1829290 (Refugee)
[2024] ARTA 52
•21 October 2024
DECISION AND
REASONS FOR DECISION
1829290 (Refugee) [2024] ARTA 52 (21 October 2024)
Respondent: Minister for Home Affairs
Tribunal Number: 1829290
Tribunal:General Member T Guthrie
Date:21 October 2024
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 21 October 2024 at 2:53pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – apostasy – relationship with an Australian partner – physical assault – fear of detention – fear of criminal gangs – credibility issues – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZTAL v Minister for Immigration and Border Protection
SZTCM v Minister for Immigration and Border Protection [2017] HCA 34Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia applied for the visa on 11 April 2018. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 28 May 2024 and 7 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Evidence before the Department
Application for a protection visa
The applicant is now [age] years of age. He was born in Kedah Malaysia. He arrived in Australia [in] February 2018 and lodged an application for a protection visa on 11 April 2018.
The applicant states in the application that he has never married. His mother and [sibling] continue to reside in Kedah Malaysia. He contacts them weekly by WhatsApp and phone.
He has recorded his religion as ‘Atheism’. In Malaysia, he operated a [specified] business in Kuala Lumpur from 2008-2009. From [year] to [January 2018], he worked as a production [operator] in Kedah. He financially supported himself by ‘savings, family and casual work’ between [February] 2018 and 9 April 2018.
The applicant claims that he left Malaysia because apostasy is a serious offence under Malaysian law that is punishable by prison. He states that he experienced harm in Malaysia including discrimination, termination of employment, potential imprisonment due to violating customs and the country’s law. He states that the relevant law applies throughout the country. He states he cannot return to Malaysia because he will experience discrimination, physical violence and attack by the local community and will be imprisoned by government authorities.
Copy of passport
The applicant lodged a copy of the biodata page of his Malaysian passport.
Delegate’s protection decision and reasons
The delegate of the Minister refused to grant the via on the basis that there are effective protection measures available to the applicant in Malaysia and that the applicant does not have a well-founded fear of persecution. The delegate found that the applicant is not a refugee and so did not meet the criterion in s 36(2)(a) of the Act.
In relation to the complementary protection criterion the delegate found that the applicant could obtain from an authority in Malaysia, protection such that there would not be a real risk that the applicant will suffer significant harm. Therefore there was taken not to be a real risk that the applicant will suffer significant harm and so the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing information form
The applicant completed and returned a ‘pre-hearing information’ form. In that form he provided the following additional information about his claims for protection and other reasons why he was afraid to return to Malaysia:
I still have some form of threat made to my mother in Malaysia and said they will kill me if I back to Malaysia for the sake of religion.
People and relatives from my hometown find out that in a living relationship with my partner which is totally against the religion. I was being ashamed of the family and ethnic. Further they couldn’t accept my partner from different religions. So I’m scared they will harm me as some of them call me and warn me.
Tribunal hearings
The applicant attended hearings on 28 May and 7 June 2024. During the first hearing the applicant raised a further claim that he feared violence from gang members if he returned to Malaysia. A second hearing was arranged so that I could research that claim. Relevant parts of the applicant’s oral evidence are set out under the heading ‘Consideration of Claims and Evidence’.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence was not presented before the primary decision was made.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. At the time of the last hearing the most recent DFAT Country Information Report for Malaysia was that dated 29 June 2021. At the time of finalisation of the review the most recent DFAT Country Information Report for Malaysia is that dated 24 June 2024. The content of the reports are not materially different insofar as the country information does not support the applicant’s claims. In these reasons I have referred to the most recent DFAT country information report but where necessary referenced the corresponding parts of the previous report adverse to the applicant’s claims for protection.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Overall, I found the applicant’s evidence on facts crucial to his case to be vague. Further, the evidence he gave about an incident of physical assault in Malaysia differed between the two hearings. He also agreed that some of the written information provided to the Department in his application for a protection visa and to the Tribunal in his pre-hearing information form was not accurate. Due to the vagueness of the applicant’s evidence, inconsistencies in his evidence and the absence of any supporting documents relating to the particular incidents of harm in Malaysia upon which the applicant relies, I have found aspects of his evidence in relation to the incidents of harm he says he experienced in Malaysia not credible.
