1800660 (Refugee) - [2021] AATA 5048

1800660 (Refugee) [2021] AATA 5048 (1 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1800660
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Jason Pennell
DATE:1 November 2021
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 1 November 2021 at 9.40am

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – religion – Indian Hindu – relationship is against Islamic law – membership of a particular social group – Hindu man married to a Muslim woman – applicant would not be able to convert to Islam – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
Wang v MIMA (2000) 105 FCR 548

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 18 December 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 9 June 2017. The delegate refused to grant the visa on 18 December 2017 on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant’s wife, [Ms A], made a separate application for a protection visa which was refused by a delegate of the Minister for Home Affairs on 21 December 2017 (the [Ms A] application).[1] The claims made by [Ms A] in her application are similar to those made by the applicant and arise out of the same factual circumstances. Accordingly, with the consent of the applicant and [Ms A], their applications for review were heard by the Tribunal together on 19 October 2021.
[1] AAT Case [number] – [Ms A]
The applicant appeared with [Ms A] by video hearing before the Tribunal on Tuesday 19 October 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was represented in relation to the review by his registered migration agent.
Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1800660 (Refugee)

Details

AGLC: 1800660 (Refugee) [2021] AATA 5048
Case: [2021] AATA 5048
Decision Date: 1 November 2021

CaseChat Overview and Summary

The applicant, an Indian Hindu man, sought a protection visa, asserting a well-founded fear of persecution if returned to Malaysia due to his marriage to a Muslim woman. The dispute centred on whether his marriage, which is not recognised under Malaysian Islamic law without his conversion to Islam, would expose him to persecution based on his race, religion, or membership of a particular social group. The case was before the Tribunal.

The core legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for reasons of race, religion, or membership of a particular social group, and whether Australia had protection obligations towards him under the Migration Act 1958. Specifically, the Tribunal had to determine if the real chance of persecution, should the applicant return to Malaysia, involved serious harm and was for an essential and significant reason, and if effective protection measures were available to him in Malaysia.

The Tribunal reasoned that based on the provided country information, interfaith marriages in Malaysia are not recognised unless the non-Muslim party converts to Islam. It accepted the applicant's evidence that he is a pious Hindu and would not convert to Islam, as this would conflict with a characteristic fundamental to his identity and conscience. Consequently, the Tribunal found a real chance that the applicant would be seriously harmed if returned to Malaysia, not only due to his ethnicity and religion but also as a member of a particular social group (an ethnic Tamil Hindu man married to an ethnic Malay Muslim woman). This harm could manifest as his partner being detained and prosecuted, and him facing physical harm, with inadequate protection from the authorities. The Tribunal concluded that the applicant met the criteria for being a refugee and that Australia had protection obligations towards him.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion set out in s 36(2)(a) of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is reported[80] that Islamic authorities in Malaysia detained a Muslim woman for 4 months for marrying a Hindu. It is reported that the Islamic religious police raided the couple’s home and arrested the woman due to her ‘illegally cohabiting’ with a Hindu and for failing to produce any relevant marriage documents. Upon her release the Selangor state Islamic authority ordered the woman to live separately from her husband on the basis that her marriage was illegal under Islamic law. [80] Reuters, ‘Malaysia released woman in Hindu marriage case.’ by Jalil Hammad 11 August 2007 >In addition, it is reported[81] that a 29-year-old woman claimed that she had been mentally tortured by the Islamic religious police during her 6-month detention for renouncing Islam in favour of the Hindu religion.[81] ibidIt was also reported[82] that a Muslim woman was forcibly separated from her Hindu husband by ‘Malaysia’s Islamic authorities after 21 years of happy marriage.’ The Syariah court declared that her marriage was illegal and as a result she was not able to live with her husband. Her children were taken from her for ‘rehabilitation’ and religious counselling.[83][82] The Guardian, ‘Malaysian religious law splits wife and children’ 4 May 2007 by Ian Mackinnon. ibidWhile the Tribunal accepts that interfaith marriages in Malaysia have increased, based on the available country information it accepts that a Muslim person cannot marry a non-Muslim person in Malaysia without that person converting to Islam. In this case, based on the country information the Tribunal finds that the applicant’s marriage to [Ms A] will not be recognised if they are returned to Malaysia. Based on the country information the Tribunal accepts that if the applicant and [Ms A] were to return to Malaysia there is a real chance that, if reported to the authorities, [Ms A] will be detained and prosecuted for zina and khalwat in breach of Syariah law. As such, the Tribunal finds there is a real chance she would be detained, incur a penalty, and be forced to live separately from the applicant and their children. While, it may be possible for the applicant to continue to live in Malaysia married to [Ms A], based on the applicant’s and [Ms A]’s evidence, the Tribunal accepts that there is a real chance he would be physically harmed as a result of his relationship with [Ms A] as a Hindu. It accepts that the police would view the issue as a religious matter and would not provide the applicant adequate protection in all the circumstances. Therefore, for the applicant to be lawfully married to [Ms A] in Malaysia it would be necessary for him to become a Muslim. The applicant’s evidence was that he is a pious person. Hinduism and its rituals are important to the applicant. His evidence was that the rituals of Hinduism have been part of his day-to-day life since he was a child and that he would not be able to give them up. His evidence was that in his heart he would not be able to convert to Islam, despite his feelings for [Ms A].[84] The Tribunal accepts that the applicant would not be able to convert to Islam. As a result, for the applicant’s marriage to [Ms A] to be recognised in Malaysia it would require him to alter his religious beliefs, or at the least conceal his true religious beliefs, by converting to Islam.[84] Applicant’s statutory declaration dated 15 October 2021@ [15]Therefore, based on the applicant’s evidence and the available country information, the Tribunal finds that there is a real chance that the applicant will be seriously harmed if he is returned to Malaysia by reason of his ethnicity, his religion and as a member of a PSG by reason of being an ethnic Tamil Hindu person married to an ethnic Malay Muslim as claimed. Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that the applicant is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a).CONCLUSION For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criteria set out in s.36(2)(a) od the Act. DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Jason PennellSenior MemberATTACHMENT - Extract from Migration Act 19585 (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 refugeeFor 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 persecutionFor 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.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.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.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.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.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 familyFor 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 familyFor 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 measuresFor 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.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.…Protection visas – criteria provided for by this Act…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.…

Ratio Decidendi

Legal Principle Established

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