her.  [The applicant’s] family didn’t see them until their first child was [age] years old and even then, it was a dreadful relationship, as they never accepted her.  When she referred earlier in the review process to the difficulties of her life, she was referring to these matters and the fact that they never had any support from either family once they were married.  She was isolated and lonely and felt rejected by both her own family and her husband’s. 

• [The applicant] agreed that he and [his wife] had conceived their first child before marriage and accepted that it could be considered to be an indication that he was not as strictly religious as might be expected, given his upbringing.  He noted that young people make mistakes. 

• [The applicant] gave specific examples of the kinds of questions that [Pastor C] answered for him at the meeting on the day of his baptism, and which inspired him to embrace his new faith.  He described having, as a young man, often asked questions about the Muslim faith and about the meaning of certain verses in the Quran whilst at a religious secondary school.  He readily described the phrases which had given him trouble.  He also asked the teachers why they are required to pray 5 times a day (as he could not find this requirement anywhere in the holy book).  The teachers at his school merely answered that ‘these were things only Allah knows,’ and that he should accept the teachings without questioning them.  He couldn’t reconcile the instructor’s answers with the teachings.  He always had these questions about the Muslim faith, but he nonetheless participated in all external professions of his faith.  He noted that a belief in God was nonetheless important to him and he prayed for help and guidance but never really felt that it was forthcoming. 

• At the meeting with [Pastor C], [the applicant] explained those same questions and the Pastor, [details deleted] was able to provide him with explanations and meaningful answers to those same questions and this was, in itself, a revelation.  As the Tribunal understood his evidence, suddenly he could see that the very issues which had been troubling him made more sense and had more meaning when explained in the Christian context.  [The applicant’s] genuine excitement and interest in discussing theological concepts was readily observed at hearing.

• The applicants each gave evidence that their conversion to Christianity rekindled their personal relationship and gave them ‘peace’ after a long period of conflict.  They were kinder to each other, united in their decision and the practice of their new faith and this was then reflected in their home life.  The children noticed and started to ask questions about what had happened and why.  They were used to their parents arguing and they saw this new change as exciting.  When they asked for more information, the applicants realised that their own knowledge of the Christian faith was still new and that [Pastor C] was the right person to instruct them.  They took the children to visit him.  After this, the children asked to become Christians (at least those who were old enough to understand). 

• After their conversion, the children (even the youngest children) were instructed to not to discuss their faith with anyone else.  The applicants were very firm about this and told them that they (the parents) would get in trouble with the Government and would be taken away, if anyone found out.  The children understood.  However the two oldest children did elect to avoid Islamic lessons at school and they were criticised and bullied when they did so, until they agreed to attend them.    [The applicant’s wife] said that she still presented herself whilst outside the home as a Muslim woman, by her dress.  She did not attend any Muslim prayers or undertake other Muslim rites whilst at home.  [The applicant] still had to attend prayer at work, read scriptures and otherwise display himself as a good Muslim man. 

• They could not attend any Christian church readily.  They tried a number of Christian churches near their home but because they were often ethnically based, the applicants were readily identifiable when they attended, and were not made welcome – due, they suspect, to the church members being afraid they would be targeted by the Muslim community for proselytising.  They kept looking for somewhere to worship and discussed this with [Pastor C] who encouraged them to attend his church meetings.  They had actually not been aware that his church was one they could actively attend and they decided to do so.  But they had to be very careful, trying to avoid people recognising that they were Muslims attending there for prayer.    This is the ‘double life’ that they were living.

• In this period after the children were baptised, they felt very keenly how precarious their position was.  If they were found out, they feared they would lose their children and be detained, tortured and possibly killed as apostates.  In the months after their conversion, they had frequent discussions with the pastors from their church about protecting themselves from being ‘found out’ as converted Muslims, and what they would do if that happened.    As a precaution, they applied for the passports of the children so that, if something happened, they could leave the country quickly.  The passports of the children were obtained in [time period]. 

