1706007 (Refugee)

Case [2023] AATA 878

1706007 (Refugee) [2023] AATA 878 (27 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBERS:  1706007

1721696

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:27 February 2023

PLACE OF DECISION:  Perth

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

Statement made on 27 February 2023 at 1:29pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – original claims on political and economic grounds, and business debts to customers with gang links – no fear of harm expressed by first applicant and inconsistent and implausible claims and evidence by second applicant – later claims on grounds of religion and membership of particular social group – inter-faith marriage – Christian wife and Muslim husband – met and married in Australia, with Australia-born child – country information – marriage not recognised and child considered illegitimate unless wife converts – first applicant’s genuine desire not to convert – potential consequences and real chance of harm – effective protection measure not available as perpetrators include state or its agents – credibility – inconsistent evidence about previous inter-faith relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J(1)(a), (6), 5LA, 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
BEH15 v MIBP [2019] FCAFC 184
Chand v MIEA [1997] FCA 1198
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v Li [2013] HCA 18
MIBP v SZVFW [2018] HCA 30
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. These are two applications for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 9 March 2017 and 6 September 2017 to refuse to grant the applicants protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

    BACKGROUND

  2. [The first applicant][1] is a [Age]-year-old Malaysian citizen. She is a Christian from Sabah and identified herself as ethnically ‘Dunsun and Kardasan’.  She is married with one [child]. Prior to coming to Australia she was working in Kota Kinabala, Sabah.  On weekends she visited her family in [Location], Sabah. She had about 20 years’ experience working in [Work sector 1] prior to coming to Australia. Her parents and four siblings remain living in Sabah. Her father is working and her mother is a housewife. Two sisters are married…

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1706007 (Refugee) [2023] AATA 878
Case
[2023] AATA 878
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed decisions by a delegate of the Minister for Immigration and Border Protection to refuse protection visas to two Malaysian citizens. The first applicant, a Christian from Sabah, and the second applicant, a Sunni Muslim from Kuala Lumpur, met and married in Australia, having a child born in Australia. Their applications for protection visas were initially refused on the grounds that they did not meet the criteria for a refugee or for complementary protection.

The Tribunal was required to determine whether there was a real chance that the applicants would be persecuted in Malaysia for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Malaysia, they would suffer significant harm. This involved assessing the credibility of their claims and considering relevant country information regarding the legal and social implications of their interfaith marriage in Malaysia.

The Tribunal found that while the initial claims of the applicants were not fully substantiated, later claims concerning their interfaith marriage and the potential consequences for their child were credible. Country information indicated that their marriage would not be recognised in Malaysia, rendering their child illegitimate and potentially compromising parental rights. The Tribunal was satisfied that the first applicant's genuine refusal to convert to Islam, coupled with the unrecognised marriage, placed them at a real risk of prosecution under Syariah law for the second applicant, social isolation, and discrimination. Crucially, the Tribunal determined that effective protection measures were not available as state authorities and conservative community members could be considered agents of persecution, and reasonable steps to avoid persecution, such as forced separation or conversion, were not available.

Consequently, the Tribunal concluded that the applicants were persons in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth). The Tribunal remitted the matters for reconsideration with a direction that both applicants satisfy the criteria for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

