1706007 (Refugee)

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

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.
For the following reasons, the Tribunal has concluded that the decisions under review should be remitted for reconsideration.
Claims and evidence
Protection claims
Protection 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.
The delegate refused the second applicant’s visa on 6 September 2017. The second applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.
The delegate was not satisfied that there was a real chance that, if the second applicant was returned to Malaysia, they would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the second applicant was not a refugee as defined in s 5H and did not satisfy the criterion in s 36(2)(a) of the Act. The delegate found that the second applicant could obtain protection from Malaysian authorities such that there would not be a real risk they would suffer significant harm. Accordingly, the second applicant was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa) of the Act.
Review applications
The applicants filed their applications for review on 26 March 2017 and 13 September 2017 respectively.
The Tribunal wrote to the first applicant on 22 September 2021 pursuant to s 424(2) of the Act, inviting her to provide information in relation to her application. The information sought related to the first applicant’s current circumstances and claims for protection. The invitation also gave the first applicant an option as to whether she wished to have a hearing to give evidence and present arguments about the decision under review. The invitation noted that if the first applicant consented to the Tribunal making a decision on the review without the first applicant appearing before the Tribunal, the first applicant would not be invited to appear at a hearing to give evidence or present arguments relating to the issues in her case. The invitation also noted that the Tribunal’s decision would be made based on the information and evidence before it, including any further information or evidence the first applicant may provide, and the Tribunal may consider issues that were not previously considered by the primary decision‑maker. The Tribunal noted that it may either affirm or set aside the decision under review.
On 3 October 2021 the first applicant responded to the invitation. In her response, the first applicant indicated that she wanted to add to or update her claims for protection as expressed in her application for protection as follows:
In March 2017, I got acquainted with a man who now is my husband. After a year of having relationship, we have decided to step into the realm of marriage [in] March 2018. A year later we were blessed with a beautiful [child]. What i want to emphasize here is that, due to religious differences, i profess Christianity, while my husband is Muslim. We were married through intermarriage / mixed marriage without leaving our respective religions.
In her response to the invitation, the first applicant identified her husband as a family member in Australia who was not mentioned in her application for protection and who was also an applicant for protection. Her response indicated that her husband’s application for protection was also before the Tribunal.[3] The response also identified her [child] as a family member in Australia. The first applicant submitted identity and supporting material, which is considered further below.
[3] Tribunal reference: 1721696.
The Tribunal wrote to the second applicant on 18 October 2021 pursuant to s 424(2) of the Act, inviting him to provide information in relation to his application in the same terms as the invitation sent to the first applicant.
On 26 October 2021 the second applicant responded to the invitation. In his response, the second applicant indicated that he wished to add to or update his claims for protection as expressed in his application for protection as follows:
met my wife in 2017 while working on a [Workplace]. After that we fell in love and decided to live together and build a family. Despite religious differences, we still get married without changing our respective religions because we know that intermarriage in this country is allowed. I once failed in my past marriage and didn’t want same mistake happen again. Our wishes to see our [child] grow up here without threats and criticism even though [s/he] was born from a mixed marriage of different religions.
His response also noted that his [child] (from his previous marriage) died in Malaysia in 2019.
In his response to the invitation, the second applicant identified his wife as a family member in Australia who was not mentioned in his application for protection and who was also an applicant for protection. His response indicated that his wife’s application for protection was also before the Tribunal.[4] The response also identified his [child] as a family member in Australia. The second applicant submitted identity and supporting material, which is considered further below.
[4] Tribunal reference: 1706007.
The applications were constituted to the same Tribunal member to enable the applications to be considered together and to allow for the option of a combined hearing.
The applicants were invited to attend a hearing before the Tribunal to give evidence and present arguments on 16 June 2022. The invitations noted the Tribunal proposed to hold the hearings as combined hearings for both applicants and sought each applicant’s consent for this. Both applicants provided their consent in writing and confirmed their agreement to proceeding on this basis at the commencement of the hearing.
The hearing was conducted in person at the Tribunal’s Perth Registry.