The first hearing - background
The applicant confirmed he received assistance to complete his application for a protection visa but told me the contents were true and correct. He told me that he lived in Kuala Lumpur for two years but otherwise resided with his parents in Kedah Malaysia. He returned to live with his parents when his father became ill.
His mother moved to his [sibling’s] home in Kedah after his father passed away. He could not recall exactly when his father passed away but said it was after he arrived in Australia in 2018. He also has [another relative]. He contacts his mother two or three times a week and sometimes his [sibling] and some friends in Malaysia but is no longer in contact with [this relative] as they had a falling out. He financially supports his mother.
While he could not recall the particular years he resided in Kuala Lumpur he agreed that it was probably 2008 and 2009 if he stated in his application that that was the period he worked in Kuala Lumpur.
The applicant has been working in Australia on a [farm]. He has been in a relationship with his current girlfriend for two years. He resides with her. He was not sure but thought she was Catholic. He has not seen her attend church but thought she was Catholic based on a conversation they had had. I accept the evidence the applicant provided relating to his family background and past working life.
The first hearing – claims for protection
He has not been practising any religious faith in Australia. I asked him what he feared if he returned to Malaysia. He said there are people who don’t agree with his views and they had quite a big argument, a big fight and quite a serious one. He said the fight happened two years before he came to Australia.
It was difficult to elicit any details of the ‘big argument/fight’ from the applicant. I asked the applicant who he had argued with. He said ‘with people in the village’. I asked him where the argument occurred and he said it was ‘where I live nearby where I live’. I said I was interested to hear what occurred and asked him to describe it to me so I could understand what had happened. The applicant’s response did not provide any level of detail. He said, ‘Because how we think and what our opinions are. These people are extreme’. I tried to elicit further details. I said that I was not there so I was trying to understand how he got into the argument with the people in his village and again asked him to explain how it occurred. He replied that it was a long time ago.
I asked the applicant how many people he argued with. He said, ‘they were not all young, some young some old’. I asked again, how many and he replied ‘more than 10 people’.
I asked him what had happened for him to describe it as serious. He said they used things to hurt him. I asked, ‘what did they do?’ and he replied, ‘They wanted to hurt me, they wanted to punch me, kick me.’ Through a series of questions, I elicited evidence that more than three people (but he forgot) punched him, he was kicked but he could not recall how many people kicked him. He said he had injuries to his arm and went to hospital.
I asked him if he had copies of any hospital records or reports. He said he had them at one time as he wanted to claim insurance. He said he gave the reports to the insurance company. The insurance company did not return the reports to him. He said he received one payment from his insurance company. He did not have any records of the payment as ‘everything went missing’. I said, ‘So you don’t have letters from the insurance company saying that they paid you some money and nothing at all about the claim?’ The applicant responded, ‘No I don’t maybe I got scammed’.
I asked him how long he stayed in hospital. He said he ‘just got medical leave. I rested at home’. He did not suffer any fractured bones.
I asked him how the argument had started. He said that ‘this’ had been going on for a long time and he feels that what they believe is against what is actually taught by the religion and that is why they argued. I asked him when he first made his views known to people in his village. He said that some know and some people don’t know. I asked him how the people who hurt him knew. He said he did not know. Asked about who knew his views he said a friend at work and his mother.
Prompted by further questioning, the applicant gave some further evidence about how the argument commenced and what occurred but I found this evidence vague and confusing. He said that the argument occurred in public at night around 10:00pm. He was hanging out with his friends and they called other people to come and help them. His friends did not share his views. Some of his friends hurt him.
I said I wanted to make sure I properly understood how it occurred and asked him if there was anything else he wanted to tell me about the incident. He said that there was another incident in his workplace. They ostracised him and isolated him and he does not know why. This occurred when he worked at the factory for five years. I asked him if he had shared his views with someone at work. He said some knew and some didn’t. He said he didn’t know why he was bullied at work. There was no promotion. I asked if anyone said anything to him. He said he thought they were messing around with him. He was put in a more difficult role and once he handled that role they would put him in another role. He continued to work there because he had dependants, his mother and his father who were ill at the time with no source of income.
