1705690 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of a protection visa applicant. The dispute concerned whether the applicant had a well-founded fear of persecution or a real risk of significant harm if returned to Malaysia, given her marriage to a Christian man, which is prohibited under Malaysian Islamic law. The applicant's husband's case had previously been remitted to the department for reconsideration.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, as a refugee, or under section 36(2)(aa), by facing a real risk of significant harm if removed to Malaysia. This involved assessing the applicant's fear of persecution based on her religion and her interfaith marriage, and considering the availability of effective protection measures in Malaysia.

The Tribunal found that the applicant's husband's claims, which were relevant to her case, indicated that their relationship, particularly as a Muslim woman married to a Christian man, would be against Islamic law as practised in Malaysia. The applicant's father, described as influential, had previously threatened the husband with prosecution for breaching Islamic law concerning 'khalwat' (close proximity). The Tribunal considered that the applicant's situation, including the potential for prosecution and the prohibition of their marriage under Malaysian law, raised concerns about her well-being upon return.

The Tribunal concluded that the matter should be remitted for reconsideration, directing that the applicant satisfies section 36(2)(a) of the Migration Act. This indicates that the Tribunal was satisfied, based on the material before it, that the applicant is a person in respect of whom Australia has protection obligations.