1706015 (Refugee)

[2021] AATA 3097

1706015 (Refugee) [2021] AATA 3097 (10 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706015

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Simone Burford

DATE:10 August 2021

PLACE OF DECISION:  Perth

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

Statement made on 10 August 2021 at 6:23pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – combined hearing with partner’s separate application – economic and political conditions, and COVID-19 pandemic – mixed-religion relationship began after protection application made – Christian woman and Muslim man – credibility – worked while on holiday visa, then applied for bridging visa for work rights unaware she was applying for protection visa – some inconsistencies in claims and evidence – no mention of relationship in first hearing – country information – Syariah-based marriage laws and increasing religious conservatism – pressure to convert and persecution – Australian marriage would not be recognised – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), (6), 5LA, 36(2), 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
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 2
Guo Wei Rong and Pam 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 Wu Shan Liang (1996) 185 CLR 259
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220.
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZVAP v MIBP [2015] FCA 1089

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a [Age]-year-old Malaysian citizen. She is from Sabah, Malaysia.  She identified herself in her application for protection as Christian and identified herself at the hearing as a member of [an] Indigenous Borneo tribe. She is not married and has no children.

3. Prior to coming to Australia, she was living with her mother in [a village] and then with her [sister] in Kota Kinabalu. Her mother continues to live in the village.  She lives alone but at any one time one of her sisters is with her to support her.  She has [number] sisters.  Her oldest sister lives in Kota Kinabalu and is [an Occupation 1].  She previously lived in [Country] for 8 years. She is now married and back in Malaysia but her husband is unemployed. [Details of other sisters].

4. She has a partner she met in Australia, who is also an applicant for a protection visa.  His application and claims are discussed further below.  He is a Malay citizen from Selangor and is a Muslim.  His family live in Shar Alam, Selangor.  His parents are pensioners.  He has three siblings. [Details of siblings deleted]. All his siblings are married.

5. The applicant arrived in Australia [in] July 2016 on [an] Electronic Travel Authority visa. She travelled to Australia alone.

6. The applicant applied for the protection visa on 4 October 2016.

   Issues

7. The issues in this review are whether there is a real chance that, if she returns to Malaysia, the applicant 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 her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

8. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   CLAIMS AND EVIDENCE

   Protection claims

   Protection visa application

9. The 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. 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.

10. The applicant submitted a copy of her Malaysian passport issued [in] 2016 to the Department. No further evidence was submitted to the Department.

11. The applicant was not interviewed by the Department in relation to the application.

    The delegate’s decision

12. The delegate refused the visa on 9 March 2017.  The applicant provided a copy of the delegate’s decision to the Tribunal with her application for review.

13. The delegate refused the visa on the basis they were not satisfied that there is a real chance that, if the applicant was returned to Malaysia, she would be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s.5H and the criterion in s.36(2)(a) of the Act was not satisfied.

14. The delegate found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Malaysia, there is a real risk that she will suffer significant harm. Accordingly the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) of the Act.

    Review application

15. The applicant filed her application for review on 26 March 2017.

16. The applicant initially appeared before the Tribunal on 24 September 2020.  The applicant did not attend the hearing. The Tribunal was letter informed that she had difficulties with her phone and as there were records of attempts to contact the Tribunal, the matter was relisted for 25 November 2020.

17. The hearing on 25 November 2020 was held by MS Teams.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by electronic communications, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by electronic communications. The applicant did not raise any concerns regarding the conduct of the hearing by electronic communications. 

18. At that hearing the Tribunal discussed with the applicant whether there were any changes to her claims and the information on which she was seeking to rely in support of her claims. The applicant told the Tribunal that she had a boyfriend here who is a Muslim and they were planning to get married but she was not certain with her visa status and that when they go back to Malaysia the marriage ‘will not be accepted or received’. She told the Tribunal that her boyfriend was on a ‘prospective sponsorship’ visa and that his application was being processed but being handled by a lawyer.  She said it was a sponsored visa.

19. Following the first hearing the applicant submitted the following documents:

    ·Statements titled ‘Working in Australia’ and ‘Why I don’t intend to leave Australia’.

    ·An employment letter dated 24 February 2021 from [Mr A], [Job Title], [Employer].

    ·Document titled ‘Malaysia politics is caused second wave of Covid-19’.

    ·‘Covid-19 made worse by politics’, New Straits Times, 15 October 2021.

20. A further hearing was held in person on 9 March 2021. At that hearing the applicant indicated that her partner was in fact an applicant for a protection visa which was before the Tribunal on review. She told the Tribunal that her partner was a Muslim from Kuala Lumpur and that in Malaysia they couldn’t get married and they were worried her partner’s family would be against it and he may be put in prison and she would be an accomplice.

