1712332 (Refugee)

1712332 (Refugee) [2022] AATA 4081 (17 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712332
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Brendan Darcy
DATE:17 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 August 2022 at 1:13pm
CATCHWORDS
REFUGEE – Protection visa – Malaysia – race – Iban ethnicity – religion – applicant reverted to Christianity – interfaith marriage – being an apostate from Islam – degree or intensity of ostracism or social discrimination by Malaysian Christians doesn’t amount to her facing a real chance of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 a decision made by a delegate of the Minister for Immigration and Border Protection on 10 October 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be a citizens of the Federation of Malaysia (Malaysia), applied for the visas on 7 October 2016. The delegate refused to grant the visas on the basis that the available country information about Malaysia does not support the claims in relation to persons converting religion to Islam.
For the purposes of this decision, the first named applicant is to be referred to as the first applicant or the applicant; the second named applicant as the second applicant or the applicant’s spouse; the third named applicant as the third applicant or the applicant’s son; and the fourth named applicant as the fourth applicant or the applicant’s daughter.
Via an internet based audio-visual platform, the first and second applicants appeared before the Tribunal on 14 July 2022 to give evidence and present arguments. As the other applicants were minors, they were not required to provide oral evidence.
They were assisted by an interpreter in the Bahasa Malaysian and English languages.
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 (Cth) (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 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 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.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 (DFAT) 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 whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The first applicant, female, was born on [date] in the Malaysian state of [Sarawak].
The second applicant, male, was born on [date] in the Malaysian state of [Sabah].
It is claimed that the first and second applicants were married to each other in 2009.
It is further claimed that the third and fourth applicants are the biological children of the first and second applicants. The third applicant, male, was born on [date] and the fourth applicant, female, was born on [date]. They were both born in the Malaysian state of Selangor, on the Malaysian peninsula.
Each of the applicants claim to be citizens of Malaysia. Copies of their passports are on the departmental [file].
The first applicant arrived in Australia on[date] June 2013 while holding a Class UD Subclass 601 (Electronic Travel Authority or ETA) visitor visa. She departed on [date] September 2013.
The second applicant first arrived in Australia on [date] December 2012 and then departed on[date] February 2013. He returned on [date] June 2013 and then departed again on[date] September 2013. On each visit, the applicant was holding an ETA visa.
The first and second applicants returned to Australia with the third and fourth applicants on [date] July 2016. The applicants subsequently applied for Class XA Subclass 866 Protection visas and were granted associated bridging visas.
The applicants’ vaguely written claims for protection are contained in the first applicant’s 866C Form. In summary it states:
·     The applicant’s left Malaysia because the first applicant converted to Islam. The applicants cannot return to Malaysia because of the trauma, and “as often impeded by a few people who are not satisfied” with the first applicant’s family.
·     The first applicant experienced harm in Malaysia and stated “I’m humbled and at the railing as I descended Iban (Ibans or Sea Dayaks – an indigenous group in Borneo) and they said I was not to eat things”.
·     The first applicant told the head of the village where she lived. The village head only advised her to be patient.
·     The applicant moved to Sarawak, but the situation remains the same there because she was with the mother who is a Christian.
On the departmental file is a translation of an Enactment of Islamic Family Law indicating that first and second applicant were marred in Selangor on [date] March 2009.
Also on departmental file is a copy of (with an accompanying translation) a ‘conversion’ card indicating the first applicant converted to Islam on [date] June 1997, and that the card had been issued on [date] March 2009. It also indicated that her name prior to conversion was [Alias 1].
An extract from the Register of Births from Sarawak indicates first applicant to have be born in Kuching, and that her given name was [name] at birth.
According to the first applicant’s 866C Form; her ethnicity is Iban, she speaks, reads and writes Bahasa Malaysian and English, and her religion was Islam. It also mentioned that she had never worked, and no educational attainment is registered at question 85.
According to the second applicant’s 866C Form, his previous residence had been at [Town 1] in Sabah since 1981, and that he had been previously employed [in] Selangor. The form also indicates the second applicant’s religion to be Muslim and his ethnicity is Bajau (or Sami-Bajau – indigenous peoples native to Sabah and The Philippines’s Sulu Archipelago).
A delegate acting on behalf of the Minister refused to grant the applicants protection visa’s on 8 June 2017.
A valid application to have the delegate’s decision reviewed by the Tribunal was lodged on 10 June 2017. Attached to the application for review was the delegate’s decision record.
As mentioned above, the applicants attended the hearing. The first and second applicants provided oral evidence and presented arguments on behalf of themselves and the other applicants, who are young minors. No post hearing submissions were required at the end of the hearing.
