1729099 (Refugee)

1729099 (Refugee) [2024] AATA 1396 (26 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1729099

COUNTRY OF REFERENCE: Malaysia
MEMBER:Denny Hughes
DATE:26 March 2024
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 26 March 2024 at 4:34pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Sunni convert to Shia Islam – apostasy – physical and verbal abuse – family violence – Sharia Courts – fear of detention – fear of killing – forced rehabilitation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 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 1 November 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 28 June 2016. The delegate refused to grant the visa on the basis that she did not meet the criteria for grant of a protection visa.
The applicant appeared before the Tribunal on 18 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner [Partner A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CLAIMS AND EVIDENCE BEFORE TRIBUNAL
Visa application
In her protection visa application, the applicant claims she left Malaysia due to prejudice against Shia Muslims by the predominantly Sunni Muslim community and the Government of Malaysia. She was not allowed to practise her Shia faith, rituals and traditions in Malaysia because Shia Islam was declared illegal by the Islamic authority and the Government of Malaysia.
She claims she was born into a devout Sunni Muslim family. From a young age, she was made to believe that Shia Muslims were evil and infidels. Only Sunni Islam was accepted. This made her more curious and she wanted to know more about Shias. She always believed in freedom of religion and basic human rights.
When she was at university, she met a foreign student of [Country 1] origin. She asked him about Shia Islam. He taught her everything. She was interested and later accepted it as her faith but she practised it discreetly because she was not able to do so openly. She did this to avoid any backlash from the Sunni Muslim students and the university's Islamic authority. She was stressed out because she had to pretend and follow Sunni prayers whenever she was with her family and friends. Finally in April 2016, she declared to her family and friends that she was a Shia.
Her family and friends were enraged, calling her an “infidel”. Her mother cried and her brother slapped her. Her friends reported her to the police. The police came and wanted to take her to the police station, but her brother pleaded for them not to do so because he was ashamed and did not want the neighbours to know about it. They locked her in a room while waiting for the religious authorities to come the next day. She was able to sneak out of the house through a window and took a bus to Kuala Lumpur, before flying to Australia.
She was physically harmed by her brother and verbally abused by her friends and police officers. They were disgusted by her choice to become a Shia. She had to abandon her studies at university otherwise she would face harsh disciplinary action from the university board and threats from her fellow university friends.
She will be harmed and mistreated if she returns to Malaysia. She will be detained in a rehabilitation centre where they will persuade her to renounce her faith and convert back to the true form of Islam. She does not think the authorities can protect her as they impose the rules and the laws preventing Shia Islam in Malaysia. She would face detention and prosecution if she informs the authorities or tries to seek help within the community. She also cannot relocate because Sunni Muslims dominate every part of the country.
Delegate’s decision
In their decision, the delegate was not satisfied that the applicant had converted from Sunni Islam to Shia Islam. The delicate considered she had not provided any evidence to substantiate her claims of harassment, threats or harm. She had also not provided any supporting information from religious leaders in Malaysia or Australia attesting to her conversion and her practise of the Shia faith.
Tribunal review
Between 2017 and 2019, the applicant provided the Tribunal with a range of additional evidence regarding her Shia conversion, including text messages, photos, social media, study notes, and media reports.
On 13 September 2023, an officer of the Tribunal wrote to the applicant requesting she complete a pre-hearing application form and return it to the Tribunal within 7 days. The applicant replied to the Tribunal on 19 September 2023. Her completed form included a statement that indicated that she now feared harm as an apostate and detailing claims of family violence committed against her by her brother while she was in Malaysia.
The submissions included [text] messages (an untranslated threat from her brother), [occupation 1] qualifications, employment certificates, and payslips. Subsequent submissions included a statement from her partner ([Partner A]), a friend ([Friend A]), her employer ([named]), and former teachers ([named]). The applicant also provided a copy of a report from a psychologist ([Psychologist A]), and a further written statement from the applicant detailing her past experiences, the impact of those experiences, and her fears related to her brother and her later abandonment of Islam.
The applicant provided detailed evidence of her studies and employment in Australia, which indicates that she is experienced and well regarded in her work in [occupation 1]. As indicated to the applicant at hearing, the Tribunal accepts that evidence, but has considered it only to the extent it is relevant to her fears on return to Malaysia.
No further submissions were made after the hearing.