21. The Tribunal also discussed with the applicant conducting a further combined hearing with her partner who was also an applicant for protection.

22. Following an initial hearing with the applicant’s partner where he confirmed his claims and details, a combined hearing was scheduled for 19 May 2021.  However, just prior to the hearing it became evident the scheduled interpreter had worked for the applicant and her partner in relation to translating documents for the hearing.  The Tribunal decided to reschedule the hearing to enable an alternate interpreter to attend. A further combined hearing was scheduled for 14 June 2021; however a registry oversight saw the same interpreter engaged.  The Tribunal used that hearing to confirm both the applicant and her partner consented to the joint hearing and explained at the hearing that the applicant should give consideration to submitting evidence regarding the mixed marriage claims, including confirming the religious faiths of both applicants and evidence of the claimed de facto relationship in Australia. A further combined hearing was held on 28 June 2021 to give evidence and present arguments. The hearing on 28 June 2021 was held in person at the Perth registry. 

23. The hearings were conducted with the assistance of an accredited interpreter in the English and Malay languages. The applicant was not represented in relation to the application to the Tribunal. 

24. On 19 May 2021, prior to the combined hearing, the applicant submitted a signed ‘Notification of changes in circumstances’ Form 1022 to the Tribunal. That form listed the applicant’s relationship status as ‘de facto’ and listed under ‘Details of other applicants’ the personal details of her partner.  Under details of changes, the form listed the applicant’s original claims under ‘information which is no longer current’ and then under ‘new correct details’ stated:

    All above and additional reason:

    1.    Mixed Marriage.

25. The Tribunal notes that the applicant included under ‘details of other applicants’ the details of her partner. However, as her partner has his own application and cannot be added to the application on review, the Tribunal understood this to be for the purposes of including her partner’s details in her application.  The Tribunal notes the applicant and her partner signed the form.

26. The Tribunal explained at the hearing that the applicant should not assume that any of her claims have been accepted by the Tribunal, even if they had been accepted or not addressed directly by the delegate. The Tribunal considered that all aspects of her claims were in issue before it, including whether she satisfied each of the criteria of ss.36(2)(a) and 36(2)(aa).

27. The Tribunal also explained that s.423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

28. The Tribunal indicated that it would like to take evidence from the applicant’s partner and that it proposed to schedule a combined hearing with the consent of both applicants.  The hearing was adjourned and the Tribunal indicated the applicant would be notified that a further hearing was to be held.

29. The combined hearing was held on 28 June 2021.[1]  Both the applicant and her partner separately consented to the combined hearing. They both gave evidence separately at the hearing.  In addition, the Tribunal called several witnesses to give evidence regarding both the applicant and her partner’s claims.

    [1] Tribunal Case No: 1706015.

30. Prior to the combined hearing on 28 June 2021 the applicant submitted the following evidence to the Tribunal on 19 May 2021:

    ·A statement by the applicant titled ‘What happened at the first hearing session’;

    ·[Airline] flight itinerary dated 16 May 2021 in the applicant and her partner’s names for a flight to Melbourne on 2 July 2021;

    ·[hotel] booking for a hotel in Melbourne from 2-4 July 2021 in the applicant’s partner’s name;

    ·[Financial services] statement in the applicant’s partner’s name at an address in [Suburb] dated 7 December 2020;

    ·Vehicle insurance policy dated 2 December 2020 in the applicant’s name at an address at [Suburb];

    ·Rent invoice for the address in [Suburb] bearing the name of the applicant, her partner and a third person;

    ·Residential tenancy application in the name of the applicant, her partner and a third person for an address in [Suburb], dated 21 November 2019;

    ·Confirmation of employment from [Mr B], dated 17 May 2021 from [Employer], confirming the applicant’s employment there since December 2017;

    ·Translated copies of text messages between the applicant and her partner from June, July, November 2018 and March of an unidentified year; and

    ·Photographs of the applicant and her partner together and with others.

31. On 17 June she submitted the following documents relating to her claimed religion and relationship:

    ·A copy of the applicant’s MyKad, Malaysian identity card which does not note her religion;

    ·A copy of the applicant’s partner’s MyKad, Malaysian identity card noting the applicant’s partner’s religion as ‘Islam’

    ·An original and translated copy of a Marriage Register for [Mr C] and [Ms D] (the applicant’s sister) recording their marriage in [Church 1], [Town 2], Sabah on 25 May 2013; and

    ·An original and translated copy of the Baptism certificate of [Ms D] in [Church 2] of Borneo [in] December 1990.