These are two applications for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 9 March 2017 and 6 September 2017 to refuse to grant the applicants protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND [The first applicant][1] is a [Age]-year-old Malaysian citizen. She is a Christian from Sabah and identified herself as ethnically ‘Dunsun and Kardasan’. She is married with one [child]. Prior to coming to Australia she was working in Kota Kinabala, Sabah. On weekends she visited her family in [Location], Sabah. She had about 20 years’ experience working in [Work sector 1] prior to coming to Australia. Her parents and four siblings remain living in Sabah. Her father is working and her mother is a housewife. Two sisters are married with families. One of the married sisters works as [an Occupation 1] and her husband is [an Occupation 2]. She also has an unmarried sister who is [Occupation 1]. Her brother is unmarried and works as [an Occupation 3]. [1] Tribunal reference 1706007. The first applicant arrived in Australia [in] July 2016 on a UD-601 Electronic Travel Authority visa. The first applicant applied for the protection visa on 4 October 2016. The delegate refused to grant the visa on 9 March 2017 on the basis that she was not a person to whom Australia owed protection obligations. [The second applicant][2] is a [Age]-year-old Malaysian citizen. He is a Sunni Muslim from Kuala Lumpur. He was previously married and divorced in Malaysia. He has a [child] by that marriage. He is remarried and there is one [child] from that marriage. His parents and four siblings remain living in Malaysia. Two brothers are married and living in Kuala Lumpur. One brother works in [Work sector 2]. Another is at university in Selangor. His younger sister is married and living in Negiri Sembilan where she is [an Occupation 4]. His parents are retired and have moved from Kuala Lumpur to Selangor.[2] Tribunal reference 1721696. The second applicant arrived in Australia [in] March 2017 on a UD-601 Electronic Travel Authority visa. The second applicant applied for the protection visa on 11 May 2017. The delegate refused to grant the visa on 6 September 2017 on the basis that he was not a person to whom Australia owed protection obligations. The first and second applicant met in Australia in March 2017. They married [in] March 2018. They have a [child] who is around [Age] years old and was born in Australia. The couple’s [child] is not included in the applications for protection.Issues The issues in these reviews are whether there is a real chance that, if the applicants return to Malaysia, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decisions under review should be remitted for reconsideration.Claims and evidenceProtection claimsProtection visa applications The first applicant initially presented her claims in her protection visa application, in which she states, in summary, that:·She left Malaysia because of political and economic issues.·She applied for many jobs but failed to get them. A friend suggested she should travel to Australia.·If she returns, she will not have a job and will not be able to support herself and her family. The first applicant submitted a copy of her Malaysian passport issued [in] 2016 to the Department. No further evidence was submitted to the Department. The second applicant initially presented his claims in his protection visa application, in which he states, in summary, that:·He left Malaysia because he ‘got depression’ and was ‘afraid’ after he ‘made a mistake’ in his business when he was ‘betrayed’ by one of his ‘share partners’.·He lost ‘almost half million ringgit’ and as a result, all of his customers are ‘searching’ for him and want to ‘claim their compensation’.·Some of his customers have connections with a ‘mafia gang’ and have ‘threatened to kill’ him and his family if he doesn’t pay them back.·He was ‘interrupted during office hour’ and at his house by customers calling and ‘asking for their money back’.·He had ‘high depression’ and almost killed himself until a friend suggested he come to Australia where there is a ‘better currency exchange’ and people are ‘kind and friendly’.·He cannot return to Malaysia as his ‘life will be insecure’ and he doesn’t have enough money to pay back his customers.·He made a police report but they couldn’t do anything because there is no proof that his customers would hurt him and some police had links to his customers.·He cannot relocate elsewhere in Malaysia as he ‘already tried to move to other place’ but his customers could still find him because some of them are part of the ‘mafia gang and have many network’. The second applicant submitted a copy of his Malaysian passport issued [in] 2016, his National ID Card and his Driving Licence to the Department. No further evidence was submitted to the Department. The applicants were not interviewed by the Department in relation to their applications. The delegates’ decisions The delegate refused the first applicant’s visa on 9 March 2017. The first applicant provided a copy of the delegate’s decision to the Tribunal with her application for review. The delegate found there was no information to suggest the first applicant would be targeted on her return to Malaysia for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the first applicant was not a refugee as defined in s 5H and the criterion in s 36(2)(a) of the Act was not satisfied. The delegate acknowledged the first applicant may not want to return to Malaysia because she fears financial hardship, however the delegate found this did not amount to significant harm. Based on the first applicant’s lack of detail regarding her claims and a lack of supporting evidence, the delegate found there was not a real risk the first applicant would suffer significant harm on return to Malaysia for economic reasons or for any other reason. Accordingly, the first applicant was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa) of the Act.

