1706362 (Refugee)

1706362 (Refugee) [2023] AATA 503 (19 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Bruce Yoon
CASE NUMBER:  1706362
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Damian Creedon
DATE:19 January 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 January 2023 at 9:15am
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm because of political and economic issues – death threat because of opposition to government – new claims of atheism and anti-Islamic freedom of belief and behaviour – not fasting for Ramadan, drinking alcohol, and promiscuity – disapproval of parents and threats from neighbours – unmarried relationship in Australia – credibility – original claims written by acquaintance – no open renunciation of Islam or past harm – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant, a [Age]-year-old citizen of Malaysia, arrived onshore [in] February 2017 holding an Electronic Travel Authority (Class UD) (Subclass 601) visa.
The applicant applied for a protection visa on 25 October 2016 and is presently onshore on a bridging visa.
Protection visa application
In his protection visa application, the applicant claims to fear returning to Malaysia on account of political and economic issues, and claims to have received a death threat because of his opposition to the government of Malaysia.
The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision.
Application for review
The applicant was represented in relation to the review.
Evidence
The Tribunal has before it a range of material, including, relevantly:
a.A copy of the applicant’s Malaysian passport;
b.The applicant’s protection visa application forms;
c.The delegate’s protection visa decision record dated 7 March 2017 (delegate’s decision record), a copy of which was provided to the Tribunal by the applicant; and
d.The review application form lodged by the applicant with the Tribunal on 28 March 2017.
The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Malaysia, 29 June 2021 (DFAT Report).
Pre-hearing material
By a letter dated 5 October 2021 the applicant advised the Tribunal of his intention to change his claims for protection. The letter is brief, and it is convenient to set out its material aspects in full (uncorrected):
I am writing this letter to inform you that I would like to change my claim. My actual claim is freedom of thought and belief as a person to disobey Islam rules where I an freely drink alcohol, no fasting in Ramadan, promiscuity and more.
Whatever I am doing right now is totally against with Syariah Laws Malaysia.
I came to Australia to have freedom to live without worrying about Syariah punishment that will harm me and freely to act as an Atheist. I believed there is no Syariah laws implementation in Australia.
In support of his application the applicant provided two letters, each dated 5 October 2022. The first is from “[Mr A]” of [Address 1] in Western Australia and states materially as follows (uncorrected):
I am housemate of [the applicant] since 2017. I would like to inform you regarding his claim about Human Rights is genuine as I look him is doing things against and disobey the rules as a Muslim that cant be practiced in Malaysia where we do have Syariah laws. [The applicant] always drink alcohol at night, never seen him fasting in Ramadan.
The second letter is from “[Ms B]”, of [Address 2], Batu Pahat, Johor, Malaysia and states materially as follows (uncorrected):
I am writing this letter to inform you that I am witness for [the applicant], we are siblings and telling the real thing about his claim to seek protection in Australia.
When he was in Malaysia, he did so many things that were against Syariah laws such as not fasting in Ramadan, wearing jewelry, drinking alcohol and promiscuity.
We were staying in out parents’ house and our parents are disagreeing with his actions that not based on Islam, even neighbours ever told our family members to ask him to obey Syariah laws. Otherwise, they will lodge report to Jabatan Agama Islam (Islamic Department).
I am concerned about threats from neighbours and suggested that he not stay in Malaysia as he could get caught and punished by the enforcer to live in freedom. I am feeling happy with what he is having now in Australia without worrying about Syariah Laws.
The applicant also provided unattributed new articles relating to the enforcement of Syariah laws in Malaysia in respect of offences including the consumption of alcohol, “immoral activities”, and adultery.