32. The Tribunal also had regard to the following information which was submitted to the Tribunal on 21 June 2021 prior to the combined hearing:

    ·Copy of a lease variation (and associated correspondence) for the applicant and her partner’s address removing a third tenant, dated 16 June 2021;

    ·Licence and registration documents for the applicant and her partner indicating they have the same residential address;

    ·Email from the third tenant dated 14 June 2021 confirming he left the property in December 2020;

    ·‘Mytrip’ flight booking for 13 December 2020 from Perth/Singapore/ Kuala Lumpur for the third tenant;

    ·Photograph of the applicant and her partner with another couple in wedding attire;

    ·Statutory declaration (on Form 888) of [Mr E] (undated and unsigned);

    ·Statutory declaration (on Form 888) of [Mr F] dated 20 June 2021.

33. The Tribunal also had regard to the following information submitted by the applicant’s partner in support of his application and discussed at the combined hearing:

    ·Statutory declaration (on Form 888) of [Ms G] (unsigned and undated);

    ·Statutory declaration (on Form 888) of [Ms H] dated 17 June 2021; and

    ·Letter from [Mr B], [Employer] dated 20 June 2021 confirming knowledge that the applicant and her partner are in a de facto relationship.

34. The applicant’s claims for protection and the evidence on which she was seeking to rely were discussed at the hearings. The Tribunal also took evidence privately from the applicant’s partner.  In addition the Tribunal took evidence from the following witnesses at the hearing:

    ·[Ms G], a friend of the applicant and her partner;

    ·[Ms H], an employer of the applicant and her partner;

    ·[Mr B], the applicant’s employer at [Employer]; and

35. An attempt to contact [Mr F], a friend of the applicant, was unsuccessful.

36. This evidence and the applicant and her partner’s oral evidence to the Tribunal at the hearings are discussed further below.

37. The Tribunal notes that it discussed with the applicant at the hearing what was then the current Department of Foreign Affairs and Trade (DFAT) Country Information Report: Malaysia dated 13 December 2019 (the 2019 DFAT Report) in considering the claims raised in the application. On 29 June 2021, DFAT released an updated country information report for Malaysia – the Country Information Report: Malaysia dated 29 June 2021 (the 2021 DFAT Report).  The Tribunal considered the content of that report with respect to the applicant’s claims.  The Tribunal considers that the general content of the report as it relates to the applicant’s claims is consistent with the 2019 DFAT Report and with other country information discussed at the hearing.  Relevant country information is discussed further below.

    Applicant identity and country of reference

38. The applicant claims to be a citizen of Malaysia. As noted earlier, the applicant provided a copy of her Malaysian passport to the Department and to the Tribunal.  The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.

39. The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purposes of the refugee and complementary protection assessments.

    DECISION MAKING FRAMEWORK

    Criteria for a protection visa

40. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.

41. 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.

42. 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).

43. 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.

44. 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.

    Credibility assessments

1. In determining whether the applicant is 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.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[2]

   [2] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36] –[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

2. 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.[3]  Further, in assessing the credibility of the applicant’s 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.[4]

   [3] 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 Pam 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.

   [4] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

3. 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.[5] 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.[6]

   [5] MIMA v Rajalingam (1999) 93 FCR 220.

   [6] 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.

4. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[7] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[8]

   [7] 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].

   [8] 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.

5. 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.

6. 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.[9]

   [9] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

7. The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.  In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, in particular [8], [13], [17]–[19] and [27]–[28].

   Mandatory considerations

8. 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.

9. As noted earlier, the Tribunal discussed with the applicant at the hearing the 2019 DFAT Report, which was then the current DFAT Country Information Report: Malaysia, in considering the claims raised in the application. The Tribunal has also considered the most recent DFAT Report - the 2021 DFAT Report. The Tribunal considers that the information contained in the most recent report was materially the same as the country information put to the applicant at the hearings such that it raised no new issues with respect to the application for review.

10. The Tribunal has included references to both the 2019 DFAT Report and the 2021 DFAT Report where relevant. The Tribunal was satisfied that the issues arising from the 2021 DFAT Report had been raised with the applicant at the hearing.  Accordingly, the Tribunal determined that a further hearing was not required as no new dispositive issues were raised by the 2021 DFAT Report.

11. Country information is discussed further below.

    CONSIDERATION

12. In her application and at hearings before the Tribunal the applicant claimed to fear harm on several bases.  The Tribunal considered each of the integers of the applicant’s claims for protection individually and then cumulatively.

13. As noted above, the applicant’s claims at the hearing changed significantly, principally with the introduction of claims relating the applicant’s claim to be seeking religious freedom and her claim based on being in an interfaith marriage.

