1812804 (Refugee)

[2024] AATA 2845

1812804 (Refugee) [2024] AATA 2845 (22 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812804

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Vlahos

DATE:22 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 22^nd April 2024 at 9.45AM

CATCHWORDS

REFUGEE – protection visa – Malaysia – religion – conversion from Sunni to Shi’a Islam – threatened by family and assaulted by Sunnis – vague claims and evidence – departed many years after claimed conversion – country information – ostracism by family and community not serious or significant harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth (1999) 197 CLR 510

Chand v MIEA [1997] FCA 1198

Iyer v MIMA [2000] FCA 52

MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

MIEA v Wu Shan Lian (1996) 185 CLR 259

MIMA v Rajalingam (1999) 93 FCR 220

SAAD v MIMA [2003] FCAFC 65

Sivalingam v MIEA [1998] FCA 1167

Sivalingam v MIMA [1999] FCA 76

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa on 6 February 2018. The delegate refused to grant the visa on the basis that the application did not satisfy sub-section 36(2).

3. The applicant appeared before the Tribunal on 17 April 2024 to give evidence and present arguments.

4. The Tribunal received no witness statements and no notification that witnesses would be present before the Tribunal to provide evidence to the Tribunal concerning the applicant’s claims.

5. The applicant was not represented by a solicitor or registered migration agent

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

13. The issue in this case is whether Australia has protection obligations in respect of the Applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of origins and identity

14. First, there is no evidence before the Tribunal to indicate that any of the documents provided to the Tribunal to prove the applicant’s identity is a ‘bogus document’ as is defined in section 5(1) of the Act.

15. Second, based on a copy of the applicant’s Passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal (on file)[1]and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Federation of Malaysia and has his claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act and on the basis of this evidence (currently before the Tribunal), the Tribunal further accepts and finds the applicant’s identity is as is claimed for the purposes of this decision.

    Protection in another country considered

    [1] see, AAT File and Department of Home Affairs File no. BCC2018/612072

16. The Tribunal finds on the evidence before it, that the applicant does not have a right to enter or to reside in a country other than the Federation of Malaysia. Therefore, the Tribunal concludes and finds that section 36(3) of the Act does not apply to the applicant.

    Department File accessed by the Tribunal

17. The Tribunal has before it the Department’s File relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision record. The applicant provided a ‘copy’ of the delegate’s decision to the Tribunal with his application to review.

    Background - The Applicant’s migration and visa history

Date	Event details
[November] 2017	Arrived in Australia on a UD-601 Electronic Travel Authority
6 February 2018	Applied for a XA-866 Protection visa; associated Bridging visa granted

EVIDENCE AT THE SCHEDULED HEARING

Background – Personal

1. The applicant was born on … and is …years-of-age, in Penang, Malaysia and is married and his wife is currently expecting child. The applicant received his education in Malaysia. He has family in Malaysia which consists of his siblings and his mother. When in Malaysia, the applicant told the Tribunal that he was employed as a “[Occupation]”. The applicant provided no other details concerning his employment. While here in Australia, the applicant told the Tribunal that he is currently working at a local “[factory].” The applicant is a ethnic Malay.

   The Applicant’s claims for Protection as submitted and considered by the Department and Tribunal

2. The applicant’s claims for protection were summarised in the delegate’s decision record[2]as follows:

   ·The applicant left Malaysia because he converted from Sunni Islam to the Shi’a Islam faith and this conversion is not accepted in Malaysia;

   ·The applicant claims his family did not accept his decision to convert to Shi’a Islam and he was threatened by his family;

   ·The applicant claims that if he returns to Malaysia, he will not have the freedom to follow his religion.

   [2] Department of Home Affairs_ Decision record_ refusal_ dated 30 April 2018_see Department File no. BCC2018/612072.

3. The applicant made no other claims

4. The Tribunal asked the applicant to indicate when and how he converted from Sunni Islam to the Shi’a faith of Islam? The applicant said that he decided to convert to the Shi’a faith “when he was 16 years of age” when he was still at school.

5. The Tribunal asked the applicant – how he converted to the Shi’a branch of Islam? The applicant said that “a friend” took him to a Shi’a mosque and from then, he has been a follower of the Shi’a faith of Islam.

6. The Tribunal asked the applicant to explain – what was the difference between Sunni and Shi’a that caused him to follow the latter? The applicant said that there was “a dispute” as to who would “succeed” the “Prophet Mohammad” “after his death”. The applicant said that a prophet – he described as the “Prophet Ali” was to “succeed the prophet” but he did not and this caused a schism within the Islamic faith – ‘Sunni’ and ‘Shi’a’.

7. The applicant no other details.

8. The Tribunal asked the applicant – how he worshipped his Shi’a faith while in Malaysia? The applicant said that he “would attend a local mosque” which was frequently attended by other Shi’a followers.

9. The applicant also told the Tribunal that “all mosques in Malaysia were Sunni” and that when ‘others’ “found out” one was a Shi’a it became difficult to attend because Sunnis became abusive, threatening and at time the applicant was physically “assaulted” by ‘angry’ Sunnis which had come to know he was a Shi’a convert.

10. The applicant said that his mother and family would tell ‘others’ about his conversion to the Shi’a faith and this caused him ‘problems’ when attending a local mosque.

11. The applicant told the Tribunal that his family would tell anyone that he had converted to the Shi’a faith because they did not accept his decision to convert.

12. The applicant said that in order to worship his Shi’a faith, he was forced by his family’s opposition “to move around” so he can find a mosque where no one knew who he was so he can worship in peace.

13. The applicant said that in  Australia he worships his faith freely and without any issues because he has not told anyone about his problems in Malaysia concerning ‘his conversion’ to the Shi’a faith.

14. The applicant was asked by the Tribunal – whether he could relocate to KL and attend a mosque there – where no one knew anything about him and his religious beliefs as a Shi’a? The applicant said that “people would know” because his family and friends would tell others and he would experiencing the same difficulties he had experienced in the past.

15. The applicant provided no details to the Tribunal as to how his family would be capable of telling people in KL (a major city) about his religious beliefs when questioned by the Tribunal and ask to explain – how?

16. The Tribunal asked the applicant – if his family had reported his conversion to the authorities because they disapprove of his conversion? The applicant said that he “was not sure” about this.

17. The applicant said that ethnic Malays were “against conversions” and when they found out a person had converted, they would subject that person to a severe “beating”.

18. The applicant was told by the Tribunal that he could report his concerns to the local police if he wished to have some protection. The applicant’s response was “no, I would not report …because I am afraid…” and that was why he never reported beating he had received in the past to the police.

19. The Tribunal referred the applicant to the information in the DFAT report (current) and read paragraphs [3.41] and [3.47] which provided a more tolerant set of circumstances in Malaysia concerning the Sunni/Shi’a differences which were in contrast to the applicant’s description of the situation in Malaysia as long as Shi’as did not engage in proselytisation of others – especially Sunni Muslims.

20. The applicant was asked to comment on this available country information. The applicant provided no response.

21. The applicant end his evidence to the Tribunal by stating that he wish to remain here, in Australia for the good of his family and wished to live as “a normal person” who was accepted by all.”

    COUNTRY INFORMATION_ Religious Freedom in Malaysia_ SUNNI/SHI’A DISPUTE IN MALAYSIA

22. In considering the applicant’s claims, the Tribunal considered the following country information[3] as is required by Ministerial Directive no. 84:

    3.41 Shi’a Muslims form a small proportion of Malaysia’s overall Muslim population. While population estimates vary significantly from 2,500 to 250,000 people, a prominent Malaysian academic estimates the population at 50,000. Shi’a Muslims in Malaysia predominantly originate from Iran. Shi’a and Sunni Muslims live side by side. Some intermarry and have family members that practise Muslim faith. National identification cards do not distinguish individuals as Shi’a Muslims. There are no restrictions on movement within Malaysia specific to Shi’a Muslims.

    3.42 Both federal and Islamic laws have been applied to harass and discriminate against Shi’a Muslims. A 1996 fatwa issued by the Committee of the National Council for Islamic Affairs – with effect under syariah-based law – requires Muslims to follow the Sunni Islam doctrine (see Islam). The fatwa prohibits all other Muslim doctrine, along with the publication, broadcast or distribution of resources related to these teachings. State Islamic authorities, empowered by Syariah Criminal Offences enactments of each state, can take action against an individual acting in contempt of the fatwa. Under the fatwa, authorities consider Shi’a Islam a ‘deviant’ form of Islam, and 12 out of 14 states ban Shi’a Islam (the exceptions are Kelantan and Sarawak). In August 2019, the Sabah State Legislative Assembly amended the Syariah Criminal Offences Act to prohibit the spread of ‘non-Islamic religious doctrines’ and included whipping as a punishment for those found guilty of spreading and/or performing any acts that are against the ‘true teachings of Islam’ which reportedly includes Shi’a. Several state constitutions (Kelantan, Perlis, and Kedah) recognise the state’s official religion as Ahli Sunnah Wal Jamaah (Sunni Islam). These state laws enable state Islamic authorities to detain and prosecute Shi’a found to be proselytising.

    3.43 There have been a number of cases in recent years in which authorities have prevented or disrupted Shi’a religious events. In August 2018, 10 Shi’a men and women were detained by the Kelantan Islamic Affairs Department following a raid of a religious centre (see State Islamic Religious Departments). In September 2018, 50 Shi’a, including children, were arrested in Kelantan for practising their religion. In September 2019, the Religious Affairs Department of Selangor arrested 23 people for breaking state enactments banning Shi’a practices. Eight people, including four foreigners, were arrested in Johor in September 2019 during a raid at a private gathering of Shi’a followers. Both of the September 2019 raids were reportedly part of an annual crackdown by religious authorities against Shi’a Muslims in conjunction with the 10th day of the Remembrance of Muharram (a major Shi’a religious ritual).

    3.44 Local non-government groups and religious authorities advised DFAT that enforcement efforts generally focused on conversions (to Shi’a Islam) and proselytisers, not on assembly or worship. DFAT understands Shi’a Muslims may face interference and difficulty practising their religion. The overall number of Shi’a Muslims arrested since the introduction of the 1996 fatwa outlawing Shi’a Islam has been limited. Very few arrests have resulted in charges laid, with the majority of people released quickly without charge.

    3.45 Official public narratives about Shi’a Muslims are also framed by Friday sermons that are prepared by state religious departments and broadcast publicly. For example, in September 2019, mosques in Selangor were instructed by the Selangor Islamic Religious Department to deliver a Friday sermon attacking Shi’a and describing Shi’a Muslim beliefs and practices as ‘deviant’, ‘heinous’, ‘nonsense’ and ‘nauseating’. Authors, such as Faisal Tehrani, have also had their books banned over allegations that they contain elements of Shi’a Islam. Faisal Tehrani and his extended family have been harassed by religious authorities, including unwanted visitation in the middle of the night, harassment at places of work, and death threats.

    3.46 The US Commission on International Religious Freedom kept Malaysia on its Special Watch List in 2021. Among other matters of concern, the Commission found that, in 2019, Shi’a Muslims continued to face ‘state hostility and detentions, sparking fears of an escalating crackdown’.

    3.47 DFAT assesses Shi’a generally live free from societal discrimination on a day-to-day basis. They face a low level of official discrimination, however, in that religious authorities may prevent them from being able to worship freely. Proselytising or promoting Shi’a Islam can result in a higher risk of official discrimination, and may include arrest or other forms of harassment by state authorities.

    [3] Department of Foreign Affairs & Trade (DFAT)_ Country Information Report _ Malaysia_ dated 29 June 2021.

    FINDINGS AND REASONS FOR DECISION

    Assessing Credibility of Claims – General Principles and preliminary remarks

23. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[4] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

    [4] For example see, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Others (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Another (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pem Run Juan (1996) 40 ALD 445, Chand v Minister for Multicultural Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

24. In Minister for Immigration and Ethnic Affairs and McIllhaton v Guo Wei Rong and Pam Run Juan[5] Foster J stated that:[6]

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

    [5] (1996) 40 ALD 445

    [6] At [482]

25. Numerous decisions have endorsed the principle that benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

26. The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Lian & Others,[7] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[8]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the fact (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    [7] (1996) 185 CLR 259.

    [8] At [25]

1. The Tribunal is not required to accept uncritically any, or all allegations made by an applicant. Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obligated to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:

   Where there is conflicting evidence from different sources, questions of credit of witnesses may be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[9]

   [9] [1997] FCA 1198 accessed 15 February 2017.

2. Nevertheless, as Burchett J counselled,[10]it is necessary to:

   …understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having        little understanding of language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

   [10] see, in Sundararaj Sivalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

3. The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[11] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991_Butterworths) at pp.84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[12] Nor, is there any rule that a decision-maker must hold a “positive state of disbelief…” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[13] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[14] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[15]

   …the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that the Applicant for refugee status is, on one view of events, engaged in an often-desperate battle for freedom, if not life itself.

   [11] see, in Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167, at accessed 15 February 2017.

   [12] see, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

   [13] Ibid, Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241

   [14] MIMA v Rajalingam (1999) 93 FCR 220.

   [15] (1999) 197 CLR 510 at [191].

4. The Tribunal notes, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

5. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim a satisfied. The Tribunal notes that in lyer [16] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go further in its analysis of the basis of the claim. This decision was affirmed on appeal.[17]

   [16] Iyer v MIMA [2000] FCA 52 (see, the judgement of O’Connor J, 4 February 2000), at [32]-[34].

   [17] see, Iyer v MIMA [2000] FCA 1788 (see Heerey, Moore and Goldberg JJ, 15 December 2000). Also see, SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

6. The Tribunal notes that if it makes findings that the applicant’s claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm. Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. On the other hand, if the decision-maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is subjective fear.[18]

   Consideration of the Applicant’s claims

   [18] see, SAAD v MIMA [2003] FCAFC 65 (Cooper, Carr and Finklestein JJ, 11 April 2003) at [38] and see also, Selliah v MIMA [1999] FCA 615 at [40].

   Is the Applicant entitled to protection as provided for s.36(2)(a) of the Act?

7. The applicant claims fear of persecution in Malaysia because he is a Shi’a Muslim convert. Also, the applicant claims that he has converted from Sunni Islam to the Shi’a Islam faith, and this has caused him to be threatened by his family who he claims do not accept his “conversion” and that because he is a Shi’a convert, he fears that if he returns to Malaysia, he will not have the freedom to follow his Shi’a faith. For the reasons that follow, the Tribunal does not accept the applicant’s version of events as credible.

8. The applicant’s evidence is that he was a Sunni Muslim that converted to the Shi’a branch of Islam. The applicant said that he decided to convert to Shi’a Islam because of “his friend” when he was at school, at the age of 16-years. The applicant provided very little details concerning his claimed conversion except to tell the Tribunal that there was “a dispute” as to who would “succeed” the “Prophet Mohammad” “after his death”. The applicant said that a prophet – he described, as the “Prophet Ali” was “to succeed the prophet” but “he did not” and this caused a schism within Islam between ‘Sunni’ and ‘Shi’a’.

9. The applicant was asked to provide further details but did not elaborate further on his comments concerning his claimed conversion: for example, the applicant provided no information as to how he converted to the Shi’a branch of Islam or how he worshipped his Shi’a faith or how many times as a Shi’a he attended his mosque for prayers. The applicant’s evidence lacked substance and was vague on these aspects and his responses to the Tribunal’s questioning in order to get an understanding as to why a 16-year-old had decided to convert to the Shi’a branch of Islam was at times difficult to comprehend and deliberately  evasive in the responses provided.  

10. Also, the applicant claimed that his family refused to accept his conversion to the Shi’a faith and also assaulted him for converting but the applicant did not report the assault to the police. The applicant again, provided very little details of the assault or assaults which he had suffered from his family members. Moreover, he could not tell the Tribunal when these assaults occurred for example, did the occur in [Year], when he was 16-year-old or later, just before he decided to leave for Australia (in 2017). Again, the applicant’s evidence was sparse, absent was a timeline and the details of the assailants lacking any identification to the Tribunal.

11. Moreover, the applicant claimed in his evidence that he found it difficult to work, live and follow his faith in Malaysia because his family members would actively ‘spread the word’ that he had abandoned his Sunni faith for the Shi’a and people would not accept him when they were told. The applicant told the Tribunal for example, that even when he lived and worked in Kuala Lumpur his family again ‘spread the word’ within the community in Kuala Lumpur that he had converted to the Shi’a faith and over time the applicant could not live or worship his faith, and this caused him to eventually leave Malaysia to come to Australia. Again, the applicant did not explain to the Tribunal how his family members were able to make it know in KL his conversion as to make it ‘difficult’ for the applicant to remain there.

12. The Tribunal does not accept, nor does it find as credible the applicant’s explanations of his circumstances while in Malaysia being as he claimed a Shi’a convert. The applicant said in his evidence, that he had converted to the Shi’a faith when he was 16-years-of-age which was in [Year] (the applicant having been born on [Date]) but the applicant decided to leave Malaysia in 2017 – fourteen years after his claimed conversion to the Shi’a faith.

13. It stands to reason, that a person who is persecuted (as the applicant claims) for whatever reason or reasons in this case, because of his religious beliefs, he would find the opportunity to immediately distance himself from the source or sources of the threat. The applicant would have the Tribunal believe that he spent the entire time he was in Malaysia ‘going from one place to another’ in order to avoid his family’s ‘outing’ of him as a Shi’a convert and that this came to a head many years later forcing him to abandon his homeland and to come to Australia in order escape persecution because of his religion as a Shi’a. The Tribunal on the evidence before it and after having questioned applicant about his circumstances does not accept as  credible that the applicant was harmed or had fears concerning his Shi’a faith in Malaysia.

14. Further, the applicant claimed fearing that if he returned to Malaysia, he, being a convert to the Shi’a faith would cause him issues with the broader Malaysian society which is predominantly Sunni. The DFAT Report notes, and the Tribunal accepts, that following a 1996 fatwa issued by the Committee of the National Council for Islamic Affairs, which requires Muslims to follow the Sunni Islam doctrine, authorities consider Shi’a Islam as a ‘deviant’ form of Islam. Many Malay states have enacted laws enabling criminalising the practice of Shi’a Islam,[19] and religious authorities can and do intern persons in “rehabilitation” centres for the purpose of exposing them to the officially approved Sunni Islamic doctrine.[20]

    [19] DFAT Report at [3.42]

    [20] DFAT Report at [3.68], US Department of State, 2022 Report on International Religious Freedom: Malaysia, available at

15. However, the DFAT Report also states that the overall number of Shi’a arrested since the introduction of the 1996 fatwa is limited and very few arrests resulted in charges being laid, with the majority of people released quickly without charge.[21] DFAT notes that Shi’a and Sunni Muslims live side by side, national identification cards do not distinguish between Shi’a and Sunni Muslims, and there are no specific restrictions on the freedom of movement of Shi’a Muslims within Malaysia.[22]

    [21] DFAT Report at [3.44], [3.47]

    [22] DFAT Report at [3.26], [3.41]

16. As the Tribunal noted explaining the country information to the applicant at the hearing, the DFAT Report assesses that Shi’a Muslims: generally live free from societal discrimination on a day-to-day basis; and face a low level of official discrimination, in that religious authorities may prevent them from worshipping freely, but that those authorities generally focus on conversions to Shi’a Islam and proselytisers rather than on assembly or worship.[23] DFAT’s assessment seems to suggest that enforcement is concentrated on religious leaders and not normal Malays[24] as in the applicant’s case.

    [23] DFAT Report at [3.44], [3.47]

    [24] See, for example, Bernama, ‘All Shi’a teachings in Malaysia are deviant – JAKIM’ (14 December 2013).

17. The Tribunal accepts on the basis of the country information cited above that the practice of Shi’a Islam is criminalised in Malaysia, but it finds that enforcement efforts are generally directed at persons who actively choose to proselytise others than those who assemble for religious instruction and worship. The Tribunal does not accept that there is a real chance or risk that the applicant will be the subject of those enforcement efforts – he being a mere follower of the Shi’a branch of Islam as the applicant claimed.

18. The Tribunal does not accept that the applicant will be identified or perceived as a ‘convert’ to the Shi’a faith in Malaysia., now or in the reasonably foreseeable future. The applicant’s evidence did not state that he had come to the attention of the authorities between the time he started practicing the Shi’a faith (at the age of 16 years) and at the time he departed for Australia in 2017 (though, his relationship with his family because of his religion had as he claimed, become difficult). The Tribunal also notes that the applicant would not be obliged to change his religion on his Malaysian National Identity card, which does not distinguish between Sunni and Shi’a Muslims.[25]

    [25] DFAT Report at [3.41].

19. The Tribunal also does not consider (on the evidence before it) that the applicant will proselytise as a Shi’a now or in the reasonably foreseeable future, but rather considers it more likely that he will continue to worship privately or in small groups. It was the applicant’s evidence that while in Malaysia, he regularly attended a local mosque for prayers and the Tribunal has no reason to conclude on the evidence before it, that this mode of practicing his faith would not continue in Malaysia. There is no evidence (none before the Tribunal) that he proselytised in the past, either in Malaysia or in Australia. The Tribunal does not accept that the chance of risk that the applicant will be harmed by the Malay authorities now or in the reasonably foreseeable future on the basis of his ongoing practice of the Shi’a faith, is any more than remote.

20. Accordingly, the Tribunal does not accept that the applicant faces a real chance of serious harm from the Malay authorities arising from his actual or imputed practice as a Shi’a. For the same reasons, the Tribunal does not accept that there to be a real risk the applicant will be subjected to significant harm from the Malay authorities as a necessary and foreseeable consequence of being remove from Australia and returned to Malaysia.

21. The applicant also stated that he feared being isolated, ignored and/or insulted by his family because he had converted to Shi’a faith of Islam and community members if they discovered that he was a Shi’a. The Tribunal accepts that the applicant may be ostracised or insulted by his family, peers, and acquaintances if they learned of his Shi’a faith and that he may be forced to relocate (as he had done) but it does not accept that this treatment would constitute serious or significant harm, noting that the applicant’s demonstrated ability to live independently of his immediate family, both while working in Malaysia and while living in Australia. Therefore, the Tribunal finds on the basis of the DFAT report that there is no real chance or risk that the applicant will encounter societal discrimination more generally on the basis of his being a Shi’a Muslim.

22. Accordingly, having considered the evidence as a whole, the Tribunal finds that the applicant will not face a real chance of serious harm if he returns to Malaysia on account of his Shi’a faith. Similarly, there is no real chance of the applicant being subject to serious harm arising from discriminatory treatment from the Malaysian government, religious authorities, or other Muslims on account of his Shi’a beliefs and wish to practice his Shi’a faith or any other reason set out in s.5J(1).

23. The Tribunal is therefore is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Malaysia The Tribunal is not satisfied that the applicant is a refugee as defined in s.5H(1) of the Act.

24. Therefore, for the reasons provided above, the Tribunal is not satisfied that the applicant is a person with respect of whom Australia has protection obligations as outlined in s.36(2)(a) of the Act.

    CONSIDERATION OF COMPLEMENTARY PROTECTION

25. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

26. The Tribunal takes into account the above findings; it view of the applicant’s future conduct; and country information about conditions in Malaysia. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him (such as to meet the definition of torture; or meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment). It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life, or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Malaysia.

27. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm: s. 36(2)(aa)

    Conclusion

28. For the reasons given, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

29. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

30. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

31. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Peter Vlahos
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    65 (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.

    …