Representative’s written submissions
The applicant’s representative provided written submissions prior to the hearing. The submissions set out the history of the applicant’s protection visa application, the background to his application and his claims for protection. The submissions are succinct and apposite and it is convenient to reproduce their substance (references omitted, and uncorrected):
Brief Case History
1.    In or about 2017, the Applicant was working at a [Workplace] in [Location] WA where he met a colleague called [Mr C];
2.    The Applicant explained his situation to [Mr C];
3.    [Mr C] introduced [Mr D] to the Applicant saying he could help the Applicant in respect of his visa status;
4.    The Applicant met [Mr D] and consulted with him about his visa status. [Mr D] suggested that he could help the Applicant in making a valid protection visa application for $300;
5.    The Applicant paid the sum of $300 to [Mr D];
6.    [Mr D] made a protection visa for the Applicant and acted as if he was the Applicant using the Applicant’s email address;
7.    [Mr D] did not ask about the basis of the protection visa application but filled out the form by himself;
8.    The Applicant did not understand English at all at that time and could not check and confirm the contents of the application;
9.    Sometime in 2021, the Applicant met a roommate called [Mr A]. The Applicant showed the application to [Mr A] and could understand with his help that the basis of his protection visa application was alluded as a risk of political persecution;
10. [Mr A] assisted the Applicant in filling out the Applicant Information Form (s.424(2) response) dated 5 October 2021;
[Paragraphs 11 – 16 relate to recent procedural history and are not relevant for present purposes.]
Background of the Application
17. The Applicant was born in a muslim family in Malaysia. His father, [Mr E] ([Age], [Occupation 1]) and his mother [Ms F] ([Age], [Occupation 2]), taught him to comply with Syariah law since the Applicant was young.
18. His older sister also influenced the Applicant to practice Muslim faith.
19. However, the Applicant was innately different from other Malaysians in terms of the religious culture and nature which all other friends and family members believed that they must necessarily comply with Syariah law.
20. His longing for freedom was erupted by way of disobedience of Syariah law in everyday life since he was [age] years old, which was naturally revealed to neighbors during Ramadan. Despite advice of his neighbors and family members, the Applicant could not accept the fact that he must fast during Ramadan. For this reason, he was threatened by his neighours for the non-compliance. He realized that his life was not safe in Malaysia.
21. When the Applicant turned [age] years old, one of his friends gave a bottle of alcohol and the Applicant drank it without hesitation. Since then, the Applicant occasionally saved up money to buy and drink alcohol.
22. The Applicant’s misconduct was eventually known to his neighbors and he was warned through his sister that they would report him to the Islamic Department in Malaysia.
23. The Applicant came to Perth [in] February 2016 on a tourist visa and lodged a protection visa application on 25 October 2016.
Real Risk of Significant Harm
24. The Applicant’s disobedience of Syariah law is drinking alcohol and not fasting during Ramadan period, which behaviours are not acceptable in the Applicant’s community and therefore a real risk of significant harm may be caused to the Applicant.
[Reference Omitted]
25. Furthermore, the Applicant met a girl friend in Australia and has been cohabitating with her without a formal marriage. In Syariah law the de facto relationship is illegal and the Applicant and his partner are unable to return to Malaysia unless they break the relationship because the Applicant will be subject to the RM 3,000 (equvalent to approximately AUD 990) or imprisonment for a term not exceeding 2 years or both pursuant to s29(a) and (b) of Syariah law.
[Reference Omitted]
26. In light of the above, if the Applicant is deported to Malaysia, there is a real risk of significant harm inflicted on the Applicant by the Applicant’s community members and eventually being punished by the Islamic Department in accordance with the Syariah Criminal Law.
27. Since the applicant's violations are not temporary, but are caused by the applicant's free beliefs and actions, even if the Applican bravely face the punishment one time, it is obvious that the Applicant will be subjected to scrutiny by his neighbors and will be repeatedly punished by the Islamic Department during his life time unless the Applicant is physically not present in Malaysia.
Humanitarian Grounds
28. Just because the Applicant drinks alcohol does not in any way mean that he is at the level of alcoholism. The Malaysian Muslim society to which the applicant belongs requires a thorough ascetic life that does not tolerate even social drinking, and they are forced to fast every year.
29. Forbidding certain favorite foods or forcing people without religious beliefs to fast is a violation of basic human rights.
30. The applicant has already settled with his partner in Australia and is enjoying a stable life but If the applicant is deported to Malaysia, he will be forced to separate from his partner. This is considered inhumane treatment.
31. Therefore, I submit that you consider the applicant's situation and exercise your discretionary power from a humanitarian perspective to allow the Applicant to remain in Australia.
