1716897 (Refugee)

1716897 (Refugee) [2022] AATA 475 (1 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1716897

COUNTRY OF REFERENCE: Malaysia
MEMBER:Anne Grant
DATE:1 February 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 01 February 2022 at 3:03pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – conversion to Christianity – particular social group – mixed religious marriage – changing religion on identity card – marriage registration in Malaysia – custody of the child – fear of detention – officially illegitimate child – financial and physical punishments – charges of proselytising – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 July 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 Malaysia, applied for the visa on 29 March 2017. The delegate refused to grant the visa on the basis that they found that there was not a real chance that the applicant would be persecuted in Malaysia; and in considering the complementary protection provisions, found that there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being returned to Malaysia.
The applicant was invited to attend a hearing by video conference on 21 October 2021. On 30 August 2021 an email was received from Migration Lawyer [Representative A] of the [named agency] who had assisted the applicant in returning the hearing invitation and in which she noted:
“We are instructed that, at the hearing before the Tribunal, [the applicant] (sic) wishes to raise substantial new claims relating to his inter-religious marriage with his wife, [Ms A],(sic) who is a Malaysian Christian. We attach herewith a copy of [the applicant’s] (sic) marriage certificate and the birth record of their daughter, born in [specified year].
Unfortunately, due to the short time available, we have not been able to prepare a statement setting out [the applicant’s] new claims in full - he will address these directly with the Tribunal at the hearing.”
After considering the submission of [Representative A], the Tribunal conducted a search and ascertained that the applicant’s wife had her own protection review waiting constitution in the Tribunal ([case number]). Steps were taken to mark the two cases as ‘related’ within the Tribunal records and [Ms A’s] case was constituted to the same member so that the matters could be heard by the same member, given the same or similar claims were likely to be made in each. [Ms A] was invited to attend a hearing via video conference to give evidence about her protection claims on 16 November 2021.
On 15 October 2021, the applicant submitted further copies of his marriage certificate; a birth certificate for his daughter and a criminal history check. He also made a written submission as follows:
1.1 My Background
NAME : [Applicant’s name]
D.O.B : [DOB 1]
RELIGION : Islam (born and will officially convert)
1.2 My wife Background
NAME : [Ms A]
D.O.B : [DOB 2]
RELIGION : Christian
2.0 WHY I NEED A PROTECTION
2.1 Early years
I reached here in Melbourne, Australia in early 2016. I came from a rural area in Malaysia called [town name in] Pahang and I'm not really well educated; I finish my high school but I wasn’t very fluent in English. Trying to change my life by working in overseas, I fell into an advertisement. That leads me to an independent farm work agency, they managed to book me a flight, find me a job and a place to stay. I didn’t know much about visa or anything. One and a half years later in 2017, a friend of mine helped me to apply a Protection Visa. With still lack of clarity on my surroundings, I didn’t really know about the visa I was applying for.
He told me the Visa is needed for me to stay here and work and I bought that. As time passes, I became better in English and clearer with the law and how things work around here. I realize that I’ve been doing it quite wrong.
2.2 Got Married
In 2018, I met a Sabahan Malaysian woman named [Ms A]. We got married in 2019 (ceremony among close friends) and officially registered in 2021. We are blessed with a beautiful daughter named [Daughter A].
2.3 Becoming a Christian
At first, when I got married to the love of my life in 2019 (ceremony), I was still a Muslim. In Islam, if a non-Muslim wants to get married with a Muslim, they need to convert to Islam. So, my wife agreed to convert even though I and she know that she doesn’t really believe in it. Just for the Akad(Muslim way to get married). Few months later my wife wanted to become a Christian again. So, technically during that time (2020) we were already in an ‘Interfaith Marriage’ which is not allowed in Malaysia and Islam.
As I learning about my wife beliefs deeper and deeper, I started to realize that Christianity is actually has the same root as Islam. Most importantly, it teaches how to love and be peaceful which is hugely similar to Islam. Around the end of last year (2020) I started thinking of converting to Christianity. But I want to do it full-heartedly and when I’m truly ready. Since lockdown happens because of Covid19 and the church is not open. I just learn from my wife and a bit from [Church 1] stream at [link deleted].
I’m really looking forward to get baptized in the future when the time is right.
2.2 Why I can’t be in Malaysia
Malaysia doesn’t allow Interfaith Marriage and Muslim converting to another religion. I might get to go for unnecessary counselling or get mentally abused from the Malay society. Plus, every Malaysian Identity Card has stated religion and it's very hard for a Malay born-Muslim to change it. The authority can take actions on m based on that.
Quoted from Wikipedia regarding the place I’m born at; -
Pahang: 'Attempted apostasy' is a criminal offence, carrying the maximum penalty of 3 years jail, six lashes, a RM 5,000 fine, or a combination
(Check references)
It’s clearly against human rights.
3.0 HOPE IN AUSTRALIA
Since I came here, I've been clean and clear from any crime (police check in reference), I pay my tax, and I’m looking forward to contribute more to this country.
In the submission, the applicant also provided a copy of a criminal history check, several wedding photographs, his own birth certificate, and reference to three articles on mixed faith marriage (which articles have been considered in this review) as follows:

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The hearing with the applicant was conducted via video conference on 21 October 2021. The hearing was assisted by an interpreter in the Malay and English languages. The applicant’s wife also attended the hearing and gave evidence separately to her husband at the applicant’s request. Only the history and detail of their interfaith marriage and the claim that the applicant intends to convert to Christianity were discussed with [Ms A] as a witness in her husband’s case. Protection claims specific to herself were to be discussed further at her hearing in November. The applicant was advised that it would be helpful if he was available to give evidence at that second hearing also in case there were any matters that need clarification; or evidence he could give which was relevant to her application. He agreed to be available.
On 16 November 2021 the hearing was conducted in [Ms A’s] review. The applicant attended that hearing as a witness and answered some additional questions, discussed below. Evidence given by [Ms A] relevant to the applicant’s review is also discussed later in this decision. Because the matters are related but each have their own claims, the Tribunal has considered them separately but it will be noted that the same or similar reasoning applies in each.
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.
CLAIMS AND EVIDENCE
The applicant has provided evidence of his Malaysian citizenship. I am satisfied that Malaysia is the country of his nationality and the receiving country in considering his protection claims.
The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being returned to Malaysia, there is a real risk that the applicant will suffer significant harm.
The applicant lodged his written claims on 28 March 2017. In his written claims, he claimed that he feared persecution in Malaysia due to his political opinion (being opposed to the ruling government of Malaysia) and because he had been an active member for Solidariti Anak Muda Malaysia (SAMM) and participated in a Bersih 4 rally in 2015. He claimed he had been targeted under the Sedition Act for misuse of the internet and promoting hatred against the government, had been threatened with death by fanatical pro-government supporters, and that pro government mafia are ‘tracking him wherever he goes.’ He claimed that a policeman warned him, so the authorities will not protect him and relocation is not an option.
At the hearing, the applicant immediately informed the Tribunal that none of the written claims were true. The applicant said that when he came to Australia, he was told and understood that he had a permit or visa to work. He immediately started working on a farm. For about the first year before he lodged the protection application, he was working on a farm in [Town 1]. He was unaware that he was working and staying illegally. Once he knew, he stopped working until he got work rights, and found someone to help him make sure he was in the country legally. In the interim he helped out with cooking and cleaning in the house he was living in. When he applied for the protection visa, he again thought he was applying for a work visa and did not know what was written down on the claim form at the time. The applicant said that the person who helped him with the protection application demanded $1000 to lodge the application, however even that friend lied to him, because it wasn’t a work visa he applied for and he still didn’t get work rights until 2020.
The applicant said categorically that none of the written claims were true. He does not and never did fear returning to Malaysia for any of the reasons given therein. He has no fear of persecution due to his political opinion, because of political activism on social media, at Bersih rallies, or in any political organisation. Further, at the time the protection application was lodged, the applicant said he did not have any protection claims or fear of persecution in Malaysia or of returning to Malaysia for any reason: as mentioned earlier, he claims he thought he was applying for a work visa.
Based on the applicant’s strong and clear evidence at hearing, the Tribunal considers that he has abandoned his written claims and will not be considering them further.
The applicant claims that he fears returning to Malaysia now because he is in a mixed faith marriage. His wife is a Christian and he is a Muslim.   His evidence about the marriage is as follows:
·He met his wife in 2019 not long after she came to Australia. It was noted that in his written submission, he claimed to have met her in 2018 - but the applicant clarified this at hearing, observing that he had not known her at all before she came to Australia, and corrected himself to 2019. They met through a friend of a friend. They fell in love and married (after only six months) in an Islamic ceremony, in October 2019. They later had a civil ceremony [in] May 2021 which was registered in Australia.
·At the time of their marriage in 2019, [Ms A] agreed to convert to Islam (even though she would have preferred not to) and did so prior to the service. However, she now considers herself a Christian again. The applicant claimed that because she is a Christian, they would be considered to be in a mixed faith marriage, and such marriages are not recognised in Malaysia.
·The marriage was conducted by an Islamic celebrant. [Ms A’s] conversion involved her saying two verses from the Quran, and doing that in front of others at a Mosque. They have received an official certificate confirming her conversion. She did this so that they could marry and be together, but she now says she never did it ‘in her heart’ and the applicant said she is a Christian.
·The applicant agreed that they had married in accordance with Islamic marriage rules and it was likely that they could register the marriage in Malaysia, because they had the certificate of conversion. They have not done so up to now. The applicant said he didn’t see the necessity of registering the marriage. When asked why they conducted the civil ceremony in 2021, the applicant said that his wife was pregnant, they wanted the child’s birth registered, and were worried that they might not be able to get a birth certificate without marrying formally in Australia. Both the civil marriage and the child’s birth are registered in Victoria. The child [Daughter A] was born on [date] in [Town 2].
·However, the applicant said that if the family returns to Malaysia, he faces threats of harm from religious Muslims in Malaysia who would know that the applicant was a Muslim who had married a Christian woman. If they find out that he has converted to Christianity, the law in Malaysia means that he will be imprisoned. When asked how people in Malaysia would know about their personal faith choices, when all the paperwork suggests otherwise, (due to her conversion) the applicant claimed that people in Malaysia would ‘just know.’
·He has not officially converted to Christianity. It was noted that, as he had already indicated, the decision to change faith in Malaysia from Islam to Christianity is a very serious decision which could have consequences for him, including prosecution and punishment. In that context, the applicant was asked why he was considering converting. He responded that the decision has arisen because he wants to continue living with his wife. The applicant said he did not practice Islam ‘fully’. He spoke of the Christian faith as being similar to and the same as Islam, noting that both ask you to be of good character, not harm others, do only good things.
·The applicant acknowledged that it is not possible to convert from Islam in Malaysia, and that if he returns to Malaysia and claims to have converted he will face punishment at the hands of the Islamic religious departments.
·It was noted that he didn’t see much difference in the faiths and was asked why, in that case, he was considering conversion given the serious consequences of doing so. The applicant responded with two questions – ‘Why can’t I be a Christian?’ and ‘Why can’t I do what I want to do?’ The Tribunal sought clarification about what he wanted to do as a Christian that he could not as a Muslim.   The applicant responded that in Islam you pray five times a day but not in Christianity. He said that in Christianity you have to go to church and listen to sermons and there is no requirement for a Hijab.
·The applicant gave evidence that he does not attend religious classes, and has only really looked at Christian [social media] sites as well as speaking to his wife. His wife’s branch of Christianity is Anglican. The name of the Church is [name] and they have sermons there in Malay online. The applicant said that one day, he will join them in person.
·The applicant said the reason he had not converted in Australia was due to the churches all having closed down during the pandemic. He has spoken generally to his wife and learned from her but he has not attended church in Australia, has not spoken to a minister, nor has he officially converted. He was unfamiliar with the bible. He spoke fondly of Islamic principles as promoting love, tolerance and peace and thought Christianity did the same. He claimed nonetheless that conversion is in his heart and after the lockdown is over he wants to be baptised.
·It was noted that because of the steps they have taken to conduct an Islamic ceremony and for [Ms A] to be converted to Islam, it seemed that they could return to Malaysia and satisfy the authorities of their marriage according to Islamic rules, his wife’s conversion to Islam (even if just for the purposes of formal recognition) and register their child’s birth. The applicant agreed with this as technically possible – that is, their Islamic marriage could be registered, his wife’s conversion proven, and their daughter would then be considered their legitimate Muslim child. In those circumstances, the applicant was asked if he and his family could potentially return to Malaysia and live their life as they wish without coming to anyone’s attention. The applicant disagreed that they could live in a mixed faith marriage in Malaysia, regardless of whether they registered their marriage or not. Their marriage would be constantly questioned, and his wife’s rejection of Islam and the birth of their daughter would make the situation far more complicated.
·The applicant agreed that his wife was from Sabah where there is a large Christian community and where they would probably choose to reside, if they return to Malaysia.   He claimed that Sabah has both Muslim and Christian communities living side by side. The church and the mosque are not far from each other, and other people will notice that they attend a church. The applicant has an Islamic name and so him going to a Christian church would be of interest and concern to other community members. He claimed that because he had converted to Christianity, he would be living in fear. The applicant said that in Malaysia, your religion is of interest to everyone.   He will be reported to the religious authorities. When pressed how anyone in Sabah would even know he was actually a Muslim given his evidence that in the past he didn’t really ‘practice’, the applicant said that everyone he comes into contact with will want to know his faith at every time. He doesn’t want to have to hide his faith or his wife’s faith.
·If he returned to his home area of Pahang, the applicant claimed that there is a law which means that because of his conversion he could be fined up to 5,000 MR and be imprisoned. More importantly, he could lose his family and kids, because they couldn’t live together and be of different faiths.
·The applicant was asked if his claims to intend to convert to the Christian faith were made to strengthen his protection claims. He responded that it was not the case – he started having an interest in converting in 2020 and now this hearing has come about. His heart is open to accept Christianity.
·The applicant was asked if his daughter would be raised as a Christian or a Muslim. He indicated that he did not know. He agreed that if they were in Malaysia, there would be some advantages for her being a Muslim.

The applicant’s wife also gave evidence at the applicant’s hearing and again at her own hearing on 11 November 2021. Her evidence is, in summary:
·[Ms A] confirmed the circumstances of their meeting, falling in love and getting married in 2019 in an Islamic service. She agreed to convert at that time so they could be together and get married but she never actually wanted or genuinely intended to convert to Islam. She is a Christian, and not a Muslim. After their marriage her husband initially asked her to practice as a Muslim but she couldn’t agree. She has not ever practiced the Muslim faith and attends a Christian church in Australia.
·If she returns to Malaysia, she will practice her Christian faith. She will not present herself as a Muslim convert if they return to Malaysia as it would be against her beliefs to do so. She will not wear Muslim dress nor will she pretend to be a Muslim. If she returns and people see she has married a Muslim man, they will expect her to behave and dress as a Muslim. She was concerned that her husband’s family would not accept her because she had not converted.
·[Ms A] also said that she could potentially be imprisoned and taken away for converting back from Islam to Christianity. Her child might be taken away. She believes that she will be mentally abused by Muslim members of the community and she does not want her daughter to be forced to grow up a Muslim. Because her father is a Muslim, the child will be unable to attend a Christian school. If they don’t agree to live as Muslims in Malaysia, her daughter will be abused and rejected. [Ms A] stated that even if they try and live quietly without drawing attention to themselves, they will be unable to live freely and practice their faith without interference from the conservative Muslim community.
·[Ms A’s] opinion is that their daughter will be brought up a Christian. She believes that her husband will convert to Christianity. She claims that a person’s faith is a matter of personal choice. It was noted that her husband did not really see any differences between the faiths and asked if her husband’s potential conversion was only to strengthen their protection claims. [Ms A] denied this, saying that her husband is on the verge of conversion, he is learning and learning. She said that after a year of marriage, she has seen him not performing his Islamic practice, and believes that this is a time for her to bring him slowly to Christianity.
·[Ms A] would not agree to her official Malaysian records being amended to reflect her Islamic conversion. This means that her Australian conversion to Islam could not be used to register their marriage and legitimise their daughter’s birth. Consequently, she and her husband would be considered to be in an unrecognised marriage and their daughter considered illegitimate.
·[Ms A] stated that she would fear harm in Malaysia because she wants to practice her faith as a Christian, wants her husband to convert to Christianity and bring up their child as a Christian. She wants them to have the freedom to live that way. She fears that the religious authorities of Malaysia and the Malay Muslim community will punish her for failing to convert to Islam, or for trying to convert her husband. They would never have a peaceful life or be able to undertake Christian community activities freely.
The applicant was informed that the Tribunal had concerns about the genuineness of his conversion or intended conversion to Christianity, given how little knowledge of his proposed new faith he possesses, his continuing respect for the tenets of his own faith and his inability to draw any differences between the faiths, apart from not having to engage in daily prayer. In response, the applicant said that since their marriage he has realised that Christianity is the truth and has talked about it with his wife and has made a choice to baptise himself as soon as possible. He and his wife want a peaceful life together. He had talked to some of his Islamic friends about what he was intending but they just shook their heads and asked why he would do such a thing. He told them it was his choice and they are now avoiding him.
Consideration of claims and evidence
It is accepted that the applicant married [Ms A] in an Islamic Nikah ceremony in October 2019 and that they also had a civil ceremony [in] May 2021. Their marriage is registered in Victoria. It is accepted that [Ms A] undertook an agreed conversion to Islam immediately before the Islamic marriage ceremony and that the applicant has a certificate confirming her conversion.
It is accepted that the applicants have a child, [Daughter A] born on [date] in [Town 2], Victoria.
The Tribunal is satisfied that the applicant and his wife are in a legitimate and ongoing relationship, that they married legally in Australia and that, because of the particular circumstances and findings mentioned below, their marriage would not actually be capable of being recognised in Malaysia.
The applicant’s faith
The Tribunal was not persuaded by the applicant’s evidence that he has a genuine desire or intention to convert to Christianity. As noted above, he gave very vague reasons for considering conversion and his claim to have a genuine desire to do so in his evidence was unconvincing, apart from his stated desire to make his wife happy. He was unable to describe any differences between the faiths which would motivate him to convert, or to prefer one to another. He expressed a respect of Islam and its’ religious tenets and described Christianity in similar terms. Despite this issue being at the forefront of his wife’s mind ever since they married (according to both the applicant and his wife) he has not taken any genuine steps to investigate the Christian faith, to attend a church or even to read the wealth of information available via the internet. He stated and it is accepted that he does not attend Christian church, either in an online forum or in in person. His evidence reflected that, unlike his wife, he had also not given his child’s faith much thought.
Consequently, the Tribunal does not accept that the applicant is a Christian or has a genuine intention or desire to convert to Christianity. The Tribunal considers that the applicant is actually relatively ambivalent about making any such change. It is accepted that his wife would prefer he was a Christian and intends to continue her efforts to convert him officially. The Tribunal finds that the applicant is a Muslim.
[Ms A’s] faith.
The Tribunal is satisfied that [Ms A] was a Christian when she met the applicant and that she considers herself to still be a Christian, regardless of her conversion immediately prior to their Islamic wedding. The Tribunal finds that [Ms A] has either ‘renounced’ her conversion or re-converted to Christianity since the Islamic wedding [in] October 2019. The Tribunal is satisfied that she would not agree to registering her Islamic conversion and marriage in Malaysia if it meant that her official status would be changed from Christian to Muslim and expected to practice the Muslim faith. The Tribunal also accepts that she would not be willing to hide her Christian faith, restrict her practice of her faith or to discontinue her attempts to convert her husband to Christianity if they return to Malaysia.
Country Information
The Tribunal notes and accepts the following information in DFAT’s most recent report on Malaysia (Department of Foreign Affairs and Trade Country Information Report, Malaysia 29 June 2021):
Religion
3.26 The religious status of Muslims is recorded on their birth certificates and on their national identification cards (MyKad), reportedly to assist with the application of Syariah law. National identification cards do not distinguish between Sunni and Shi’a Muslims. Other religious affiliations are not reflected visibly on the surface of the card, but are encrypted on a smart chip in the card instead. Married Muslims must carry a photo identification of themselves with their spouses as proof of marriage. This requirement has reportedly been enforced in practice, particularly in the northern states. Some vigilante groups have also attempted to enforce these and similar requirements, in accordance with Islam. In July 2019, a controversial Kedah-based anti-vice ‘Badar Squad,’ reportedly harassed unwed Muslim couples who did not have what the group deemed to be proper supervision.
3.27 Malaysia has a two-track legal system: common law, administered at the federal level; and syariah-based law, administered at the state level, which varies by jurisdiction. In June 2019, however, the office of the Islamic Affairs Minister announced the National Council for Islamic Affairs had agreed on a proposal to standardise syariah criminal laws in all states. Although the proposed changes had not yet come into effect at the time of publication, it is envisaged that a uniform set of syariah criminal laws would be made through amendments to the existing provisions, as well as adding new provisions to the Syariah Criminal Offences (Federal Territories) Act.
3.28 Family and personal laws governing Muslims, as well as laws relating to religious offences, are promulgated at the state level (see Family Law). Parliament can only pass legislation on such matters when it comes to the Federal Territories. Customary law (adat) – ancient unwritten laws that are found in a particular place where no rules have ever been enacted by the legislative authority – can also apply in Malaysia. Customary laws are generally concerned with matters of personal status (for example landholding and inheritance, or marriage).
3.29 Matters considered by states under syariah-based law relate to succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and the ‘determination of matters of Islamic law and Malay customs’. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Development (JAKIM) and the National Fatwa Council (see Federal and State Law Enforcement Entities). These bodies sit within the Prime Minister’s portfolio.
Islam
3.39 There is an increasing trend towards religious conservatism in Malaysian Islam. At the same time, the growth of the country’s religious bureaucracy has created a constituency with a vested interest in promoting religion. At the urging of Islamic party PAS, in September 2019 the states of Terengganu and Johor both announced they would prohibit the holding of Oktoberfest and other alcohol-themed events. According to the US Department of State in 2021, Muslim women who did not wear the headscarf or otherwise conform to conservative religious notions of modesty were often subject to shaming in public and on social media. There is also evidence of decreasing tolerance towards sexual and religious minorities on religious grounds (see Sexual Orientation and Gender Identity).
3.40 In April 2017, PAS leader Abdul Hadi Awang tabled a private member’s bill in parliament to increase syariah courts’ punishment powers. The Bill, to amend the Syariah Courts (Criminal Jurisdiction) Act 1965 and also known as RUU355, was yet to be tabled in Parliament at the time of publication but is still discussed in the media as an on-going matter, especially due to PAS’s membership of the ruling coalition…
Christians
3.53 Christians accounted for close to 10 per cent of the total population in 2010, the last year for which official data is available, and are predominantly located in Sabah and Sarawak. While a broad range of ethnicities practises 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.
3.54 There are comparatively few Malays who practise Christianity in proportion to the overall population. This is because it is very difficult to convert from Islam (the religion of most Malays – see Ethnic Malays) and illegal to proselytise to Malays (see Religious Conversion and Apostasy). Christians of a Malay background, in particular, may be forced to hide their faith from family, friends and colleagues. Christianity is portrayed by some Malay/Muslim political parties such as PAS as a threat to Islam.
3.55 Although Christians claim to have used the word ‘Allah’ (Arabic for God) for centuries in their religious practice in Malaysia, official impediments are in place on their use of the word. The Home Affairs Ministry banned the Catholic newspaper, The Herald, from using the word ’Allah‘ under the Printing Presses and Publications Act (1984) in 2008. The Malaysian Court of Appeals and Federal Court upheld the ban at the time. Religious tensions escalated in 2017-18 including attacks on churches, following an October 2017 decision by the High Court of Kuala Lumpur to reject a Sabah church’s request for a judicial review of the ban on Christians’ use of the word ‘Allah’. However, in March 2021, the Court ruled that Christians could use ‘Allah’ with the judge calling the ban ‘unconstitutional’. The Government announced it would appeal the decision.
3.56 Four Christian pastors suspected of proselytising disappeared between 2016 and 2017, with probable state involvement (see Enforced or Involuntary Disappearances). Church leaders have called on the government to take steps to clarify and separate the jurisdictions of the religious authorities and the RMP…
3.58 DFAT assesses that Christians 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 that, in some cases, has included violence or abduction.
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 identification 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.
As will be noted from the above general information, DFAT reports a growing conservative Islamic sentiment in Malaysia, which is already home to a conservative Muslim community. The country information reflects that issues of marriage and faith are considered to be and are of general interest and import throughout the country. Consequently, monitoring of the individual practice of one’s faith (by fellow community members) does occur, and a person’s faith practice is subject to community as well as official ‘policing’. The country information reflects that members of the Malay community are likely to question and report irregularities or concerns about mixed faith relationships and conversion from Islam - to each other and to religious authorities.
Taking into account this environment in their home country, the Tribunal considers that the applicant and his wife chose to marry in an Islamic service specifically so that their relationship would be potentially recognised when they returned to Malaysia, and therefore that they fully understood the implications of their faith choices in their chosen relationship at the time of their marriage. At that time, [Ms A] was prepared to convert to pursue their relationship.

The Tribunal finds that the applicant’s marriage would (theoretically at least and if the applicant’s wife had accepted her conversion to and the practice of Islam) be capable of being registered and recognised in Malaysia, subject to the completion of necessary administrative steps and satisfaction of [Ms A’s] conversion. The country information reflects that once the Malaysian authorities accept the conversion and recognise the marriage, [Ms A’s] official records would be updated to reflect her faith as Islamic, and the applicant and his wife could proceed to register the birth of their child (again, subject to the satisfaction of administrative requirements). The child would then have been considered by the Malaysian Government to be a Muslim (as she was born to two Muslim parents).
What is the harm the applicant fears?
The applicant fears that he will experience harm because he is in an interfaith relationship. He fears he will be unable to register his marriage, and that his child will not be capable of being officially registered as a legitimate child of their marriage in Malaysia. His daughter would then be considered to be an illegitimate child. The applicant claims that he, his wife and child could not live together as a family in Malaysia because their relationship would be forbidden, because of their mixed faiths. His wife would be open to charges related to offending Islam for leaving (or trying to leave) Islam after her conversion, and they would both be vulnerable to being considered to have breached various Syariah criminal offences. Punishment for such offences ranges from imprisonment, fines and public caning, depending on the State. The Tribunal has accepted that [Ms A] would continue her practice as a Christian and would not agree to the recognition of her Islamic conversion, choose to convert to Islam or practice as a Muslim if she returns to Malaysia. Her decision directly impacts on the applicant because they would be considered to be in an unsanctioned interfaith relationship.
In Sabah, for example, the Syariah Criminal Offences Enactment 1996[1] includes several offences which potentially apply in the applicant’s case. For example: offences relating to perceived contempt of Islam (including ‘A Muslim who claims that he is not a Muslim -ss53 – 56 – potential fines ranging from one thousand to five thousand ringgit and imprisonment for periods of six months to three years - or both fine and imprisonment in each case), cohabitation of husband and wife of different religions (s.73 – fine not exceeding three thousand ringgit or one year imprisonment or both), pregnancy out of wedlock (s.79- fine of one thousand ringgit or imprisonment for six months or both), forbidden sexual intercourse (s.80 – each party subject to a fine not exceeding five thousand ringgit or imprisonment not exceeding three years, or to caning not exceeding six strokes or any combination of such imprisonments.) These are not suggested to be the only offences which could arise or be suggested in the applicant’s case but they are illustrative of the types of fines, imprisonment and potential caning that the applicant would be potentially subject to, if he were to return to Malaysia and live in Sabah (his wife’s home state and the applicant suggested their most likely destination if forced to return to Malaysia.) Similar statutes exist in all states, including Pahang, where the applicant previously lived.
[1] Available on the official E-Syariah Official Portal here: Welcome to E-Syariah Portal (esyariah.gov.my)
Examples of serious harm are provided in s.5J(5) and include a threat to life or liberty and significant physical harassment. The applicant fears that he will be imprisoned, fined and caned for a number of perceived offences against Syariah law if he returns to Malaysia. He fears he will be prevented from living with his wife and child, and thus will lose his family and his parental rights. Having considered the harm he fears, the Tribunal considers that the persecution the applicant fears would involve causing the applicant serious harm, particularly given the potential for destruction of the marriage and family relationship, the likelihood that he would be vulnerable to repeated arrest, and punishments (including extended periods of imprisonment and potential caning) as long as his relationship continued, and also the threat of losing parental care of his daughter.
Does the persecution involve systematic and discriminatory conduct?
The country information reflects that in light of a growing conservatism in Malaysia’s Muslim community, persons in the applicant’s position face a growing intrusion into their personal faith and intimate lives. Consequently, in their work, social and family lives (including the education system for their daughter) the applicant and his wife will face constant inquisition, judgement and potentially being reported to religious authorities for as long as they choose to live as husband and wife in an unsanctioned relationship.
The Tribunal is satisfied that the persecution involves systematic and discriminatory conduct.
What is the reason for the persecution?
In this case, the essential and significant reasons for the persecution feared by the applicant are his faith and that of his wife – he is a Muslim and his wife a Christian; and because they are in the particular social group of people in an interfaith relationship or marriage. The Tribunal is satisfied that these are both reasons described in s.5J(1)(a).
Is there a real chance that the applicant will suffer persecution due to his conversion to Christianity or his wife’s reversion to her Christian faith?
Whilst the country information reflects that conversion from Islam is virtually impossible in Malaysia and would render the applicant vulnerable to prosecution for crimes against Islam and also potentially to violence and punishment for attempting to convert if he did so, as noted above, the Tribunal is not satisfied that the applicant has converted, that he intends genuinely to convert to Christianity – or that the applicant would convert to Christianity if he returns to Malaysia. Consequently, this particular claim is not established.
However, the evidence reflects that the applicant’s wife has converted to Islam from Christianity and has now renounced that conversion and reverted to her Christian faith. The Tribunal has accepted that this is the reality of her situation. This history would become known as soon as the nature of her relationship with the applicant was investigated in Malaysia and will be apparent due to her intention to continue practicing her faith when she returns to Malaysia whilst married to a Muslim man. Their relationship would be of interest to the Malaysian authorities because of the need to register the birth and citizenship of their child. A number of potential consequences for the applicant flow from [Ms A’] decision to live as a Christian in Malaysia.
[Ms A] could be identified and prosecuted for perceived crimes against Islam in trying to leave Islam. It has been accepted that she will continue to attend Christian church if she is required to return to Malaysia and will not adopt Islamic presentation or observe practice of the Muslim faith. In addition, given her outspoken desire to convert her husband to Christianity, she could also be vulnerable to violence or charges of proselytising. Even though she does not see herself as ever having been a Muslim, (her evidence is that the conversion was solely so that they could be married and not because of any genuine religious conversion) she will be considered a Muslim who has chosen to leave Islam. Since [Ms A] will not agree to being officially recognised as a Muslim and intends to practice her Christian faith, their marriage will be unrecognised and their daughter considered illegitimate. This leads again to the prospect of the applicant being excluded from his family relationship, and potentially losing parental rights for his daughter – but also to [Ms A] being arrested and punished, leaving them and particularly their daughter vulnerable to the control of Malaysia’s Syariah legal and social welfare system.
After considering all of the information and evidence before it, the Tribunal has found that the applicant and his wife are in a legitimate and ongoing relationship, that they legally married here in Australia, and that, because of the particular circumstances mentioned above, their marriage would not actually be capable of being recognised in Malaysia. After considering all of the information and evidence before it, the Tribunal is satisfied that there is a real chance that the applicant would suffer serious harm (such as arrest, harassment, and punishment including jail and caning as well as the potential loss of parental rights to the care of his daughter) now or in the reasonably foreseeable future if he is to return to Malaysia due to him being in a mixed faith marriage.
Does the real chance of harm relate to all areas of Malaysia and is the applicant able to avail himself of the protection of his country?
The potential persecutors in this case include the religious departments and authorities throughout the country, and also members of the broader, conservative Muslim community who the applicant and his wife might encounter in every aspect of family life, such as work, school and social activities. Syariah enactments exist with similar offence descriptions in all states and territories, and the applicant’s marriage will not be recognised in any state of Malaysia. Consequently, the applicant will be liable to prosecution under Syariah laws and his daughter will be considered illegitimate (and he will potentially lose parental rights) throughout the country. The Tribunal is satisfied that the real chance of harm relates to all areas of Malaysia. The Tribunal is also satisfied that the applicant is unable to avail himself of the protection of any authority or body in Malaysia, because the State (represented by religious departments and authorities throughout the country) is in fact one of the potential persecutors in this case.
Is the applicant able to modify his behaviour to avoid the persecution?
The applicant acknowledged at hearing that they could try to hide their relationship, but he was of the view that they would be constantly at risk of being discovered as being in an interfaith relationship, and having an unrecognised and unregistered marriage. To avoid any ongoing risk of discovery by Muslim community members or religious authorities, the applicant would have to effectively end all contact with his wife, or his wife would have to hide her faith or convert against her will to Islam. Whilst concealing a marriage or forcibly living separately and apart from your spouse may not be a specific ‘unreasonable’ modification of behaviour listed in s.5J(3), it reflects a significant denial of a fundamental characteristic of the applicant, particularly his familial relationship with his wife and child, and in any event, requiring his wife to hide her faith or pretend to have converted to Islam would be a modification which is expressly excluded as unreasonable by s.5J(3). The applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Malaysia.
Is the applicant a refugee?
The applicant’s claims have been considered carefully. Some aspects of his claims have not been accepted. However it has been accepted that the applicant is in a genuine inter- faith marriage relationship. It has also been accepted that his wife is not prepared nor willing to acknowledge her earlier conversion and or to agree to practice Islam (or even to pretend to do so). Their marriage could therefore never be officially recognised and the applicant’s daughter would be considered an illegitimate child of the applicant and his wife. The Tribunal has found that, given the country information and Malaysia’s conservative Islamic community, there is a real chance that the applicant will be persecuted because of his interfaith (Australian) marriage and relationship and the birth of his child outside a recognised marriage, now and in the reasonably foreseeable future in if he returns to Malaysia. Based on its findings above, the Tribunal is satisfied that the applicant’s fear of persecution in Malaysia is well founded.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Anne Grant
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 475

1 February 2022

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