No further submissions in relation to the applicants’ claims were received by the Tribunal, either by the applicants or on their behalves, right up to the time of making this decision.
ASSESSMENT OF CLAIMS AND FINDING
Country of reference
The applicants claim to be citizens of the Federation of Malaysia and provided copies of their Malaysian passports to the Department. On the basis of the copies of their passports, the Tribunal finds that the applicants are nationals of Malaysia.
As the Tribunal has found that the applicants are nationals of the Federation of Malaysia, the Tribunal also finds that Malaysia is the applicants’ country of nationality for the purposes of s.36(2)(a) and the applicants’ ‘receiving country’ for the purposes of s.36(2)(aa).
Third country protection
There is no evidence before me to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Membership of the same family unit
If protection visas were granted to one of the review applicants on the basis they are owed Australia’s protection visa obligations and that the applicants are found to be a member of the same family unit by satisfying r.1.12(4) of the Regulations, the Tribunal is obliged to consider that the other review applicants be remitted for reconsideration on the basis that the applicant satisfies s.36(2)(b) or s.36(2)(c).
Spousal couple
At the time of application for these protection visas, it was claimed that the first and second applicant were in a spousal relationship, that they have two children between them; and that they have travelled to Australia together as a family unit.
With no evidence to the contrary, the Tribunal accepts the first and second applicants are in a genuine spousal relationship and that the second applicant satisfies regulation.1.12(4)(a) of the Regulations, as he has membership of the same family unit with the first applicant for the purposes of this application for review.
Biological children in Australia
Copies of the birth certificates of the third and fourth applicants indicate their biological parents to be the first and second applicants. Based on this information and the oral evidence provided at the hearing, the Tribunal accepts all three children living in Australia are minors who are biological children of the first and second applicants.
Under regulation 1.12(4)(b) of the Regulations, a person can be considered a member of the principal applicant's family unit if the person is a dependent child of the family head or a spouse or de facto partner of the family head. Subclause 1.05A(2) defines a dependent, for the purposes of a protection visa application, as a person who is wholly or substantially reliant on the other person for financial, psychological or physical support.
The third and fourth applicants are minors and have typically resided in the household of the first applicant, who is the family’s head. Accordingly, the Tribunal is satisfied the third and fourth applicants of this review application are dependent child of the family head as required by r.1.12(4)(b).
Oral evidence from the first and second applicant
The first applicant, who was raised a Christian, claims to fear being persecuted in Malaysia on account of her formally adopting Islam as her religion and then reverting to Christianity, in accordance with s.5J(1)(a) of the Migration Act.
During the scheduled hearing, the first applicant had the opportunity to elaborate on her vaguely written claims for protection.
The first applicant was raised in a Christian family and is ethnically Iban, as mentioned in the written claims for protection.
The first applicant claimed that she originally converted to Islam in 1997. This aligns with the conversion document submitted to the Department. She claimed that she felt the urgency to convert to Islam because she fell pregnant to her then Muslim boyfriend; however, the boyfriend refused to marry her. Due to the stress, she miscarried. She said she lost her faith in Islam after that.
The Tribunal enquired into the reasons she had registered the Muslim name, [when] she married in 2009. It was claimed she did so because she wanted to marry the second applicant who was Muslim.
The first applicant claimed that when she moved to Sarawak it was not safer because Malay Muslims dominate the area. The Tribunal pointed out that 45 per cent of Sarawak are Iban – the same ethnicity as the applicant. She qualified her answer, stating that it was the Christians in Sarawak, including her mother, who rejected her marriage choice. Her mother said of her marriage: It was like her daughter had died.
The Tribunal asked the first applicant to elaborate on her written claim about past harm she had experienced (“I’m humbled and at the railing as I descended and they said I was not to eat things”). It was explained that the applicant meant that members of the second applicant’s family living in Sabah verbally insulted her for not eating halal (prepared meat as prescribed by Muslim laws and traditions) and for not appearing sufficiently Muslim or as a wife of a Muslim. She also said they did not like her because she was a Christian and her Iban ethnicity.
The Tribunal asked the first applicant to elaborate on her vague written claims about the village head’s advice to her to be patient. She claimed that the village (or kampong) head where she was living Kuala Lumpur was a Malay Muslim. The first applicant explained that the village head was aware that she was a Christian but did not accept or approve of her apostasy. The Tribunal asked whether he had harmed the first applicant or reported her to the religious authorities. She said he did not but feared he might take action against her. The Tribunal pointed out that the written statement did not indicate a fear of being reported. The first applicant claimed to have had a mental block at the time of application.
The Tribunal enquired into the reasons the first applicant had not applied for a protection visa when she first visited Australia between June and September 2013. The first applicant explained that she and the second applicant came to Australia for a holiday, and it did not cross her mind to apply for a protection visa as the situation about her apostasy ‘was under control’.
