1712457 (Refugee)

1712457 (Refugee) [2020] AATA 1534 (12 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712457
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Brendan Darcy
DATE:12 May 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 May 2020 at 3:01pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – raised as a Catholic – converted to Islam – reverted back to Christianity – genuineness of faith – apostasy laws of Malaysia – procedures to renounce Islamic conversion in Sarawak – particular social group – single mothers in Malaysia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 a decision made by a delegate of the Minister for Immigration and Border Protection on 17 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of the Federation of Malaysia (Malaysia), applied for the visa on 9 December 2016. The delegate refused to grant the visa on the basis that she does not face a real chance of serious harm or real risk of significant harm based on her claims about apostasy from Islam, if returned to Malaysia.
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 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant claimed to be born on [date] in Sarawak in northern Borneo and claimed to be a citizen of Malaysia. It is claimed she was provided the given name [Alias 1] by her parents.
On the departmental file is a copy of the applicant’s Malaysian passport issued [in] 2015 ([Department file number]). On this passport, the applicant’s Islamic alias, [the applicant], is used.
The applicant arrived in Australia [in] September 2016 while holding a Class UD Subclass 601 (electronic Travel Authority) visitor visa.
The applicant applied for a Class XA Subclass 866 protection visa on 9 December 2016 and was granted an associated bridging visa.
The applicant’s written reasons that she was owed Australia’s protection obligations were included in her 866C application form at the time of lodgement with the Department. The following is a summary of those claims:
·     The applicant, raised as a Christian, became engaged with a Muslim man and converted to Islam;
·     The relationship ended but her Christian parents did not accept her back because she changed her religion, so she decided to settle in Australia and revert her religion back to Christianity;
·     In Malaysia, conversion from Islam is difficult and the religious Islamic court could consider her an apostate;
·     Here is n Australia, she has converted back to Christianity and she was baptised [in] December 2016;
·     If she returns to Malaysia, her parents will not accept her as a Muslim, and she would have to face a Sharia (or Syariah) court in order to convert back to Christianity; and
·     There is no guarantee of state protection on a 24-hour basis or place to relocate.
Her application for protection also states that the applicant’s ethnicity was Iban (indigenous to Borneo); that she can speak, read and write in Iban, Bahasa Malaysian and English. It further states that she was married in 2007 and divorced in 2012 and that she has two children, a daughter born in [year] and a son born in [year].
In support of her claims, the applicant provided a copy of her Islamic conversion card, showing her previous name and Islamic name.
A delegate on behalf of the Minister refused to grant the applicant a protection visa on 17 May 2017. On 12 June 2017, the applicant validly applied to have the delegate’s refusal decision reviewed. The delegate’s refusal decision was attached to this application for review.
On 13 September 2019, the applicant provided a baptism certificate dated [in] December 2016 indicating she was received into a Christian church or mission called [Church 1]; a letter from [Reverend A] dated 5 September 2019 indicating the applicant currently belonging to a Pentecostal Christian community in [Suburb 1]; a letter from her then current employer; the birth certificates of her children issued by the authorities in Sarawak, indicating the applicant’s children classified as Christian; and a copy of the applicant’s divorce order issued in June 2014.
Also on the Tribunal’s file is a copy of the applicant’s MyKad (national identification card) with [the applicant] as the name.
The applicant attended a scheduled hearing with the Tribunal on 13 September 2019 to provide evidence and present arguments as to the reasons she was owed protection. The applicant was assisted by an interpreter in the English and Bahasa Malaysian languages.
There were also two witnesses to support the applicant’s claims: her sister also residing in Australia, [Ms B], and [Reverend A], both of whom provided oral evidence via a teleconference facility.
At the end of the hearing, the applicant was provided with a post hearing opportunity to submit further documents, and to do so by 27 September 2019.
On 25 September 2019 the applicant provided a certified copy of the applicant’s conversion card dated [in] February 2015 to the Tribunal.
A certified translation of conversion certificate was attached. It indicated that the applicant’s original name was [Alias 1] and that she adopted the Islamic name [the applicant].
Also submitted was a certification letter of conversion to Islam by the applicant dated [in] March 2015. The letter issued by Jabatan Agama Islam Sarawak (or the Department of Islamic Religious Affairs Sarawak) indicated the applicant converted to Islam [in] February 2015.