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 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 meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity and citizenship
The applicant has provided a copy of her Malaysian passport. She has consistently claimed to be from Malaysia. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a national of Malaysia.
Nothing before the Tribunal suggests the applicant has citizenship of any other country, or that she has any right to enter or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal finds that Malaysia is her receiving country and has assessed her claims against that country alone.
Departure from Malaysia
In her visa application, the applicant detailed the emergence of her interest in Shia Islam while at university. She explained her interest in the faith and her reasons for leaving Malaysia – specifically referring to prejudice against Shia Muslims. She detailed the consequences of her conversion from Sunni Islam to Shia Islam, and how it enraged her family and friends. She claimed she was beaten by her brother, and her friends reported her to the police. She claimed she was locked in her room by her family waiting for the religious authorities to take her the next morning before she escaped and fled to Australia.
The applicant’s evidence at the hearing was far different from this account. She indicated that she left Malaysia freely and had gone to see her mother before she left. She said she had not seen her brother for a number of weeks before her departure. She initially made no reference to her conversion or any of the incidents mentioned in her application.
In the early stages of the hearing, the applicant said that she had completed the application herself. When the Tribunal put to her the divergence between her written and oral account, she then revised her evidence and said that a friend had assisted with her visa application. She confirmed the written account was a false account and something initiated by her friend, whom she was no longer in contact with. She explained that her English was not good at the time she lodged her application.
The Tribunal finds that the applicant’s claims of her departure from Malaysia as detailed in her written application is a false account, and one that raises concerns for the Tribunal about the reliability of her evidence. The Tribunal finds that the applicant left Malaysia freely of her own volition and that none of her friends or family, nor any authority, resisted her departure.
Conversion to Shia Islam
The Tribunal has considered whether her account of her conversion to Shia Islam is credible, notwithstanding that her written claims about her departure from Malaysia and what occurred after her claimed conversion were false.
The applicant provided the Tribunal with a range of documentary evidence in support of her conversion to Shia Islam. Her submissions include an undated letter from [Leader A] stating that he had known the applicant for a few months and she had been converted from ‘Sunni belief to Shia-Ithna Asheri beliefs’. At the hearing, the applicant indicated this letter was from 2017 or 2018.
In contrast to the statement from [Leader A], the applicant’s written claims indicate she converted to Islam while still in Malaysia. When the Tribunal put this inconsistency to her, she said that she had converted verbally in Malaysia but not in practice.
A further concern for the Tribunal is the applicant’s understanding of Shia Islam. Despite claiming to have been involved in Shia Islam for two to three years while in Australia, and to have converted verbally in Malaysia, her understanding of Shia Islam was very limited. While she was aware that Shias commemorate Ashura, she could not explain its significance or what it represented for Shia Muslims. In terms of her own desire to convert to Shia Islam, her explanation was very general, indicating that Shia Islam was simpler and Shias had less onerous daily prayer obligations.
The Tribunal acknowledges that religious engagement and understanding is a broad spectrum, and that identifying a clear timeline of conversion is not always easy, however it found her evidence on her conversion to Shia Islam to be undetailed, unpersuasive, and inconsistent across her written and oral accounts. The Tribunal also found her supporting evidence on this issue to be superficial and lacking in detail.
The Tribunal accepts that the applicant has engaged with Shia persons and leaders, and undertaken some research into Shia Islam, however it does not accept that she converted to Shia Islam, whether in Malaysia or Australia, or that she faced any consequence for doing so. The Tribunal considers these claims are not credible.
Claims related to family in Malaysia
The applicant’s father passed away when she was young. The applicant said she is seldom in contact with her mother, but had spoken to her a few days prior to the hearing, and the a few weeks before that. She said they did not have a good relationship and that they only talk about money. The applicant sends her around $100 every one or two months.
In her visa application, the applicant indicated she had experienced violence from her brother after her conversion. As the Tribunal does not accept the applicant converted as she contends, or faced backlash from her family as a result, it also does not accept she faced violence from her brother in this way.
Before the Tribunal, the applicant raised for the first time that she had experienced sustained emotional, physical and coercive family violence from her brother, and that this was condoned/tolerated by her family.
The applicant detailed her past experiences in a statement provided to the Tribunal in January 2024. She spoke to these claims and her experiences to some extent at the hearing.
