1706007 (Refugee)

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.