He ultimately resigned from his employment. He hadn’t planned to come to Australia. He did so on the suggestion of his ex-girlfriend.
I asked him what views of his had so angered others. He responded that they were very discriminatory. If you are wealthy and had connections they would favour you at work and in the village. I asked him if he had said something that had caused the argument that led to the physical assault. He said that one of the people he was speaking to could not accept his point of view and he, the applicant, was quick to anger. I asked him what was his point of view. He said that he said to the other person, you would only help or engage with someone that you feel has an outward presentation, good finance, a nice car.
I asked him why he could not return to Malaysia. He said that he had been threatened. They said they will kill him and that they are gangsters. I asked him why gangsters would kill him. He said, “Because I like to fight. I don’t give up. I do fight that’s me. They have their group and they defend it”. He denied being a gang member himself. I asked him whether the people who assaulted him were part of the gang. He said they are. I said so they are gangsters. He said some were and some were from a different area. He said they have connections and can contact each other. I asked him why gangsters would be targeting him. He said they don’t like him. He went against them. He said there are a lot of gangs in Malaysia. I asked him how he had gone against them. He said he defended himself using his body.
I asked him when he had last received a threat. He said he received a lot of threats and that is why he defended himself. I asked him when this had all started. He said because he had one incident with one friend, defended himself and the friend couldn’t accept he had defended himself and he called for his friends to come and ‘I don’t know how it actually happened’.
I asked him why he thought they would harm him now as it has been six years since he left Malaysia. He said a friend he is in contact with told him seven months ago that he is still under threat. I asked him why they would want to harm him. He replied because they are gangsters, they are a network and it is just him. He has a few mates and that is it. I asked him why they are interested in him, why he is important to them. He said they don’t like it when he calls them out on something. They feel he is being disrespectful to them. I asked him whether he had called them out on anything since he had been in Australia. He said he no longer uses his Malaysian number anymore.
Besides the incident of assault, the threats and his claims of bullying in the workplace he did not experience any other harm in Malaysia. I asked him how his faith was connected to the incidents. He said that Islam has become fragmented. Some are very extreme. I asked him if he considered himself a Muslim. He said he did not know how to answer that. I asked him if he renounced his faith in Malaysia. He said it was a secret and that nobody knows. I asked if his secret played any part in the harm he had experienced and described to me. He said it had not.
He said he came to Australia because he wanted to run away from his problems. The gangsters are the main reason he fears returning to Malaysia. The problems with the gangs started in 2014-2016 in Kedah. He said the gangs have lots of names but specifically mentioned [Gang 1]. He claims that the gangsters are all connected so there is nowhere he would be safe from them. Some of his friends have joined gangs.
I asked him if he had any records of any threats made to him. He said he had records on his phone but his phone was dropped. He said he tried to have it repaired but he could not recover anything. That occurred three years ago. I asked him if there was some reason he had not provided the messages to the Department. He said he didn’t know. He had no experience of it. I asked him about the threats. He replied that they said ‘Don’t be a hero. If we ever see you again there will be trouble’. He said that if he doesn’t see them he will be alright but if he met up with them there would be repercussions.
I asked him if he had shown the messages to the person who helped him with his application. He said he did not because he was not present when the person completed the application. I asked if anyone else would have a copy. He said it was on WhatsApp and that the WhatsApp number is expired and he doesn’t know why. He has not directly received any threatening messages since he lost his previous phone.
The applicant said he received threats through an old Facebook account. Asked if he could retrieve those messages he said that he did not have the account anymore, had forgotten the passwords and was using a new account. Asked when he had started using a new account he said it was two years ago but then when I asked him when he received the threats through Facebook he said it was the beginning of the year. When I further queried this inconsistent evidence he said he was not sure. He also gave evidence that the Facebook threats were made three years ago. I asked if there was any way anyone could retrieve the messages for him. He said he did not have any experience of this and really did not know.