The Tribunal discussed the proposed approach with the applicants separately and indicated that they would give evidence privately and that the Tribunal would treat evidence in one application as evidence in both. Both the applicants consented to the combined hearing.
The applicants were given an opportunity following the hearing to submit any further information in support of their applications. Further material in support of their applications was submitted on 27 June 2022.
The hearings were conducted with the assistance of an experienced Malay interpreter. No issues regarding the particular interpreter or the interpretation services provided were raised by the applicants with the Tribunal, and the Tribunal considered the applicants were able to fully participate in the hearing in English and Malay.
The applicants were not represented in relation to the applications for the visa and the reviews.
At the commencement of the hearing, the applicants confirmed the responses they provided in response to the s 424(2) invitations, including their new claims related to interfaith marriage. Later in the hearing, when asked why the first applicant came to Australia, she said it was to seek protection because she was in love with another Muslim [man]. She said they planned to come to Australia and get married here so she didn’t have to convert. The Tribunal asked if they came together and she said they didn’t want to make it too obvious so she came here alone first and the plan was he would follow but he cheated on her while she was in Australia and never came. The Tribunal asked if she raised this claim in her application for protection and she confirmed she did not. She said she told the person who helped her with the application about her relationship in Malaysia and she didn’t know why this had not been included.
Prior to the combined hearing on 16 June 2022, the applicants submitted the following evidence to the Tribunal:
·A Western Australian Marriage Certificate dated [March] 2018;
·Their [child]’s Western Australian Birth Certificate registered [date];
·The second applicant’s Western Australian Driver’s Licence with an expiry date of [September] 2026;
·Both applicants’ Malaysian National ID Cards;
·Copies of both applicants’ passports;
·Photos of the applicants’ wedding;
·Photos of the applicants’ child;
·Malay Mail online article, ‘Marriage between Muslim and non-Muslim illegal says Jakim’, dated 27 September 2013;
·Today online article, ‘Converting spouses adding to conflict between civil and Shariah courts, says Malaysian AG’, dated 20 November 2014;
·A link to refworld.org webpage, ‘Malaysia: Information on whether it is legal for a Muslim and non-Muslim to marry in a civil ceremony or whether the non-Muslim must convert to Islam in the case of a mixed marriage’;
·Extract of pages 16 and 27 of the Islamic Family Law (Federal Territories) Act 1984 (Act 303);
·Undated Statement of the second applicant submitted 27 June 2022;
·Family photos of the applicants’ child at school and holiday photos;
·Photos of the first applicant’s family practising Christianity;
·Photos of the second applicant’s family practising Islam;
·Screenshots and three links to an untranslated website called ‘Labak Merah’;
·Screenshot and link to thevibes.com article, ‘Court rejects judicial review bid of woman seeking to renounce Islam’, dated 15 June 2022;
·Extract of paragraphs of the Department of Foreign Affairs and Trade (DFAT) Country Information Report: Malaysia (June 2021);
·Link and screenshots of factsanddetails.com webpage, ‘Islamic Law in Malaysia’;
·Link and screenshots of online Bharian article, ‘Fatin is accused of defrauding 61,000 ringgit of gold investments’, dated 27 April 2022;
·Link and screenshots of online Blog Ammar article, ‘Remember with Tok Belagak? What happened to him now surprises many people’, dated 8 November 2017;
·Link and screenshots of undated Hargaemas.com article, ‘Freezing of assets of gold investment companies extended’;
·Undated letter from the second applicant’s sister;
·Receipts of the second applicant’s gold trading business;
·Untranslated police report dated [May] 2015;
·Undated statement that the second applicant submitted on 27 June 2022;
·Translated certificate and original of first applicant’s baptism dated [December] 1990.
The applicants’ claims for protection and the evidence on which they are seeking to rely were discussed at the hearings. This information and the applicants’ oral evidence to the Tribunal at the hearings are discussed further below. The Tribunal also discussed with the applicants relevant country information, including information contained in DFAT’s most recent country information report on Malaysia – the Country Information Report: Malaysia dated 29 June 2021 (the 2021 DFAT Report). Relevant country information is discussed further below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.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.