• [The applicant] had a good job and continued working and presenting as a Muslim, despite pretending to be Muslim being the last thing he wanted to do.   At that stage, they still hoped that they would find some way to live and practice their new faith in Malaysia in peace. 

• [The applicant’s wife] confirmed that her initial referral to [Pastor C] was via an online group of former Muslims, who participate in the group from around the world.  Local people were also involved in that group.  She maintained contact with the group after her conversion, but, initially at least, did not specifically confirm that she had left the Muslim faith.  In mid-December, in a discussion with one friend on that group (a Malaysian), she revealed that she had indeed converted to Christianity.  She became anxious when, after this discussion, that person immediately stopped all contact with her.  As things transpired, she was right to be worried.  It was that same person who very soon afterward told [the applicant’s wife’s] family of her conversion.  When she did so, [the applicant’s wife’s] family contacted her, abusing her and demanding she return to the Muslim faith.  When they could not convince her, her family went to [the applicant’s] family in the hope that they might convince them both to ‘revert’ to the Muslim faith.  At that time, everything ‘exploded’, and they started getting constant attention and abuse from family, former colleagues and friends. 

• It was the threat made by [the applicant’s wife’s] brother (that he would take her children to ‘save them’) that drove the applicants to [Pastor C], where they stayed until they left the country.  In that period, the abuse and threats from family and friends via phone and social media were incessant.  They sneaked back to their rented home at night, sold their furniture to students living in the [same area], gave away other personal belongings to pastoral services, and then fled the country.

• The applicants gave evidence that at least two formal police reports in Malaysia have been made of their apostasy.  They had also referred the Tribunal in their agent’s submission to an online video of a media conference made [during] 2016 which confirms that the applicants have been reported as having converted to Christianity and therefore being apostates.  Copies of the reports and a link to the video have been provided by the applicants shortly prior to hearing.   They have not been translated into English. 

• According to the applicants, the first available report was lodged by [the applicant’s] former school friends.  The copy they have provided is on a page from the police database of which a friend (a police officer) took a photograph and sent to them.  Their friend explained that he could not officially print it out without bringing his interest in it to the notice of the authorities and raising questions about what he knew of them.  The ‘RMP’ descriptor can be seen in the text at the top of the photograph. 

• The applicants said that the second report was lodged by [the applicant’s wife’s] family.  The copy is from a saved online picture.  It was displayed online for a period and the deletions therein had already been made.  The current official status of both of these reports is unknown by the applicants, but they suspect and fear that they would be revived if the applicants could be located or returned to Malaysia.

• The applicants fear persecution for their conversion to Christianity by the authorities in Malaysia, particularly the Religious Department.  The Religious Department has branches and officers active throughout Malaysia.   Apostasy is against Sharia law throughout the country, so they will be at risk of being discovered, investigated, prosecuted and detained throughout the country.  Whilst they acknowledge that the death penalty is not officially employed in Malaysia for apostasy, they fear private extremists (who have threatened to kill them) may actually do so if they are discovered.  Their identification documents state their religion as Muslim so they could not live as Christians.  Any official contact would disclose that they are Muslim and not Christian, again opening them up to the risk of exposure as apostates.

• The applicants also provided a declaration related to a [accident] [in] September 2015, copies of [the applicant’s] payslips as evidence that he was fully employed prior to being forced to leave the country, a medical referral for [the applicant’s wife] to [a health service] for psychological counselling and accompanying letters and Mental Health Plan from [a medical practice] referring to [the applicant’s wife] suffering generalised anxiety disorder and panic attacks.  Also provided was an offer of a scholarship and place at [a named] University in [Country 1], dated [in] October 2015.  

