1710925 (Refugee)

1710925 (Refugee) [2017] AATA 2081 (6 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS: 1710925
1711639

COUNTRY OF REFERENCE: Malaysia
MEMBER:Tania Flood
DATE:6 October 2017
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matters for reconsideration with the direction that both applicants satisfy s.36(2)(a) of the Migration Act.
Statement made on 06 October 2017 at 2:28pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Muslim – Christian convert – Relationship with Hindu male – State protection not available – Relocation not reasonable
LEGISLATION
Migration Act 1958, ss 5H(1), 5J(1), 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of decisions made by a delegate of the Minister for Immigration [in] April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Malaysia, applied separately for Protection visas [in] September 2016. They are now married and their claims are related.
The first named applicant was refused a visa on the basis that there was insufficient evidence available to determine her current religious beliefs or that she ever converted to Islam or had a relationship with a Hindu person. The Delegate concluded that there is not a real chance or real risk the applicant will suffer serious or significant harm in Malaysia for the reasons claimed.
The second named applicant was refused a visa on the basis that the Delegate did not accept his partner was a Muslim or that he had a strong fear for his safety because he was living with his de factor partner for two years in Malaysia. Furthermore, the Delegate found that due to the availability of adequate state protection there is not a real chance or real risk fthe applicant will be at risk of serious or significant harm in Malaysia for the reasons claimed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
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 themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicants will suffer serious harm on return to Malaysia for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Malaysia there is a real risk they will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims
In her application for a Protection visa the first named applicant claimed the following:
She was born on [date] in Perak, Malaysia.
She is of Tamil ethnicity.
She has been in a de facto relationship since [July] 2014.
She was born a Hindu but converted to Islam. However she has never followed the Muslim religion. Now she wants to marry her Hindu boyfriend but it is not allowed in Malaysia. Their family members do not accept their relationship.
She came to Australia to convert back to her religion and to marry. Her boyfriend accompanied her to Australia.
She is afraid to return to Malaysia because of her family members and relatives. They hate her because she converted to Islam.
She is also afraid of the Muslim family. The Muslim family are looking for her.
She has no family to support her in Malaysia and she doesn’t know how or where to seek help.
On 22 May 2017 the first named applicant provided the following additional information to the Tribunal:
Her National ID Card states her religious status is Islam. Her family’s religious status is Hindu.
She attaches a certified copy of her conversion from Hinduism dated [November] 2009.
She and her boyfriend travelled to Australia to marry under Christianity because they cannot marry under Hinduism or Islam in Malaysia. They have since converted to Christianity and were married [in] March 2017 in a Christian Church. They have been regular attendees of [their church] since their wedding day.
In his application for a Protection visa the second named applicant claimed the following:
He was born on [date] in Perak, Malaysia. He is Tamil and has never worked.
He commenced a de factor relationship with his partner [in] July 2014.
He came to Australia with his girlfriend. She converted from Hinduism to Islam because of her previous boyfriend whom she later left.
When they met she was still a Muslim. They wanted to get married but could not do so in Malaysia. They came to Australia so that his girlfriend could convert back to Hinduism.
He is afraid to return to Malaysia because of her family and relatives and also because of her former boyfriend. His family also do not support his relationship with his girlfriend.
He doesn’t know how and where to seek help in Malaysia.
In a letter to the Tribunal dated 31 May 2017 the second named applicant states the following:
His girlfriend never had a Muslim ex-boyfriend. She converted to Islam to follow a friend’s faith.
If he and his now wife who married under their new Christian faith return to Malaysia their lives will be in danger.
They travelled to Australia to marry under Christianity. They have since converted to Christianity and got married [in] March 2017 in a Christian Church. They have been regular attendees of [their church] since their wedding day.
Tribunal hearing
The applicants agreed to appear before the Tribunal on 27 September 2017 in a joint hearing to give evidence in support of their cases. The Tribunal took evidence from both parties separately.
By way of background the first named applicant stated she was born on [date] in Ipoh, Perak, Malaysia. She completed a Diploma [and] has previously worked in [a certain] role. Before departing Malaysia she was residing with her parents in Ipoh. She has [siblings] who live in Ipoh and Kuala Lumpur. She is in regular contact with her mother.
The second named applicant stated that he was born on [date] in Ipoh, Perak, Malaysia. He is a Hindu as are his parents and sister who reside in Ipoh. Before he departed Malaysia he was living with his family in Ipoh. He has post-secondary qualifications [but] worked as [an occupation] in a [workplace] when in Malaysia.