14. During the hearing, the Tribunal discussed with the applicant her background, her family, her education, where she lived, her employment history in Malaysia and Australia, her prior travel to Australia, why she left Malaysia, her relationship in Australia and why she fears returning to Malaysia. There were several inconsistencies between the claims in her application for a protection visa and her oral evidence to the Tribunal. This raised concerns in relation to the credibility of those claims. These are discussed further below.

    Economic and political claims including COVID 19

15. In her application for protection, the 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.  At the first hearing and in her change of circumstances form she confirmed these were her claims. She added in the change of circumstances form that she was also claiming harm due to being in a ‘mixed marriage’.

16. At the hearing on 9 March 2021 the applicant told the Tribunal she travelled to Australia because of her own financial problems. She said she was trying to find a job and it was very difficult. Her family depended a lot on her whenever there was a problem and she couldn’t hold down a job because she needed to go home regularly.  She was helping her sister with her [business] and not getting paid.  Sometimes she was compelled to use her own savings to supplement her sister’s [business] when she was pregnant and not working.

17. She said a friend suggested she come to Australia so she did.  She said she didn’t know she wasn’t allowed to work on a holiday visa.  She felt that ‘in hindsight I feel I was lied to on social media. Promising all sorts of things, make lots of money, wanted to stay here and I wanted to work lawfully.’  She heard you could apply for a bridging visa and she wanted to work and ‘make the best of it’ so she applied for a bridging visa. The Tribunal asked if she understood she had applied for a protection visa and she said she didn’t at the time.  She said she had heard about a student visa but it was beyond her means and would have restricted her work rights. The Tribunal asked if it was correct to say that she applied for the protection visa because she wanted work rights and this was the visa she could afford and she said ‘yes’.

18. When asked at the second hearing about her fears on return to Malaysia, she said that if she went back she will not be able to find a job. She said that no one would employ her because she doesn’t have qualifications and her [sisters] have their own commitments so the only thing she would be doing is looking after her mum and she would have no source of income and her sisters would not help her financially. She said this was the same situation when she left.

19. The Tribunal accepts that the applicant came to Australia seeking work and a better life for her family.  The Tribunal finds that this was the real reason for the applicant coming to Australia and that at no time has the applicant come to Australia genuinely seeking protection for the reasons set out in the Act.

20. Seeking economic benefits in another country, in and of themselves, do not give rise to an objectively well-founded fear of harm for the purposes of the refugee criterion, nor does it give rise to reasonable apprehension of harm under the complementary protection assessments, and given the evidence before the Tribunal, the Tribunal so finds.

21. The Tribunal accepts the applicant’s evidence with respect to her poor economic circumstances in Malaysia as compared with her experience in Australia; however, as the applicant has indicated she has previously worked in Malaysia and has experience working in a variety of jobs in Australia including [specified] work, the Tribunal finds that she would likely be able to find employment in Malaysia. She also indicated she would live with her mother and while she said her sisters would not support her they are supporting her mother and the Tribunal considers it likely she would have support from them in the event she was caring for her mother.

22. The Tribunal had regard to the 2019 DFAT Report in considering the claims raised in the application, in particular its discussion relating to the economic conditions in Malaysia and treatment of returnees.  The Tribunal raised this information at the hearing. 

23. The Tribunal put to the applicant that country information suggests that the World Bank classifies Malaysia as an upper-middle income, export-oriented country[10].  Malaysia’s economic performance over several decades has led to a significant reduction in poverty, with the share of households living below the national poverty line falling from 50 per cent in the 1960s to less than 1 per cent today,[11] indicating economic growth has been inclusive. The UNDP’s human development in tech index ranked Malaysia 57 out of 189 countries in 2018 placing it in the high human development category.[12] The unemployment rate was 3.3% according to the Malaysian Department of Statistics’ February 2019 figures.[13] The applicant said she did not have anything to say in relation to this information but that she hoped she would be able to stay and work here.  The Tribunal finds based on credible country information that the economic circumstances in Malaysia are generally not such as would meet the definition of serious harm contained in s.5J(5) of the Act.

    [10] 2019 DFAT Report, at [2.9]; 2021 DFAT Report, at [2.9].

    [11] 2019 DFAT Report, at [2.10]; 2021 DFAT Report, at [2.9].

    [12] 2019 DFAT Report, at [2.10]; 2021 DFAT Report, at [2.9].

    [13] 2019 DFAT Report, at [2.12]; 2021 DFAT Report, at [2.9].

24. In any event, even were the applicant’s economic circumstances to amount to serious harm for the purposes of that section, the applicant has failed to identify, having regard to s.5J(1)(a), any basis on which the economic hardship she claims arises by reason of race, religion, nationality, membership of a particular social group or political opinion.