24.  The applicants’ evidence was generally consistent at all stages of the review process, freely given and supported by assorted documentary evidence, including their baptism certificates and letters from faith leaders, including current faith leaders in [Pastor B] and [Pastor A].  After considering the whole of the evidence, the Tribunal made the following findings of fact:

• The applicants and their children were Malay Muslims who have chosen to convert to Christianity and were baptised in June 2015 ([the applicant] and [his wife]) and September 2015 (the child applicants).  Based on the whole of the evidence before it, the Tribunal finds that the applicants genuinely desire to live as Christians and that the parent applicants’ decision to convert was made in response to genuine personal doubts about the Muslim faith.  The applicants have a genuine belief in Christian tenets of faith which has become stronger since conversion as they have learned more about their new faith.  Their conversion was supervised by [Pastor C] of the [Church 1] in Kuala Lumpur and in a letter the Pastor has confirmed that the family sheltered with him prior to coming to Australia after they feared harm from their families.

• [The applicant] has become a leader in [Church 3] [in] December 2016.  It is considered an expectation of Christians in their evangelical church to recruit new faithful and to proselytise amongst their community, (including the Muslim community) as explained by [Pastor B] to the Tribunal.

• They attempted to live as Christians in Malaysia by being discreet, and keeping their change of faith a secret, in the period from June 2015 until December 2015.  In December 2015, [the applicant’s wife] confided in an online friend about her conversion and this ‘friend’ has then, in early January 2016, informed on her to [the applicant’s wife’s] family, triggering an extensive and immediate backlash against them from both families and members of their Muslim community more generally.

• They have received abusive and threatening social media and text messages from family, friends and also from complete strangers related to their Christian conversion.  Those messages were prolific in the period after their new faith was revealed, but do continue at a lower level even to the current date.   A [social media] post by one particular online ‘persecutor’ specifically identifies the school the children currently attend and taunts that the family cannot hide, even in Australia. 

• The knowledge of their conversion has spread to official authorities in Malaysia via police reports made by [the applicant’s] former Islamic school friends and [the applicant’s wife’s] own family. The Tribunal considers that the copied reports and the online video of a press conference in [2016] appear legitimate and do provide some additional support for the applicant’s claims. Although the video is in Malay, the applicant’s names (including their ‘Christian’ adopted names), are clearly heard. This video appears to be and the Tribunal accepts it as a genuine official news conference broadcasting reports of apostasy laid against the applicants to waiting media in [2016]. It is noted that the timing of the video coincides with the two available official police reports, and also that the applicants had already left the country and lodged their applications for protection in Australia when they occurred. The two parent applicants’ Malaysian identification cards and original names on the two written reports correlate with the identification card information given to the Department and which establish their identities, and the Tribunal accepts that they relate to the applicants.

• The applicants fear that they will be arrested, prosecuted, punished (by fines or caning), detained indefinitely and subjected to ongoing official harassment by the Royal Malaysian Police and/or the Religious Department and Sharia Courts throughout Malaysia because of their conversion.  They also fear that they may be physically harmed or killed by religious extremists within the Malaysian community who they believe can act with impunity because of their conversion to Christianity.  They fear that their children will be taken from their care and ‘re-homed’ with Muslims, and raised as Muslims against their own faith.  They fear that all applicants would be unable to live in accordance with their Christian beliefs if they were to return to Malaysia.  They argue that their fears relate to all areas of Malaysia due to Sharia law applying to them as Muslims (due to their official Muslim status) throughout the country.

25.  [A specified report] and the US Department of State Religious Freedoms Report, Malaysia (2016) confirm that conversion from Muslim to any other faith is illegal in Malaysia and is considered apostasy.  Sharia law applies to Muslims throughout the country.  There is no state within Malaysia where Muslims are able to convert and practise any faith other than Islam without breaking these laws.  The country information also confirms that the only cases where a person has been permitted by sharia courts to convert from being a Muslim is where the person was not originally a Muslim and wished to revert to their original faith. 

26.  The country information also suggests that fundamentalist elements within the government and Religious department have been pushing for a stricter application of Sharia law and a more rigorous application of religious law over recent years.  The previous Barisan Nasional (BN) government was willing to negotiate with right wing Islamic groups and political parties to hold power and, of recent years, there had been a strengthening of the Religious Department’s role in policing and reinforcing ‘Islamic’ beliefs. 