Non-disclosure certificates
There are no non-disclosure notices attached to either the Department or Tribunal’s files.
ASSESSMENT OF CLAIMS AND REASONS
Country of nationality
The applicant claims to be a citizen of Malaysia and provided copies of her passport and national identification card to the Department with her protection visa application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Findings and reasons
Accepted personal circumstances
Overall, the Tribunal found the applicant’s written and oral evidence as well as the documentary evidence to be generally reliable and credible, with some notable exaggerations which are pointed out below
It is accordingly accepted as credible that the applicant was born in the Malaysian state of Sarawak in [year] and was provided with her given name: [Alias 1], as claimed. It is accepted the applicant’s ethnicity is Iban and that she can speak read and write in Iban, English and Bahasa Malaysian.
It is also accepted as credible that the applicant was married [Mr C] (of Chinese ethnicity) in 2007 and later divorced in 2014 and that the applicant is the biological mother to two children born in [year] and [year] respectively, as the submitted divorce order and birth certificates indicate.
The applicant provided credible oral evidence that her parents reside in Sarawak where they produce their own produce and operate a small [business]; and that she has [number of siblings]. The applicant claimed that her children are currently residing with her parents in Sarawak. The Tribunal accepts this.
The applicant claimed that she had worked in [occupation] for [a government] department between 2012 and 2015. The Tribunal accepts this.
The Tribunal also finds that the applicant’s home area for the purposes of this decision is the Malaysian state of Sarawak.
Religious claims for protection
The applicant claimed that her parents belonged to the Christian denomination of Roman Catholicism and that she was raised as a Catholic. The Tribunal enquired whether she was baptised as a Catholic, to which she responded that she was not but her family believed in Jesus and she followed her parents to church, including Sunday school (or catechism). She was asked to nominate distinctive practices and beliefs about Catholicism, to which she responded that the Christians do not forbid things and vaguely mentioned church on Sunday and the rosary. The Tribunal enquired if she prayed the rosary with her parents or congregation and whether she could recite ‘the Hail Mary’. The applicant responded that she had and then began to pray the Lord’s Prayer. When the Tribunal informed her that was not the prayer and that it began ’Hail Mary, full of grace’ to prompt the applicant, she could not recall the prayer. The applicant claimed that she went to a school called [School 1] (denoting that it administered by a Catholic or at least Christian community or diocese) but she was unable to recall any other the sacraments of the Roman Catholic rite as would be expected of someone who attended many years at a church run school.
The Tribunal enquired that her knowledge of Roman Catholicism was very poor and perhaps she was brought up as a Muslim. The applicant insisted she was raised as Catholic but she grew up and forgot about the religion. The applicant’s sister provided oral evidence that they were raised as Roman Catholics and that they prayed the rosary and attended regular Sunday mass.
The Tribunal enquired also if the applicant had any medical reasons for not remembering such basic details about the religion in which she claimed to have been brought up and educated. The applicant responded that she did not.
The Tribunal notes and accepts that the applicant has also claimed that her former husband shared the same religion as her; that the birth certificates indicate the applicant and her husband were both Christian and that their children were registered as Christians.
On balance, the Tribunal accepts the applicant to have belonged to a family who identified as Christian and specifically as Roman Catholic. Based on the applicant’s weak knowledge of Catholic rituals and beliefs which she claimed to have forgotten, the applicant only demonstrated a shallow degree of knowledge and commitment towards Catholicism, and not a deep or devout one as she tried to impress upon the Tribunal during the scheduled hearing. Nonetheless, it accepts that being Roman Catholic is her accepted religious identity and for official purposes, had been identified as Christian at least up to the time of her putative conversion to Islam in February 2015.