Noting some differences between the information contained in their respective application forms and the background information provided to the Tribunal the applicants were asked whether they completed their applications for a Protection visa themselves. They said that a friend put them in contact with a person who filled out the forms for them. They said they told him their circumstances but the person did not ask them to provide any details of their family, their education or employment history. The first name applicant said she did not read the application form before signing it and the person refused to give her a copy of the form unless she paid him. She said she only became aware of the exact contents of the form when she received the Delegates decision. The second named applicant corroborated this evidence.
The Tribunal asked the applicants why they left Malaysia and they said it was to because they could not marry in Malaysia because one was a Hindu and the other a Muslim They confirmed they were married in Australia and the applicants have produced a copy of their marriage certificate. The first named applicant is pregnant and she said if she returns to Malaysia she fears she will not be able to keep her baby as her marriage will not be recognised. She said that in Malaysia she is still considered to be a Muslim as stated on her identity card. She said her husband is Hindu. The second named applicant said he fears the authorities and Muslim Malays will separate him and his wife if they return to Malaysia.
When asked about the circumstances of her conversion to Islam the first named applicant said she converted in 2009. She said that at the time her friends were mostly Muslim and they talked to her about their religion and they convinced her to follow their faith. They took her to the “Muslim” department and she agreed to convert. She said the suggestion contained in her written claims that she converted because of a boyfriend is not correct. She said the inaccuracy is the fault of the person who completed her form. The second named applicant corroborated her evidence.
The Tribunal notes the first named applicant was in possession of her original national identity card and a card confirming her conversion to Islam. When asked if her family was aware of her conversion she said they eventually found out. She said her mother was very angry and beat her and didn’t talk to her for a year. However, she said that now their relationship is good again.
When asked about the commencement of their relationship, the applicants stated they met in 2014 in Ipoh. The second named applicant was aware his partner was a Muslim but it was not a big problem while they were just dating. However, when they decided to marry they discussed their options and because the second named applicant did not want to convert to Islam they had not choice but to leave the country.
The Tribunal asked the applicants about their claimed conversion to Christianity. The first named applicant said she does not want to be a Muslim and confirmed she never actually practiced the Muslim faith despite her conversion. When asked why she has not resumed her Hindu faith she said that she and her husband could not be together because he is Hindu and she is Muslim. She said they decided to embrace a different faith together to avoid any complications. The second named applicant corroborated this evidence.
The Tribunal asked the applicants about their new Christian faith and they said that they are just learning about it and they have a long way to go with it. They said they go to church each week on Sunday but have not been involved in bible reading or prayer groups as yet. They confirmed they have not been baptised.
Noting the applicants’ apparent unfamiliarity with the basic tenants of Christianity the Tribunal asked whether they would continue to explore the faith on return to Malaysia. They replied that they would and that they are planning to further study the bible.
The Tribunal asked the first named applicant whether she fears any harm from either her or her husband’s family. She said that her husband’s family does not know that she converted to Islam. She said they have hid this from them because they expect they will have a problem with it. She said their families are aware of their intentions regarding Christianity and while they may disagree and object she doesn’t fear they will be harmed for this reason. She added that the families are also unhappy about the fact that she is [older] than her husband. She stated that she is mostly afraid of the legal ramifications of their situation in Malaysia. The second named applicant said he has SOME concerns about how his family will react because they do not know his wife converted to Islam.
The Tribunal asked the first named applicant whether she can renounce Islam and revert back to being a Hindu or a Christian and she said she cannot because the authorities do not allow it. She said that once you convert to Islam there is no way to change that. The second named applicant agreed with her assessment.
The Tribunal discussed with the applicants country information which indicates that some people have been able to convert from Islam in Malaysia in circumstances where they were not Muslim to begin with. The Tribunal acknowledged the process is likely to be difficult but stated that it does not appear to be impossible. The first named applicant responded that the outcome will not be guaranteed and will likely take a very long time and require a lot of money. The second named applicant agreed it would be a very difficult process to follow.
Noting she is now married the Tribunal asked the first named applicant how her inter-faith marriage would become known to others on return to Malaysia. She responded that her identity card officially marks her as a Muslim in Malaysia and that whenever she and her husband and their child will have any official dealings in Malaysia their situation will be revealed and problems will arise. She said people will view them as living together illicitly. The second named applicant repeated this opinion and added that the situation would be the same wherever they lived in Malaysia.