27.  In its’ 19 April 2018 report, DFAT observes that:

3.52 DFAT assesses that Malaysian Christians are usually able to practise their religion without interference. Occasionally they may face a low level of official discrimination, but do not face official or societal discrimination on a day-to-day basis. However, Christians believed to be proselytising – notably church officials – may face a moderate risk of societal harassment or violence…
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.

28.  The Tribunal noted [particularly] the following information contained in the International Religious Freedom Report for Malaysia 2017 from the US Department of State:

The Government continued to bar Muslims from converting to another religion and imposed fines, detentions and canings on those classified under the law as Muslims who contravened sharia codes…
Local human rights organisations and religious leaders again stated that society continued to become increasingly intolerant of religious diversity.  They continued to cite some Muslim groups public condemnation of events and activities they said were “un-Islamic,” as well as other statements targeting Muslim and non  Muslim groups. Citing 400 cases of Muslims appealing to sharia courts to convert to another religion, the chief executive officer of a government linked human rights group called for a ban on the Christian evangelism movement, a move he implied was necessary for “national security”….
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, apostasy is a criminal offense punishable by a fine or a jail term.  In Pahang, up to six strokes of the cane may also be imposed.  The maximum penalty for apostasy in the states of Kelantan and Terengganu is death.  These laws have never been enforced and their legal status remains untested.  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…
The government continued not to recognize marriages between Muslims and non-Muslims and considered children born of such unions illegitimate.

29.  On 9 May 2018, the Government of Malaysia changed after more than 60 years - from the BN Coalition to a new coalition called Pakatan Harapan (PH).  The new ruling coalition is made up of former opposition parties including the party established by Anwar Ibrahim, who at the time of the election was still in prison serving a 5 year sentence on politically motivated sodomy charges.  Former Prime Minister Mahathir Mohamad (once a member of the BN ruling coalition and responsible for first jailing Anwar Ibrahim) led the group which now forms government. 

30.  This extraordinary and unexpected change in government has been widely welcomed and heralded as a push-back by the Malaysian people against decades of authoritarianism and corrupt policies in government, including hard-line religious interpretation.   Since the election, the media are freely reporting the actions of the new government and investigations into the old.  The prime minister has openly encouraged them to feel free to criticise the government.  This represents a significant and astounding shift from recent decades where criticism of the government was seen as sedition and actively prosecuted and suppressed. [1]

[1] As reported in May 2018, for example:  and at

31.  The current recommendation for Attorney General (Tommy Thomas) in this new government is a minister of Indian ethnicity, not a Muslim, and was approved by the Palace even after Islamic groups protested against his appointment, saying that the AG must be a Muslim and that - if not a Muslim, the AG would not ‘protect’ the official Islamic faith. Malaysia's new Finance Minister, Lim Guan Eng, has already started investigating the former government officials over corruption scandals, officially suppressed until now.  He is ethnic Chinese.  Mr Thomas and Mr Eng are the first from their ethnic and religious groups to undertake the important roles they hold.  Both of these appointments are encouraging indicators that the new ruling coalition is likely to be true to its’ word in moving Malaysia towards the goal of an open and diverse multicultural democracy.[2]

[2]

32.  However, it is not possible to predict whether a more liberal Religious Department is to be expected as a consequence of this change in government.  Sharia law still applies to all Muslims (including those born Muslim who seek to leave or consider that they have left the faith) throughout the country.  There are not yet any reports of changes to the persons in control of the Religious Department after election, though certain hard-line Islamic parties did lose parliamentary seats in the conservative north of the country. The Tribunal considers it reasonable to conclude that the Religious Department and its’ enforcement arms are likely to continue to be run by the more conservative faithful, even despite the change in the political landscape.