The applicant elaborated on her written claims that she had converted to Islam in 2015. The applicant explained that she had mutually agreed to marry a Muslim Malaysian citizen named [Mr D] whose ethnicity was ethnically Kadayan. The Kadayan or Kedayan is an identity or race recognised as indigenous to northern Borneo and are largely Muslim. She claimed to have been engaged for a year but never married. The applicant was asked to describe the process of conversion and what she understood about Islam. The applicant said that she attended an Islamic course at the Islamic Department in [location] which took two to three days and that the course was undertaken by a female educator. The applicant was asked how was she taught to pray, to which she responded that she did not pray. The applicant elaborated that she learned about the Koran, Mohammad and to ritually pray five times a day. The Tribunal enquired if the applicant knew towards which direction Muslims pray (qibla). The applicant responded that Muslims follow the direction of the sun as it rises. The Tribunal pointed out that Muslims pray towards Mecca in Saudi Arabia (where the Ka’bah in the Scared Mosque resides); to which the applicant said that was where the sun rises. The applicant further described that no pork, no alcohol and no showing off the body was permitted. She also said she learned about clothes to wear as a Muslim woman. The Tribunal enquired whether she knew what halal meant, to which she was unable to explain. The Tribunal enquired if she could tell it something about Mohammad’s life and mission. The applicant said that she did not learn everything about the religion. The Tribunal promoted the applicant stating the Mohammad the Prophet was the founder of Islam. The applicant could recall The Prophet was Arabic but could not elaborate on anything else.
The applicant also said she undertook the Islamic oath or testimony, the Shahada, to follow one God and no other god. The oath, she stated, was uttered before three Muslim witnesses. The Tribunal said that there was no certificate of Islamic conversion attached to her claims. The applicant undertook to provide a copy which she did in a post hearing submission.
The applicant claimed that she undertook this conversion because the parents of her Muslim fiancé insisted on it and that she presented the Islamic conversion certificate and her identity card with her changed name to then prospective parents-in-law.
The Tribunal asked if she considered applying to have her name and religion reverted to reflect her original name and religion following the end of her relationship. She replied that she wanted to but understood that she would have to go through a long process. She claimed that while her children resided with her mother, the applicant feared ostracism for converting to Islam. However, she later said the falling out she had with her parents had not been large or serious and that the relationship is between them has been ongoing since they know she is attending a church in Australia. In fact, the applicant’s children have twice travelled to Australia to visit the applicant.
The Tribunal has considered whether the applicant’s claim to have been a convert to Islam lacked credibility. Certainly, the applicant’s documentary evidence – copies of her conversion card and one-page certificate of Islamic certificate – could have easily been reproduced with desktop technology. The applicant’s oral evidence of her knowledge of Islam was unquestionably very shallow, not commensurate with a convert. There was also an element of implausibility that the applicant made the serious undertaking to convert to Islam if it risked estrangement from her Christian family, including her children, and the possible impact on her under Malaysian law.
However, the Tribunal finds that the despite the implausible and weakly evidence was not so implausible as to lack entire credibility. Accordingly, the Tribunal accepts the applicant’s claim that she undertook the formal lessons and the Shahada in front of witnesses to formally convert from Christianity to Islam as required by the relevant Islamic religious affairs department in Sarawak and that she did so solely to placate her then Muslim fiancé and his family and not out of conviction. The Tribunal further accepts those elements of her claims that that her engagement ended prior to her departure, that her parents disliked or disapproved of her Muslim fiancé.
The applicant has also added to her claims that she has recommenced as a practicing Christian after she arrived in Australia in late 2016. However, the applicant claimed to have joined and was even baptised in an evangelical Pentecostal church whose [pastor] she could understand, and that she had studied bible on a weekly or regular basis. However, the applicant was not able to explain the difference between the Old and New Testaments of the Christian Bible and she could not inform the Tribunal as to which religion Jesus had been brought up in.
The Tribunal also notes the applicant’s witness, [Reverend A], stated that she was known to him as [Alias 1] (not [the applicant name]), that she attended church services every weekend, that she was baptised into his church after six months of attendance and that he had told her about Jesus’ life as it is in the Christian bible, although he could only recall one class that she had attended and he could not recall the religion the applicant had previously been. The applicant later insisted that she had told the pastor about being Muslim and that the pastor told her that all the religions were the same as all the other Christian religions. The Tribunal also received oral evidence from the applicant’s sister at the scheduled hearing.

Her sister further stated that the applicant cannot return to Malaysia to practice as a Christian or identify as a Christian because she wanted to marry a Muslim man and because life would be difficult as a single mother. The applicant’s sister further claimed she came to Australia to keep her sister to keep her company as she has disappointments in life; that they had been brought up as Roman Catholic and that her sister sometimes attend Roman Catholic services and sometimes evangelical services. When it was put that the applicant had attended Roman Catholic services as well as evangelical services, the applicant retorted that she had not attended.