Hearing
The applicant appeared before the Tribunal on 17 January 2023 to give evidence and present arguments. The Tribunal also heard evidence from the applicant’s partner, [Ms G]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
Where relevant the oral evidence of the applicant and [Ms G] is referred to below.
CONSIDERATION OF Claims and evidence
Criteria of 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 (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 he 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 he may nevertheless meet the criteria for the grant of the visa if he or he 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 he 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 the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Assessment of Claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for his or his. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Oral evidence
The applicant
The applicant is [one] of five children; his parents and four siblings all reside in Malaysia; he has no family in Australia; he is not married, although he has a long-term partner, [Ms G], whom he met in Australia and with whom he has been in a relationship since 2016. The couple reside together. [Ms G] is a Malaysian citizen with no rights of residency in Australia. The applicant has no children, and no other family members in Australia. He is an ethnic Malay.
The applicant achieved “[deleted]” level education in Malaysia, leaving school at the age of [age]. After leaving school he worked in “[Work sector]” until he travelled to Australia at the age of [Age].
In respect of the substance of his claims for protection the applicant’s evidence generally followed the course of his representative’s submissions. When asked by the Tribunal why he decided to travel to Australia the applicant stated that he wanted a “new life, new beginning” and that he wanted to find work. He stated that a friend in Malaysia had told him that there was work available in Australia and that he (the applicant) was motivated to start a “new life”.
When asked by the Tribunal what he meant by a “new life”, the applicant’s stated that he was born into a Muslim family and raised to be an observant follower of that faith. He stated, however, that he “never wholeheartedly followed” the teachings of Islam: for example, he “did not pray and did not fast”.
The applicant stated that from around the ages of “[age range]” he considered himself an atheist. When pressed by the Tribunal as to the nature of his atheism, the applicant stated that he does not believe that there is any god. When further pressed he stated that he has no spiritual beliefs.
Between the ages of [age range] (when he arrived onshore) the applicant lived with his parents. His evidence to the Tribunal is that he did not tell his parents that he had left the teachings of Islam, and that during this time he kept his decision to himself.
When asked expressly by the Tribunal whether his parents are aware now (today) that he is an atheist, the applicant stated:
I kept that to myself.
The applicant’s evidence is that he never shared his decision with anybody and that he would observe Muslim cultural practices in Malaysia to avoid openly infringing Syariah laws. When pressed for an example, the applicant stated that during fasting periods he would “put on a front” of observing the fast, but “was eating in secret”. The applicant stated that he ceased attending congregational prayers altogether, however, when pressed, he stated, that his absence was not noticed. When asked how observing Muslim religious practices such as congregational prayers made him feel, the applicant stated he believed it to be a waste of his time and that it made him “a little bit angry” to have to do so.

The applicant stated that he was introduced to alcohol by a friend when he was [age] He stated that he enjoyed drinking alcohol, and did so secretly at weekends, usually in private houses and sometimes with others.
When asked what the impact was on him of maintaining a dual life, the applicant stated that it was “always at the back of [his] mind” that he would be “found out, taken, and charged” under Syariah law, although this had never happened to him.
The applicant stated that on one occasion a “neighbour” saw him with a beer and threatened to tell the authorities if he continued in that lifestyle, however he made no claim that any such complaint was made or that there were any other consequences to him of this incident.
When asked why he could not continue to live a “dual life” in Malaysia, the applicant answered the Tribunal with the question “why should I be forced to do things I do not want to do”?
The applicant stated that, as he and his partner were not married, and he feared returning to Malaysia and infringing Syariah law on this account. He stated that the couple would be forced to separate.
The applicant stated that he does not see himself ever returning to Malaysia; he stated that he cannot live the life he is living here in Australia, back in Malaysia; he stated:
This is the life I want; I feel like I can do what I want to do.
The applicant confirmed that his sister, [Ms B], wrote a letter to the Tribunal on his behalf.
[Ms G]’s evidence
[Ms G]’s evidence to the Tribunal was brief, supporting the key aspects of the applicant’s evidence of which she has direct knowledge.
[Ms G] stated that she is of the Muslim faith, and that she believes in God according to the teachings of that religion. She stated to the effect that she follows Islamic teachings, but not devoutly.