The applicant’s evidence about the violence she experienced from her brother was persuasive. She was emotive when giving evidence, and was able to explain the impact on her personally, as well as her views about Islam and Islamic men. She claims she felt hatred towards him and their religion. She said she is from a very religiously conservative area in Kelantan and she no longer wanted to be a part of the Muslim community.
The Tribunal discussed with the applicant the application of s.423A and its concerns about the late raising of her claims related to her brother. She said this was her mistake and that she should have said it earlier. She said it was overwhelming to discuss these past experiences, and her limited English. The Tribunal accepts that these claims would have been difficult to engage with and discuss.
It was apparent from her evidence that the applicant’s brother had far less influence and control of her life during her university days in Pahang. The applicant indicated they had very little involvement but there was always the threat of violence if she did not do what he said.
The Tribunal asked about the threat she received while she was in Australia. When her mother became sick he ordered her to return to Malaysia. She said he was tired from looking after her mother. When she refused to return to Malaysia, he had threatened to kill her. She said she called her mother and said she does not want to talk to him ever again.
[Partner A] gave evidence that the applicant has a constant fear when it comes to talking about her family. He said she is often in a low mood and stressed. He believed it was from her past experiences. He confirmed he did not witness these matters, but he could speak to the emotional impact on her. The Tribunal asked why he believed she was at risk. [Partner A] said she is at risk from her violent brother and having left Islam.
A concern for the Tribunal was that despite her claims of family violence, her evidence was that she continued to be in contact with her mother and provide her money, and prior to the last threat had some contact with her brother. When this was put to her, the applicant said she had made a promise to support her mother even though her mother had sided with her brother and tolerated his violence. She had not spoken to her brother since the threat he had made to her three or four years ago. She had tried not to communicate to her mother.
The Tribunal found the applicant’s clarification of why she continued to support her mother was plausible and not inconsistent with her claims to have experienced family violence from her brother.
The applicant’s evidence about her past experiences with her brother and family were persuasive. Her evidence was supplemented by the oral and written evidence of [Partner A], who spoke cogently of the emotional impact of the applicant’s past experiences. Other evidence, including that of [Friend A] and her psychologist [Psychologist A] provided further evidence of the impact of her past experiences and the related distancing from her religion.
In contrast to her evidence about converting to Shia Islam, the Tribunal found the applicant’s evidence of the violence she faced from her brother, and the tolerance by her mother and family, to be persuasive. The emotional impact of those experiences was apparent at the hearing, and corroborated by her witnesses. The Tribunal accepts her claims to have suffered emotional, physical and coercive violence from her brother. The Tribunal accepts her brother has threatened her in the past and that his negative feelings towards the applicant persist.
Renouncement of Islam
At the hearing, the applicant indicated that she no longer believes in any religion and she no longer considers herself a Muslim.
She explained that when she first came to Australia, her practice of Islam began to wane. She questioned whether she was a Muslim. She stopped wearing a hijab as she wanted to be herself. She noticed the hypocrisy of other Muslims who would drink alcohol and go out at night. She wanted to be free and not follow any religious laws.

The applicant again became quite emotive when discussing the guilt she felt in abandoning her faith. She explained that she had a strong relationship with her late father who had told her she had to pray and follow her faith. However, the abuse she experienced from her brother remained in her memory. She explained that she could never be with another Muslim man because of that resentment. She also did not want to be pulled towards a religion of violence. She feels hatred towards him and Islam. She said she concluded that this religion was not for women and she no longer wanted to be a part of the Islamic community.
At the hearing, the applicant did not wear a hijab/tudung, but instead wore jeans and wore her hair out. She described herself as an agnostic, and that she had not abandoned her belief in the existence of a god. However, she could no longer identify as a Muslim or Sunni Muslim. She said that her partner, [Partner A], is a Christian and that she has some interest in learning more about his faith.
At the hearing, the Tribunal asked the applicant what she would do if she returned to Malaysia, the applicant said she would change her name, identity and religion. She would want to be herself and far away from her memories. She said she cannot return to the place she faced abuse. She feared threats and violence from the Islamic community, and the risk of punishment and rehabilitation from the authorities.
While the Tribunal again notes its concerns about her earlier evidence, the Tribunal found the applicant’s evidence about her abandonment of Islam to be coherent and persuasive. Her evidence was emotive and freely given and gave the Tribunal the impression of a lived experience.