33.  The Tribunal notes that a whistle blower police officer has reportedly come forward since the election, and advised Suhakam (Malaysia’s Human rights body conducting investigations into the disappearances of [Christian] pastors) that it was members of the Special Branch of the Royal Malaysian Police who took [one pastor] – though he did not know the victim’s whereabouts or what had become of them.[3]    This strongly suggests an official character to the persecution of Christians and the abductions of the pastors.  [Details deleted].

[3] [Source deleted]

34.  The Tribunal considers that the country information confirms that Muslims seeking to convert to Christianity would be considered apostates throughout Malaysia and at risk of investigation, prosecution and penalty under Sharia law, may be exposed to religious ‘rehabilitation’ and lengthy compulsory detention by official Government authorities.  They would also face personal ostracism, abuse, discrimination and rejection by the Muslim community, including close family members.  Additionally, the recent country information about abductions of pastors suspected of evangelising, discussed above, strongly supports a conclusion that extremist elements within the Muslim community, religious department and police force might consider it appropriate to cause physical harm to converts or proselytising Christians in Malaysia, with apparent impunity. 

35. S.36(2)(a) of the Migration Act 1958 (the Act) 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.

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

37. Under s.5J(1) of the Act, 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.

Mandatory considerations

38.  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.

Are the applicants refugees?

39.  The Tribunal is satisfied that the applicants are of Malaysian nationality and have no right to enter and reside in any country other than Malaysia. 

40.  The parent applicants fear that if they return to Malaysia, their conversion to Christianity will become the focus of official investigation and action, and that they may be arrested, prosecuted, punished by fines and caning, and forcibly detained and required to attend ‘re-education’ if they refuse to revert to the Muslim faith by the Religious Department, religious police and the Royal Malaysian Police.  They also fear that they will be physically harmed by more radical Muslims (including from within the religious authorities or other state bodies) because of their conversion – and that this risk persists throughout the country.   The parent applicants fear that the child applicants will be taken from them and raised by Muslims, meaning they will be unable to practise their faith or marry a fellow Christian.   The family fears being targeted and harmed by the religious department, the Royal Malaysian Police, extremist community members, and by their own families and  friends due to their conversion to Christianity if they return to Malaysia.  The Tribunal is satisfied that the harms feared by the applicants include a threat to the applicants’ life or liberty, significant physical harassment of the applicants and significant physical ill treatment of the applicants.  The Tribunal finds that the harm feared by all applicants is serious harm.

41.  The Tribunal accepts that the applicants’ conversions have been the subject of official report to the State religious department and police on charge of apostasy.  Those reports were lodged after they left the country.  The applicants fear being arrested, prosecuted, subject to penalty of caning and fine, detained and harassed by the Religious Department due to their conversion if they return to Malaysia.  The Tribunal has accepted that they have also been threatened with death or other severe punishment by complete strangers within the Malaysian Muslim community once their apostasy became known, as well as having received threats and abuse from former friends and their own families.  The Tribunal has found that the harm they fear constitutes serious harm.    

42.  The Tribunal accepts that the parent applicants were persecuted by family and other members of the wider Muslim Malay community once their conversion became known and that their fear of losing their children (and in the children’s case, of being taken from their parents) and of the parent applicants being arrested, charged, indefinitely incarcerated and ‘re-educated’ was the trigger for the family to flee Malaysia in January 2016. 

43.  The Tribunal has taken into account the existing country information and what is known about recent changes in political circumstances in Malaysia.  The Tribunal has also noted that [several Christian] pastors have [been abducted in recent years]. The Tribunal considers these abductions by unknown persons and confirmed in the official country information as noted above, to be significant and powerful indicators that the situation for Muslim converts in Malaysia is (and is reasonably considered to remain) dangerous for the foreseeable future.   [Details deleted].   