CONSIDERATION
Applicants’ 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.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[9] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[10]
[9] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[10] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[11]
[11] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
In their applications for protection and at the hearing before the Tribunal the applicants claimed to fear harm on several distinct bases. The Tribunal notes the applicants’ claims before the Tribunal changed significantly from those made in their applications for protection and before the delegate. The Tribunal considered each of the integers of the applicants’ claims for protection individually and then cumulatively.
Economic and political claims – first applicant
In her application for protection, the first applicant claimed she could not return to Malaysia because she would be unable to find a job due to economic conditions in Malaysia and would be unable to support herself financially. In her response to the s 424(2) letter she confirmed these were her claims. She added in her response that she was also claiming to fear harm on the basis of being in a ‘mixed marriage’ with the second applicant.
At the hearing the first applicant told the Tribunal prior to coming to Australia she worked in [Work sector 1] in Kota Kinabalu for about 20 years. She hadn’t been working in Australia for about a year but prior to that she was working in [Job tasks 1 and 2]. She said that several members of her family were working in Malaysia and that she was in regular contact with them. She did not express any fears regarding the prevailing economic circumstances in Malaysia at the hearing or in evidence submitted to the Tribunal. Other than her concerns regarding the treatment of interfaith marriages in Malaysia, she did not raise any concerns regarding any ‘political’ issue in Malaysia with respect to which she feared harm.
The first applicant did not press these claims at the hearing. She said that the claims had been written for her by her friend and were not her claims. Given she has now raised substantively different claims, the Tribunal accepts this evidence and considers that this claim is not established and will not be considered further.
Debtor claims – second applicant
As noted above, in his application for protection, the second applicant claimed to be at risk of harm due to owing money to customers lost as a result of a betrayal by one of his business partners. He claimed to be at risk of harm from his former customers asking for their money back.
The second applicant said he came to Australia for protection because he had financial problems at that time due to problems with a gold trading business he ran with a share partner. He said he lost around $500,000 of customers’ money and the customers were searching for him.
Prior to coming to Australia he was living in Kuala Lumpur. Prior to his marriage he lived with his family. He moved back in with them when he divorced in October 2015. He lived by himself for about six months and then moved back in with his parents. They moved from Kuala Lumpur to Selangor in the last two years after his father bought a new home there. He has five siblings. His brother lives in Kuala Lumpur and is married. His sister is married and living in Nigiri Sembilan where she is working as [an Occupation 4]. His younger brother is married with a child and living in Kuala Lumpur. His youngest brother is at university in Selangor. He is in occasional contact with his family, mostly his mother.
One of his children, a [child] he had with his first wife, passed away. They have one remaining [child] who is around [Age] years old and who he is supporting. They live in Putrajaya. They are in contact regarding support for his [child] but not frequently. The second applicant gave his wife custody of the children when they divorced.
He was [a Job] in [Employer], a [Work sector] body, prior to leaving Malaysia.
The second applicant said his divorce from his ex-wife occurred as a result of his business problem. He said he was at risk because one of his customers had mafia gang connections and they were searching for him in his office and house.
The Tribunal asked what the business was called and he said he used the name ‘[Business name]’. The Tribunal asked if he had any documents to support his claims regarding his ownership of the business or the issue with debts to customers and he said, ‘yes but also no’. He said he would try to find them. The Tribunal asked why he had not provided supporting documents to date and he said that they were in Malaysia. He said his parents couldn’t find the documents because they had moved. The Tribunal noted he had said his parents had moved in the last two years but it had been more than five years since the application for protection was made so it was difficult to see how moving had prevented them providing the documents. The Tribunal noted that the delegate had refused the visa partly because of a lack of supporting evidence, yet the second applicant had not provided any further evidence some years later. He said he was desperate and he needed to run away so he destroyed his documents and just saved himself. The Tribunal asked why it was necessary to destroy his documents and he said that he was afraid the mafia might look for him.
The Tribunal notes that although significant material was submitted following the hearing, no supporting evidence regarding the business or debts of the business was provided to the Tribunal. As noted at the hearing, this lack of any corroborating evidence caused the Tribunal to doubt the credibility of these claims.