The Tribunal enquired into the reason the first applicant remained in Malaysia from September 2013 to July 2016. The first applicant explained that she was Muslim in name only, and that she did not follow Islam because she followed the Christian faith.
The first applicant had emphasised that she lives in anxiety and depression, and these conditions will be exacerbated in returning to Malaysia. The Tribunal noted there was no medical evidence to support the first applicant suffering from such condition, or that it was so severe that it required medication or other therapies. It also notes that anxious and depressive symptoms and conditions are treatable, whether the applicant is in Australia or in her country of reference.
Turning its questioning towards the first applicant’s husband, the Tribunal enquired into the reasons the second applicant had previously visited Australia between December 2012 and February 2013 and July 2013 and September 2013. The second applicant explained he came for holidays. The Tribunal asked if he worked during these visits, to which he responded that he had worked on a farm. The Tribunal enquired whether he knew it was unlawful to work in Australia while holding visitor visas. The second applicant responded that he did know that. The Tribunal enquired into the reasons he and his wife did not apply for a protection visa in 2013. He claimed that they did not think about it. He claimed that they returned to Australia because his wife was under stress because of ‘her religious problems’ and they then applied for protection visas.
The Tribunal enquired as to whether anything happened between returning to Malaysia in September 2013 and returning to Australia in July 2016. The second applicant said there was stress in Malaysia, and they felt the family should seek Australia’s protection because his wife reverted to Christianity, and his family were strict Muslims. He acknowledged that his family were aware of her apostasy shortly after they were married.
The Tribunal enquired into the harm he believed the first applicant is likely to encounter. The second applicant said he was not sure, but his family will try to separate him from his wife. The Tribunal asked how they would do this, to which he responded that they know she has reverted to Christianity and that Islam was powerful in Malaysia. The Tribunal enquired if the first and second applicants were raising the other applicants as Muslims, to which he said they were. This, the Tribunal said, would indicate Sharia law and the authorities who administer it, would not have any strong or abiding interest in separating the second applicant’s wife from him and his Muslim-raised offspring. The second applicant repeated ‘they know she is Christian’. The Tribunal enquired into the reasons the authorities have not taken action to date. He replied that they left before anything else happened.
The Tribunal enquired whether the second applicant held any fears of persecution of his own. The second applicant replied that he is not scared, but he wanted to change his home for his family, and that he held the same fears for his wife as outlined above.
Findings about the first applicant
The first applicant’s claims that she has converted to Islam and then reverted to her Christian faith in which she was raised, and because of the operation of Syariah law in Malaysia, she has and will continue to face societal discrimination from members of her own family and her Muslim husband’s family, and official discrimination and persecution as an apostate from Islam.
In this regard, the Tribunal accepts that the applicant was raised a Christian belonging to the Roman Catholic denomination through her mother and father in Sarawak. The applicant was also raised a Roman Catholic with her siblings.

During the hearing, the Tribunal asked a number of robust questions as to whether she genuinely reverted to Christianity given her children were being realised as Muslim and because she adopted a Muslim name. Based on the first applicant’s responses and the submitted documentary evidence, the Tribunal accepts that the first applicant converted to Islam in 1997 based on her desire to marry a Muslim Malaysian at the time, and to be compliant with the laws of her country of nationality. It accepts she quickly became disillusioned with Islam after this relationship broke down, as claimed. Relatedly, it accepts the applicant remarried in 2009, the second applicant, with whom she has two children, the third and fourth applicants, and are being raised a Muslims in her interfaith marriage. On balance, the Tribunal accepts the first applicant is a genuine Christian who lapsed into Islam for the reasons claimed, but is otherwise a continuously Roman Catholic Christian.
There are no laws in Malaysia to prevent the conversion of non-Muslims to Islam.
The Tribunal accepts that non-Muslims must convert to Islam before marrying a Muslim. There are two primary statutes in Malaysia for marriage, the secular Law Reform (Marriage and Divorce) Act (1976) and the Islamic Family Law Act (Federal Territories) (1984). A non-Muslim must convert to Islam to marry a Muslim for the marriage to be legally recognised. As Malaysian authorities do not recognise marriages between Muslims and non-Muslims, they consider children born of such marriages illegitimate. The legal age to marry for Muslim females is 16 and Muslim males 18, except in Selangor state where females must be 18. In some circumstances persons below the stipulated marriage age marry with permission from Syariah courts or approval from their state’s chief minister. Some Sunni and Shia Muslims intermarry and have family members that practice either form of Islam.