The Tribunal asked the applicants whether they have any fears about returning to Malaysia as Christians noting that DFAT indicates that Malaysian Christians are generally able to practice their religion without interference or fear of discrimination or violence. The applicants agreed that they don’t fear returning to Malaysia for this reason.
FINDINGS AND REASONS
Country of reference
The available information before the Tribunal, including copies of their national identity cards and passports supports that the applicants are nationals of Malaysia. In the absence of any information to the contrary the Tribunal accepts the applicants are nationals of Malaysia and has assessed their claims against Malaysia.
Despite that there are some inconsistencies in the applicants’ written and oral evidence as to the reasons for her religious conversion the Tribunal found the applicants to be largely credible witnesses. The Tribunal accepts they relied on the assistance of a third party to complete their application forms for Protection visas and that they erred by not checking the detail of the written claims before lodgement. The Tribunal accepts that the applicants had little experience in these matters and is persuaded that it was not and is not their intention to provide false information to the Australian government regarding their protection claims. The Tribunal makes no adverse findings based on minor inconsistencies and inaccuracies in their written evidence. The applicants gave their evidence simply, without elaboration, additions or embellishment. Furthermore, the first named applicant’s claim to have converted to Islam in Malaysia is supported by documentary evidence which the Tribunal has no reason to doubt.
On the evidence before it the Tribunal accepts the first named applicant converted to Islam in Malaysia in 2009 and is therefore still officially recognised as a Muslim in Malaysia. The Tribunal accepts the applicants formed a relationship in 2014. The Delegate in the matter of the second named applicant found that the applicants were living together in Malaysia in a de facto relationship. The Tribunal is of the view the Delegate formed this view based on his answer to question 35 in Form 866C which refers to relationship status. In fact, both he and the first named applicant checked the “de facto” box on the forms noting their relationship commenced [in] July 2014. The Tribunal had the benefit of interviewing the applicants (which the Delegate in the second named applicants case did not have) and their answers to questions about their living arrangements prior to their departure from Malaysia, satisfied the Tribunal that while they were in a relationship they were not living together.
Based on their evidence, and subsequent actions, the Tribunal accepts that the applicants left Malaysia with the intention of marrying. The Tribunal accepts the applicants were married in Australia [in] March 2017 in a Christian ceremony. While the Tribunal accepts the applicants have been exploring the Christian faith the Tribunal does not accept they have as yet formerly converted to Christianity. They have little knowledge of the teachings of Christianity and have not been baptised into the faith as yet. The Tribunal accepts they may continue to explore Christianity on return to Malaysia. For the following reasons the Tribunal has not found it necessary to explore the implications of their possible conversion to Christianity further.
As discussed with the applicants at hearing the Tribunal has had regard to relevant country information including the following:
As DFAT[1] reports conversion from Islam is extremely difficult in Malaysia. In May 2014 Prime Minister Najib said the government would ‘not tolerate any demands or right to apostasy by Muslims’. 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 which fall under the jurisdiction of Malaysia’s sharia courts. A range of sharia-based laws apply to Muslims at state level. State governments do not recognise marriages between Muslims and non-Muslims and children born of such marriages are considered illegitimate. Individuals who have attempted to convert from Islam have faced long and expensive legal battles involving both the federal civil courts and state sharia courts. An individual wishing to convert from Islam must first obtain permission from a state sharia court. The court will declare them to be an apostate. State sharia 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. Individuals who attempt to convert from Islam have also been compelled to attend religious rehabilitation centres. The US Department of State reported that, in many cases, converts conceal their new beliefs and Muslim women and girls face social pressure to continue wearing a headscarf.
[1] DFAT Country Information Report, Malaysia, 19 July 2016

DFAT further reports that based on the most recent available figures, only 168 of over 800 Muslims who attempted to convert between 2000 and 2010 were given permission to do so. In these cases, the sharia courts determined that all 168 applicants had not been Muslim to begin with, which thereby prevented any legal precedent supporting conversion from Islam. The inability to convert from Islam was proven by the landmark case of Lina Joy, who was a Muslim that converted to Christianity to marry a Christian in 1998. Her case culminated in a 2007 Federal Court decision which found that she was legally a Muslim and her religious status could not be removed from her national identity card, as ‘a person cannot, at one’s whim and fancies renounce or embrace a new religion’. On the other hand, in December 2015, a 40 year old man in Sarawak, who had been a Christian until his parents converted to Islam when he was eight years old, was granted a letter of release from Islam by the civil court on the basis that he was converted when he was a minor and had no choice in the matter. The civil court judge ruled that as he was not a Muslim from birth his case was not bound by the outcome of the ‘Lina Joy’ case and could not be heard in the sharia court. DFAT assesses that Muslims face high levels of official discrimination under Malaysian law if they attempt to convert from Islam or marry a non-Muslim.