Decision

Reasons for decision

The 2021 DFAT Report makes clear that a Muslim man cannot marry a non-Muslim in Malaysia. While the 2021 DFAT Report does not refer specifically to the offences of khalwat and zina, the Tribunal is satisfied that these offences exist in state and federal territory-based Syariah law in Malaysia.[27] These offences mean that if the applicants attempted to live in a de facto relationship, the second applicant would be liable for prosecution under Syariah law for having committed the offences of khalwat and zina. The Tribunal also accepts that the first applicant may be pressured to convert. She may also be subjected to adverse treatment by members of the Muslim community, including the second applicant’s family, for failing to covert. [27] See sections 23 and 27 of the Syariah Criminal Offences (Federal Territories) Act 1997, >Under Syariah-based laws, the consent of only one parent is required to convert a child to Islam, allowing the Muslim parent to gain sole custody through the Syariah courts (which do not permit the participation of non-Muslims). This has created cases where Syariah court rulings have affected non-Muslims who have no ability to defend their position or appeal the court’s decision. While it is not clear how such rules apply to children whose paternity is not acknowledged due to non-recognition of the marriage, the Tribunal accepts that this creates a risk the children of the marriage may be registered as Muslim without the first applicant’s consent and would be subject to Syariah law, which would preference the second applicant in terms of parental rights and decisions with respect to the children.[28] Conversely if the second applicant’s paternity is not recognised his parental rights may be compromised by the application of Malaysian law which deemed children of the marriage to be illegitimate.[28] 2021 DFAT Report at [3.78], [3.81].The Tribunal notes DFAT’s advice that married Muslims must carry a photo identification of themselves with their spouses as proof of marriage and DFAT’s assessment that Muslims who attempt to convert from Islam or marry a non-Muslim face a high risk of official discrimination under Malaysian law. The Tribunal also notes the commentary in the 2021 DFAT Report indicating an increasing trend towards religious conservatism in Malaysian Islam, increased pressure to display religious piety within the Muslim community, instances of individuals reporting breaches of Islamic laws to religious authorities, and the emergence of vigilante squads seeking to personally enforce Islamic laws. The Tribunal notes that a non-Muslim can convert to enable them to marry a Malaysian Muslim and discussed this with the applicants. The first applicant indicated that she is a Christian and does not wish to convert to Islam, as is her fundamental right. The Tribunal accepts that her expressed desire not to convert to Islam was genuine. The Tribunal notes that the first applicant’s account of her prior relationship history in Malaysia indicates it may be possible for the applicants to have an interfaith relationship in Malaysia as the first applicant has in the past but that to do so carries limitations and risks of detection and persecution. The Tribunal also notes that the presence of a child from the marriage significantly increases the risk the relationsip will become known to the authorities.The second applicant testified his family are aware he is married and has a child. He stated that his family believe the marriage was an Islamic marriage. He testified that he lied to his family when he told them about the marriage. The first applicant said her parents are aware of the marriage and that it is an interfaith marriage but agreed to it on the basis she would not convert to Islam. The second applicant told the Tribunal that mixed marriages are common but that in most cases the non-Muslim converts so the marriage is recognised. Anything outside of this is not accepted under Islamic law.100. Based on credible country information, the Tribunal finds that there is a real chance that the second applicant’s family, the wider Malaysian Muslim community and State religious departments would not recognise the applicants’ interfaith relationship and marriage. The Tribunal finds that the first applicant’s refusal to convert would prevent their marriage in Australia being officially recognised and registered in Malaysia because her conversion would be a prerequisite to that registration and recognition. 101. As a result of the marriage not being officially registered and recognised, the applicants’ child would be considered to be illegitimate and when the situation became known by the authorities it would affect the child’s capacity to be registered and enjoy the privileges of Malaysian citizenship other than as an illegitimate child. The Tribunal accepts the circumstances of the marriage and the child would become known given necessary and ordinary school enrolments and health registrations required for [him/her] to settle in Malaysia. This would also have implications for the recognition and enforcement of the second applicant’s parental rights as he would not be formally recognised as the child’s father. This would also have implications for the family group because they would be unable to openly live together. In the event of family breakdown, the second applicant may be denied access to his [child] and [s/he] may be denied the care and protection of [his/her] father. Conversely, if the child were registered as the child of the second applicant [s/he] would be registered as a Muslim. This would have consequences for the first applicant’s parental rights.102. Country information, including the 2021 DFAT Report, indicates a growing conservative Islamic sentiment in Malaysia. The Tribunal is satisfied that there is a real chance that the applicants will face social isolation as a result of the marriage and that the second applicant may be reported by people who discover their relationship, even if they live separately. Further, every administrative interaction of his [child] with the Malaysian authorities would potentially disclose this interfaith relationship.103. The Tribunal concludes that there is a real chance that if the applicants return to Malaysia, their marriage will not be recognised, and will be unable to be registered. The Tribunal is satisfied that the second applicant faces a real chance of being prosecuted and imprisoned or fined for breaching Syariah law by having sex outside of a recognised marriage and being in close proximity to the first applicant because she would not be considered his wife. The Tribunal is satisfied that the applicants will be unable to live openly as a family. There is also a real chance that their [child] will be considered an illegitimate child and the second applicant will not be officially recognised as [the] father. 