Country Information:
The DFAT Report provides as follows:
Religion
Article 3(1) of Malaysia’s Constitution states ‘Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation’. Article 11(1) states every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.
The government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim. Some indigenous persons have adopted Islam, but many choose to practise traditional spirituality or Christianity. Ethnic Chinese Malaysians are generally Buddhist, Christian or Taoist, practise traditional Chinese folk religion and ancestor worship, or do not follow a religion. The majority of the ethnic Indian Malaysian population practises Hinduism, although a significant minority practises Christianity.
According to Malaysia’s last Population and Housing Census in 2010, Muslims comprise 61.3 per cent of the population, Buddhists 19.8 per cent, Christians 9.2 per cent, Hindus 6.3 per cent, and Confucianism, Taoism, and other traditional Chinese religions 1.3 per cent. Other minority religious groups include animists, Sikhs, and Baha’i. Rural areas, especially in the east coast of peninsular Malaysia, are predominantly Muslim, whereas the states of Sabah and Sarawak have relatively higher numbers of non-Muslims. Media estimates approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak, around 65 per cent of whom are indigenous.
While the Constitution guarantees freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. Laws such as Selangor state’s Non-Islamic Religions (Control of Propagation amongst Muslims) Enactment (1988) control and restrict the propagation of other religions, including non-Sunni versions of Islam. The UN Special Rapporteur in the field of cultural rights raised concerns over a trend of growing religious intolerance in Malaysia in September 2017, particularly toward Muslim minorities.
…
The religious status of Muslims is recorded on their birth certificates and on their national identification cards (MyKad), reportedly to assist with the application of syariah law. National identification cards do not distinguish between Sunni and Shi’a Muslims. Other religious affiliations are not reflected visibly on the surface of the card but are encrypted on a smart chip in the card instead. 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.
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. In June 2019, however, the office of the Islamic Affairs Minister announced the National Council for Islamic Affairs had agreed on a proposal to standardise syariah criminal laws in all states. Although the proposed changes had not yet come into effect at the time of publication, it is envisaged that a uniform set of syariah criminal laws would be made through amendments to the existing provisions, as well as adding new provisions to the Syariah Criminal Offences (Federal Territories) Act.
Family and personal laws governing Muslims, as well as laws relating to religious offences, are promulgated at the state level (see Family Law). Parliament can only pass legislation on such matters when it comes to the Federal Territories. Customary law (adat) – ancient unwritten laws that are found in a particular place where no rules have ever been enacted by the legislative authority – can also apply in Malaysia. Customary laws are generally concerned with matters of personal status (for example landholding and inheritance, or marriage).
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’. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Development (JAKIM) and the National Fatwa Council (see Federal and State Law Enforcement Entities). These bodies sit within the Prime Minister’s portfolio.
The manner in which Islamic affairs are organised at the state level is laid out in the Administration of Muslim Law Enactments. These state-based Enactments are generally similar in content – but not identical to one another. State religious authorities issue fatwas to resolve problems when there is doubt over whether a practice is permissible or forbidden in Islam. Fatwas have been issued on a range of topics, from ‘vaping’ to business dealings with non-Muslims. 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.
The government has prohibited many publications in Malaysia based on an assessment that they contain ‘deviant’ teachings that could incite religious disharmony (see Shi’a Muslims). The use of the word ‘Allah’ by non-Muslims to refer to their god(s) was banned by the courts in 2013, on the basis that Article 10 of the Constitution on freedom of expression must be read in conjunction with other provisions, namely Article 3(1) that holds Islam as the religion of the federation (see Islam and Malaysian Christians). The Federal Court unanimously upheld this ruling in 2015. In March 2021 the Sidang Injil Borneo Church discontinued its appeal against this decision.