Malaysia’s official interpretation of Islam is Sunni. A 1996 fatwa supported by state laws requires the country to follow only Sunni teachings of the Shafi’i school and prohibits Muslims from possessing, publishing, or distributing material contrary to those teachings. Those differing from the official interpretation of Islam can face adverse government action, including mandatory rehabilitation in centres that teach and enforce government-approved Islamic practices. Federal and state governments consider several non-Sunni Islamic groups deviant, including Shia, Ahmadi, and Al-Arqam.
During the hearing, the first applicant claimed to have converted to Sunni Islam. She was asked explicitly whether she converted to any of so-called deviant non-Sunni branches of Islam such as the Shia, Ahmadi or Al-Aarqam sects. The first applicant said she had not. The Tribunal accepts this and finds accordingly that the first applicant does not have real chance of serious harm or a real risk off significant harm based on any conversion to a non-Sunni sect of Islam, should she return to Malaysia into the foreseeable future.
The best-known apostasy case in Malaysia is the Lina Joy case. In 2006, a Malaysian woman sought to convert from Islam to Christianity, and then be permitted to marry her non-Mulsim fiancé by applying to a Syraiah court. In a majority verdict delivered on 30 May 2007, the Federal Court rejected her appeal. Her appeal was dismissed 2-1 by Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim and Datuk Alauddin Mohd Sheriff. The ruling stated that "a person who wanted to renounce his/her religion must do so according to existing laws or practices of the particular religion. Only after the person has complied with the requirements and the authorities are satisfied that the person has apostatised, can she embrace Christianity.... In other words, a person cannot, at one's whims and fancies renounce or embrace a religion."
The dissenting Chief Judge of Sabah and Sarawak Datuk Richard Malanjum wrote that "Hence, in my view this is tantamount to unequal treatment under the law. In other words it is discriminatory and unconstitutional and should therefore be struck down. For this reason alone, the relief sought for by the appellant should be granted, namely for a declaration that she is entitled to have an identity card in which the word 'Islam' does not appear."
The DFAT Country Information Report for Malaysia dated 29 June 2021 in respect to apostasy laws states:
Religious Conversion and Apostasy
3.65 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.
3.66 Several syariah-based laws apply to Muslims at the state level. State governments do not recognise marriages between Muslims and non-Muslims, and children born of such marriages are considered illegitimate. DFAT is aware of cases where one spouse has (after marriage) converted to Islam, and subsequently claimed that non-Muslim family members have lost all rights to inheritance and custody of children. In January 2018, the Federal Court ruled that both parents had to consent to change a child’s religion (see Family Law). While it is relatively common for individuals to convert to Islam in order to marry a Muslim (according to one report, 9 per cent of all marriages in 2019 were inter-ethnic and about half of those involved a Muslim spouse and thus mandatory conversion), families in some communities may view this negatively.
3.67 Individuals who have attempted to convert from Islam have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts. An individual wishing to convert from Islam must first obtain permission from a state syariah court. The court will declare them an apostate. State syariah courts rarely grant such declarations and, in some states, including Melaka, Pahang, Perak and Sabah, apostasy is a crime punishable by fine, a jail sentence, or caning. DFAT is not aware of cases in which such punishments have been applied in practice. In Kelantan and Terengganu, state laws allow the death penalty for apostasy, although federal law does not allow its implementation. In February 2018, the High Court ruled that only syariah courts could hear cases on conversion from Islam.
3.68 The US Department of State has reported on a number of cases in which individuals who have attempted to convert from Islam, or have otherwise been accused of apostasy, have been compelled to attend religious rehabilitation centres. In 2018, a woman who was suspected of atheism and ‘deviancy’ was reportedly compelled to live in an Islamic rehabilitation centre for six months. In many cases, converts concealed their new beliefs. Religious converts have also reported difficulty changing their religion on their national identi fication cards.
3.69 Only 168 of 863 Muslims who attempted to convert between 2000 and 2010 reportedly received permission to do so. DFAT has no more recent data on such conversion. In these cases, the syariah courts determined that all 168 applicants had not been Muslim to begin with, which thereby prevented any legal precedent supporting conversion from Islam. The landmark case of Lina Joy, a Muslim who converted to Christianity to marry a Christian in 1998, demonstrated the impediments to conversion from Islam. The federal court found in 2007 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 religion’. She was thus unable to marry her Christian partner. Conversely, 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, received a letter of release from Islam by the civil court on the basis that his conversion occurred when he was a minor, and had no choice in the matter. The civil court judge ruled that the syariah court had no jurisdiction and the ‘Lina Joy’ case did not apply, as he was not a Muslim from birth.