I put to the applicant that in his pre-hearing information form he said there was a threat to his mother. He said this referred to his [specified family member] making a threat because he had a girlfriend in Australia. I put to him that the pre-hearing information form states: ‘I still have some of threat made to my mother in Malaysia. And said they will kill me if I go back to Malaysia for the sake of religion’.[1] He responded that his friend had made a mistake. I asked him how he would correct it. He said it was an old threat. I asked when his mother was threatened in Malaysia. He said a friend of his visits his mother once a week. Again I sought to clarify that I had thought he told me his family had not received threats so I was trying to understand what threats had been made to his mother. He then said actually the threat was made to him and not his mother so that the friend had made a mistake.
[1] Grammar corrected.
I asked him about the additional information in his pre-hearing information form where he states: People and relatives from my hometown find out that in a living relationship with my partner which is totally against the religion. He said that he thinks that if his parents knew he was living with his partner without official connection then they will be upset. In response to my questions he said he was not sure if his partner will go with him if he returns to Malaysia. Asked if his relationship with his partner was serious and committed he responded that he is not sure what the future holds for them. He does not know how far the relationship will go in the future.
I asked him about the information in the pre-hearing information form which states: I was being ashamed of the family and ethnic. Further they couldn’t accept my partner from different religions. He said that he thinks his friend wrote it down wrongly. I asked him about the balance of the information: So I’m scared they will harm me as some call me and warn me. Again the applicant said the person who wrote the information for him was confused and mixed up what he said initially and what he told them about his partner.
Asked if there were any other claims he wished to make. He said it was mainly work and other stuff and that he had told me that his family was not too pleased with his domestic living arrangement.
I then put to him that his application referred to apostasy. He said that was the reason. The person who had completed the form for him had construed his claims based on what he told him. I said that when I asked him why he feared returning to Malaysia he had mentioned gangsters but he had not said anything about leaving his faith. He said that his problems were because he left the religion. The fight with the gangsters comes from that. I expressed my concern about that evidence saying that when I asked him if he had left the faith he said it was a secret and I had asked him several times what had started the argument and he did not say it was because he was out of Islam. He responded that he wanted to tell me that he had left the religion but it was something that he would tell me with a heavy heart and he is reluctant. He said that [Gang 1] and [Gang 2] are Islamic religious groups. I asked again what the connection was between the gangsters and his not having a religion. He said they said if he keeps doing this then they can catch and beat him because they are a gangster group.
I asked him if he would practise Islam if he returned to Malaysia. He said he was not sure what will happen. He was not sure what his heart would lead him to do. I asked whether he was practising his faith when he left Malaysia. He said he did. He said he became confused and overwhelmed when he realised that they were digressing from the core of the faith. He described the core of the faith as fairness and holy religion.
I asked him if he could live safely in Kuala Lumpur where he had lived and worked for two years. He said that there were more gangsters there. He said if he returned to Malaysia he would find somewhere else to live that is closer to where his mother and [sibling] live that is safer. I asked if he would be safe there. He said he was not really sure.
Second hearing
At the second hearing, I put to the applicant additional concerns I had about his evidence and we also discussed some of the country information.
In relation to his current relationship with his partner, he gave evidence that he did not think the relationship would go far.
I asked him why he had not mentioned the gangs and his concerns about experiencing violence from the gangs at an earlier time. The applicant responded that he had told the person who completed the form to get him the bridging visa but the person said, ‘no let’s put down apostasy as your claim’. The applicant said he knew nothing about the relevant provisions. He said that the person who completed the form told him, ‘if and when you are called you can talk about the real things that happened to you’.
I put to the applicant the evidence he had given at the first hearing about his faith and I said that I might be concerned that overall his evidence around his faith was not a reason that he would face serious or significant harm if he returned to Malaysia. The applicant did not take issue with my restating of his evidence. He responded that he did not know what will happen a month from now or a year from now. It might not happen.