The Tribunal asked about the issue that had arisen and he said customers gave him money to pre-order gold bars but his business partner invested the money. He said he was afraid his customers might harm him on return.
The Tribunal asked who in particular might harm him and he said he couldn’t remember the name, but then said he called him ‘[Mr A]’. The Tribunal asked if there was any reason to think [Mr A] was still looking for him and he said he had visited the applicant’s former mother-in-law’s home in 2015. The Tribunal asked if they reported this approach to the police and he said they had. He said he did not have any supporting evidence of this report to police.
The Tribunal asked who was business partner was and he said his younger brother. He said his brother claimed he was trading and the money they were given got lost. The Tribunal asked if that was what he put in his application for protection and he said he didn’t because he wanted to protect his brother. He said his brother would be at risk if he put it in the application.
The Tribunal asked if any of his family members including his brother had been approached or threatened by any of his customers since he left for Australia and he said his brother told them that he was just his worker so he is safe. The Tribunal put to the second applicant that it might be reasonable to expect that the mafia might attempt to enforce the debt it was owed in the five years since he left Malaysia against members of his family who had remained there, including his brother who was involved in the company. He said he placed all the difficulties, problems and burdens on himself and because of this his family members are safe.
The Tribunal noted that he had said he had been threatened in 2015, which he reported to police, yet he remained in the country until March 2017. The Tribunal noted this seemed a long time to stay in a country where people are threatening to kill you. The second applicant said he moved to different places and hid in different places and during that time and he ‘faced a lot of problems.’ The Tribunal noted he had said earlier he was living by himself for six months and then with his parents. He said he divorced in September and for the six months after that he lived with his family members, and there were times when he stayed at his friend’s place.
The Tribunal asked how the customers would know if he moved back to Malaysia and he said they have ‘a lots of links’.
The Tribunal does not accept the applicant’s claim to fear harm on the basis of debts to customers with mafia links due to a prior business in Malaysia. The Tribunal found the applicant’s evidence regarding this claim to be vague and lacking in the level of detail one would expect him to be able to provide had he been running a business in Malaysia where more than half a million dollars had been collected from customers and invested in gold or stocks.
Further, the second applicant’s evidence was inconsistent in key aspects including with respect to the availability of supporting documents, which he initially said he might be able to find and later said he had deliberately destroyed. Despite the opportunity to provide further information to support his claims following the hearing, none was provided. As noted above, the Tribunal found the lack of any corroborating evidence with respect to the operation of the business or the claimed debts and threats from customers undermined the credibility of the claims. The evidence with respect to threats to his family was also implausible and inconsistent. The second applicant claimed that in 2015 the mafia threatened to hang his family, yet he later said his brother, who was also his partner in the business endeavour, was safe merely because he had told the customers he was just an employee. This is not consistent with a claimed threats to kill family members for non-payment of the debts or the second applicant’s claim that the customers were continuing to pursue the claimed debt many years later, without any harm or credible threats of harm to his family members in the intervening period.
Given that the second applicant claims the mafia were looking for him and threatening to kill him and his family members, the Tribunal finds the fact his family has been able to live for more than five years in Malaysia, including for a significant period in their original home in Kuala Lumpur where the second applicant had lived, was inconsistent with the claimed risk of harm. Further, the Tribunal found the second applicant’s delay in leaving Malaysia from the time threats against his life were made in 2015 until leaving Malaysia in March 2017 to cast serious doubt on the second applicant’s claims to have been at risk.
Having regard to the lack of corroborating evidence regarding the business, threats against the second applicant or threats against his family members and concerns regarding inconsistences in the second applicant’s account, the Tribunal does not accept the claims. The Tribunal finds the second applicant did not operate a business called [Business name]. The Tribunal finds he did not lose money as part of that business venture. The Tribunal does not accept anyone is threatening the second applicant with respect to that business venture.
Given the Tribunal’s concerns regarding the credibility of these claims, the Tribunal finds the second applicant’s claimed fear of harm is not genuinely held. Having considered all the evidence before it, the Tribunal finds there is no real chance and no real risk the second applicant will be seriously or significantly harmed by customers, including mafia members, or any other person for because of a failed business he ran with his brother in Malsyisa or debts associated with that business now or in the reasonably foreseeable further.