3.70 In January 2020, the NGO G25, a group made of former top-ranking civil servants, released a report titled Administration of Matters Pertaining to Islam, based on research on the background and history of Islamic administration over the years. The group asserted that, as the Federal Constitution guarantees freedom of worship to each citizen of Malaysia, including Muslims, those who insist on leaving Islam (which they discouraged) ‘must not be charged with a criminal offence’. DFAT has not been able to verify whether criminal charges in such cases have been applied in practice. In February 2021, Mohd Na’im, the chief judge of the Perak Shariah court, stated that the country’s Islamic judicial system only had authority over Muslims in Malaysia and could not act on cases of apostasy outside the nation.
3.71 DFAT assesses that Muslims who attempt to convert from Islam or marry a non-Muslim face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert. DFAT is not able to comment on the likelihood, in practice, of punishment for apostasy in states in which apostasy is criminalised.
A 2018 paper from Oxford Academic’s International Journal of Constitutional Law[1] provides some additional insight into the processes concerning Muslim apostasy whereby differ greatly by jurisdiction:
During the 1980s and 1990s several states introduced legislation specifying a procedure concerning Muslim apostasy to be overseen by their state-level shari’ah courts. In Pahang, Perak, Malacca, and Sabah, these enactments identified Muslim apostasy as an offense (that is, an insult to Islam) to be punished with fines and/or imprisonment. [2] By contrast, in Negeri Sembilan, steps were put in place allowing state-level shari’ah courts to oversee the process of Muslim apostasy (including three months of counseling and a further cooling-off period of one year) before a certificate of conversion was issued. [3] And, in Johor, the unreported case of Ismail bin Suppiah [4]noted that, as per the (now-repealed) Johor Administration of Islamic Law Enactment (1978), the chief kadi was expected to play a purely mechanical role in registering the new name of any Johor-based Muslim who declared himself or herself an apostate.[5] In the Federal Territories and at least four other states, however, the issue of Muslim apostasy was not addressed at all. […].
[1] Operationalizing and regulating religious freedom: Apostasy and administrative “reasonableness” in Malaysia and beyond, by MJ Nelson, DAH Shah,
[2] See, e.g., Crimes (Syariah) Enactment 1992 (Enactment No. 3 of 1992), §§ 12 and 13, Administration of the Religion of Islam and the Malay Custom of Pahang Enactment 1982, §§ 103 and 185.
[3] Administration of the Religion of Islam (Negeri Sembilan) Enactment 2003, § 119
[4] Ismail bin Suppiah v. Ketua Pengarah Pendaftaran Negara (R-1-24-31-95) (unreported case)
[5] See Johor Faith Protection Bill 2000, which resembled a bill passed that year in Perlis.
In a July 2022 document prepared by the Tribunal entitled Malaysia: Religious Conversion, Mixed Marriages, and the Status of Children, it states that the Malaysian state of Johor does not currently make it an offence, nor does it provide any facilitation of apostasy. Other jurisdictions that are silent on procedural matters include Perlis, Kedah, Selangor, Federal Territories and Sarawak. Due to a general lack of clarity, it has been noted that applications for apostasy in these jurisdictions can leave applicants into a legal quandary.
The same paper cited by the AAT document indicates that ‘Sarawak seems lenient in approving applications to renounce Islam:
As the majority of the applicants are Muslims by conversion, the Chief Minister appears to have compromised on the matter. Though the Shari'a Court seems reluctant to declare a person has apostatised, such approval could be obtained from the Religious Department. The procedure seems very straightforward. Muslims who wish to convert out of Islam may apply for approval from the Religious Department. The officer-in-charge will ask the applicant the reason why he intends to renounce Islam. In most cases, the applicant will undergo a series of counselling for the purpose of repentance. If such process fails, the officer will issue a letter confirming that such person is no longer professing the religion of Islam. By this document, the person can apply to change his Muslim name to a non-Muslim name at the Department of Registration, which in this case faces no obstacle. It is believed that Sarawak has one of the highest numbers of such applications to renounce Islam in Malaysia.
At no stage did the applicant claim to have lodged a request with the relevant authorities to formally abandon Islam, or the intention in doing so.
During the hearing, it was discussed whether the application processes in Johor, where the applicant formally converted or Sarawak where she was raised and where her family had resided, would apply.
On balance, the Tribunal finds that should the applicant formally renounce Islam, they will be subject to the laws and practices of Johor. Apostasy in Johor is not a capital offence, and not subject to imprisonment, fines, mandatory counselling or cooling-off periods. As the apostasy laws in that state appear to be at the permissive and not the punitive end of the spectrum (arising from state-based Syariah laws in Malaysia), the Tribunal does not accept the applicant faces a real chance of capital punishment, imprisonment, being fined or otherwise being seriously harmed based on any formal and voluntary application arising from this religious claim, either now or into foreseeable future.