I put to the applicant what he had told me about the argument and physical assault and that I understood it was linked to him expressing views that those with money and privilege were favoured. The applicant responded that that was true. I put to the applicant that I might be concerned that his description of the seriousness of the assault seemed inconsistent with the provocation he had described. This prompted the applicant to give the following evidence that was in some respects inconsistent with his evidence at the first hearing about the incident:
So it was like this as I said at the last hearing I was expressing my views and dissatisfaction with what was going on and all the understanding and what they go through so I said to them you people with property and money even if do something wrong you get out of it easily but a person like me without assets and money we don’t get the same treatment and you don’t accept what we have to say.
So we ended up arguing and the debate became heated and I am a person who will not take it lying down and these people with their money do things beyond religion and so I actually have witnessed these things for many, many years and I could no longer be patient when I see what is happening to my family and community. So when my father passed away I could see these people and unless you kowtow to them they will not appreciate you. I see all the things these people have not practised it and I was not happy and I regarded it as racism.
So that was how I ended up having a fight with a gang who lived in my neighbourhood. Ended up in fisticuff with a guy who lived in my neighbourhood. So at that time when the fight happened I was frustrated and angry. We ended up hitting each other. I was bloodied and so was the other guy. So after the fight I realised he was a member of a gang or knew someone in the gang or maybe his brother was in the gang. So it now goes back to claims of apostacy because I am surrounded by all these people and they don’t behave as true Muslim and they said what about you and I said at least I am not like you guys and get yourself engaged in illegal activities.
So I ended up being surrounded by these people and under a lot of stress and I couldn’t concentrate on work and I am someone who is hot tempered so I made a decision to leave this environment. It was very difficult for me to take this step because at that time I was living with my mother after my father passed away. So I am hot tempered and what I fear is that I will not be able to control myself if I have to deal with these people again and so had to decide to leave everything behind before it became worse.
To cut a long story short my ex-partner had a cousin in Australia so I told my ex-girlfriend my situation and she said why don’t you go to Australia it will be better for you over there. I knew nothing about Australia. I had been working for six years in a factory and two weeks before I came here I quit my job at the factory so it was a rather shocking decision on my part to decide to leave. So I have never been outside my country and my mental condition was not good and my ex-girlfriend after she helped with form she went back to Malaysia.
My ex-girlfriend’s cousin was already living in Melbourne and I don’t know if ex-girlfriend came here to work or holiday but she offered to help me. The one who applied for my visa was someone who knew how to go about applying for protection visas.
The applicant’s evidence regarding the incident of assault is inconsistent with the evidence given at the first hearing that the argument and assault occurred with a group of people.
The applicant’s evidence regarding his mental state prompted me to ask whether he sought any help to cope with his stress and anger. He responded: I have because I have been here. I am no longer in a toxic community in Malaysia so I feel less stressed.
Findings of fact
I have already accepted the applicant’s evidence relating to his background including his family members, employment in Malaysia other personal circumstances in Malaysia. I accept that he is a citizen of Malaysia based on the copy of his passport provided to the Department.
Mental harm and capacity to control behaviour
Based on the applicant’s evidence regarding his mental health, I find that the applicant has not sought any treatment from a health professional for any mental health condition, stress or anger management. I find that the applicant does not have a mental health condition. I find that the applicant does not have any diagnosed medical condition or mental health condition that impairs his ability or capacity to regulate his emotions and refrain from physical attacks, assault or retaliation.
Apostasy claim
The applicant made a claim for protection based on apostasy in his application for a protection visa. I have considered the relevant parts of the DFAT’s Country Information Report dated 24 June 2024:
Religious Conversion and Apostasy
3.55 Ethnic Malays are defined in the Malaysian constitution as Muslims from birth and are identified as Muslim on their ID cards. Formally leaving or converting from Islam (apostasy) is extremely difficult. Despite the guarantee of freedom of religion under Article 11 of the Constitution, civil courts have ruled they have no power to intervene in apostasy cases under the jurisdiction of Malaysia’s syariah courts (see Legal System). Apostasy is a criminal offense punishable by a fine or prison term in the states of Perak, Melaka, Sabah, Pahang, Kelantan and Terengganu, with the additional maximum penalty in Kelantan and Terengganu of death (this has never been imposed).
