1710925 (Refugee)

This matter concerned applications for protection visas by two individuals who claimed they would suffer serious harm if returned to Malaysia. The first applicant, born Hindu, converted to Islam but never practiced the religion. She later wished to marry her Hindu boyfriend, a union not permitted in Malaysia due to their differing religious backgrounds and family opposition. The second applicant was in a de facto relationship with the first applicant and accompanied her to Australia. Both applicants subsequently converted to Christianity and married in Australia, fearing repercussions in Malaysia due to the first applicant's religious conversion and their interfaith relationship. The case was heard by Tania Flood.

The central legal issues before the Tribunal were whether the applicants had a well-founded fear of persecution for reasons of religion, race, nationality, membership of a particular social group, or political opinion, or alternatively, whether there were substantial grounds for believing that as a necessary and foreseeable consequence of their removal to Malaysia, they faced a real risk of suffering significant harm. The Tribunal was required to consider the provisions of section 36(2)(a) and section 36(2)(aa) of the Migration Act 1958, including the definitions of "significant harm" and the circumstances under which a person would not be taken to face such a risk, such as the availability of effective protection measures or the reasonableness of relocation.

The Tribunal considered the applicants' claims in light of Ministerial Direction No. 56 and relevant departmental guidelines and country information. It found that the first applicant's religious status as recorded on her national ID card was Islam, despite her Hindu upbringing and subsequent conversion to Christianity in Australia. The Tribunal concluded that both applicants had a well-founded fear of persecution for reasons of religion in Malaysia, stemming from the first applicant's conversion and their interfaith relationship, which was not accepted by their families and exposed them to potential harm. The Tribunal determined that Australia had protection obligations towards the applicants under section 36(2)(a) of the Act.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy the criteria under section 36(2)(a) of the Migration Act.