Prior interfaith relationship claims – first applicant
As noted above, the first applicant claimed that she came Australia to seek protection because she was in a relationship with a Muslim man and they wanted to marry but didn’t wish to convert.
The first applicant conceded she did not include this reason in her claims for protection before the delegate. She said that she was helped by someone she thought was called [name] and she did tell them about the claim but they didn’t include it. The Tribunal noted that she has signed a declaration as part of the application stating that the information in the application was true and correct and she said someone asked her to sign the form so she did. She said she only realised the claims in the form were not her claims when she got the delegate’s decision. The Tribunal asked if she contacted the Department to attempt to correct her claims and she said she did not. She said she contacted the person who had helped her. She did not contact the Department as it ‘may effect my process’.
The Tribunal put to the first applicant that her conduct in signing a form including claims for protection which she now says did not include her claims may reflect poorly on the credibility of her claims and the information she provided in the visa process. She said she ‘also have in my mind to live here in a legal way’.
The Tribunal asked if she had faced any harm due to being in a relationship with someone who was a Muslim in Malaysia and she said she faced lots of problems or oppressions from both families. She said that when they were in public people would ‘give us funny looks’. The Tribunal asked if there were any issues other than ‘funny looks’ and she said that the community didn’t agree with the relationship and ‘they will give us a funny look and emphasise holy relationship’. She said they were not able to marry unless they converted. The Tribunal asked if they had been living together and she said no. The Tribunal asked if her Muslim partner had any issues with the authorities because of the relationship and she said they were not allowed to marry unless she changed her religion. When the Tribunal sought confirmation as to whether her then partner had had any issues with the authorities she said ‘no’.

As noted above, the first applicant claims that the relationship ended after she came to Australia. She does not claim any current risk of harm on the basis of that relationship.
With respect to the first applicant’s claim that she came to Australia to seek protection due to her prior relationship with a Muslim man, the Tribunal does not find that claim to be credible. The Tribunal is prepared to accept, on the basis that it is plausible, that the first applicant was previously in a relationship with a Muslim man in Malaysia. However, given the extensive delay in raising that claim until the hearing before the Tribunal and the fact that the first applicant was unable to articulate any harm that she had suffered in Malaysia as a result of that relationsip beyond receiving ‘funny looks’ and being unable to marry, the Tribunal does not accept the first applicant left Malaysia due to any genuine fear of harm on this basis. The Tribunal finds that the first applicant’s claim to have left Malaysia due to a fear of harm on the basis of her earlier relationship is not consistent with the delay in raising that claim for protection without reasonable explanation.
Further, the first applicant was unable to point to any particular harm she feared, from any person, beyond receiving funny looks and being unable to marry. The Tribunal considers that receiving ‘funny looks’ does not constitute serious harm for the purposes of refugee assessment. Likewise, the Tribunal does not consider that being denied the right to marry under state law alone amounts to serious harm of the kind contemplated under the refugee criterion. The first applicant did not articulate any fear of harm from her former partner or his family because the former relationship or for any other reason.
Accordingly, the Tribunal finds the first applicant does not genuinely hold a well-founded fear of persecution on return to Malaysia on the basis of her previous relationship now or in the reasonably foreseeable future. As noted earlier, a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the first applicant does not have a genuinely held subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[12]
Claims based on the applicants’ marriage
[12] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
While the Tribunal does not accept the claims articulated by the first applicant with respect to her prior interfaith relationship, the Tribunal considers the assessment with respect to the applicants’ claims based on their current marriage to be somewhat different.
In relation to the applicants’ claim that they are now in an interfaith relationship, the first applicant said she is a Pentecostal Christian, a member of the Borneo Evangelical Church. In support of this claim she provided evidence of her Malay MyKad which does not nominate a religion, consistent with non-Muslim Malays.[13] The second applicant offered a copy of his MyKad which evidences registration as a Muslim. The evidence provided and prevailing country information indicates that the Christian population of Malaysia is predominantly located in Sabah and Sarawak where the first applicant is from.[14]
[13] 2021 DFAT Report at [3.26].