The Tribunal noted to the applicant that her baptism took place [in] December 2016 – days prior to the applicant applying for a protection visa on 9 December 2016. The Tribunal enquired into the reasons she did not delay her baptism, to which she replied that she had sinned much and because it brought her peace and calm and that she did not think about linking her baptism to her application for protection. The Tribunal also noted the applicant and her spiritual relationship with the pastor who provided oral evidence could not have been six-month-old prior to her baptism in December 2016 as she arrived in September 2016.
Overall, the Tribunal has found the applicant’s reversion from Islam to Christianity, albeit to a different Christian denomination, to have been weak and lacking genuineness that was undermined by a number of inconsistencies between the witnesses’ testimony and the applicant’s written and oral claims. While the Tribunal has provided the applicant the benefit of the doubt about many aspects of her religious claims, it cannot on this occasion accept the applicant’s conversion to be genuine or heartfelt. The Tribunal found the pastor of the Pentecostal church not to be a reliable witness. He did not know the applicant for six months prior to her baptism and he knew very little about the applicant’s background and admitted that he could only recall the applicant attending one bible class. As discussed in the hearing, the timing of the formal baptism appeared to be timed to augment her claims for protection and not because she is genuinely interested in evangelical Christianity or religion in general. That is not to say the applicant’s baptism into [Reverend A]’s church is not genuine or that he was genuinely under the impression the applicant was an enthusiastic congregant and that he felt obliged to assist the applicant on this basis by providing oral evidence.
Will the applicant have a well-founded fear of persecution in returning to Sarawak?
The Tribunal accepts that the applicant will return to her home area of Sarawak where she will be officially identified as [the applicant] and not [Alias 1] and as a Muslim and not as a Christian as appears on her passport and national identity card.
During the hearing, the applicant was asked what harm she precisely feared encountering if she returned to Sarawak. The applicant nominated that the harm she feared was being identified as a Muslim when she was in fact a Christian, that she would be ostracised from her children and her parents belonging to a Christian family and that it would be administratively lengthy and burdensome for her to officially revert to her official Christian status given laws against apostasy in Malaysia.
As the most recent DFAT country report on Malaysia outlines, 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.
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, families in some communities may view this negatively.
The DFAT report further states that 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. 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.
The US State Department has reported on a number of cases in which individuals who have attempted to convert from Islam have been compelled to attend religious rehabilitation centres. In many cases, converts concealed their new beliefs. Religious converts have also reported difficulty changing their religion on their national identification cards.
Only 168 of 863 Muslims who attempted to convert between 2000 and 2010 received permission to do so. 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.
DFAT further 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 and potential punishment for apostasy in some states.
As discussed in the hearing, there were reports of the Chief Minister of Sarawak in Malay Mail Online titled “Sarawak to Amend State Shariah Laws on Apostasy’ dated 3 March 2018 indicating that the laws and practices may be different in the applicant’s home area. However, the Tribunal notes the office of the Chief Minister denying the statement as accurate and stating that reviewing relevant ordinances and standard operation procedures may be called for but the jurisdiction of the state Syariah court to handle apostasy cases remains.[1] There are no further reportage that the Tribunal can locate that the Syiarah laws in Sarawak has been loosened in relation to apostasy from Islam.
[1]‘Sarawak not amending state syariah law on apostasy’ Sunday Mail, 4 March 2018, >
In this matter, the applicant has freely and knowingly undertaken to enter into Islam by formally announcing in front of witnesses as required by the Syariah laws and regulations under Sarawakan law. In doing so, she has renounced her earlier faith tradition as a Roman Catholic, changed her name to a Muslim or Malay Muslim sounding name and had her identify card changed to reflect this.
According to a 2007 journal surveying the apostasy laws of Malaysia, there are a number of Malaysian sates such as Perlis, Kedah, Penang, Selangor, Federal Territories, Johor and Sarawak that do not make any provision on the punishment for apostasy, nor do they provide any facilitation for apostasy. Since these States’ Enactments are silent on this matter, Muslims particularly by conversion who wish to leave the Islamic religion are in a legal quandary. 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.[2]
[2] Adil, M. 2007, ‘Law of Apostasy and Freedom of Religion in Malaysia’, Asian Journal of Comparative Law, Vol. 2 Issue 1 >
While this research dates back to 2007, it is important to keep in mind the largest religion in that Sarawak with 40 per cent belonging to the major Christian denominations while Islam makes up about 37 per cent of the population, according to the 2010 Census. The pressures from politicised Islamic groups like the Malaysian Islamic Party (PAS) are marginal compared to many of the states in peninsula Malaysia. Indeed there have been no PAS representatives in the Sarawakan legislative assembly. While the Tribunal accepts there have been several high-profile incidents over the last few years illustrate an increasing trend towards conservatism in Malaysian Islam, the pressures to display religious piety and enforce religious laws have not taken hold in Sarawak over the last two decades. In this regard, Sarawak is not a society featured by widespread societal violence and harassment against apostates from Islam or Christians in general.
It is the Tribunal’s assessment of the country information, that the applicant will be able to return to her home area of Sarawak and apply through a Syariah court in Sarawak to obtain approval from a Religious Department where the applicant will be queried into the reasons she intends to renounce her Islamic conversion. She has a real chance of undergoing a series of counselling for the purposes of repentance. The applicant has a real chance of the Islamic religious affairs department confirming that she is no longer professing Islam and can proceed to change her name from her Islamic name to a non-Muslim name at the Department of Registration. Having gained this, the applicant will also have the opportunity to change her name on a newly issued passport, as well as her MyKad. Based on the differences of the laws on apostasy as they are practiced in Sarawak compared to most Malaysian state jurisdictions, the Tribunal finds that challenges arising from undergoing this administrative process cannot be reasonably characterised as leading to any serious harm or even being extremely difficult as suggested by generalised DFAT assessment. The Tribunal is satisfied that the applicant will not face a real chance of serious harm by way of capital punishment, imprisonment, corporal punishment or a punitive fine or even a drawn-out complex legal or administrative process to effectively apostatise or any harm amounting to serious harm, if she were to return to Sarawak.
The applicant, it follows, does not have real chance of serious harm arising from ostracization from members of her Christian family or children back in Sarawak a be ostracised for the reasons claimed. There is little relevancy to the applicant’s formal baptism into an evangelical church and her related sur place religious activities since her arrival in Australia, as the applicant is not a sincere or genuine evangelical Christian in this regard.
The Tribunal accepts the applicant will have a real chance of encountering official discrimination under Malaysian law as it is practiced in Sarawak in the form of having her requests to officially revert her religious identity from Islam to Christianity. However, the Tribunal is unable to find on the basis of those challenges that the applicant will face a real chance of harm that amounts to serious harm as non-exhaustively listed under s.5J(5) and as required by s.5J(4)(b), if she were to return to her home area of Sarawak.
DFAT further assesses that Malaysian Christians generally live free from societal discrimination on a day to day basis and they able to worship freely without significant official interference. Noting that the applicant has not proselytised or promoted Christianity and there are no reports of physical harm or systematic discrimination against apostates from Islam in Sarawak, the Tribunal does not accept the applicant faces any real chance of serious harm arising discrimination based on her religious status as a Christian or as a Christian who had converted to Islam and then apostatised from Islam, if she returned to her home area of Sarawak into the reasonably foreseeable future.
Although it is accepted that the applicant currently identifies as a Christian who formally converted to Islam for the reasons claimed and had some concerns about applying to revert to her earlier official religious identity and name, the Tribunal finds that the applicant did not have any deep or urgent personally held fears of persecution arising from her claimed religious status at the time of application and that she disingenuously undertook a baptism with an evangelical church to augment her otherwise weak religious claims for protection and not out of sincerity or conviction. Afterall, throughout the applicant’s written and oral claims, it has never been advanced fears about physical and mental anguish arising from her apostasy and has only identified a challenging or difficult administrative process, not a dangerous or persecutory one. It accordingly finds that the applicant does not have any deep or urgent fears of religious persecution arising from these claims, if she were to return to Sarawak, either now or into the foreseeable future.
The Tribunal accordingly finds that the applicant does not have a well-founded fear of persecution, either subjectively or objectively understood, on the basis of being a Christian, an apostate from Islam or in applying to revert her official identity from Islam to Christianity or any other related reason mentioned in s.5J(1)(a), if she were to return to home area in Sarawak.
In this regard, the applicant does not satisfy s.36(2)(a) by returning to her country of origin and nationality, Malaysia.
With regard to the complementary protection provisions of the Act and based on the same assessment of the available country information, the Tribunal not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to her home area of Sarawak, there is a real risk of capital punishment, torture and arbitrary deprivation of life. While it accepts the applicant while applying to apply to renounce her conversion to Islam and use her previous or earlier Christian name and religious identity with the relevant authorities in Sarawak will be notionally punished and treated as an apostate, the Tribunal is not satisfied that the treatment and punishment of the applicant will amount to being cruel, inhuman or degrading punishment or treatment as required by s.36(2A)(d) and (e). In this regard, the applicant does not satisfy s.36(2)(aa), if she returns to her country of reference.
Residual finding: single motherhood
Although not advanced by the applicant herself but by the witness, the applicant’s sister, the Tribunal has considered the residual claim that the applicant will face a real chance of serious harm or a real risk of significant harm arising from her single or sole motherhood.
The Tribunal notes that the most recent DFAT report states that single mothers in Malaysia may be unable to work due to costs associated with childcare, or the additional burden of caring for extended family members, and thus rely on modest government assistance to support their families. Financial assistance from the Department of Social Welfare, Ministry of Women, Family and Community Development is available to households whose income is below the income poverty line, but differs across states (RM 720 per month in peninsular Malaysia, RM 830 in Sarawak and RM 960 in Sabah). The Department of Women’s Development also maintains an online database for single mothers, ‘iWanita’ (previously ‘MyWanita’), to help address issues and better understand their needs. The government has also launched other initiatives in recent years with the intention of assisting single mothers, particularly those living in rural areas. In particular, the Action Plan to Empower Single Mothers 2015-2020, which involves 27 government agencies, higher-learning institutions, NGOs and private sector organisations, emphasises economic empowerment, enhancing social wellbeing, and stepping up research and development and coordination in areas pertaining to women’s development.
In the applicant’s case, her children are around [age] and [age] years old and are old enough for secondary school, indicating the applicant has the capacity to work either part-time or full-time for remunerative employment The applicant has worked in the past in Malaysia and has provided a reference that she is working in Australia. She has no disabilities and is strongly motivated to work. The applicant also has a supportive family including her parents helping to raise her children back in Sarawak and her sister who claimed to travel to Australia to support her. As the country information indicates, there is government support for sole parents throughout Malaysia including through financial assistance.
Taking these factors into account, the Tribunal does accept that the applicant faces challenges in returning to Sarawak in finding employment and supporting her children as a sole parent. However, she does not face a real chance of harm that amounts to serious harm, including significant economic hardship, denial of access to basic services or the denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist, if she were to return to Sarawak.
Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution based on being a single or sole mother or for any other related reasons mentioned in s.5J(1)(a), if she were return to her home state of Sarawak into the foreseeable future. In this regard, the applicant does not satisfy s.36(2)(a).
Neither does the Tribunal have any substantial reasons to believe the applicant, as a necessary and foreseeable consequence of being removed from Australia to her home state of Sarawak, faces a real chance of harm that amounts to any of the significant harm listed under s.36(2A) and required by s.36(2)(aa).
Cumulative Findings

The applicant did not advance any other claims for protection that she faced a real chance of serious harm or a real risk of significant harm based on her ethnicity as Iban, her political opinion, imputed or otherwise, her nationality or any other reasons mentioned in s.5J(1)(a) or any reasons relevant to the Act complementary protection provisions.
There are no more residual claims to consider in this application for review.
Having cumulatively assessed all the applicant’s accepted personal circumstances in the context of the available country information, the Tribunal finds that she does not face a real chance of serious harm, now and into the reasonably foreseeable future. The applicant’s fears of persecution are not well-founded for any of the reasons mentioned in s.5J(1)(a),(b) or (c), if she is returned to the Federation of Malaysia, and she does not satisfy the criterion in s.36(2)(a).
Based on the same findings, cumulatively considered, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia there is a real risk of significant harm, including that the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment, pursuant to s.36(2)(aa) of the Migration Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa)The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2020] AATA 1534

12 May 2020

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Immigration

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