Fears on return to Malaysia
The Tribunal asked the applicant what she feared on return to Malaysia. She claimed to fear violence from her brother. She claimed she cannot travel to live in another area such as Kuala Lumpur. She has extended family that live there and other parts of Malaysia, and her brother has friends there. Her brother would be able to find her and harm her. She suggested he may even use spies to find her in such a large city.
She claimed she would no longer practise Islam, nor would she wear a hijab/tudung or otherwise engage with her former faith or community. She plans to change her name and religion. However, she fears the Syariah courts would become involved. She fears being alienated from the community and in constant fear of the threat of her community.
[Partner A] also gave evidence on this issue. He claimed she would try to exercise her religious freedom, and that this would put her at risk. He said he had undertaken research about people who have left Islam and who faced disappearance or legal consequences.
The Tribunal asked whether she could obtain protection from the police. The applicant said the police will not take it seriously and they would not respond fast enough to protect her from the violence she fears. She also said that her brother has friends within the police and could pay money so that it is considered a false claim. Her mother would not protect her as a witness. She said he is capable of anything. She does not want to live in fear of his violence.
Country advice
Under Malaysia’s Constitution, Islam is recognised as the official religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation. Article 11 states every person has the right to profess and practise [their] religion. DFAT states that notwithstanding that freedom, formally leaving or converting from Islam – apostasy – is extremely difficult.[1]
[1] DFAT, Country Information Report - Malaysia, 29 June 2021.
The ICJ observes that the right to freedom of religion in Malaysia has been threatened by laws criminalising ‘apostasy’, and the fact that jurisdiction over matters of conversion most often falls within the purview of the Syariah courts. Civil courts often move to confer jurisdiction on Syariah courts to hear matters of conversion from Islam to a different religion, which often treat these cases with harsh consequences for those accused of apostasy. State laws criminalize acts of apostasy, often making those convicted liable to large fines and even prison sentences. [2]
[2] International Commission of Jurists, 'Challenges to Freedom of Religion or Belief in Malaysia', 22 March 2019, 20190403094134.
Consistent with this, DFAT states that individuals who have attempted to convert from Islam have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts. An individual wishing to convert from Islam must first obtain permission from a state syariah court. The court will declare them an apostate. State syariah courts rarely grant such declarations and, in some states, including Melaka, Pahang, Perak and Sabah, apostasy is a crime punishable by fine, a jail sentence, or caning. 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]
[3] DFAT, Country Information Report - Malaysia, 29 June 2021.
In 2019 the Kelantan State Legislative Assembly passed new Sharia laws pursuant to the Syariah Criminal Code (I) Enactment 2019 which came into force in November 2021. It supersedes the previous hudud laws (Islamic penal law) which were found not to be enforceable. The new enactment includes the offence of attempts to convert from Islam, under which Syariah courts will be given the mandate to hear cases in which punishments include a jail term of not more than three years and a fine of up to RM 5000 or six strokes of the cane, the punishment of which is categorised under ta’zir (crimes with discretionary punishments) and not hudud.[4]
[4] Sisters in Islam, ‘Analysis of the Kelantan Syariah Criminal Offences Enactment’, 1 March 2021; Union of Catholic Asian News, ‘Malaysia’s state’s Sharia law criminalizes conversion from Islam’, 9 November 2021; JS Lee, ‘Kelantan Imposed Syariah Criminal Code and here’s what is considers as a crime!’, Malaysia Trend, 5 November 2021.
Those penalties are similar to those in the state of Pahang, which criminalises the act of ‘claiming to be a non-Muslim’, an ‘attempt to leave the religion of Islam’, and the act of ‘declaring to leave the religion of Islam for any purpose’ with a penalty of up to three years’ imprisonment, a fine of RM 5000, or both, and to whipping of not more than six strokes.[5]
[5] International Commission of Jurists, 'Challenges to Freedom of Religion or Belief in Malaysia', 22 March 2019, 20190403094134.
Syariah courts have the power to deny applications submitted by Muslims to convert out of Islam, and have often ordered applicants into ‘rehabilitation’, counselling sessions, and other interventions.[6]
[6] International Commission of Jurists, 'Challenges to Freedom of Religion or Belief in Malaysia', 22 March 2019, 20190403094134.