[14] 2021 DFAT Report at [3.23] and [3.52].
While the Tribunal had concerns regarding both the applicants’ credibility, given the inconsistent evidence mentioned earlier and the other claims for protection that the Tribunal does not accept, having carefully considered the evidence provided subsequently in relation to the applicants’ relationship, the Tribunal is satisfied that they are in a genuine relationship.
In relation to s 423A of the Act, the Tribunal is satisfied that there is a reasonable explanation why this relationship was not raised in the application before the primary decision was made, that being because the relationship only commenced proximate to the application being made and at that point it would have been unlikely either party was considering an interfaith marriage.
Further, the Tribunal is satisfied the marriage was entered into other than for the purposes of strengthening the applicants’ claims for protection.
The Tribunal notes the applicants’ evidence regarding their relationship, family composition and background were broadly consistent and the Tribunal found their evidence on these issues to be generally credible. On this basis, the Tribunal accepts aspects of the applicants’ claims, summarised as follows:
·The first applicant is a Christian from Sabah. She was baptised in the Borneo Evangelical Church in 1990. Her family are practising Christians with ties to the Christian faith in Sabah;
·The second applicant is a Sunni Muslim from Kuala Lumpur. He is registered with Malaysian authorities as a Muslim. His immediate family are practising Muslims in Malaysia;
·The applicants met in 2017 and married in 2018, after they had individually filed claims for protection unrelated to their relationship;
·The applicants married in a civil ceremony in Western Australia [in] March 2018 and the marriage is registered in Western Australia;
·The applicants’ marriage is not registered in Malaysia;
·They have a child of the marriage whose birth has not been registered with Malaysian authorities;
·The applicants’ child has not been baptised or introduced to either faith.
The first applicant gave evidence that she remains a practising Christian and that she would seek to practise in Malaysia as a Christian. She testified that she neither wishes to nor intends to convert. The Tribunal accepts this evidence.
With respect to their current relationship, the applicants expressed the following fears of harm:
·They would not be able to stay together because they are not married according to Syariah law and according to Malaysian law they cannot lawfully be married unless the first applicant converts.
·The first applicant will be forced to convert to enable them to register their marriage.
·If the first applicant does not convert, the second applicant will be in breach of Syariah law and will be liable for punishment under Malaysian law. He may be fined or put in jail.
·The authorities in Malaysia would become aware of the relationship because they have a [child] and they would need to do things in relation to the child.
·Their [child] would be considered illegitimate which was very serious because [s/he] would be treated differently and discriminated against by Malaysian society. [She/He] would be ostracised. It would impact the child’s own right to get married and have children in the future.
·They will not be able to live out a normal life as a couple and are afraid that if someone finds out about their marriage, they may report them to the local authorities.
·In the event the marriage breaks down there will be issues for the care and custody of their child as [s/he] will be illegitimate.
·The second applicant’s family may report them to the authorities as they currently think they are married according to Syariah law. The second applicant’s father had previously reported his uncle for an interfaith relationship.
The Tribunal considered country information with respect to interfaith marriages and children in Malaysia.
Country information suggests that mixed marriages are common in Malaysia. In 2019, mixed marriages accounted for nine percent of all registered marriages, marking a gradual increase from previous years.[15] Malaysia’s civil marriage law does not prohibit mixed marriages amongst non-Muslims but Syariah law stipulates that a non-Muslim must convert to Islam for the marriage to be legally recognised.[16] There are two primary statutes in Malaysia for marriage, the secular Law Reform (Marriage and Divorce) Act 1976 and the Islamic Family Law (Federal Territories) Act 1984.[17] Malaysian authorities do not recognise marriages between Muslims and non-Muslims and consider children born of such marriages illegitimate.[18] Mixed marriages between persons of different ethnicities or religious backgrounds is commonplace in Malaysia and society is generally receptive to these unions.[19] Sometimes family members are apprehensive about mixed marriage for reasons such as unfamiliarity or negative stereotypes towards other ethnicities or religions.[20] Similarly, family members sometimes oppose marriages that involve conversion to Islam for reasons such as negative perceptions of Islam and apprehension about Syariah law.[21] In some instances, family opposition to mixed marriage may change over time, such as with the birth of a child.[22]
[15] ‘Marriage of cultures can spawn unity’, Bernama, 18 August 2020, 20211206112015; ‘Interfaith Marriage and Religious Conversion: A Case Study of Muslim Converts in Sabah, Malaysia’, Khadijah Mohd Hambali, University of Malaysia, November 2011, pp.8-12.