25. Poor economic circumstances in Malaysia do not, in the absence of other considerations, give rise to a well-founded fear of harm for the purposes of the refugee criterion.  In this respect, the Tribunal refers specifically to s.5J of the Act relating to a well-founded fear of persecution in a country, particularly the requirement at subsection 4(C) which requires that the persecution must involve systematic and discriminatory conduct.

26. Generalised economic circumstances in a country do not meet the requirements of systematic and discriminatory conduct in the absence of other considerations.  The Tribunal finds that the applicant has provided no evidence that the economic circumstances she has referred to in her claims amount to systematic and discriminatory conduct with respect to her.

27. The applicant also failed to provide any detail of activity or fears related to the prevailing political circumstances, or ‘political reasons’, in Malaysia.  Accordingly, the Tribunal finds that the applicant does not face persecution involving systematic and discriminatory conduct for the purposes of the refugee criterion in Malaysia, now or in the reasonably foreseeable future, arising from ‘economic or political’ circumstances in Malaysia.

28. The Tribunal also notes that in order to give rise to a real risk of significant harm under the complementary protection assessment, a similar motivation of harm towards the applicant from identifiable agents of harm is required.  On the basis that the applicant has not provided any evidence of an identifiable agent of harm motivated to cause her significant harm in that country, the Tribunal finds that she has not made out her case to the relevant standard.

29. The real risk test imposes the same standard as the real chance test.  Noting the findings the Tribunal has already detailed relating to the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm now or in the reasonably foreseeable future, on this basis.

30. The applicant raised a concern about COVID-19.  She did not express any specific concern regarding this with respect to her personal circumstances or any actions or responses by Malaysian authorities which may give rise to a risk of harm in this regard. She provided an article and statement that suggested the Malaysian government’s responses to COVID-19 were inadequate and had resulted in a second wave outbreak.

31. It is acknowledged that the international public health crisis arising from the current COVID- 19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia.  The Tribunal notes that this decision is not a decision on removal.  However, the Tribunal is mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.  Accordingly, for the removal of doubt, the Tribunal finds that that there is no information before the Tribunal suggesting or supporting a claim that the COVID-19 pandemic or the Malaysian government’s response to it gives rise to a well-founded risk of persecution on the part of the applicant on return to Malaysia. In particular, the Tribunal notes that there was no claim that any actions would arise on any basis with respect to COVID-19 and the government’s response to it, having regard to s.5J(1)(a), by reason of race, religion, nationality, membership of a particular social group or political opinion. 

32. Further, there is no evidence that as a reasonably foreseeable consequence of the applicant’s return to Malaysia there is a real risk she would suffer significant harm on that basis.  In this regard, the Tribunal finds that whatever measures may be applicable to the population of Malaysia generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of the complementary protection provisions.

    Relationship with previous partner

33. In addition to indicating she wished to leave Malaysia to find employment, the applicant said she left because she wanted to be further away from her ex-partner who is a Muslim. She said they had been in a relationship for more than 20 years. She said the relationship couldn’t go anywhere because she refused to convert and the laws of Malaysia do not permit an interfaith marriage with a Muslim.  She told the Tribunal the relationship ended prior to her leaving Malaysia and she last had contact with him in 2018 but she was worried if she went back to Malaysia she may end up going back to the relationship because her former partner was very persuasive.  She said she didn’t want to get back together because both families opposed the relationship. 

34. The applicant told the Tribunal that throughout the relationship her partner had been an alcoholic and he would come to the family home and cause trouble.  They never lived together.  The Tribunal asked why she did not raise these claims in her application for protection and she said it was a long story so she couldn’t put it down, she felt she could only write ‘economic and political problems’.   She said the family had financial problems and if she were to go back she would not be able to support her family and mother. She said she was paying for her mother’s personal expenses and supporting her sister who is having trouble with her business. She said their income is low and she supports them. 

35. She said she had never reported her partner to the police because they don’t pay too much attention to drunks and he ‘hadn’t killed anyone’, he only made noise. She said it made her upset. She said her uncle wanted to report him to police but she said no because she didn’t want to escalate the problem.  When asked what she thought would happen to her when she went back, she said she wanted to build a life for herself elsewhere. As long as she was living in Malaysia she would always be living with her parents.

36. The applicant did not articulate a claim to fear harm from her former partner on return to Malaysia. At its highest she said he may come to her house when drunk and that this was embarrassing to her family who did not like him.  She did not suggest she would be forced into a relationship with him or harmed as a result of being in a relationship with him, which includes on the basis of the relationship being interfaith.  In this regard the Tribunal notes the applicant claimed the relationship lasted around 20 years.  She now claims to be in another de facto relationship (considered further below).