While the government rarely intervenes in instances of religious persecution or criticism of non-Muslims, there are reports of the harassment of non-Muslims for commenting on any matter pertaining to Islam. According to SUARAM, in 2020, there were around 10 arrests or investigations of people who made comments or allegedly derogatory remarks about Islam. JAKIM reportedly has a team that monitors complaints of provocation towards Islam, and people can report complaints directly via WhatsApp. The current King, Sultan Abdullah, has reportedly warned Malaysians against making any ‘insinuating comments’ regarding Islam, and Malay-dominated parties, led by the United Malays National Organisation (UMNO, the dominant party in the previous BN coalition) have also warned the non-Muslim community in Malaysia not to meddle in the Islamic affairs of the country. Self-censorship by non-Muslims also occurs; during 2019 Chinese New Year, which marked the Year of the Pig, many businesses refused to display images of the pig due to perceived Islamic sensitivities.
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. In 2016, the Mufti of Pahang labelled DAP leaders as ‘Kafir Harbi’ (non-Muslims against Islam) for protesting a private member’s Bill seeking to extend and increase punishments under syariah-based law. DFAT is aware of a few reported incidents of violence against religious ‘dissenters’. DFAT is also aware of reports of increasing religious segregation of school entrances, exits and canteens, and of reports of Malaysians being arrested for consuming alcohol. Under the PN government, increasing calls for a crackdown on drink driving are reportedly connected to Islamic intolerance for alcohol, with PAS calling for a ban on alcohol sales until the issue of drunk driving is ‘resolved’.[1]
[1] DFAT Report pp 24-26.
Religious Conversion and Apostacy
Formally leaving or converting from Islam – apostasy – is extremely difficult. Despite the guarantee of freedom of religion under Article 11 of the Constitution, the civil courts have ruled that they have no power to intervene in apostasy cases that fall under the jurisdiction of Malaysia’s syariah courts.[2]
[2] Ibid p.31
Atheism
Malaysian courts have not tested the constitutional legality of atheism. As outlined in the previous section, Muslims who leave the faith can be charged with apostasy under state syariah laws. Non-Muslims could potentially also face charges under the country’s non-propagation laws if it could be proven they sought to spread atheism to Muslims. In November 2017, a former deputy minister in the Prime Minister’s Department, Dr Asyraf, said in Parliament that atheism should not be allowed and that it contradicted both the Constitution and Malaysia’s National Principles. Referencing the Constitution, he said ‘freedom of religion is not freedom from religion’, and asserted the government could draft legal provisions necessary to prevent such beliefs and doctrines.
Malaysian lawyers have contested Dr Asyraf’s claims that atheism is unconstitutional in Malaysia, stating that being an atheist is protected under the Constitution, while also noting there are no constitutional provisions specifically prohibiting the spread of atheism. Media has reported that some known atheists have received death threats and been forced to hide their beliefs from family.
With limited data available, the 2010 census estimates approximately 300,000 individuals could be considered atheists; professing to belong to what may be described as non-religious belief systems or belief systems that do not include a deity. This represents less than 1 per cent of the Malaysian population.
In August 2017, the Malaysian government commenced investigating the Kuala Lumpur branch of the international organisation, Atheist Republic, after a photo of their annual general meeting went viral. The Religious Department investigated whether any Muslims were involved in the meeting, and Dr Asyraf claimed if it was ‘proven that Muslims are involved in atheist activities that could affect their faith, the state Islamic religious department could take action’. Dr Asryraf said ex-Muslims found to be part of the atheist gathering would be counselled, while anyone found spreading atheist ideas could be prosecuted. Former minister Datuk Seri Shahidan Kassim called for public support to ‘hunt them down’, claiming that atheism went against the Constitution. There has not been subsequent media reporting on the incident. In a global index released by Humanists International in October 2020, Malaysia was listed as a country where ‘Government figures or state agencies openly marginalize, harass, or incite hatred or violence against the non-religious’.
DFAT assesses that atheists, especially non-Malay atheists, face a low risk of societal harassment. DFAT assesses that Muslims who attempt to renounce their faith for atheism, or who are believed to be proselytising towards atheism, face a high risk of official discrimination.[3]
Accepted Personal Circumstances
[3] Ibid p.32–33.