[16] 2021 DFAT Report, pp.31-32; ‘Registration of Marriage For Non-Muslim’, National Registration Department – Ministry of Home Affairs, n.d.; '2020 Report on International Religious Freedom: Malaysia', US Department of State, 12 May 2021, p.4.
[17] Law Reform (Marriage and Divorce) Act 1976 (164), Federal Government of Malaysia, 6 March 1976 (amendments to 1 January 2006), the Commissioner of Law Reform; Islamic Family Law (Federal Territories) Act 1984 (303), Federal Government of Malaysia, 27 June 1984, amendments to 1 January 2006, the Commissioner of Law Reform. There is some variation between Syariah enactments throughout the country but those variations relate generally to process and or the severity of penalty for breaching said enactments. Model law applies in Kuala Lumpur and Sabah.
[18] '2020 Report on International Religious Freedom: Malaysia', US Department of State, 12 May 2021.
[19] A truly 'muhibbah' CNY for two couples’, New Straits Times, 24 January 2020, 20211207182127; ‘Muhibbah born out of love’, New Straits Times, 16 September 2019; ‘Mixed marriages give rise to Sarawak hybrid population, says CM’, Bernama, 15 July 2019; ‘Sabah, best example of people from different backgrounds staying united’, New Straits Times, 23 December 2018; 'Ethno mix-match couples are able to fit seamlessly into society', The Sun Daily, 14 September 2021; ‘Marriage of cultures can spawn unity’, Bernama, 18 August 2020; ‘It was love at first sight when I first saw her’, New Straits Times, 17 September 2021.
[20] ‘Marriage of cultures can spawn unity’, Bernama, 18 August 2020, 20211206112015; ‘Inter-cultural marital relationships: recruiting participants from Bangladesh community’, Sultana, A M., International Journal of Politics, Public Policy and Social Work, Volume 3, Issue 9, June 2021, p.14; ‘Interfaith Marriage and Religious Conversion: A Case Study of Muslim Converts in Sabah, Malaysia’, Khadijah Mohd Hambali, University of Malaysia, November 2011, pp.8-12.
[21] ‘Interfaith Marriage and Religious Conversion: A Case Study of Muslim Converts in Sabah, Malaysia’, Khadijah Mohd Hambali, University of Malaysia, November 2011, pp.8-12; 2021 DFAT Report, pp.31-32.
[22] ‘Marriage of cultures can spawn unity’, Bernama, 18 August 2020, 20211206112015; ‘Interfaith Marriage and Religious Conversion: A Case Study of Muslim Converts in Sabah, Malaysia’, Khadijah Mohd Hambali, University of Malaysia, November 2011, p.10.
The 2021 DFAT Report indicates the following matters of relevance to interfaith relationships:[23]
[23] 2021 DFAT Report at [2.37], [3.26], [3.27], [3.29], [3.30], [3.34], [3.39], [3.58], [3.66], [3.71].
·The religious status of Muslims is recorded on their birth certificates and on their national identification cards. The religion of non-Muslims is not recorded on the face of their identity cards but is recorded in a micro-chip.
·Malaysia has a two-track legal system: common law, administered at the federal level; and Syariah-based law, administered at the state level, which varies by jurisdiction.
·Matters considered by states under Syariah-based law relate to succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and the ‘determination of matters of Islamic law and Malay customs’.
·Several Syariah-based laws apply to Muslims at the 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 (after marriage) converted to Islam, and subsequently claimed that non-Muslim family members have lost all rights to inheritance and custody of children.