44.  The Tribunal considered whether the feared harm is due to the application of a law of general application (in this case the law forbidding conversion from the Muslim faith as apostasy without obtaining permission from a state Sharia court.)   As noted in the DFAT report of 19 April 2018, laws forbidding conversion from the Muslim faith apply only to Muslims, who represent around 60% of the country’s population.  Non-Muslims are legally able to convert to another faith, including to the Muslim faith.   Additionally, punishment for apostasy varies from state to state in Malaysia.  This inconsistent approach to religious freedom (which is also inconsistent with that freedom guaranteed in Malaysia’s own Constitution) suggests and the Tribunal finds that the law forbidding conversion from the Muslim faith is not a law of general application.     

45.  The Tribunal finds that there is a real chance that each of the applicants will be persecuted on their return to Malaysia because of their conversion to Christianity.  The Tribunal is satisfied that they would not be able to practice their chosen faith and, if they are identified as apostates, there is a real chance that they will suffer serious harm in the form of prosecution for apostasy, fines and/or caning,  and detention for ‘re-education’ by the Royal Malaysian Police and/or the Religious Department.  The Religious Department and its’ enforcing officers and the Royal Malaysian Police operate in every state throughout the country.  The Tribunal finds that there is also a real chance that they would be identified as Muslims practising a non-Muslim faith and reported to the authorities if they were seen attending a Christian service throughout the country.  If they are reported by Muslims who observe them attending a Christian church or even by their own families as apostates, (and the Tribunal considers, based on their past experience, that there is indeed a foreseeable risk that this might occur) there is also a real chance of the family being targeted and harmed by religious extremists within the Muslim community (that is, being physically assaulted, harassed and potentially killed).  The Tribunal also finds that a consequence of the parent applicants’ being prosecuted and detained is the real possibility that their children will be removed from their care and raised by Muslim family members.  The Tribunal finds that being separated from one’s children or parents for religious ideological reasons constitutes serious harm.   The Tribunal is satisfied that the risk to the applicants of experiencing serious harm if they were to return to Malaysia will persist for the foreseeable future.

46.  The Tribunal finds that there is a real chance, that is, one that cannot be discounted as remote, that all of the applicants will suffer persecution because of their conversion from the Muslim to the Christian faith, if they return to Malaysia, now or in the reasonably foreseeable future.  The essential and significant reason for the harm they fear is because of their religion, and the persecution they fear has involved and would involve systematic and discriminatory conduct.  The applicants have a well-founded fear of persecution if they were to return to Malaysia.

47.  The reason for the harms they fear is because of their religion as converted Christians.   This is one of the prescribed reasons in s.5J of the Act. 

48.  Their apostasy is already widely known in their local community and was reported by local media.  It appears unlikely that they would be able (even if they were willing) to live in secret as Christians given the public exposure they have already endured in the event they were to return to Malaysia.  The Tribunal finds that, even if the applicants were able to modify their behaviour to try to avoid a real chance of persecution, the knowledge of their conversion is already in the hands of their family, friends and the Religious Department and Royal Malaysian Police.  In any event, modification of their behaviour in this case would require them to renounce their religious conversion, conceal their true religious beliefs, or cease to be involved in the practice of their faith.    The provisions of s.5J(3) do not apply in this case.

49.  The Tribunal considered whether effective protection measures as described in s.5LA of the Act are available to the applicants.  The State of Malaysia, represented by its’ police force, religious department and sharia courts in every state, is the principal potential perpetrator of persecution.  In relation to religious extremists, friends or family who have threatened them harm or may potentially harm them in future, given the official and societal approach to apostasy as discussed above, the Tribunal considers that the State of Malaysia would be unwilling and unable to protect the applicants from significant physical harassment or harm inflicted by such private citizens.  The Tribunal is satisfied that the real chance of persecution in this case relates to all areas of Malaysia and that effective protection measures are unavailable to the applicants throughout Malaysia. There is no party or organisation, including international organisation, within the country that is able to offer them protection. 

50. The Tribunal concludes that all of the applicants satisfy the provisions of s36(2)(a) of the Act. For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

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.

…