104. The Islamic Family Law (Federal Territories) Act 1984 contains provisions relating to the reporting of void or illegal marriages: [29][29] See s 27 Islamic Family Law (Federal Territories) Act 1984.It shall be the duty of every person to report to the Registrar the circumstances of any case in which it appears to him that any alleged marriage was void or that any registrable marriage was solemnized in contravention of this Enactment. 105. The Tribunal considers that this ‘duty to report void or illegal marriages’ increases the risk to the applicants that the circumstances of their marriage and the refusal of the first applicant to convert to Islam would become known to the Malaysian authorities, in particular the religious authorities. This type of ‘social policing’ enactment reflects that Muslims in Malaysia are officially required to report void or illegal marriages, meaning that the potential for recognition and reporting of the applicants’ situation is a very real risk throughout the community. 106. Because he is not married according to Malaysian law, the second applicant would be vulnerable to prosecution for offences of zina and also of khalwat were he to continue his relationship with the first applicant on returning to Malaysia. It is noted that Syariah law only applies to Muslims in Malaysia, although the application of laws can affect non-Muslims consequentially. The Tribunal is satisfied that the first applicant is at risk of the consequences of her partner being prosecuted, including the impact on the separation of the family unit which would result from the second applicant’s prosecution and potential imprisonment for such offences in circumstances where the second applicant’s family are unaware of the interfaith nature of the relationship but would likely become aware if the applicants were to return to Malaysia to live. She and her [child] would also suffer significant emotional and financial difficulties and social stigma if the second applicant were to be prosecuted with respect to the relationship.107. The real chance of harm that the applicants face now or in the reasonably foreseeable future in Malaysia therefore include the deprivation of their liberty and potential financial penalty pursuant to Syariah and Criminal Code laws for the second applicant if they continue their relationship in Malaysia. Further, there is a real chance both applicants will face official censure of their relationship, forced separation and the potential breakdown of the marriage. 108. The Tribunal is satisfied that these outcomes are of a nature which would properly and reasonably be considered to cause the applicants serious harm, particularly when they include the criminal penalties particularly faced by the second applicant immediately, including caning and imprisonment, and in the foreseeable future by the first applicant. Even in the event that such penalties are ‘rarely’ imposed, the Tribunal considers that there is a real chance that now or in the reasonably foreseeable future, the applicants will be reported for or discovered to be in an illegal relationship and the potential for all of these harmful outcomes exists. This is particularly the case given they have a child of their relationship who is considered illegitimate and whose birth would need to be registered with authorities to allow [his/her] settlement in Malaysia. 109. The Tribunal also finds that if the applicants attempted to continue living together in Malaysia there would be a real chance they would face significant discrimination from authorities involving non-recognition of their marriage, pressure on the first applicant to convert and issues with recognition of parental rights with respect to their [child]. The Tribunal also finds that it cannot dismiss as remote the chance that the applicants would suffer harassment and possible mistreatment amounting to serious harm from members of the Islamic community in Malaysia who take offence at the applicants living in an interfaith relationship.110. Having considered the evidence and country information including that contained in the 2021 DFAT Report, the Tribunal concludes that there is a real chance that the applicants would suffer persecution involving serious harm as a consequence of their being in a Muslim-Christian interfaith relationship and on the basis of their respective religions should they return to Malaysia from the Malaysian authorities, including religious authorities, and/or members of the Malaysian community more generally, on return to Malaysia now or in the foreseeable future.111. The applicants claimed to fear harm on the basis of their marital status. This was in part due to their respective faiths and in part because they would be identified as being in an interfaith marriage, which was not recognised by the state because they do not share a religion and because the second applicant is a Muslim. The Tribunal considered this to be a claim in part based on the applicants’ membership of a particular social group as persons involved in an interfaith marriage where one party is a Muslim in Malaysia and in part due to their respective religions.112. In this regard, the Tribunal notes that the refugee nexus of being a member of a particular social group can have a broad application, however s 5L of the Act makes it plain that each member of the identified particular social group must share a characteristic and that characteristic must either be innate or immutable or so fundamental to a