The US Department of State cites 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.[7]
[7] DFAT, Country Information Report - Malaysia, 29 June 2021; US Department of State, 2022 Report on International Religious Freedom: Malaysia, 15 May 2023.
DFAT states that only 168 of 863 Muslims who attempted to convert between 2000 and 2010 reportedly received permission to do so. DFAT states that it has no more recent data on such conversions. 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.[8]
[8] DFAT, Country Information Report - Malaysia, 29 June 2021.
The US Department of State, citing NGO sources, reports that most converts from Islam prefer to do so privately, without legal approval.[9]
[9] US Department of State, 2022 Report on International Religious Freedom: Malaysia, 15 May 2023.
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.[10]
[10] DFAT, Country Information Report - Malaysia, 29 June 2021.
DFAT concludes 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 further states that it is not able to comment on the likelihood, in practice, of punishment for apostasy in states in which apostasy is criminalised.[11]
[11] DFAT, Country Information Report - Malaysia, 29 June 2021.
In terms of familial violence, DFAT assesses that, while the situation is generally improving, domestic violence remains a significant problem in Malaysia, and a range of factors continue to create difficulties for women subjected to violence to report it, gain adequate state protection, and/or leave family settings safely. These factors include – ambiguity between federal and state laws, lack of application of laws, limited capacity within the police and judiciary, familial shame, and a lack of awareness of rights.[12]
[12] DFAT, Country Information Report - Malaysia, 29 June 2021
Assessment
The Tribunal accepts the applicant’s brother has been a violent and abusive force in her life. If she were to return to Kelantan, the Tribunal considers there is a more than real chance that she would again face harm from her brother in the form of family violence. Based on the country advice before it, the Tribunal is not satisfied she would be able to obtain protection against that harm in her home area.
However, the Tribunal considers it significant that the applicant was able to avoid the threat and incidence of harm she faced from her brother while studying in Pahang. The Tribunal considers that the threat of direct family violence from her brother is localised to the area in which he lives. The Tribunal did not consider her claims that he would use spies or relatives to find her elsewhere in Malaysia to be credible, or that he would seek to harm her outside of their home area. The Tribunal notes there is no suggestion that he did this in the past, or that he has made any attempt to contact her in Australia in the last few years since he last threatened her.
Outside of her home area in a large city such as Kuala Lumpur, where she would be away from her brother’s control and influence, the Tribunal considers their interactions and the direct threat to her from her brother would be reduced, as was the case during her university days in Pahang. In that context, the Tribunal considers the chance of her being harmed by her brother would be remote, and therefore the Tribunal is not satisfied that the real chance of persecution relates to all areas of a receiving country.
In terms of her ‘religious’ profile as a person who has renounced Islam, the Tribunal considers the chance and risk of harm is more concerning, and the threat and influence of her brother and conservative religious family is a relevant consideration in that assessment.
The Tribunal is satisfied the applicant is recognised as a Muslim at law in Malaysia. She is ethnically Malay and her identification shows her in hijab/tudung. The applicant is also from the religiously conservative area of Kelantan.
The Tribunal accepts that the applicant is an agnostic and that she has renounced Islam. If she returned to Malaysia, the Tribunal accepts she would no longer practise Islam, nor would she wear a hijab/tudung or otherwise engage with her former faith or community. The Tribunal accepts that the applicant has developed a hatred towards Sunni Islam and links it to the violence she faced from her brother and the lack of protection or support from her family and community. The Tribunal considers there is no chance of her returning to Sunni Islam and that she would continue to renounce her faith if she returned to Malaysia.
The Tribunal notes country advice that some seek to convert from Islam ‘quietly’. Given her adverse feelings towards Sunni Islam, the Tribunal accepts that the applicant would not just cease practising Islam, but also that she would seek to free herself of her religion by changing her name and former religious designation in the country by formally renouncing Islam. Consistent with the country advice, the Tribunal considers that would expose her to a real chance and real risk of being designated as an apostate.
The Tribunal considers that the applicant’s profile is elevated by the fact that she is from a religiously conservative part of Malaysia (Kelantan), as is her family, and she has been a victim of ongoing family violence from her brother, who has been emotionally, physically and coercively violent towards her in the past. The Tribunal accepts her brother has threatened her with violence and death. The Tribunal accepts that the applicant’s mother and family have tolerated/condoned the violence she has faced in the past and are not likely to assist her in the future.