37. The Tribunal also had serious credibility concerns regarding any claim associated with the applicant’s former partner as this claim was not raised before the primary decision was made and the Tribunal considered the applicant did not offer any satisfactory reason why the claim had not been raised earlier.

38. Based on the applicant’s evidence before the Tribunal, the Tribunal considers that the applicant’s claim to fear harm from her prior partner, to the extent such a claim was articulated, is not genuinely held.  The Tribunal finds that the applicant does not have a subjectively held, well-founded fear of serious harm on return to Malaysia due to ‘economic and political issues’. 

1. The Tribunal is entitled to consider whether an applicant subjectively has a well-founded fear of persecution, as defined at ss.5H and 5J of the Act, before considering whether such a fear is objectively held, or to proceed on the assumption that such a fear is held.  However, if the Tribunal finds on the evidence that the applicant does not have a subjectively well-founded fear of persecution, there will be no need to consider whether there is an objective basis for the claimed fear, or indeed whether other aspects of Australia’s refugee protection obligations are satisfied.   Conversely, if the decision maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is a subjective fear.

2. Accordingly, the Tribunal finds that there is not a real chance that, if the applicant were returned to Malaysia, she would be persecuted for the essential and significant reason of her previous relationship now or in the reasonably foreseeable future. 

3. The real risk test imposes the same standard as the real chance test.  Noting the findings the Tribunal has already detailed relating to the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm now or in the reasonably foreseeable future, on this basis.

   Interfaith relationship with a Muslim man

4. The applicant first raised her claim to fear harm on return to Malaysia on the basis of her current relationship at her second appearance before the Tribunal.  At her earlier appearance she had mentioned she was not sure if their relationship would be recognised due to her visa status but she did not raise a claim to fear harm due to the interfaith nature of the relationship.

5. At the second appearance she said that that she was in a relationship with a Muslim man and that at least here they can live together. She said she didn’t want to convert and his family did not know about the relationship because he is Malay and his family will not want them to be together. She said they had kept the secret.  She said they were afraid because he didn’t know how his family would react and he was worried. She said his parents are not very well and he doesn’t want to worry them about the relationship.

6. She told the Tribunal they were planning to get married but that he doesn’t want to cause any trouble and even if they were to get married in Australia if they went back to Malaysia he could be put in prison. She said she will be accused of being an accomplice. She told the Tribunal at that time that she didn’t want her partner to be in her application as well because she didn’t want his visa to be affected.  She told the Tribunal that her partner had suggested they get married but she turned him down because she ‘was not confident in the relationship and because we have different religions, he wanted me to convert to Muslim’.

7. In later material submitted before the combined hearing she said they had argued about the visa and she was angry at the hearing which is why she hadn’t wanted him involved.  She said they were worried it would impact his sponsorship visa. 

8. The Tribunal considers this claim can be cast as a claim based on being a member of a particular social group being ‘Christian women who are married to or in a de facto relationship with Muslim men in Malaysia’.  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 females who are members of a Christian faith who are in a married or in a de facto relationship with a Muslim man. Country information cited below 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 ‘Christian women who are married to or in a de facto relationship with Muslim men 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 accepts that this claim is consistent with the grounds set out in s.5J(1)(a) of the Act.

9. In relation to the applicant’s claim that she is now in an interfaith relationship, the applicant said she is a Pentecostal Christian, a member of the Borneo [Organisation]. In support of this claim she provided evidence of her Malay MyKad which does not nominate a religion, consistent with non-Muslim Malays.[14]  She also provided a copy of her sister’s baptism certificate and her sister’s wedding certificate, which both indicated ceremonies conducted in [Church 1].  She said that due to COVID-19 travel restrictions no one was able to travel to her village to obtain her own baptism certificate from her mother’s house.  She said her mother was elderly and unable to provide it to her without the assistance of one of her siblings.  Her sister provided her baptism certificate to show the family is Christian.  Having regard to the prevailing limits on movement due to COVID-19 the Tribunal accepted this explanation.  The evidence provided and prevailing country information indicates that the Christian population of Malaysia is predominantly located in Sabah and Sarawak where the applicant is from.[15]

   [14] 2019 DFAT Report, at [3.26]; 2021 DFAT Report at [3.26].

   [15] 2019 DFAT Report, page 29; 2021 DFAT Report, at [3.23] and [3.52].

10. The Tribunal accepts that the applicant is Christian.  As noted above, she gave evidence that she is not a practising Christian.  She had previous relationships in Malaysia including with a Muslim partner. She did not come to the attention of authorities while in that relationship, however they could not live together as they were not of the same faith. 