3.56 Some Islamic leaders in Malaysia have referred to apostasy as a ‘virus’ which threatens the nation. While formal apostasy (and conversion) is very difficult, many urban Muslims in Malaysia are non-observant. In-country sources told DFAT that ‘a Malay can be a secular Muslim, but they will always be a Muslim, it’s cultural.’ In-country sources reported that there were some Malaysian Muslims who eat during the day during Ramadan, drink alcohol and do not attend mosque. While people who are identified as Muslim on their MyKad card but discreetly practice another faith often do so without adverse attention, they sometimes face considerable family and social pressure to observe Islam. If they join another faith community such as a church, that community can face risk of legal action from the authorities for proselytising.
3.57 Islamic laws are typically enforced by RELA or police, as Islamic authorities tend to lack manpower. In_country sources told DFAT enforcement had relaxed in recent years, but remained stricter in Kelantan and other Eastern peninsula states. Enforcement takes the form of authorities checking identity cards (e.g., of restaurant, bar or hotel patrons) to see if individuals are identified as Muslim. RELA officers reportedly have no power to compel production of identity cards, but police do. In-country sources reported that Malaysians who ‘do not look Malay’ were less likely to be harassed by authorities.
3.58 Individuals who have attempted to leave the Islamic faith have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts, often without success. An individual wishing to convert from Islam must first obtain permission from a state syariah court and be declared Murtad (‘infidel’). In-country sources reported that courts can order such individuals to be subject to three years of faith rehabilitation in a rehabilitation camp. In-country sources told DFAT about a case of an individual who undertook three years of ‘rehabilitation’ but was still denied permission to leave Islam. DFAT is unaware of any Malay Muslims being successful with an application for apostasy. DFAT is also unaware of any convictions for apostasy since 2000, when four people were sentenced to three years’ jail for the offence.
3.59 There are two categories of Malaysians who may be able to convert from Islam. The first category includes those applying to renounce the faith because they were recorded as Muslim ‘in error’ (because of non-Malay origin, such as being from Sabah); according to local media reports in 2017, approximately one in four such applications were successful between 2000 and 2010. The second category includes those who seek to revert to their original faith following a divorce, following conversion to Islam for marriage (legally required when a non-Muslim marries a Muslim). The right to revert from Islam was confirmed by the High Court in 2016.[2]
[2] That country information is not materially different from [3.65] – [3.71] (inclusive) of the DFAT Country Information report: Malaysia (29 June 2021).
The applicant was practising his faith in Malaysia before he travelled to Australia. While he has not been practising his faith in Australia, he is not sure whether he will or will not do so if he returns to Malaysia. His evidence is that this will depend on what his heart leads him to do. He gave evidence that the physical altercation with the gang members was due to his less extreme views of Islam, with the core of the faith from his perspective being kindness but not the abandonment or renouncement of his faith. I do not accept that the applicant renounced his faith in Malaysia. I accept that the applicant is questioning his faith. I do not accept that the applicant has left or renounced Islam. I find that he did not disclose that he was questioning his faith to anyone in Malaysia. He continued to practise his faith despite questioning his faith. I do not accept that the applicant will, if he returns to Malaysia now or in the reasonably foreseeable future, formally renounce his faith or express views in Malaysia consistent with apostasy or atheism. I do not accept that if the applicant returns to Malaysia, now or in the reasonably foreseeable future that he will take formal steps to leave or renounce Islam or convert to any other religion.
The applicant’s relationship with his partner in Australia
The applicant is not married. Based on the applicant’s evidence about his relationship with his current partner including that he did not consider that the relationship with his current partner would ‘go far’ I do not accept that it is a serious and committed relationship from the applicant’s perspective. If the applicant returns to Malaysia, I do not accept that his partner will return to Malaysia with him. If the applicant returns to Malaysia I find the relationship will not continue. While the applicant’s family may have been unhappy or disappointed that he was living with his partner and unmarried, I do not accept that the applicant has received threats of harm from his family or any other person due to his relationship. I do not accept that the applicant’s family members or any other person in Malysia is concerned about his relationship with his partner in Australia.