·A non-Muslim (male or female) must convert before getting married to a Malaysian Muslim.
·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. DFAT is not able to comment on the likelihood, in practice, of punishment for apostasy in states in which apostasy is criminalised.
·Married Muslims must carry a photo identification of themselves with their spouses as proof of marriage. This requirement has reportedly been enforced in practice, particularly in the northern states. Some vigilante groups have also attempted to enforce these and similar requirements, in accordance with Islam. In July 2019, a controversial Kedah-based anti-vice ‘Badar Squad’ reportedly harassed unwed Muslim couples who did not have what the group deemed to be proper supervision.
·Syariah-based law applies only to ‘persons professing the religion of Islam’. However, the enforcement of Syariah sometimes affects non-Muslims, particularly in relation to matters involving religious conversion and family.
·There is an increasing trend towards religious conservatism in Malaysian Islam. At the same time, the growth of the country’s religious bureaucracy has created a constituency with a vested interest in promoting religion. There is also evidence of decreasing tolerance towards sexual and religious minorities on religious grounds.
·DFAT is aware of reports of increasing religious segregation of school entries, exits and canteens, and of reports of a new trend of Malaysians being arrested for consuming alcohol.
·Islamic groups and leaders have criticised, and in some cases harassed, commentators and community groups for expressing concern over a perceived increase in the Islamisation of government, and over shrinking space and freedom for non-Muslims to practise their faith.
The 2021 DFAT Report provides:[24]
Several syariah-based laws apply to Muslims at the 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 (after marriage) converted to Islam, and subsequently claimed that non-Muslim family members have lost 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 Family Law). While it is relatively common for individuals to convert to Islam in order to marry a Muslim (according to one report, 9 per cent of all marriages in 2019 were inter-ethnic and about half of those involved a Muslim spouse and thus mandatory conversion), families in some communities may view this negatively.
The government does not recognise marriages between Muslims and non-Muslims and considers children born of such marriages illegitimate.
[24] 2021 DFAT Report at [3.66], [3.77], [3.78], [3.81].
Country information indicates that Islamic doctrine in Malaysia places high cultural value on the institution of marriage, and an unmarried Muslim in a close relationship with a non-Muslim would likely be in breach of various Syariah law provisions. Religious and Syariah matters are under the purview of each individual state. Khalwat (illicit proximity) and zina (unlawful sexual intercourse) are Syariah law violations that are punishable with a fine or imprisonment, or both. Penalties for immoral offences vary between Malaysian states in accordance with each state’s Syariah laws. For example, under the Syariah Criminal Code (Federal Territories) Act 1997 both khalwat and zina are offences but in a practical sense, offenders are commonly prosecuted for khalwat:[25]
Under section 27 listed above, two people can be legally arrested for khalwat if they are found “in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts.” Note that this definition refers to “immoral,” not “sexual,” acts. Yet in court, this is taken to mean that the couple were, at the time of arrest, engaged in illicit sexual intimacy that may or may not have included unlawful sexual intercourse (zina). Furthermore, what counts as “immoral” acts heavily depends on the subjective interpretations of the religious enforcement officers conducting the arrest. The rather loose and ambiguous definition of what constitutes khalwat thus makes it easier to prosecute couples on this charge, as opposed to other crimes such as zina (s. 23), for example, which would require the testimony of four male witnesses who actually observed the act of sexual penetration taking place.
[25] ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nurul Huda Mohd. Fazif, Journal of Women of the Middle East and the Islamic World, Volume 18, Issue 2-3, Brill, October 2020, pp.335-336.
Policing of immoral offences is conducted by a dedicated Islamic enforcement unit (Vice Prevention Unit (VPN)) and typically done in areas synonymous with immoral behaviour, like budget hotels, and at other locations when notified by members of the public.[26]
[26] ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nurul Huda Mohd. Fazif, Journal of Women of the Middle East and the Islamic World, Volume 18, Issue 2-3, Brill, October 2020, p.336.
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).
DECISION
120. 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 Burford
Senior 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.
…

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 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.
…

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.
…

[2023] AATA 878

27 February 2023

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