A US Department of State report states that the law continues to prohibit proselytising by non-Muslims and that Muslims seeking to convert to another religion face “tremendous obstacles because neither the right to leave Islam nor the legal process of conversion is clearly defined in law”. According to USDOS “Muslims may not legally convert to another religion except in extremely rare circumstances”.[2] The report further states that Shari’a courts may send apostates to religious rehabilitation programs which reportedly vary in length but may often last approximately six months during which time participants are not permitted to leave. Also, it is reported that religious converts, particularly those converting from Islam, sometimes faced severe stigmatisation. In many cases converts concealed their newly adopted beliefs and practices from their former coreligionists, including friends and relatives.
[2] US Department of State 2013, International Religious Freedom Report 2012 – Malaysia, 27 May
The European Centre for Law and Justice states that “the mandatory jurisdiction of Sharia courts over conversion applications from Islam to another religion allows Sharia courts to effectively prohibit conversion from Islam”.[3] The Malaysian government has resisted enacting a formal apostasy law, despite significant pressure from civil society and elements within the state apparatus to do so.[4]
[3] European Centre for Law and Justice 2013, Religious Freedom in Malaysia
[4] Hamayotsu, K 2012, ‘Once a Muslim, always a Muslim: the politics of state enforcement of Syariah in contemporary Malaysia, South East Asia Research, Vol 20, Issue 3
A more recent UCA news report dated 29 March 2016[5] discusses a Sarawak high court ruling which overturned an official policy that has made it difficult for those who have converted to Islam to renounce the religion without the approval of the Islamic court. The court ruled that conversions of children to Islam by one or both their parents are not permanent. The judgement revolves around a forty-one year old man who was converted to Islam by his parents when he was about ten years old. He was rebaptised a Christian in 1999 and applied to the National Registration Department to have the Islamic classification and his Muslim name removed from his identity card and from all his records in their registry. The National Registration Department has consistently declined to change the religious status of holders on such cards without the consent of the Islamic or Shariah court. Non-Muslim groups say that gaining a letter of release from Islam from the Shariah court is an unreasonable condition when the State Shariah Court itself has stated that it has no jurisdiction to issue such a letter. Commenting on the ruling, Steven Chu, a social worker, said that while the ruling can be viewed as a turning point for the scores trapped in what he calls “conversion limbo” there was no guarantee that it would be allowed to stand.
[5] ‘Malaysian court says converts can renounce Islam’ UCA News (UCAN) 29 March 2016
In an advice to the Canadian Refugee Board in 2004 the Indigenous People’s Development Centre (IPDC) in Malaysia stated that relationships between Muslims and non-Muslims are viewed negatively in Malaysia.[6] In another advice to the Canadian Refugee Board it is noted that if a Malaysian Muslim marries a non-Muslim in a civil ceremony abroad, the couple would encounter difficulties upon their return to Malaysia. The legal status of the marriage could be challenged in an Islamic court by any individual aware of the union. The source noted that if one marries outside of Islam, he or she can be considered to have committed “murtud” (apostasy).[7]
[6] IRBC 2004 MYS42737.E – Malaysia, Update to MYS38913.E of May 2002 on societal and governmental attitudes towards mixed marriages and relationships between Muslim women and non-Muslim men; police protection or legal recourse available to a non-Muslim male who is threatened by family members of his Muslim girlfriend, reports of police discrimination based on the religion of the complainant.
[7] IRBC 1996, MYS23740.E – Malaysia: Information on whether it is legal for a Muslim and a non-Muslim to marry in a civil ceremony or whether the non-Muslim must convert to Islam in the case of a mixed marriage, 16 May.