The Tribunal accepts the following facts:
a.The applicant is an ethnic Malay who was born in Malaysia and whose official religion is Islam.
b.The applicant grew up in a Muslim household in Malaysia.
c.The applicant came to Australia when he was [Age] years old.
d.He has not departed Australia since his arrival.
e.The applicant is an atheist, having come to that decision at around the age of 18.
f.Although he observed Muslim cultural and religious practices while in Malaysia, the did not and does not believe in their spiritual value, and he observed them only to the extent required to avoid trouble with the Syariah law.
g.The applicant is in a long-term relationship with his partner, who is also a Malaysian citizen of the Muslim faith; the couple are not married according to any religious or secular laws.
h.The applicant has ceased engaging in Muslim practices.
The applicant’s evidence to the Tribunal as to whether he told his parents and others in Malaysia of his decision to adopt an atheist worldview is unequivocal: he stated that he did not, and that they are unaware of this decision.
This is consistent with the applicant’s sister’s letter, where, although she claims to have observed behaviour in the applicant inconsistent with Syariah law, she does not state any knowledge of the applicant’s spiritual beliefs, either before or after his arrival onshore.
Accordingly, the Tribunal finds that the applicant did not tell his parents or other family members in Malaysia that he is an atheist and that they are presently unaware of that fact.
The applicant’s evidence is that on no occasion was he arrested, detained, or charged by authorities in Malaysia on account of any alleged contraventions of Syariah law. His only evidence as to the state of knowledge of others in Malaysia of these alleged contraventions was that of his neighbour, on one occasion, where no consequences followed to the applicant beyond a warning; and, implicitly, that of others with whom he associated while drinking alcohol.
Although the applicant’s sister claims to have observed behaviour in the applicant in contravention of Syariah law, the applicant gave no evidence that his family were aware of this behaviour, and his evidence was to the effect that he was at pains to hide it from them. Notably, the applicant gave no evidence that he was ever confronted by family members for any such alleged contraventions or that any concerns were expressed to him by his family on this account or that he experienced any ostracism from them. Where there is conflict in the evidence on this issue the Tribunal prefers the evidence of the applicant.
There was nothing in the applicant’s evidence, or any other evidence, to suggest that he has come to the attention of authorities in Malaysia for alleged contraventions of Syariah law.
Refugee criteria
The applicant claimed to fear harm if he returns to Malaysia for reasons of religion, specifically because of atheism and the rejection of Islam. In short, the applicant fears being considered an apostate. The applicant’s evidence is that he grew up in a religious household where he was required to attend Islamic religious and cultural events and adhere to religious practices. His evidence is that he complied with religious duties, not out of spiritual conviction, but to avoid conflict with the religious authorities in Malaysia.
The applicant travelled to Australia in 2016, at the age of [Age]. The applicant claims that since his arrival onshore he has abandoned any pretence of observing Muslim religious practices, including praying and fasting; he states that he drinks alcohol “every day”, and lives in an unmarried relationship with his partner.
The Tribunal accepts the applicant has a fear of being persecuted in Malaysia for reasons of religion. The applicant described himself as an atheist, stating that he does not believe in the existence of any god. The applicant prefers the life he leads in Australia, where he can “do what he wants to do” rather than having to observe the practices of Islam in Malaysia, even if only superficially.
Independent country information and media reports indicate ethnic Malays are not generally open about questioning their faith or belief in Islam and can feel compelled to conceal this from family and society. Although DFAT assesses that atheists, especially non-Malay atheists, face a low risk of societal harassment, Muslims who attempt to renounce their faith for atheism, face a high risk of official discrimination.
The Tribunal accepts therefore, that the applicant holds subjective fears about returning to Malaysia as a non-practicing Muslim.
“Real chance” of persecution
During the Tribunal hearing, the applicant was asked about his current religious beliefs. His evidence is that he agreed with the description “atheist”, specifically that he does not believe in the existence of a god.
The Tribunal finds, however, that the applicant’s description of himself, his actions and beliefs did not align with those who actively wish to renounce Islam, or to advocate atheism. Instead, he described having questioned the relevance of religious belief in his life during his late teen years, and as having only superficially observed Muslim religious practices from that time until he came to Australia.
Having discussed the nature of the applicant’s beliefs with him, the Tribunal does not consider that the applicant would take any active or public measures to leave Islam which would identify him as an apostate, or that he would publicly denounce Islam, or be open about any lack of religious belief as an atheist if he returned to Malaysia. Between the ages of [age range] the applicant observed the practices of Islam without any belief in their spiritual virtue or value; notably he has not claimed that he would apply to formally leave Islam if returned to Malaysia.
