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

1. 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).

2. 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).

3. 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]

4. 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.

5. Due to the COVID-19 pandemic, the Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold it by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. 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.

3. 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).

4. 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–5LA, which are extracted in the attachment to this decision.

5. 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

1. 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.

BACKGROUND

Applicant’s identity

1. The applicant claims that he was born on [date] ([age] years old) in Sungai Petani, Kedah, Malaysia.[2] He claims to belong to the Indian ethnic group and is a Hindu.[3]

   [2]    Part C - Application for a protection visa application form dated 27 May 2017, Department File [number], Doc ID No: 8866465, folio 43

   [3]    OpCit, folio 41

2. The applicant provided the Department of Home Affairs, then called the Department of Immigration and Border Protection (the Department), with a number of identity documents including a certified copy of his Malaysian passport,[4] a certified copy of his Malaysian identity card,[5] a certified copy of his international driving permit[6] and a certified copy of his Malaysian driving licence.[7]

   [4]    Department File [number], Doc ID No: 8866465, folio 49

   [5]    OpCit, folio 47

   [6]    OpCit, folio 46

   [7]    OpCit, folio 45

3. The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen of Malaysia, and as such his protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.

Applicant’s migration history

1. The applicant first arrived in Australia on 3 [date] May 2017 on a [temporary] visa granted on 26 April 2017; he did not travel outside of Australia after this date.[8]

   [8]    Department of Home Affairs - Mainframe Movement Records dated 20 September 2021, Tribunal case number 1800660, Doc ID No: 8856869

2. The applicant is presently lawful onshore in Australia on a bridging A visa granted on 14 June 2017.[9] He submitted a valid protection visa (XA-866) application on 9 June 2017[10] which was refused by the Department on 18 December 2017. The applicant applied for Tribunal review of this decision on 8 January 2018.[11]

   [9]    ibid

   [10] Tribunal file 1800660, Doc ID No: 3884810

   [11] Department decision, Tribunal file, case number no 1800660 Doc ID No: 3884813

Applicant’s claims for protection

1. The applicant first submitted claims for protection when he lodged his protection visa application to the Department on 9 June 2017.[12] The applicant’s claims are as follows:

   [12] ibid, folios 22-25

   Why did you leave that country(s)? Provide specific details.

   I left Malaysia to seek safe asylum here in Australia due to religious conflict there. I am in a live relationship with a Muslim woman for around 3 years plus and due to the religious differences, both of us were under tremendous pressure from the Muslim community and the authorities. We both respect each other religion and feel its not right to convert just to pacify and satisfy people around. Due to that reason, we have been discriminated and violently assaulted by the locals. Thus, we had no other option but to leave the country if we wanted to live in peace.

   What do you think will happen to you if you return to that country(s)?

   I fear that things and events we went through would reoccur and the severity be more drastic. Because Malaysia being one of the few Islamic countries who practice forcible conversion of a non-Muslim if he or she marries a Muslim. We can’s get married in Malaysia unless I convert which I feel is unfair to me. If I want to convert then I feel that I should do so with open heart and not by force or not because I need to, to be with her.

   Did you experience harm in that country(s)?

   Yes. Yes, I experience harm physically and mentally. Physical harm was we were rounded up at a car park when we were on our way back from dinner. As we were to board our car, we were surrounded by almost 10 motorcycles and around 20 to 25 men. At first, they started insulting is with vulger words and racial sentiments. Then all of a sudden, I was struck by a metal batton on the face. I blacked out for a couple of minutes. I awoke to extreme pain from the non-stop beating. They kicked me on the face, tramppled me, hit me with a blunt object. When the authorities came and found this to be a religious sentiment, they also took a few blows at me, punched me, slapped me and kicked me. After all that, they threatened me not to make any reports of the incident or the reprecusions will be bad. The biggest trauma was watching her being dragged by the hair and slapped repeatedly. I was so afraid.

   Did you seek help within the country(s) after the harm?

   Yes. Yes, I did seek help from few individuals and two organizations like [Organisation 1] and [Organisation 2]. But none of them helped. The reason was they didn’t want any racial conflict and they didn’t want to lose political support. They said that Malaysia is a Muslim country and the majority of its population is of Muslim background. If they were to help me, they fear it would bring upon fierce opposition from the people, the department of Islam and most of all the government. We also went to the police, but they refused to help because this is a religious matter, and it’s a sin for a Muslim to help a non-Muslim. They also threatened to refer the case to the religious police if we wanted to persue the case. We stopped persueing everything because we didn’t want more problem.

   Did you move, or try to move, to another part of the country(s) to seek safety?

   No. We tried to move and find work in another state but were advised not to because it was not safe. We were advised to be close to family and friends because if anything were to happen, then at least we got family support. Our situation is wrong and against the country’s Islamic law and there is no point of moving to any part of the country.

   Do you think you will be harmed or mistreated if you return to that country(s)?

   Yes. Yes, I think and know that we would be harmed if we returned to Malaysia. Its very likely for us to be assaulted, arrested, threatened and have to put up with a lot of mental stress if we return and we surely will be seperated if we return. This is because our relationship is against the Islamic law there.

   Do you think the authorities of that country(s) can and will protect you if you go back?

   No. No, this is because Malaysia is an Islamic country and our relationship is against the law there and none of the authorities will step up and go against the law. There is no way of us getting married or being in a relationship in Malaysia.

   Do you think you will be able to relocate in that country?

   No. I am unable to relocate because there is no safe haven in Malaysia. Having 70% of its population being of Muslim desent, danger is at every corner. What happen is bound to happen again and there’s no way of getting married in Malaysia without me converting to Islam and we can’t receive protection from any authorities because our union is against the law.

2. The delegate summarised the applicant’s claims as follows:[13]

   a)He is an Indian Hindu who has been in a ‘live relationship’ (sic) with a Muslim woman for around 3 years.

   b)Due to their different religions they were under ‘tremendous pressure’ from the Muslim community and the authorities who have discriminated against them and violently assaulted them over the fact that they are not both Muslim.

   c)He sought help after the harm from a few individuals and Hindu/Indian organisations but none of them helped because they did not want any racial conflict or to lose political support.

   d)The police also refused to help them after the assault because they said it was a religious matter and a sin for a Muslim to help a non-Muslim. The police also threatened to refer them to the religious police if they pursued their case.

   e)If they return to Malaysia they fear being assaulted, arrested and forced to separate because their relationship is against Islamic law in Malaysia.

   f)The authorities will not protect them, and they will not be able to relocate because 70 per cent of the population is Muslim and that means there is danger ‘at every corner’.

   [13] Department of Home Affairs Protection Visa Decision record refusal, Tribunal file 1800660, doc ID 3884813

Applicant’s evidence

1. In addition to their oral evidence the applicant and [Ms A] provided statutory declarations to the Tribunal containing evidence in support of their claims.[14]

   [14] Applicant’s statutory declaration dated 15 October 2021 & [Ms A]’s Statutory Declaration dated 15 October 2021

2. The applicant claims that he was born on [date] in Sungai Petani, Kedah, Malaysia and acquired Malaysian citizenship by birth.[15] The applicant claims that he can speak, read and write in English and Bahasa Malaysia, and that he speaks Tamil.[16]

   [15]  Application for a protection visa application form dated 27 May 2017, Department File [number], Doc ID No: 8866465, folio 43

   [16]  ibid folio 41

3. The applicant claims that his mother, father and sister continue to live in Malaysia.[17] The applicant’s brother is living in Australia. His evidence was that he has limited contact with his brother because he is in prison having been convicted for growing marijuana.[18]

   [17]  ibid, folio 39

   [18]  Applicant’s statutory declaration dated 15 October 2021 at [6]

4. The applicant claims he was educated in Malaysia as follows:[19]

   ·[Primary] and Secondary School from January 1994 to December 2004

   ·[Qualification] from [a school] in Penang, Malaysia completed in December 2014.

   [19]  Application for a protection visa application form dated 27 May 2017, Department File [number], Doc ID No: 8866465, folio 27

5. The applicant was employed in Malaysia as follows: [20]

   ·[Various roles] for [Company 1] from December 2014 to May 2017.

   ·[Occupation 1] for [Company 2] from August 2013 to November 2014.

   [20]  ibid, folio 28

1. The applicant’s evidence was that his job at [Company 2] involved a lot of travel with the [team]. The applicant was leader of the [team] and he and [Ms A] worked together in his team. His evidence was that he travelled with [Ms A] and with the rest of the [team] around the country, during which their relationship developed. [Ms A] is an ethnic Malay and a Muslim. The applicant is a Malaysian citizen of Tamil Indian ethnicity and of the Hindu faith. The applicant’s evidence, consistent with [Ms A]’s evidence to the Tribunal, was that he was introduced to [Ms A]’s mother at the time of her interview for her job and later was introduced to her father as her boyfriend in or about 2014. His evidence was that he and her father got along well. [21]

   [21]  Applicant’s statutory declaration dated 15 October 2021 @ [10] and [15]

2. While they were working the applicant and [Ms A] stayed together in a rented house with the rest of the [team]. The applicant’s evidence was that when [Ms A] was studying [she] lived with him at his parents’ home.[22] His evidence was that his parents’ neighbourhood has a diverse ethnic mix including many ethnic Chinese and Indian people.

   [22]  OpCit @ [15]

3. The applicant’s evidence[23] was that in or about late 2014, just prior to [Ms A] commencing her [course], there was an incident in which the applicant and [Ms A] were pulled over and harassed by the police because they were of different ethnicities. His evidence was that they were driving back from work in Penang to Sungai Petani when they were spotted by a police car parked on the side of the road. Two police officers pulled the applicant and [Ms A] over. They wanted to speak to the applicant and [Ms A] separately. The applicant’s evidence was that they took [Ms A]’s handbag and tipped the contents on the bonnet of the car. She was angry and asked them why they wanted to look inside her bag. The police officer said they were checking for condoms to see if they were doing anything wrong. That is, to ensure that they were not doing anything that a Muslim and an Indian were not supposed to be doing, accusing them of ‘khalwat.’ There was no evidence of them behaving improperly. The applicant and [Ms A] explained that they worked together and were travelling for work. The applicant showed the police officers samples of their work. The applicant’s evidence was that he contacted his mother. She arrived and demanded that the applicant and [Ms A] were respectable people doing nothing wrong and threatened to report the incident to the media at which point the police let them go.

   [23]  OpCit @ [17]-[20]

4. The applicant lived with [Ms A] at his family’s home until they left for Australia on[date] May 2017. The applicant confirmed to the Tribunal that during this time [Ms A] dressed in traditional Tamil dress and that she became interested in the Hindu religion. She would attend the Hindu temple with his family and participate in religious ceremonies. He confirmed [Ms A]’s evidence that had the authorities become aware that she was attending the Hindu temple as a Malay (Muslim) person she would have been most likely reported to the religious police as an apostate.

5. In or about 2015[24] the applicant’s family dog had puppies. As a result, the puppies were given or sold to various people around the country. The applicant and [Ms A] were travelling to Penang to deliver a puppy to its new owner when they were stopped by the police. As the driver the police asked the applicant for his driver’s licence. The police then asked [Ms A] for her national ID card. Upon discovering [Ms A] was ethnic Malay the officer scolded her for being dressed as a Tamil and wearing the red dot on her forehead. He also told her off for holding the dog. The police officer also threatened the applicant with being charged with defaming Islam.[25] Once the police officer had checked that [Ms A] was not a missing person, he demanded a bribe for him and his colleague not to report [Ms A] and the applicant to the religious police.[26] The applicant’s evidence was that he had MYR100 (MYR50 each, approximately AUD30) on him at the time which he paid to the police officers.  

   [24] Applicant’s statutory declaration dated 15 October 2021@ [21]-[26]

   [25] OpCit @ [22]

   [26] OpCit @ [23]-[24].

1. On [date] December 2016[27] while at a [venue] in Sungai Petani at about [time], the applicant and [Ms A] were surrounded by approximately 10 motorcycles and 20–25 Malay men asking the applicant and [Ms A] what they were doing. The men started abusing and insulting them demanding that [Ms A] remove the dot from her head claiming that she was betraying her religion. The men dragged [Ms A] from the car and started slapping her telling her that she had brought shame on the Malay community being out with an Indian man. The applicant claimed that he was also dragged from the car and stomped on.[28] His evidence was that they said to him ‘How dare you do this in a Muslim country. You guys are just migrants and we allow you into our country and you take our women from us. How dare you defame Islam apostasy!’ The applicant’s evidence was that he was struck on the face with a metal baton, kicked and beaten with blunt objects and called names.[29]

   [27]  OpCit @ [27]-[32].

   [28] OpCit @ [29].

   [29]  OpCit @ [29]

2. After some time two police officers arrived. The Malay men told the officers that there was a Malay girl going out with a Hindu man. The applicant’s evidence was that the police officers joined in beating, punching, kicking and slapping him.[30] The applicant’s evidence was that the police threatened to harm him and to prosecute the applicant in the event they reported the incident.[31] The police officers then said that if they reported the incident, they would go to the religious police.[32] The applicant’s evidence was that the attack lasted about 90 minutes from which he received a broken nose. His evidence was that the day after the attack he was taken to [a place] by his father where he was treated for his wounds.

   [30] OpCit @ [29].

   [31] OpCit @ [30]

   [32] OpCit @ [29].

3. The applicant claims that after the attack he tried to get help from Hindu organisations like [Organisation 1] and [Organisation 2]. However, his evidence was that they did not want to help him. He claims that they did not want any racial conflict and did not want to compromise any political support they may have with the authorities. He claimed that their response was that he had brought this action upon himself. His evidence was that he also went to the police but was told they could not help because it was a religious matter.

4. The applicant and [Ms A] arrived in Australia on [date] May 2017. They applied for protection on 9 June 2017 and were married on [date] March 2018 in [City 1], Australia. They now have a son [name deleted] (born [date]) and the applicant is currently pregnant with their second [child].

5. The applicant claims that if he is returned to Malaysia he will be seriously or significantly harmed because he is a Hindu man married to a Muslim woman. In addition, he claims that their son will be targeted because he has a Hindu name. His evidence was that because they have a Hindu father and a Malay mother, their children will be considered illegitimate in Malaysia and will be taken from them by the authorities if they were returned to Malaysia.

   Applicant’s documentation

6. The applicant submitted the following material to the Department and the Tribunal in support of his protection visa application:

   a)Form 866 – Application for a protection visa (parts A, B and C), completed and signed by the applicant, dated 25 May 2017[33]

   [33] Department File [number], Doc ID No: 8866465, folio 2-44

   b)Applicant’s Malaysian driving licence[34]

   [34] ibid, folio 45

   c)Applicant’s international driving permit[35]

   [35] ibid, folio 46

   d)Applicant’s Malaysian identity card[36]

   [36] ibid, folio 47

   e)Applicant’s Malaysian passport[37]

   [37] ibid, folio 49

   f)Copy of primary decision record dated 18 December 2017[38]

   [38] Tribunal file 1800660, Doc ID No: 3884812

   g)Copy of Department notification of refusal of application for a protection (Subclass 866) visa, dated 18 December 2017[39]

   h)Copy of Department acknowledgement of a valid application for a protection (Subclass 866) visa, visa application summary, bridging visa A grant notice, dated 6 September 2017[40]

   i)Marriage certificate, dated 28 March 2018, attesting the marriage between the applicant and [Ms A][41]

   j)Birth certificate, dated 1 May 2020, of [their son], listing the applicant as father and [Ms A] as mother[42]

   k)Statutory declaration made by the applicant on 15 October 2021[43]

   l)Statutory declaration made by [Ms A] on 15 October 2021[44]

   m)Statement made by the applicant’s mother on behalf of herself and her husband, accompanied by both their Malaysian national IDs[45]

   n)Photographs of the applicant and [Ms A] in Australia[46]

   o)Photographs of the applicant and [Ms A] in Malaysia[47]

   p)[Ultrasound] referral for [Ms A] dated 13 October 2021.[48]

   [39] Tribunal file 1800660, Doc ID No: 3884811

   [40] Tribunal file 1800660, Doc ID No: 3884810

   [41] Tribunal file 1800660, Doc ID No: 4458462

   [42] Tribunal file 1800660, Doc ID No: 8886391

   [43] Tribunal file 1800660, Doc ID No: 8962828

   [44] ibid

   [45] ibid

   [46] ibid

   [47] ibid

   [48] Ibid

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No 84 made under s 499 of the Act, the Tribunal has had regard to the country information assessments prepared by DFAT, being the DFAT report on Malaysia dated 29 June 2021 (the DFAT report).[49]

   [49] DFAT Country Information Report Malaysia 29 June 2021

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[50] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[51]

   [50] s.5AAA Migration Act 1958.

   [51] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[52] Care must be taken not to exclude from consideration the totality of evidence where a portion of it could reasonably have been accepted.

   [52] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[53] However, such a benefit should 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.

   [53] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

Applicant’s refugee claim

Relevant grounds

1. The applicant submits that his claims fall within the scope of s 5J(1)(a) of the Act by reason of his race, religion or as a member of a particular social group (PSG). That is, as an ethnic Tamil Hindu who is in a relationship with an ethnic Malay Muslim.

2. As to the applicant’s ethnicity or race as a ground for persecution there is no formal test to be applied. Rather, it is to be understood in the widest sense[54] to include all kinds of ethnic groups. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides some guidance as to a person’s race when applied to the meaning of a ‘well-founded fear of persecution.’[55] It states:[56]

   68. Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.

   70. The mere fact of belonging to a certain racial group will normally not be enough to substantiate a claim for refugee status. There may, however, be situations where, due to particular circumstances affecting the group, such membership will itself be sufficient ground to fear persecution.

   [54] Calado v MIMA (1998) 81 FCR 450 at 455.

   [55]   Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ.

   [56] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ paragraphs 68-70

3. In this case, the applicant claims that he is an ethnic Tamil. The Tribunal accepts that the applicant is an ethnic Tamil as claimed and as such accepts that his claim falls within the scope of s 5J(1)(a) of the Act by reason of his race.

4. In addition, the applicant has claimed that he will be persecuted if he is returned to Malaysia by reason of his religion as a Hindu. The Tribunal has accepted that the applicant is a Hindu as claimed. In Wang v MIMA (2000) 105 FCR 548 Merkel J, when considering religion in the context of the Convention stated that:[57]

   ‘it is clear that there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice of personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community. I would add that that interpretation is consistent with the commonly understood meaning of religion as including its practice in or with a like-minded community.’

   [57]   Wang v MIMA (2000) 105 FCR 548 at [81].

5. Accordingly, the Tribunal accepts his claims fall within the scope of s 5J(1)(a) of the Act by reason of his religion as a Hindu.

6. Finally, the applicant claims that he is a member of a PSG as an ethnic Tamil Hindu person who is in a relationship with (married to) an ethnic Malay Muslim person. The existence of such a group and the applicant’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be treated as a member of a PSG (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.[58] In this case the Tribunal accepts that as an ethnic Tamil Hindu person who is in a relationship with an ethnic Malay Muslim person the applicant is a member of a PSG as claimed pursuant to s 5L of the Act.

   [58]   Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

Applicant’s well-founded fear

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country. In addition, the real chance of persecution relates to all areas of the receiving country.

2. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. In this case the applicant claims that in the event that he is returned to Malaysia there is a real chance that he will be seriously harmed as an ethnic Tamil Hindu who is married to an ethnic Malay Muslim person. For the reasons expressed below, the Tribunal accepts that the applicant has a well-founded fear of persecution on a subjective and an objective basis if he is returned to his country.

Accepted facts

1. Based on the applicant’s evidence and the documentary evidence provided to the Department and the Tribunal, the Tribunal finds that the applicant:

   a)    was born on [date] in Sungai Petani, Kedah, Malaysia and is a Malaysian citizen by birth.[59]

   b)    can speak, read and write in English and Bahasa Malaysian, and speaks Tamil.[60]

   c)    has a mother, father and sister who continue to live in Malaysia.[61]

   d)    has a brother living in Australia.

   e)    was educated in Malaysia[62] at [a] Primary and Secondary School from January 1994 to December 2004 and has completed a [qualification] from [a school] in Penang, Malaysia.

   f)     was employed in Malaysia[63] [in various roles] for [Company 1] from December 2014 to May 2017 and [Occupation 1] for [Company 2] from August 2013 to November 2014.

   g)    was married to [Ms A] on [date] March 2018 in [City 1], Australia.

   h)    has a son, [name deleted] (born [date]) and that [Ms A] is pregnant with their second child due in May 2022.

   [59] Application for a protection visa application form dated 27 May 2017, Department File [NUMBER], Doc ID No: 8866465, folio 43

   [60] ibid folio 41

   [61] ibid, folio 39

   [62] Application for a protection visa application form dated 27 May 2017, Department File [NUMBER], Doc ID No: 8866465, folio 27

   [63]  ibid, folio 28

2. In addition, based on the evidence provided by [Ms A] and the applicant the Tribunal accepts and finds that [Ms A] is an ethnic Malay and that she is a Muslim as claimed.

Applicant’s claim as a refugee

1. The applicant claims that as an ethnic Tamil and a Hindu he will be seriously harmed if he is returned to Malaysia because he is in a relationship with [Ms A], a Muslim. The applicant’s evidence was that his relationship with [Ms A] developed at work. While [Ms A]’s parents have not objected to their relationship because of his being a Hindu, nevertheless, the applicant claims that both he and [Ms A] have been subjected to harassment and threats by police in 2014 and 2015 and by a group of men in 2016 as described above as a result of him as an ethnic Tamil being in the company of a Muslim woman. The applicant gave evidence to the Tribunal in relation to their relationship and the incidents that occurred in 2014, 2015 and 2016 that was consistent with [Ms A]’s evidence. As a result, based on the evidence provided by the applicant and [Ms A] and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant and [Ms A] were pulled over and harassed by the police because of their different ethnicities in 2014 and 2015. In addition, the Tribunal accepts the applicant’s evidence that he and [Ms A] were assaulted by a group of men in or about 2016 as claimed.

2. It is reported that[64] more Malaysians are marrying outside their own race consistent with trends in other countries around the world where ethnicity lines are blurring. The Department of Statistics Malaysia’s Marriage and Divorce Statistics report noted that 9 per cent of the total marriages (18,509 out of 206,253 marriages) last year involved those of different ethnic groups.[65] However, the Tribunal notes that it appears that the majority of interfaith marriages are between other faiths and generally do not involve a Muslim person.

   [64] The Star, Mixed marriages on the Rise, dated 28 November 2019 by Ashley Tang and Sharon Ling; ibid

3. Article 3(1) of the Malaysian constitution provides that Malaysia’s religion is Islam but states that other religions may be practised in peace and harmony.[66] The country information reports[67] that the government automatically classes people born in Malaysia of Malay ethnicity as Muslim. Most of the ethnic Indian population in Malaysia practises Hinduism. Muslims comprise approximately 61.3 per cent of the population while Hindus represent approximately 6.30 per cent.[68]

   [66]  DFAT report at p.24

   [67]  DFAT report at p.24

   [68] ibid

4. However, in Malaysia a Muslim cannot marry a non-Muslim person.[69] Malaysian family law, or marriage, is dealt with by the Law Reform (marriage and divorce) Act 1976 (Law Reform Act) which deals with civil marriages, and the Islamic Family Law (Federal Territories) Act 1984 (Islamic Family Law Act) which deals with Muslim marriages. The Law Reform Act specifically provides that it does not apply to Muslims. As such, in Malaysia there is no means for a Muslim to marry a non-Muslim under the civil law. In fact, it is reported that a Muslim who goes through with a marriage or even cohabits with a non-Muslim runs the risk of falling foul of a number of offences under Sharia Law prohibiting fornication (zina) and close proximity (khalwat).[70]

   [69] Reuters, ‘Malaysia released woman in Hindu marriage case.’ by Jalil Hammad 11 August 2007 Interfaith Shaadi, ‘Malaysian Interfaith Marriage,’ 3 April 2016, http:// interfaithshaadi.org/malaysian-interfaith-marriage-laws/

5. In addition to the civil courts, there are Syariah courts that deal with issues concerning Muslim family matters such as divorce, adoption, guardianship[71] and apostasy. Syariah laws do not apply to non-Muslims.

   [71] DFAT report at p.25

6. A Muslim must register their marriage under the Islamic Family Law Act. A marriage between Muslims and non-Muslims is prohibited under Islamic law except in certain limited circumstances.[72] A Muslim man can marry a Kitabayah.[73] A Kitabayah is a Christian woman whose ancestors were Christians before the prophethood of the Prophet Muhammad; or a Jewess whose ancestors were Jews before the prophethood of Jesus. With many other restrictions in place, in most cases, the non-Muslim must convert to Islam to register a marriage in Malaysia.[74] It is extremely difficult for a Muslim to leave Islam or to convert to another faith. The civil courts have ruled they have no jurisdiction in apostasy cases that fall within the jurisdiction of the Syariah courts.[75] A person wishing to convert from Islam must obtain permission from the Syariah court, a declaration which is rarely granted.

   [72] Koran 2:221

   [73]  Kitabayah is known as people of book.

   [74] Interfaith Shaadi, ‘Malaysian Interfaith Marriage,’ 3 April 2016, http:// interfaithshaadi.org/malaysian-interfaith-marriage-laws/; DFAT report at pp.34

   [75] DFAT report at p.31

1. In Malaysia citizens are given an identity card[76] which records their religion. Ethnic Malays such as [Ms A], are at birth automatically considered Muslim and are recorded as being Muslim on their ID card. Therefore, for a non-Muslim to marry a Muslim it is necessary for them to convert and have their religion recorded on their ID card as Islam.

   [76] Malaysian ID card is known as ‘MyKad’

2. In this case the applicant and [Ms A] were married in Australia. The country information provides that for a marriage registered under the laws of a foreign country to be recognised in Malaysia it must be re-registered at the Malaysian Representative Office within 6 months of the date of marriage.[77] As a result a couple married outside Malaysia will not be able to register their Muslim to non-Muslim marriage in Malaysia. Accordingly, their children will not be recognised as Malaysian citizens.[78] It is reported that if a Muslim/non-Muslim couple, such as the applicant and [Ms A], are married overseas, upon their return to Malaysia, if brought to the attention of the authorities, there is a real chance that the Syariah Authority will arrest the Muslim partner for zina and khalwat (as the marriage is not recognised).[79]

   [77] Interfaith Shaadi, ‘Malaysian Interfaith Marriage,’ 3 April 2016, http:// interfaithshaadi.org/malaysian-interfaith-marriage-laws/;

   [78] ibid

   [79] ibid

3. 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] ibid

4. It 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. ibid

5. While 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.

6. 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.  

7. 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]

8. 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.

9. 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

1. 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.

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Jason Pennell
Senior 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…