member’s identity or conscience the member should not be forced to renounce it, or it must be a characteristic that distinguishes the group from society. The characteristic cannot be the fear of persecution. In this case, the common characteristic of the social group would be that the members are persons that are in an interfaith married relationship where one of the parties is a Muslim. Country information cited above indicates that their religion and marital status gives them a distinct identity in Malaysia, which is perceived as being different by the surrounding society. In the Tribunal’s view ‘persons involved in an interfaith marriage where one party is a Muslim in Malaysia’ constitute a particular social group as they share common characteristics, marital status and religion, which, while they may not be immutable, may be so fundamental that a member should not be forced to renounce them. The characteristic which distinguishes these groups is not the fear of persecution. The Tribunal finds that the essential and significant reason for the persecution is the applicants’ membership of the particular social group of people involved in interfaith relationships where one party is a Muslim, and because of their respective faiths. The Tribunal accepts that this claim is consistent with the grounds set out in s 5J(1)(a) of the Act. The applicants fear persecution for one or more of the reasons in s 5J(1)(a). 114. The nature of the persecution in this case is the ongoing prohibition of the applicants’ marriage and a vulnerability to exposure and prosecution by conservative Muslim members of Malaysia’s community and Malay authorities. The Tribunal is satisfied that the applicants would be discriminated against and punished because of their interfaith marriage and illegitimate child and that such discrimination would be ongoing and targeted. The Tribunal is satisfied that the persecution involves systematic and discriminatory conduct. 115. As the relevant laws apply across Malaysia, and the social conditions for persecution are encouraged and reinforced by the authorities in Malaysia, the Tribunal finds that the real chance of persecution relates to all areas of the receiving country. 116. In relation to s 5J(6) of the Act, the Tribunal is satisfied that the relationship between the applicants is a genuine relationship and is not conduct engaged in for the purpose of strengthening their claims to be refugees.117. In relation to s 5LA of the Act, as the agents of persecution in this case include the relevant State authorities, the Tribunal finds that effective protection measures are not available to the applicants in the receiving country. State protection is not available to the applicants because the persecutors include the state or agents of the State such as the State religious departments or officials who operate throughout the country. Where the persecutors are conservative community Muslims who harass and report the applicants, the applicants would be unable to obtain protection from that harassment because such conduct is condoned by the State as reflected in Malaysian laws relating to interfaith marriage and family matters associated with such unions, including the status of children. 118. To avoid any ongoing chance of harm, the applicants would have to live separately and hide their relationship, including as between the second applicant and his [child]. Alternatively, the first applicant would have to hide her faith or convert to Islam against her will. Her [child] would be considered to be Muslim and would be so registered, contrary to their stated wish that [s/he] chose [her/his] own religion when [s/he] is ready to do so. The Tribunal considers that concealing a marriage or forcibly living separately and apart from your family or forcibly converting to another faith reflects a significant denial of fundamental characteristics of the applicants, particularly their right to live as a family unit and their religious freedom. The Tribunal finds in all the circumstances that the steps required to modify their behaviour so as to avoid a real chance of persecution in Malaysia are not reasonable. The Tribunal finds that the applicants could not take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in Malaysia.119. Accordingly, the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).DECISION120. The Tribunal remits the matter for reconsideration with the direction that the first applicant and the second applicant satisfy s 36(2)(a) of the Migration Act.Simone BurfordSenior MemberAttachment - Extract from Migration Act 19585 (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.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…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 the 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 familyFor 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 familyFor 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.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(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.…

Ratio Decidendi

Legal Principle Established

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATIONApplicants’ identities and country of reference The applicants claim to be citizens of Malaysia. As noted earlier, the applicants provided copies of their Malaysian passports to the Department and to the Tribunal. The Department accepted the applicants’ identities. There is nothing before the Tribunal to suggest that the applicants are not the persons identified in the relevant applications for protection. The Tribunal finds that the applicants are citizens of Malaysia, which is also their receiving country for the purposes of the refugee and complementary protection assessments.The applicants’ profiles In determining whether the applicants are entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[5] Further, in assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[6] [5] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.[6] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[7] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[8] [7] MIMA v Rajalingam (1999) 93 FCR 220.[8] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.