The Tribunal accepts, per the DFAT information, that the first applicant in attempting to convert from Islam, will find it time-consuming and expensive. It accepts in situations whereby the applicant wishes to apply for conversion from Islam in Johor, she will face a real chance of official discrimination under Malaysian law in the form of delays. and in the likely refusal of official permission to convert. However, the Tribunal does not accept the real chance of such discrimination will amount to serious harm as non-exhaustively listed under s 5J(5) or as required by s.5J(4)(b). The Tribunal includes this in taking into account whether the applicant will have a real chance of suffering considerable or severe mental torment based on her having credibly claimed to have some treatable mental health conditions relating to anxiety and depression, should she return to Malaysia.
The Tribunal notes that the first and second applicants have claimed the first applicant to have experienced social discrimination based on her reversion from one religion, Islam, to Christianity.
In this regard, the Tribunal accepts the first applicant has been subjected to incidents of verbal insult and physical harm, in the form of physically jostling and shoving, by members of the second applicant’s family. Verbal insults appear to have occurred in the context of the first applicant’s ethnicity being distinct from the family of the second applicant, and a general dislike of the second applicant’s choice to be in an ethnically and religiously mixed marriage.
The Tribunal notes that the first and second applicants have been married since 2009, and the second applicant’s family were made aware soon after they were married. At no time, when the applicants were in Malaysia did anyone report or complain to the religious or secular authorities about the first applicant being someone who is Christian but has formally converted to Islam. This is despite a claim that the second applicant’s family were described as strict, and therefore, likely report the apostasy. The Tribunal does not accept there is any reasons for any Muslim members of the second applicant’s family whereby they wish to cause any lasting harm to the first applicant. Had this been the case, it would be reasonable that reporting the first applicant’s apostasy to the religious authorities would have already occurred. Furthermore, the couple have been raising and continue to raise their children according to the second applicant’s religion. As the first applicant is formally a Muslim and married to the second applicant under Islamic tradition, there is no question the third and fourth applicants are not illegitimate, in the sense of being born out of wedlock. This strongly indicates to the Tribunal that the applicant would not be a person of interest to the authorities without complaints about apostasy in the manner of the religious identification and upbringing of the third and fourth applicants.
The Tribunal also notes the applicant provided another example of social discrimination whereby a kampong or village leader (a Malay Muslim) was made aware of the first applicant’s Christian faith and apostasy from Islam. This occurred while the first applicant was residing in the Kuala Lumpur area. She described him as someone who privately expressed his disapproval. She accepted that he did not take any action against her but felt he was in a position to harm her by reporting her apostasy to the authorities.
At no stage has the first applicant suffered any attempts of extortion or blackmail about her apostasy by family members or members of the general public. Her testimony indicates that there is a high degree of toleration whereby apostates carry on with their lives without being reported to the religious authorities, and that the degree of social discrimination in the first applicant’s circumstances does not amount to a real chance of serious harm or a real risk of significant harm.
The Tribunal notes the first applicant travelled to Australia in 2013 without applying for protection and, despite being given the opportunity to do so, both applicants did not elaborate on how their circumstances had deteriorated during the almost three years since departing Australia in 2013. This strongly invited the Tribunal to consider that the first applicant, while genuinely an apostate as claimed, did not hold personally held fears of being punished by official discrimination or through social discrimination for the religious reasons claimed, that they were deeply or urgently held fears, either at the time of application or right up to the time of making this decision.
Taking all the country information and the first applicant’s personal circumstances into account, the Tribunal is satisfied that the first applicant held a genuine, but not a deep or urgent, subjectively-held fear of persecution based on her accepted claims about being an apostate from Islam, at the time of application. It accepts that the first applicant continued to hold this otherwise genuine fear of persecution during the scheduled hearing, right up to the time of making and into the foreseeable future, should she return to Malaysia.
Objectively speaking, the Tribunal accepts the first applicant is a genuine apostate from Islam and has been and remains a Christian, and that there are laws and practices against Muslims converts seeking to renounce Islam. The first applicant formally converted to Islam in 1997 and only maintained a heartfelt adherence to that religion for a short period of time. The first applicant has otherwise lived her life over a two-decade period with a degree of social discrimination that has not been notably or significantly punitive. While the Tribunal accepts has had personally held fear of official discrimination, she has not seriously or significant harmed by either the authorities or members of the general public over a considerable amount of time. The Tribunal does not accept the applicant will have a real chance of being legally or societally prevented from practicing her Christian religion while raising her child with the second applicant as Muslims by returning to Malaysia. Furthermore, it is open to the first applicant and her family to not visit or reside in close proximity with the second applicant’s Muslim members for any considerable time so as to reduce tensions and verbal insults about the first applicant’s apostasy or ethnicity. The Tribunal does not accept they left Malaysia in 2016 because there was any imminent punitive measures about to be taken against the first applicant as was suggested by the second applicant during the scheduled hearing. The country information indicates that the applicant and her family will be able to resume their lives in Malaysia, whereby the first applicant has only a remote or far-fetched chance - and not a real or substantial chance, of serious harm arising from the kind of social discrimination that entails significant ill-treatment and extortion and other acts of significant physical harassment of the kind mentioned under s 5J(5)(b) and (c) or any other serious harm considered under s.5J(5) and s 5J(4)(b) should she return to Malaysia, now or into the foreseeable future.