The essence of the applicant’s evidence on matters of religious ritual and practice is that he “does not want to be told what to do”. There is no evidence the applicant has told anyone he is an atheist or made this known publicly in Malaysia, and according to his oral evidence his family are not aware that he has ceased practicing as a Muslim. Even if he had done so the Tribunal notes that there are examples of atheists in Malaysia who have informed their families and made social media posts about their lack of belief who have faced condemnation and threats for a period of time but did not suffer serious harm.[4]
[4] Preeti, Jha. “Losing Faith”, New Humanist, 31 March 2020, >
As such, the Tribunal finds that the applicant would not have a profile as an atheist or apostate in Malaysia that would bring him to the attention of religious authorities, or society at large for that reason.

The Tribunal considered whether the applicant’s privately held beliefs and failure to practise religious rituals could lead to him suffering serious harm in Malaysia. Most of the applicant’s concerns about returning to Malaysia relate to behaviours and practices that he has ceased fully engaging in and does not want to comply with in future. Independent evidence indicates there are social pressures and possible official sanctions for Malaysian Muslims who fail to comply with religious practices.[5] If the applicant does not comply with accepted Muslim behaviour in Malaysia by not attending required prayers, drinking alcohol, eating non-halal food, not dressing appropriately, and not complying with expectations around relationships, he could come to the attention of authorities and could face social disapproval and criticism. However, there are examples of liberal Muslims who do not accept or practice all the requirements of Islam and do not face consequences amounting to serious harm.[6] The Tribunal is not satisfied there is a real chance the applicant will face persecution amounting to serious harm if he returns to Malaysia for reasons of apostacy, atheism, or being a non-practicing Muslim.
[5] Foo, Celestine. “The Woes of Four Non-Practicing Muslims in Malaysia during Ramadan.” Yahoo! News, Yahoo!, 5 May 2021, ibid.
The Tribunal notes the applicant’s concerns regarding his relationship with his partner. The applicant is a Malaysian citizen whose official religion is Islam. [Ms G]’s evidence is that she is also a Malaysian citizen of the Muslim faith. The couple’s evidence is that they are in a stable long-term relationship, having first commenced their relationship in 2016. Marriage between Muslim citizens in Malaysia is expressly provided for by the country’s laws.[7] The applicant advanced no reason to the Tribunal why the couple could not continue their relationship in Malaysia observing the laws of the country in respect of the co-habitation of committed couples. Accordingly, although it may take some relatively brief time to arrange their situation to comply with Malaysian law, the Tribunal does not accept the applicant’s claim that the couple “would be forced to separate” it the applicant was returned there.
[7] See DFAT Report, para [3.77].
The applicant claims that where he lives in Malaysia would not make any difference to his risk of harm. The applicant’s home state is Johor. Kuala Lumpur in Selangor is a modern, diverse city where the applicant would be able to live and find work.[8] The applicant may face some degree of disapproval or discrimination if he does not take part is Islamic practices, but the Tribunal is not satisfied it would amount to persecution or serious harm. In addition, as an ethnic Malay or “Bumiputera”, there are increased opportunities available to the applicant through government programs and initiatives that are not available to other groups.[9]
[8] Ibid, paras [2.12] – [2.13].
[9] Ibid, paras [3.2] – [3.3].
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criteria
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
As a Malaysian who has lived in Australia since 2016 and adapted to a Western lifestyle, the Tribunal accepts the applicant may have some difficulty readjusting to the Malaysian way of life. He stated he is now an atheist and has ceased following strict Islamic practices while in Australia. In Malaysia, if the applicant continues to engage in the liberal behaviour he described in his evidence, it could lead to consequences socially and officially, including sanctions by relevant authorities who are concerned with the public behaviour of Malaysian Muslims. However, the Tribunal is satisfied that any social disapproval or criticism would be of a low level, and any official punishment for flouting Islamic practices would not include arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm if he returns to Malaysia.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.
Overall conclusion:
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damian Creedon
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 503

19 January 2023

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