11. The applicant indicated that she met her current partner, who is also a Malaysian national, shortly after she arrived in Australia.  She said at first they lived together with many others at a share house but after they got to know each other they moved in together.  The applicant’s partner provided a copy of his MyKad stating his religion as Islam. This is consistent with country information indicating Muslim Malays’ religious faith is reflected on their MyKad.[16]The Tribunal accepts that the applicant’s partner is a Muslim and is so registered and identified by Malaysian authorities.

    [16] 2019 DFAT Report, at [3.26]; 2021 DFAT Report at [3.26].

12. The applicant indicated that she knows her partner is a Muslim and that the implications of their being of different faiths was a reason for them not having married to date, including when the applicant proposed in December 2017.  The Tribunal asked if she thought they would have any problems if they married.  She replied that they wouldn’t have any problems in Australia but if they returned to Malaysia they would face a lot of problems because of Syariah law.  She said their relationship would not be recognised because she is not a Muslim.  She indicated that if they were reported they could be caught by a Muslim religious body and jailed because they would be breaking the law. 

13. As noted above, the applicant’s partner has also made a protection visa application which is currently before the Tribunal. 

14. The Tribunal invited the applicant’s partner to give evidence at the combined hearing.

15. The applicant’s partner said that they were not in a relationship when he made the application.  He said when she first appeared before the Tribunal they had a disagreement about what to do because he had another application on foot.  This cause them to fight about it (evidenced in text messages provided by the applicant).

16. The applicant’s partner said they met in a share house after he arrived and they started going out shortly after.  There were some discrepancies in when they considered themselves to be de facto partners but the Tribunal considered this was largely due to problems around understanding the definition of a de facto relationship. Based on the evidence the Tribunal accepts they were living together as a couple from some time in 2017.  Evidence of their cohabitation is addressed further below.  The applicant’s partner told the Tribunal their families were not aware of the relationship but people at their work and friends in Australia were. He said it would make them trouble in the future if it was known.  He said ‘ for obvious reasons my family would not agree for me to marry her.’ He said that his family would be disappointed and upset and report the matter to the authorities in Malaysia. He said if he continued the relationship it would be considered against the law and his family would report him to be sent for rehabilitation. He said he would be detained and the applciant ‘would be forced to embrace Islam’.

17. He said they discussed getting married in late 2017 but the applicant refused because of religion.  She did not know how they would stay married and he informed her he was seeking freedom of religion and they decided to get married when they had ‘full protection’,

100.   While the Tribunal had concerns regarding both the applicant’s credibility, given the inconsistent evidence mentioned earlier and her failure to declare the claim in relation to the relationship to the Tribunal at her first appearance, and that of her partner whose other claims for protection the Tribunal did not accept, having carefully considered the evidence provided subsequently in relation to the applicant and her partner’s claimed de facto relationship as well as having observed them at the hearing, the Tribunal is satisfied that they are in a genuine de facto relationship and have been since 2017.

101.   In reaching this conclusion the Tribunal gave significant weight to the written statements and subsequent oral evidence given at the hearing (at the Tribunal’s instigation) by: [Ms H], an employer of the applicant and her partner, who has known the applicants since 2017 in her capacity as [a] worker at the [workplace] where they work and observed they were in a relationship and reside at the same address on the payroll; and [Mr B], who is the employer of both the applicant and her partner and has observed them together over a number of years and attested to them having been in a relationship for a ‘while’.  The Tribunal found [Ms H] and [Mr B] to be genuine, forthright and credible witnesses.  [Ms G], a friend of the applicant and her partner, also gave evidence in support of the genuiness of the relationship.  The Tribunal notes [Ms G] also told the Tribunal she is in a mixed marriage and is an applicant for protection.  The Tribunal accepted [Ms G]’s evidence in support of the genuiness of the relationship. 

102.   The Tribunal also found the rental documents confirm that the couple have been living together at least since November 2019.  While some of that period included a third tenant, the Tribunal accepts based on all the evidence that the applicant and her partner were living together in the house as a couple.  This is also evidenced by their continuation of the lease in the absence of the third tenant. Official documents addressed to the couple at the same address also support this claim. Photographs of the applicant and her partner together and with others also support the claimed relationship.

103.   The Tribunal also accepts that the applicant’s partner is a Sunni Muslim as claimed in his application (his Malaysian identity card indicates his religion is Islam) and that the applicant is a Pentecostal Christian.  The Tribunal accepts, therefore, that the applicants are in a Muslim-Christian interfaith relationship as claimed.  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.

104.   In their statements both the applicant and her partner indicate that they plan to marry if they are able to remain in Australia and commence a family in the near future.  The applicant noted she was 40 years old and they were running out of time to have a family.  The Tribunal has no reason to doubt these statements.  The Tribunal notes and accepts the claim that they have chosen not to marry in Australia because they have been able to live together in a de facto relationship, did not want to upset the applicant’s partner’s parents and feared repercussions from authorities and estrangement from their families if they were forced to return to Malaysia. 

105.   Having considered the DFAT reports, the Tribunal concludes that there is a real chance that the applicant would suffer persecution involving serious harm as a consequence of her being in a Muslim-Christian interfaith relationship with her partner should she return to Malaysia.  The Tribunal finds this would be because she is a member of a particular social group comprising Christian women who are in an interfaith relationship with a Muslim man in Malaysia.

106.   The DFAT reports indicate the following matters of relevance to interfaith relationships:[17]

[17] 2019 DFAT Report at [2.37], [3.26], [3.29], [3.30], [3.34], [3.39], [3.66]-[3.68], [3.78], [3.81]; 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.

·Individuals who have attempted to convert from Islam have faced long and expensive legal battles, involving both the federal civil courts and state Syariah courts. An individual wishing to convert from Islam must first obtain permission from a state Syariah court. The court will declare them an apostate. State Syariah courts rarely grant such declarations and, in some states, including Melaka, Pahang, Perak and Sabah, apostasy is a crime punishable by fine, a jail sentence, or caning. DFAT is not aware of cases in which such punishments have been applied in practice. Only Syariah courts can hear cases on conversion from Islam.

·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 on 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.

107.   The DFAT reports make clear that a Muslim man cannot marry a non-Muslim in Malaysia.  While the DFAT reports do not refer specifically to the offences of Khalwat and Zina, the Tribunal is satisfied that these offences exist in state and federal territories-based Syariah law in Malaysia.[18]  These offences mean that if the applicant and her partner attempted to live in a de facto relationship her partner would be liable for prosecution under Syariah law for having committed the offences of Khalwat and Zina.  The Tribunal also accepts that should they wish to marry, the applicant may be pressured to convert.  She may also be subjected to adverse treatment but members of the Muslim community for failing to covert. The marriage would not be recognised and any children from the marriage would be considered to be illegitimate.

[18] 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. The Tribunal further accepts that any children would be considered Muslim and would be subject to Syariah law which would preference the applicant’s partner in terms of parental rights and decisions with respect to the children.

109.   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.

110.   The Tribunal also notes the commentary in the DFAT reports 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.

111.   The Tribunal notes that a non-Muslim can convert to enable them to marry a Malaysian Muslim and discussed this with the applicants.  The applicant’s partner indicated that she is a Christian and does not wish to convert to Islam, as is her fundamental right.  The Tribunal accepts her expressed desire not to convert to Islam was genuine. The Tribunal notes that the applicant’s account of her prior relationship history in Malaysia indicates it may be possible for the applicant and her partner to have an interfaith relationship in Malaysia as she has in the past but that to do so carries limitations and risks of detection and persecution.

112.   Considering the available evidence, the Tribunal finds that the applicant and her partner are in a genuine and continuing de facto relationship.  The Tribunal finds that if the applicant returned to Malaysia she could not continue that relationship or marry her partner, because she is not a Muslim.  The Tribunal finds that if the couple married in Australia the marriage would not be recognised in Malaysia.  The Tribunal finds that if the applicant attempted to continue living in a de facto relationship with her partner in Malaysia there would be a real chance that she would face persecution involving non-recognition of her marriage, pressure to convert and the prosecution of her partner. The Tribunal also finds that it cannot dismiss as remote the chance that the applicant would suffer harassment and possible mistreatment amounting to serious harm from members of the Islamic community in Malaysia who took offence at the applicant living in an interfaith de facto relationship with a Muslim man.

Does the applicant have a well-founded fear of persecution if she returned to Malaysia?

113.   Having carefully considered the applicant’s claims the Tribunal finds there is a real chance that she will suffer persecution involving serious harm from the Malaysian authorities, including religious authorities, and/or members of the Malaysian community more generally, because she is a member of a particular social group comprising Christian women who are in a married or de facto relationship with a Muslim man in Malaysia, if she was to return to Malaysia now or in the foreseeable future.

114.   As the relevant laws apply across Malaysia the Tribunal finds that the real chance of persecution relates to all areas of the receiving country.

115.   In relation to s.5J(6) of the Act, the Tribunal is satisfied that the relationship between the applicant and her partner is a genuine relationship and is not conduct engaged in for the purpose of strengthening the applicant’s claim to be a refugee.

116.   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 applicant in the receiving country.

117. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

DECISION

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

Simone Burford
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.

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36     Protection visas – criteria provided for by this Act

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(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.

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