In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the Refugee Convention/s 36(2(a) definition. Based on the finding outlined immediately above this paragraph, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, they will face a real risk of harm arising from official and social discrimination based on the applicant’s apostasy from Islam and/or her interfaith marital status.
Publicly availably country information indicates that Christians account for close to 10 per cent of the total Malaysian population in 2010, the last year for which official data is available, and are predominantly located in Sabah and Sarawak. Sarawak has a higher Christian population than Muslims, the only state in the country with such statistics. While a broad range of ethnicities practice Christianity, approximately 20 per cent of the Chinese Malaysian community is Christian, and reports indicate a growing number of converts to Christianity are ethnic Chinese middle-class individuals who were originally Buddhists or Confucianists. While Christian politicians are present in most political parties, they tend not to represent specifically Christian interests. DFAT assesses that Christian generally live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. Those proselytising or promoting Christianity to Muslims face a moderate risk of harassment by state authorities, which has in some cases, included violence or abduction.
There is no suggestion in these claims that the applicant is a proselyting Christian or is a conspicuous leader of Christians promoting her faith to Muslims. Indeed, her children are being raised in the Islamic faith of their Muslim father. The most recent DFAT report from 2021, assesses that Christians generally live free from societal discrimination on a day-to-day basis. Based on the available information, the Tribunal finds the applicant’s religion as a non-proselytising Christian in an interfaith marriage, will not face a real chance of serious harm, or real risk of significant harm, based on her accepted and current religious adherence to Christianity, should she return to Malaysia.
The first applicant has also made a residual claim about her formal conversion to Islam whereby she fears a real chance of serious harm and faces a real risk of significant harm because of familial or societal hostility by Christians who disapproved of her conversion to Islam and/or interfaith marriage. In particular, the first applicant has claimed that her Christian mother in Kuching described the applicant had died to her. The applicant claimed that she no longer speaks to her mother as she found it difficult to talk to her. However, she has maintained contact with siblings in Sarawak. Despite having the opportunity to do so, the first applicant did not nominate any further instances of social discrimination, other than to say that the local community which included co-religionists with whom she had been educated, do not accept her. The Tribunal accepts this account whereby she has faced ostracism from Christians in Sarawak based on her formal conversion to Islam and/or interfaith marriage. It accepts the first applicant found this to be genuinely and emotionally painful. It also accepts that she has some real chance of encountering such social discrimination from other Christians outside of her family’s area in Sarawak by returning to Malaysia.
However, the Tribunal does not accept that the degree or intensity of ostracism or social discrimination by Malaysian Christians, based on the first applicant’s conversion to Islam, amounts to her facing a real chance of persecution. This is because the ostracism and social discrimination in which she has a real chance of encountering does not amount to serious harm as exhaustively listed under s 5J(5) and required by s 5J(4)(b), in returning Malaysia into the foreseeable future. Inclusive to this is the Tribunal’s assessment that such harm does not amount to mental torment, or significant physical harassment or any other serious harm non-exhaustively listed under s.5J(5) or s5J(4)(b), should the applicants return to anywhere in Malaysia, including the applicants’ home area of Kuching in Sarawak.
For completeness, the Tribunal also finds that the applicant will not face a real chance of harm and a real risk of harm based on her ethnicity as Iban or because of marital status as inter-ethnically mixed. That is because she has a substantial and real chance of encountering further verbal insults from her in-laws given, she has experienced it in the past. However, it is open to the first applicant and her family to avoid such familial tensions, as mentioned above. At no stage has it been argued that the first applicant faces any other kind of social discrimination, or any official discrimination, based on her ethnicity as Iban or as someone who is an inter-racial or inter-ethnic marriage. This accordingly invites the Tribunal to find that harm from such verbal insults and slurs doe not amount to serious harm as required by s 5J(4)(b), in returning to Malaysia. Therefore, the applicant does not have a well-founded fear of persecution based on her race or the related reason based on her inter-racial marriage in returning to Malaysia into the foreseeable future for the purposed of s.36(2)(a).