Regarding national identity cards DFAT reports they are compulsory for all citizens 12 years and above. The main purpose is to provide proof of identity but it can technically serve many other functions including as an alternative driver’s license, an ATM card and as a payment card for tolls and other taxes. Identity cards must be carried at all times and a failure to do so attracts a fine of between RM 3,000 and 20,000 or jail term of up to three years. Persons who are Muslim are identified as such on the identity card’s surface but for members of other religions, it is encrypted in the cards smart chip. Married Muslims must carry a special photo identification of themselves with their spouse as proof of marriage.
The Tribunal is satisfied that if the applicants are required to return to Malaysia the first named applicant will want to convert from Islam and change her recorded religion in Malaysia from Islam to a non-Muslim faith (either Hindu or Christianity) in order that her marriage can be legally recognised and so as not to encounter any official or societal discrimination. The Tribunal acknowledges that a relatively small number of people who were not Muslim to begin with have reportedly managed to convert from Islam with the acquiescence of Sharia courts in particular circumstances. The Tribunal also acknowledges the recent civil court decisions referred to above which also appear to have the potential to improve the situation for persons seeking to resolve their conversion and religious recognition issues in Malaysia. However, in respect of the latter decision the Tribunal notes the facts of the case differ significantly from the first named applicants. Her conversion to Islam did not occur when she was a child through the actions of her parents. Rather, the first named applicant freely converted to Islam as an adult. In any event, the Tribunal considers the decisions are relatively recent and remain to be tested and maintained on a wider scale. This, together with the Prime Ministers public statement in 2014 on apostasy; the current governments resistance to enabling a formal law on apostasy; the continually ill-defined legal processes for conversion in Malaysia and DFATs 2016 assessment that persons attempting to convert from Islam or to marry a non-Muslim continue to face high levels of official discrimination has caused the Tribunal to take a cautious approach in this matter.
Having carefully considered the applicants circumstances, the Tribunal remains of the opinion, based on the bulk of the available information that if the first named applicant seeks to convert from Islam, and to alter the religion which appears on her identity card on return to Malaysia, it will entail a lengthy, difficult and potentially expensive process with no guaranteed outcome. Furthermore, if she were to approach a Sharia court with a request for conversion from Islam there is a risk she may also invite ill-treatment, including a requirement to attend religious rehabilitation and criminal prosecution due to being seen as an apostate.
Even if the first named applicant does not attempt to officially convert or to change her recorded religion the Tribunal accepts that there is a high chance her marriage to a non-Muslim will become known to others in the course of them conducting their official affairs in Malaysia. The Tribunal considers that if it becomes known the first named applicant has married outside of Islam and that the applicants are living together ‘illicitly’ in an unrecognised marriage, they will be viewed negatively by elements in the community and might encounter verbal and even physical hostility. The above country information satisfies the Tribunal that in such circumstances, there is a chance, which is not remote, that the applicants will suffer social stigmatization, which may be severe, and discrimination and possible physical assault. In forming this view the Tribunal has also given weight to DFATs reporting on the increasing influence of conservative Islam and religious piety in Malaysia over recent years.
The Tribunal considers the cumulative effect of possible enforced participation in religious rehabilitation involving involuntary separation from her family and potentially extreme social stigma arising from her marriage and co-habitation with a non-Muslim will amount to serious harm to the first named applicant. The Tribunal finds that in this way there is a real chance that the first named applicant will suffer serious harm for reasons relating to her religious beliefs and opinions if she returns to Malaysia.
The Tribunal also considers the second named applicant will be at risk of severe social stigma, discrimination and even physical violence if it becomes known that he is living with a Muslim woman in an unrecognised marriage. The Tribunal is satisfied that there is also a real chance that the second named applicant will suffer serious harm for reason of religion if he returns to Malaysia in the circumstances.
In view of the existing law and the current Governments public stance on apostasy the Tribunal is not satisfied the applicants could obtain adequate protection from the Malaysian authorities against the harm they fear.
The Tribunal finds by reference to the material before it regarding the situation of converts from Islam in Malaysia that in every state the applicants would face difficulties engaging with the Sharia courts and/or the federal legal system and with the prevailing social attitudes towards Muslims marrying non-Muslims. The Tribunal finds that the applicants’ fears apply throughout Malaysia and that the chance of serious harm cannot be removed through relocation to another state.
It follows from the findings set out above that the Tribunal finds that both applicants have a well-founded fear of persecution for reason of religion in Malaysia. Therefore the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Tania Flood
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2017] AATA 2081

6 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice