1719721 (Refugee)

1719721 (Refugee) [2023] AATA 1339 (18 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Leah Perkins
CASE NUMBER:  1719721
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Noonan
DATE:18 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 18 April 2023 at 10.25am

CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – convert to Shia Islam in Sunni-majority country – beaten by family and friends, abused at school and detained and threatened by authorities – physical and mental health and access to adequate treatment – credibility – adverse information denied – inconsistent claims and evidence – incorrect information provided by acquaintance of friend who filled out form – no attendance at mosque or membership of groups in Australia – country information – authorities’ focus on proselytising, not low-profile individuals – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 25 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 12 April 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is owed protection by Australia.
The applicant appeared before the Tribunal on 26 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The Tribunal notes that the applicant has notified that he is being treated under a mental health plan which commenced in October 2022. He has seen a psychologist twice since then and his GP has prescribed him some medication to assist him. The Tribunal took this into account with respect to the conduct of the hearing. The Tribunal finds that the applicant was able to fully participate in the hearing and review process and that he understood the Tribunal’s expressed concerns put to him at hearing and that he made responses in an attempt to address these issues. The applicant is also represented in relation to the review and the representative attended the Tribunal hearing.
For the purposes of his appeal to the Tribunal, the applicant supplied the Tribunal with a copy of the delegate’s decision.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
The applicant’s personal background
The applicant disclosed in his protection application that he is ethnically Malay. He was born in Ampang, Selangor, Malaysia on [Date]. He stated that he is fluent in Malay and English. He listed his religion as Muslim. He listed one immediate family member, being his mother, who resides in Malaysia. He listed his employment history as ‘unemployed’. He stated that he was educated up to middle school level and finished his schooling in [Year].
In his written protection claims, which the applicant signed and dated 9 April 2017, he stated (in summary) that he fears persecution because he is a follower of Shia Islam. As a result the community discriminates against him and he has received many threats since his school days. At school he was abused and his parents ridiculed. His parents advised him to remain patient. Eventually, for his own mental and physical health, he decided to move away from Malaysia. He stated that he fears the authorities will put him in gaol or a rehab centre for being Shia if he is required to return to Malaysia. They will not offer him protection as the law does not allow for Shia Islam. He suffered past harm in Malaysia in the form of being beaten by family and friends when they found out his Shia status. As Malaysia is Sunni majority there is nowhere he could safely relocate to.
The applicant made the following written claims directly to the Tribunal prior to the hearing. He stated that should he be required to return to Malaysia:
·Firstly, he fears persecution as a Shia Muslim.
·Secondly, he fears persecution as a convert from Sunni Islam to Shia Islam and, also because of this conversion he will be imputed as an apostate.
·Thirdly, he fears his mental health will deteriorate if he is required to return to Malaysia and that he would be unable to access adequate mental health services.
In a written submission to the Tribunal prior to the hearing the applicant set out the following corrections to his original protection claim (in summary):
·Firstly, a contact of his friend [Mr A] had helped him fill out the protection claim form so his declaration that he had filled out the form without assistance was incorrect.
·Secondly, he was not abused in school as a Shia as he was Sunni at that time so this statement in his claims is incorrect. The statement that “his parents advised him to remain patient” with respect to his conversion was also not correct. Following his subsequent conversion from Sunni to Shia Islam in 2002, it was his parents who abused and beat him.
·Thirdly, he was actually born in [Town], Sabah, Malaysia.
·Fourthly, he clarified that his father is deceased and was so at the time of his application for protection.
·Fifthly, his address details were incorrect and he in fact lived in [Town], Sabah and moved to [Location], Selangor in 1986 with his family. He lived in Selangor until 2011 when he was forced to leave the family home due to animosity from his family with respect to his conversion.
·Sixthly, his work details were incorrect and he previously worked as [Occupations 1 and 2] in Malaysia.
·Seventhly, his schools listed were incorrect and he changed their names.
Prior to the hearing the Tribunal wrote to the applicant on 10 October 2022, with respect to a non-disclosure certificate contained on the Department file, as follows (in part):
…In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
· The Tribunal has examined the non-disclosure certificate and considers it to be valid.
· The information to which the certificate, dated 29 November 2019, is subject, in substance sets out information provided to the Department by a third party who states that you have in the past offered your services for money to prepare fake documents to assist with protection claims. Further that you advertise your services broadly by verbally explaining your own history of providing fake documents and fake statements with respect to your own protection claim.
This information is relevant to the review because it may cause the Tribunal to find that your claims to fear harm are not true. This may cause the Tribunal to find that you are not a credible witness.
If we rely on this information in making our decision, we may affirm the decision under review. We may not accept that you have a well-founded fear of persecution if you return to Malaysia or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence for you being removed from Australia to Malaysia.
The applicant responded in writing and stated that he has “not ever offered to prepare fake documents to assist with protection claims. I also deny that I have advertised any services and I have not provided fake documents and fake statements in respect of my protection claims.”
Prior to the hearing the applicant’s representative also made a written submission, dated 19 October 2022, to the Tribunal. This submission extensively expanded upon the applicant’s personal background, including his claimed path to conversion from Sunni Islam to Shia Islam and past harm and fear of harm that the applicant experienced due to his claimed conversion. This submission also stated that the applicant disagrees with the delegate’s findings. The delegate’s findings were summarised as follows:
a. The Malaysian constitution provides equal protection under the law and prohibits discrimination on the basis of religion
b. Most Shia live free from discrimination and violence on a day-to-day basis
c. No evidence before the delegate to suggest that [the applicant] will be denied state protection due to his religion
d. No evidence before the delegate to suggest that the Malaysian government would fail to provide [the applicant] with the same degree of protection as that accorded to any of its other nationals if required on their return.
The applicant’s representative set out that the applicant disagrees with the above findings of the delegate on the basis of country information extensively summarised therein and attached to the representative’s submission. In summary this submission states:
·The applicant, as a Muslim, is subject to the Malaysian Islamic legal system which is subject to enforcement by the National Department of Islamic Development (JAKIM). There is a risk that if the applicant is caught practising his Shia faith that he will be questioned by JAKIM about his conversion and targeted for harm for this reason. DFAT sets out that laws have been used to harass and discriminate against Shia. Recent legislation in the state of Sabah prohibits the spreading of ‘non-Islamic religious doctrines’ and allows for punishments including whipping.[1]
·The applicant, as a Shia, faces a risk of persecution and the representative sets out country information about three past raids by religious authorities against Shia gatherings in 2010, 2014 and 2019 which resulted in arrests as indicative of this risk. The representative also highlighted country information that sets out that a Shia activist Amri Che Mat went missing in 2016 and that the Malaysian intelligence unit is suspected of abducting the activist with no result released for a subsequent inquiry.[2]
·Further, that individuals diverging from Sunni Islam face government action including mandatory internment in ‘rehabilitation centres’ which lasted for a period of up to six months and that there were 14 such reported cases in 2021 and 33 in 2020.[3]
·That, while the applicant is not an apostate, it is possible that he will be imputed as such due to his conversion. The representative submitted that country information reflects that apostasy can result in a criminal charge resulting in up to 36 months gaol.
·That the applicant is receiving mental health assistance due to symptoms of anxiety disorder. Further that he receives medication to treat high blood pressure and due to previous heart surgery. That the applicant is concerned his condition would deteriorate in Malaysia due to the persecution he would face and because of inadequate mental health services. The representative cited DFAT country information setting out an assessment of limited public mental health services, costly private mental health services and local stigma attached to mental health issues in Malaysia in respect to this concern.[4]
Does the applicant have a well-founded fear of persecution for reason of his Shia faith or for reason of his conversion from Sunni Islam to Shia Islam?
[1] DFAT Country Information Report Malaysia (June 2021) at 3.42.
[2] Editorial, Shia Rights Watch, 27 January 2018 at
·Kate Mayberry, ‘Malaysia reopens probe into kidnapping of Shia activist, pastor’ Al Jazeera, 16 June 2019
·International Religious Freedom Report for 2021 United States Department of State, Office of International Religious Freedom at pg 7 at
[3] International Religious Freedom Report for 2021 United States Department of State, Office of International Religious Freedom at pg 10 at
[4] DFAT Country Information Report MALAYSIA (JUNE 2021) at 2.26
The applicant confirmed that he has been on medication with respect to the health of his heart since 2008.
The Tribunal asked the applicant what the basis for his health concerns in Malaysia is The applicant stated that he fears that he may be detained by the religious agencies for reason of his claimed conversion and put into a rehabilitation centre where he fears he will not receive adequate medical treatment with respect to both his mental health and his heart. The applicant set out for the Tribunal the medicines for his heart but could not remember the name of the medication he is taking for his mental health.
The applicant set out that he fears harm for this reason from the religious authorities and also from his family and friends. In terms of why they would be motivated to harm him for this reason the applicant submitted that generally they refuse to accept Shia and they condemn its followers. He fears also that because of his conversion he will be accused of being an apostate. He received a call from a government religious agency who informed him that if he did not convert back to Sunni Islam he would be declared an apostate. He stated this phone call occurred after he left the family home in October 2011. When asked how this had occurred the applicant speculated it may have been his family who informed them. The Tribunal put to the applicant that he has given evidence that he continued to practise his faith until 2014. This may reflect either that he was unafraid of the threat, that it did not actually occur, or that the religious police had decided not to charge him. The applicant stated that he went into hiding and hid in a room in the suburb of [Suburb] until 2014. The Tribunal noted that in his statement he had stated that he had continued to attend Shia gatherings. He claimed these meetings were held in secret. The Tribunal noted that he had claimed that in 2014 he again came into contact with the religious authorities. He stated that he was not contacted rather he was detained during a Shia religious celebration. When asked what happened during that detention the applicant stated he was taken to the police station where he had to pay a fine. The Tribunal noted that there was no mention of being threatened with charges of apostasy. The applicant then claimed that they did threaten him but there were other people present and they may have been afraid these people would see them doing that. When asked to clarify what he had been threatened with the applicant stated a group of them were detained and given a lecture that if they did not convert back to Sunni Islam they would be charged with apostasy. The Tribunal noted that in his original statement he did not mention these claimed threats of an apostasy charge by the authorities. The applicant simply blamed his lack of English for the omission.

The Tribunal noted that the applicant lived for many years in Kuala Lumpur. He stated he had lived there since 1986 and confirmed he had left Kuala Lumpur to come to Australia.
The Tribunal discussed with the applicant his path to conversion. He submitted that he grew up in a strict Sunni household. He found out about Shia Islam when working on construction in Kuala Lumpur with Shia followers. He started talking to them about it. He was attracted by the ability to combine their prayers and because Shia is “the true faith” and there are other benefits as well. When asked about a formal process of conversion he stated that he was taken to a secret place where they taught him further things about the faith. With respect to any formal process undertaken the applicant stated that when he embraced Shia they threw a small ceremony for him but it was held in secret. When asked what he did from then on with respect to worship he stated that his hands are untied and he just holds an item of faith. He participated in a very small congregation in Malaysia once a week for the Friday prayers. This was held in the suburb of [Suburb] in a shop lot. He did this for many years between 2002 and 2011. It was only when his family found out he had converted that his troubles began. His family found out by finding Shia texts that he owned. He does not know how they found them. He hid them under his mattress and would read them when in bed. With respect to his family’s reaction the applicant said it was terrible. His father hit him with his walking stick and his mother threw sandals and crockery at him.
The Tribunal put to the Tribunal that, according to his profile, he was born in [Year] which he agreed was correct. The Tribunal noted that he had declared that he had moved out of home when he was [age] and had been living and working in Kuala Lumpur since then. He corrected this and said the whole family moved to Kuala Lumpur in 1986 and he had not left the family home. The Tribunal put to him that he appears to be telling the Tribunal that he was still living with his parents until 2011. He stated this was the case. The Tribunal asked him why he would still be living with his parents in his [age range]. The applicant simply stated that this is how the family system operates. The Tribunal put to the applicant that his father died in 2012 and his mother is very elderly which the applicant agreed was the case. The Tribunal noted that he had not mentioned anyone else in his family who might be adversely interested in him. The applicant stated that his siblings are angry with him and wish to have nothing to do with him. He used to drop in on his mother every six months or so but did not talk to his siblings. The Tribunal noted that the applicant had not listed any siblings in his claim for protection and asked him why this was the case. The applicant stated that he did not put them in as he did not wish to have anything to do with them. The Tribunal noted that, even if it were to accept he had siblings in Malaysia, his evidence reflects that he lived for many years without harm in Malaysia after his siblings knew about his claimed conversion and that he continued to visit his mother and did not even list siblings in his claim for protection. The Tribunal put to the applicant that these factors may reflect that any siblings he has as well as his mother are not adversely interested in him in any way. The applicant responded that his mother is old and frail.
The Tribunal put to the applicant that DFAT assesses that, with respect to Shia Muslims in Malaysia that local non-government groups and religious authorities advised DFAT that enforcement efforts generally focused on conversions (to Shia Islam) and proselytisers, not on assembly or worship. DFAT understands Shia Muslims may face interference and difficulty practising their religion. The overall number of Shia Muslims arrested since the introduction of the 1996 fatwa outlawing Shia Islam has been limited. Further, very few arrests have resulted in charges laid, with the majority of people released quickly without charge. Further, that Shia generally live free from societal discrimination on a day-to-day basis. They face a low level of official discrimination, however, in that religious authorities may prevent them from being able to worship freely. Proselytising or promoting Shia Islam can result in a higher risk of official discrimination, and may include arrest or other forms of harassment by state authorities.[5]
[5] DFAT Country Information report, Malaysia, 29 June 2021, p.28.
The Tribunal noted that the applicant has given evidence that he had led a quiet religious life. The applicant stated that he has he did not wish to be detained for reason of his faith. The Tribunal put to the applicant that given his low profile practising of Shia Islam, this country information may reflect that there is very little serious or significant risk to him. The applicant responded that he simply does not trust the authorities. The Tribunal put to the applicant that in practice he has given evidence that he was briefly detained by the authorities for following Shia Islamic practices and had not suffered serious harm. He noted that people who have tried to advance the Shia faith have had to leave Malaysia. The Tribunal noted that he has never in the past proselytised or had any form of high profile for having done so. The applicant then suggested that he would like to see the Shia faith grow in Malaysia.
With respect to conversion and apostasy laws DFAT assesses that this applies to people wishing to convert from Islam to another religion such as Christianity[6] to a non-Muslim religion or atheism[7]. The applicant referred to the 1996 Fatwa issued by the Committee of the National Council of Islamic Affairs to suggest that this may also apply to converts to Shia Islam. With respect to this Fatwa DFAT assesses as follows:
Both federal and Islamic laws have been applied to harass and discriminate against Shi’a Muslims. A 1996 fatwa issued by the Committee of the National Council for Islamic Affairs – with effect under Syariah based law – requires Muslims to follow the Sunni Islam doctrine (see Islam). The fatwa prohibits all other Muslim doctrine, along with the publication, broadcast or distribution of resources related to these teachings. State Islamic authorities, empowered by Syariah Criminal Offences enactments of each state, can take action against an individual acting in contempt of the fatwa. Under the fatwa, authorities consider Shi’a Islam a ‘deviant’ form of Islam, and 12 out of 14 states ban Shi’a Islam (the exceptions are Kelantan and Sarawak). In August 2019, the Sabah State Legislative Assembly amended the Syariah Criminal Offences Act to prohibit the spread of ‘non-Islamic religious doctrines’ and included whipping as a punishment for those found guilty of spreading and/or performing any acts that are against the ‘true teachings of Islam’ which reportedly includes Shi’a. Several state constitutions (Kelantan, Perlis and Kedah) recognise the state’s official religion as Ahli Sunnah Wal Jamaah (Sunni Islam). These state laws enable state Islamic authorities to detain and prosecute Shi’a found to be proselytising.[8]
[6] Ibid, p. 31-32
[7] Ibid, p. 31-32
[8] Ibid, p.27–28.
The Tribunal notes that the Fatwa does not specifically address conversion from Sunni Islam and with respect to Shia focuses primarily upon Shia found to be proselytising. The applicant’s representative noted that DFAT sets out that Shia Islam is equated with deviancy and its followers are subject to arrest.[9]
[9] Ibid, p.27.
The Tribunal put to the applicant that he was able to leave Malaysia unhindered despite his claims that he is of ongoing adverse interest to the authorities because of his claimed conversion. The applicant simply stated that, as he is not a terrorist, he was of no interest to the authorities in charge of departures.
The Tribunal noted that, in his written submission to the Tribunal, he attempted to address discrepancies in his original claims. He stated that he had a friend who connected him to someone who helped him fill out the application. He informed the Tribunal it was this person who filled out the form. He did not know who he was and only met him once. When asked how he told this person about his claim the applicant stated that he had told the person about his conversion and that he was being hunted by family members and various religious authorities and that this was why he left the country. He only gave him an oral statement. When asked if he told this person if he was abused at school the applicant denied that he had and said he was Sunni at school. When asked if he told him his parents had advised him to remain patient the applicant stated that he did not tell this person this. When asked if he asked the person to read back the statement of claims to ensure they were accurate before being lodged the applicant stated that he did not. He assumed the person had written down what he had told him accurately. The Tribunal put to the applicant that it may expect that he would seek to ensure his claims were correct and the applicant responded that he simply was not aware of the laws of Australia.
The Tribunal put to the applicant that it had sent to him the substance of information subject to a non-disclosure certificate and that he had responded in writing denying this. The Tribunal noted as this was information with little detail it would be given no weight.
When asked what he does in terms of following his claimed Shia faith in Australia the applicant stated that he prays on his own. He does not attend group prayers or a mosque. He mainly just works.
The Tribunal put to the applicant that his evidence reflects that he has been a practising Shia since 2002 and that, in that time, with respect to his Shia faith, he was rung up once by the police in 2011 and in 2014 he was briefly detained. Some years later he then left Malaysia unimpeded. Since then he has not prayed on his own and not attended a Shia mosque in Australia. The applicant then claimed that he did attend a mosque on Fridays. The Tribunal put to the applicant that it is required to assess whether there is a real chance of serious harm to him should he be required to return to Malaysia. The Tribunal put to the applicant that his personal history as a low profile and quiet follower of Shia Islam since at least 2002, who does not proselytise, when seen in conjunction with the country information, may suggest that the real chance of serious harm to him for the reasons he claims is so insignificant that it is not real. The applicant simply stated that he does not trust the authorities and they are trying to eliminate Shia from the country.
The applicant’s representative submitted that country information reflects that followers of Shia Islam and those who have converted are subject to internment in re-education camps and that there is a risk of the applicant’s necessary medication not being available in such camps should he be so interned.
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[10] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[10] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
There are significant inconsistencies in the applicant’s evidence that causes the Tribunal to have serious concerns about some aspects of his claims. In particular the Tribunal notes that the applicant stated in his original claim for protection that his parents were aware of his conversion and sympathetic to him giving him advice to be patient with people’s attitudes at school to him and as such that he was an early adherent to Shia Islam while in school. In addition the applicant made no claims to have been threatened with apostasy by the authorities for reason of his conversion or with harm by his family for this reason. The applicant blamed an unknown person for filling out his claim, despite indicating that he had filled the claim out himself. As noted at hearing filling out a claim for protection is a serious matter and the applicant has either not taken steps to ensure his original claims were accurate or he has subsequently altered his evidence to strengthen his claims. The Tribunal finds the applicant’s evidence to the Tribunal that he simply told his story to a person associated with a friend, and then relied on this unnamed person to file the claim without bothering to check its accuracy and after signing the form, declaring it to be the truth and stating he had filled out the form unassisted, to be highly unconvincing. The Tribunal would expect that a person who fears serious harm in the form of being threatened with being charged with apostasy by the authorities and from his family for reason of his claimed conversion would seek to accurately impart this in his original claims.
The Tribunal is prepared to accept that the applicant developed an interest in Shia Islam from a young age and has followed its teachings, as he has at least been consistent in this aspect of his claims. The Tribunal is not prepared to accept that, when he was briefly detained by the authorities in 2014 for reason of participating in a Shia gathering, that he was threatened with apostasy charges because, as discussed at hearing, he did not mention this in his original claims. The Tribunal would expect a consistent recounting of such a significant threat if it had been made and, while it accepts based on country information, that he may have had a brief encounter with the authorities, while participating in a Shia gathering, it rejects his claim that he was threatened with apostasy charges during this encounter. This brief encounter with the religious authorities also reflects that he had no adverse profile with the religious authorities as a result of any claimed adverse conversion reporting from his family. This leads the Tribunal to find that his family had not adversely reported his conversion to the religious authorities as he claims. The applicant’s evidence with respect to his family’s adverse interest in him for reason of his conversion is highly inconsistent and implausible. He listed no siblings in his claim and then claimed to the Tribunal that his siblings were adversely interested in him and they had simply been omitted from his claim form. However, he informed the Tribunal that he regularly visited his parents, when living in Malaysia. As noted at hearing his regular ongoing contact with his mother may reflect that he is of no adverse interest to his family, including his parents. The applicant simply responded that his mother is old and cannot harm him. The Tribunal is satisfied that the applicant was regularly visiting his family until he left Malaysia and given this, and the above considerations, the Tribunal rejects the applicant’s claim that his family informed the religious police of his conversion at any time and that as a result he was rung up by the religious authorities in 2011 and threatened with being charged with apostasy. The Tribunal also finds the applicant’s evidence that his family found Shia texts belonging to him in 2011 under his bed, when he was [Age] years old and turned on him, highly implausible. The applicant’s original claims reflect that he had moved out of home from age [age], and his subsequent claim before the Tribunal that he had not done so and was still living in the family home, as an explanation for this, is implausible and contradictory, and the Tribunal rejects this as not credible. The Tribunal finds that the Malaysian authorities are unaware of the applicant’s conversion and did not ring him in 2011 and threaten him with apostasy charges and that they have never threatened him with apostasy charges. His evidence is not credible. The Tribunal also finds that his family are not adversely interested in him for reason of his Shia religion or his conversion and his family and friends have never beaten him or otherwise harmed him for reason of his conversion to Shia Islam and that his evidence with respect to these claims about his family are not credible.
Given the above conclusions the Tribunal finds that the applicant’s claims to have been threatened with being charged with apostasy by the Malaysian religious authorities, to be of ongoing adverse interest to the Malaysian religious authorities, or to have been threatened with harm or harmed by any member of his family, or family friend or anyone else, for reason of his conversion are not credible and rejects his claims in these respects.
It is also clear that the applicant has never engaged in proselytising Shia Islam. As discussed extensively at hearing the applicant has lived a low profile and a quiet life as a Shia Muslim both in Malaysia since 2002 and later in Australia. He held Shia beliefs in Malaysia for many years with just a single incident in 2014 as discussed above, and he has not sought to advocate or proselytise his religion in Malaysia or Australia in any way. The Tribunal is satisfied that this long history of low-profile personal worship applicant reflects that the applicant would continue to live in the same manner in Malaysia. These considerations, in conjunction with the extensive credibility issues in this matter, cause the Tribunal to reject the applicant’s assertion, now first made in the hearing in response to the Tribunal’s points about this that, if he was required to return to Malaysia, he would advocate for the spread of Shia Islam in Malaysia. The Tribunal finds that the applicant would not seek to proselytise Shia Islam should he be required to return to Malaysia and that he has only now made this claim in an attempt to bolster his claims for protection.

The Tribunal also considered the relevant country information and the potential situation for the applicant should his Shia Islamic beliefs or conversion become known to the authorities in the future. As discussed at hearing, there are laws in Malaysia relating to divergence from Islam and following a non-official form of religion. It is apparent that the religious authorities can and do intern some persons in “rehabilitation” centres for the purpose of exposing them to the officially approved Sunni Islamic doctrine and that a Fatwa has been issued banning the spreading of any religion other than Sunni Islam. Regardless, the country information cited earlier in these reasons, reflects that persons not actively proselytising a religion or sect are highly unlikely to be subjected to any adverse action by the authorities or anyone else. DFAT specifically noted in its most recent report that Shia who do not proselytise are unlikely to be subject to enforcement efforts. Further, as discussed at hearing, the Malaysian identity card only signifies the religion of a person and does not differentiate between Shia and Sunni. The Tribunal is satisfied that the long history of the applicant’s practice of his faith in this matter, combined with the relevant country information, reflects that the authorities will remain unaware of the applicant’s conversion, and will not be adversely interested in this fact in the highly unlikely event that they find out, so long as the applicant does not proselytise. Overall, the Tribunal is satisfied that, as long as the applicant does not proselytise Shia Islam, which it has found he will not, he will be of no adverse interest to the Malaysian authorities even should they become aware in the future of his Shia Islamic faith or conversion.
Given the totality of the Tribunal’s findings, and the country information related to those findings, the Tribunal finds that there is not a real chance of serious harm to the applicant from the Malaysian authorities, the applicant’s family or anyone else for reason of either his Shia faith or his conversion from Sunni Islam to Shia Islam, should he be required to return to Malaysia either now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.
The applicant’s health
The applicant confirmed that he has been on medication with respect to the health of his heart since 2008.
The Tribunal asked the applicant what the basis for his health concerns in Malaysia is. The applicant stated that he fears that he may be detained by the authroities for reason of his claimed conversion and put into a rehabilitation centre where he fears he will not receive adequate medical treatment with respect to both his mental health and his heart. The applicant set out for the Tribunal the medicines for his heart but could not remember the name of the medication he is taking for his mental health.
The Tribunal discussed the applicant’s claim to fear harm for reason of his health. The Tribunal put to the applicant that it is required to consider whether the harm is as a result of systematic and discriminatory action. The Tribunal noted that, while Malaysia may have a lower standard of health care than that available in Australia, it is not clear, based on the country information, why available health care in Malaysia would be systematically and discriminatorily withheld from him. The applicant responded that he just fears this would be the case because of his claimed conversion. The Tribunal noted that his Malaysian identification does not specify if he is Shia, rather it just states that he is Muslim. If he were to walk into a hospital, country information reflects that he would be given treatment according to Malaysia’s universal health care system. He stated he only fears being denied medication if he is detained for reason of his conversion and Shia faith.
The Tribunal has found that there is not a real chance of serious harm to the applicant for reason of his religion or conversion and rejects that he will be interned in a religious “rehabilitation” camp. More generally the Tribunal notes that Malaysia has a well-established universal health care system, accessed by around 78 per cent of the population, and modelled on the United Kingdom’s system. Malaysia’s two-tiered health system consists of nation-wide public health care centres and hospitals administered by the Ministry of Health, and a growing private health sector, which predominantly offers services in urban areas.[11] With respect to mental health treatment DFAT notes that The Ministry of Health’s 2018 National Health and Morbidity Survey found that just under one in three Malaysians aged 16 years and above were living with a mental health issue, but public mental health services remain limited. Due to a lack of mental health professionals, public services are generally provided by general practitioners and non-mental health specialists. Private mental health services can cost upwards of MYR300 (AUD95) per consultation. Because most private health insurance does not cover mental health services in Malaysia (as of July 2019, Malaysia AIA became the only such company to provide coverage), access can be cost prohibitive.[12]
[11] DFAT Country Information Report, Malaysia, 29 June 2021, p.13
[12] Ibid, p.14.
With respect to the applicant’s representative’s submission about stigma attached to mental health in Malaysia, the Tribunal acknowledges this can occur, as reflected in the DFAT report.[13] However there is no indication that this can result in persecution of a person suffering mental health concerns or that treatment would be withheld from them for reason of their illness.
[13] Ibid. p.14.
Given the country information about the general availability of universal health care the Tribunal does not accept that, should the applicant require treatment for either his heart health or his mental health, that he will be subject to serious harm as a result of systematic and discriminatory conduct for reason of his conversion, his religion or his status as a person suffering from mental health concerns. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
Complementary protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
For the reasons set out above, the Tribunal has not accepted there to be a real chance the applicant will face serious harm for reason of his conversion from Sunni to Shia Islam or for reason of his Shia Islam religion. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[14] For the same reasons, the Tribunal does not accept there to be a real risk he will be subjected to significant harm for reason of his conversion from Sunni to Shia Islam as a necessary and foreseeable consequence of being removed from Australia to Malaysia. The Tribunal notes that DFAT assesses that Shia can face low level discrimination in that they may not be able to worship freely, as large Shia gatherings can be prevented or disrupted, and has considered this country information separately under the complimentary protection criteria.
[14] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
In considering whether such discrimination will constitute ‘significant harm’, the Tribunal notes that ‘significant harm’ is exclusively defined in s 36(2A) as follows:
(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.
The Tribunal does not accept that the country information cited in these reasons reflects that there is a real risk the applicant will be arbitrarily deprived of his life for reasons of his Shia religion, nor that the low-level discrimination practiced by the Malaysian authorities against Shia, rises to the level of ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as those terms are defined in the Act. There is no suggestion the applicant will be subjected to the death penalty for reason of his faith.
The Tribunal accepts that the applicant has experienced heart and mental health problems and that he may require medical treatment for these conditions in the future in Malaysia.
The Tribunal does not accept there to be a real risk the applicant will be arbitrarily deprived of his life for reasons of his health conditions, nor that the described poor access to mental health treatment or societal stigma attached to mental health problems or the submitted lower standard of health care available in Malaysia, rises to the level of ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as those terms are defined in the Act. There is no suggestion the applicant will be subjected to the death penalty.
For these reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm from any person or group as a necessary and foreseeable consequence of being removed from Australia and returned to Malaysia.
CONCLUSIONS
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.
Paul Noonan
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.
…

[2023] AATA 1339

18 April 2023

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