With regards to Act’s complementary protection provisions, the harm in this regard does not amount to significant harm as outlined under s 36(2A), including cruel and inhuman punishment or treatment or degrading punishment or treatment. That is because such harm, while intentional and entailing some suffering, the treatment or punishment from family members 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 International Covenant on Civil and Political Rights; or involve extreme humiliation, as defined in s 5(1) of the Act. In this regard, the first applicant does not satisfy the criterion under s 36(2)(aa).
Findings about second applicant
The second applicant claimed to be born in [year] in [Town 1] in the Malaysian state of Sabah. He claimed to be born into a Sunni Muslim family and not to belong to any Muslim minorities He further claimed his ethnicity is Bajau. He claimed to speak, read and write in Bahasa Malaysian. The Tribunal accepts this.
The Tribunal enquired whether the second applicant held any fears of persecution of his own. The second applicant replied that he is not scared but he wanted to change his home for his family and that he held the same fears for his wife as outlined above.
Noting that the applicant does not advance any claims that he personally faces a well-founded fear of persecution for any reason, the Tribunal has assessed that the applicant’s wife will otherwise face only a remote chance, and not a real chance of serious harm whereby she will be punished for apostasy. Taking these accepted circumstances into account, the Tribunal correspondingly finds that the second applicant faces a remote or far-fetched or insubstantial chance, and not a chance that amounts to a real chance, of persecution based on his wife’s religious and marital status claims or any other related reason mention in s.5J(1)(a), if they were to return to Malaysia into the reasonably foreseeable future.
The 'real risk' test imposes the same standard as the 'real chance' test, applicable to the assessment of 'well-founded fear' in the s.36(2)(a) definition. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, in which the second applicant will face a real risk of significant harm based on those religious claims about the first applicant’s apostasy raised on their behalves in this application for review.
The third and fourth applicants
The first and second applicants have claimed that the third and fourth applicants were to be separated from the first applicant, their mother, based on claims she will be punitively punished by the authorities in Malaysia due to her apostasy from Islam, as outlined above. As noted above, the third and fourth applicants are not illegitimate or born out of wedlock and are being raised as Muslims. the Tribunal has made findings above there is no real chance of them being separated from their mother or social discrimination.
Given the oral evidence is that the third and fourth applicants are being raised as Muslims, and given the abovementioned findings about the first applicant’s about apostasy under ss 36(2)(a) and 36(2)(aa), the Tribunal finds that the third and fourth applicants face a remote or far-fetched chance - and not a chance that amounts to a real or substantial chance, of serious harm arising from their mother’s apostasy and/or marital status of the first and second applicants, if they were to return to Malaysia.
Therefore, the third and fourth applicants do have a well-founded fear of persecution based on their mother’s accepted religious claims and marital status or any other related reasons mentioned in s.5J(1)(a) to be remote and insubstantial, and not one that is not a real chance, if they were to return to Malaysia into the reasonably foreseeable future.
The 'real risk' test imposes the same standard as the 'real chance' test, applicable to the assessment of a 'well-founded fear' in s.36(2)(a) definition. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the third and fourth applicants being removed from Australia to Malaysia, in which they will face a real risk of significant harm based on those religious claims about the first applicant’s apostasy or any other related reasons raised on their behalves.
Cumulative findings.
At no stage did any of the applicant’s advance any further claims for protection based on their race, their nationality, their political opinion, imputed or otherwise, or any membership of a particular social group related to their accepted religious circumstances and based on the marital status of the first and second applicants. Neither were any claims advanced related to their economic or financial circumstances, despite having the opportunity to do so.
The Tribunal finds there are no other residual claims in this review application to consider.
Taking all the applicants’ accepted circumstances into account, both individually and cumulatively, the Tribunal does not accept any real chance of serious harm arising from any claims based on the first applicant’s accepted religious claims or any other related reason mentioned in s.5J(1)(a) or any other reason, if they were to return to Malaysia. Accordingly, the applicants do not face a well-founded fear of persecution for any reason mentioned under s.5J(1)(a) anywhere within Malaysia.
Therefore, the Tribunal finds that the applicants do not satisfy s.36(2)(a).

100. Based on the complementary protection findings above, considered both individually and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to the Federation of Malaysia, there is a real risk the applicants will suffer harm by way of their being arbitrarily deprived of their lives; the death penalty will be carried out on them; they will be subjected to torture; they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment, as required in s.36(2)(aa).
Conclusion

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
decision

102. The Tribunal affirms the decision not to grant the applicants protection visas.
Brendan Darcy
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.
…

[2022] AATA 4081

17 August 2022

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