While the Tribunal considers she would not face a real chance of harm from her brother outside of Kelantan, the Tribunal considers that her brother and family is an additional threat to her being identified as an apostate and at risk of penalty under Syariah law.
If she sought to renounce Islam formally, through changing her name or her identity card, the Tribunal is satisfied that she would be at risk of penalty under Syariah law.
The country advice above indicates some very serious penalties for those deemed to be apostates in both Kelantan and Pahang, however the Tribunal considers there is no real chance or risk of the applicant being subjected to the death penalty in Kelantan. While these laws exist, the Tribunal is satisfied they are at present unenforced, in part because of federal rulings in Malaysia. The Tribunal is concerned about the chance or risk of the applicant facing other penalties under the law. The Tribunal notes the development of new penalties in Kelantan for ta’zir crimes, which appear to have been developed to overcome hudud penalties which were found to be unenforceable by federal courts. However, again, the Tribunal is not aware of reports that indicate these laws are being enforced in practice, and DFAT states it cannot comment on the likelihood of such practices.
While the potential for such enforcement is unclear in practice, the Tribunal considers there is a very real chance that the applicant would face a long and expensive legal battle in seeking to formally renounce Islam and that she would ultimately be denied the ability to do so. The Tribunal also considers there is a real chance she would face official discrimination and be unable to change her name or have her former religion removed from her national identification documentation.
As she would be considered an apostate, the Tribunal considers there is a real chance of the applicant being forced to undertake rehabilitation, of several months’ duration, and at the end of that process her status may still not be recognised. The Tribunal considers her family is a relevant consideration in terms of that likelihood. As conservative Muslims, the Tribunal considers her brother and family would elevate the risk of her being identified and subjected to rehabilitation, whether in Kelantan or elsewhere in Malaysia. The Tribunal considers the cumulative pressure of her religious profile (as an apostate) and her family significantly increases the potential for her to face rehabilitation or other coercion under Syariah law, and ostracism or other discrimination from her community.
In view of the above, the Tribunal is satisfied the applicant would face a real chance of serious harm if she returned to Malaysia now or in the reasonably foreseeable future. The Tribunal considers the harm includes penalties under Syariah law, rehabilitation, and official and societal discrimination. The Tribunal is satisfied the harm feared would amount to serious harm under the Act, including a threat to her liberty, would involve systematic and discriminatory conduct, and would be for the essential and significant reason of her religious profile, as a person who has renounced Sunni Islam (an apostate).
While the Tribunal did not find the evidence of her conversion to Shia Islam to be credible, the Tribunal considers her renouncement of Sunni Islam is genuine, and that she holds genuine antipathy towards her former faith. In order for her to avoid harm on the basis of this profile if she returned to Malaysia, the Tribunal considers she would need to conceal that fact by continuing to wear Islamic clothing, participating in Islamic ceremonies and commemorations, and/or continuing to identify as a Sunni Muslim. The Tribunal considers that such steps would conflict with characteristics that are fundamental to the applicant’s identity or conscience, and/or require her to conceal her actual religious profile as an agnostic that has renounced Islam. It follows that the Tribunal is not satisfied the applicant could take reasonable steps to modify her behaviour so as to avoid a real chance of persecution.
The Tribunal is satisfied that the persecution feared by the applicant relates to all areas of Malaysia. Syariah courts and religious authorities operate throughout the country. The Tribunal considers there are likely less religiously conservative areas in the country where a person may be able to avoid the scrutiny of the Islamic authorities, however the Tribunal considers that wherever the applicant travelled to live in the country she would seek to exercise her religious freedoms and formally renounce from Islam and change her name, as well as openly appear and act as a non-Muslim. The Tribunal considers the additional threat to the applicant from her brother means that there is a more elevated risk of her being identified and pursued by the authorities for being an apostate, if not targeted by her brother for violence.
The Tribunal is also satisfied that effective protection measures are not available to the applicant as the persecution feared by the applicant involves state actors and religious authorities that operate throughout Malaysia.
In view of everything before it, the Tribunal is satisfied the applicant has a well-founded fear of persecution for reasons of her religious profile if she were to return to Malaysia, now or in the reasonably foreseeable future. It follows that 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.
Denny Hughes
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.
…

[2024] AATA 1396

26 March 2024

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