Claim related to gangs
I have considered the relevant part of the DFAT Country Information Report for Malaysia dated 24 June 2024 relating to ‘Islamisation’ due to the applicant’s evidence that the serious argument was related to him expressing views that there was unfairness in Malaysian society and that that was linked to those in Malaysia holding extremist views of Islam contrary to his own view that Islam promotes fairness:
‘Islamisation’
3.49 In recent decades, local and international observers have noted the increasing influence of conservative Islamic ideas in Malaysian politics and society, a phenomenon described as ‘Islamisation’. The influence of conservative Islamic parties on Malaysia politics has been especially prominent since the defeat of the BN coalition in 2018 and the electoral success of the PAS.
3.50 From the 1990s onwards, PAS has established several thousand kindergartens and Islamic schools called tahfidz (Quran memorisation schools), which has increased grassroots support for PAS (though this is not the only factor). A 2022 Muslim Youth Survey by Merdeka Center, an opinion research firm, found that 82 per cent of Muslim youths aged 15-25 agreed that the Quran should replace Malaysia’s current Constitution, up from 72 per cent in 2010. The survey also found the proportion of Muslim youths attending religious schools had increased from 48 per cent in 2010 to 60 per cent in 2022.
3.51 Local media has reported rising conservatism amongst Malays, especially young people. There is also evidence of decreasing tolerance towards sexual and religious minorities on religious grounds (see LGBTQIA+ community). International media reported in 2022 that despite the progressive tendencies of the multi-ethnic coalition of the Anwar Government, it was under pressure to respond to the values of conservative Islamic voters and parties.
3.52 Malaysia restricts the rights of followers of any branches of Islam other than Sunni, with those following Shi’a or other branches subject to arrest for deviancy. Shi’a Islam, Ahmadiyyah and other non-Sunni sects are considered illegal in Malaysia.
3.53 In-country sources reported that Islamic religious and political NGOs financed by JAKIM have paid staff to attempt to convert poor people to Islam, incentivising potential converts with money, food and government welfare available to Muslims. However, it is not clear how widespread this practice is. In 2018, in-country sources told DFAT that Christians from the southern Philippines and Indonesia had been approached to convert to Islam in return for residency in Sabah (red identification card), with a view to applying for citizenship (blue identification card, only available to Bumiputera). Also in 2018, in-country sources told DFAT that some university students conducted home stays with Orang Asli to teach them about Islam and encourage them to convert, incentivising them with financial benefits, the promise of housing, and welfare available to Muslims.
3.54 Local media reported in June 2019 that the Kelantan Islamic Religious and Malay Customs Council (Maik) stated it intended to convert all Orang Asli within its state borders to Islam by 2049. In July 2019, local media reported that the Temiar Orang Asli in Gerik, Perak, had ‘Islam’ added to their MyKad identity cards without their consent, and that the villagers had never actually converted to Islam.
I have also considered the section on political opinion and freedom of expression:
3.98 DFAT assesses that political party members who criticise other politicians face a low risk of official discrimination in the form of legal charges and politically-motivated police investigations. DFAT assesses that individuals who criticise the government generally face a low risk of official discrimination in the form of legal action by authorities and a moderate risk where they broach politically sensitive topics (the ‘3Rs’) or where their criticism is especially prominent. DFAT assessed that individuals are generally not at risk of violence on the grounds of their political affiliations.[3]
I do not accept that any views expressed by the applicant in Malaysia were prominent criticisms of the government. The applicant does not claim that he has criticised the government or come to the attention of the government in any way. I do not accept that the applicant has expressed any views contrary to Islam.
I have also considered the relevant section of the DFAT Country Information report dated 24 June 2024 relating to gang activity:
Gang Activity
2.30 Gangs continue to operate in Malaysia. In 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country. In-country sources reported that many street_level gang members were Indian Malaysians, in part reflecting their relative economic vulnerability. In-country sources also reported high-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan sharking. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them due to fear of retaliation.[4]
[4] That country information is not materially different from [2.47] of the DFAT Country Information Report: Malaysia (29 June 2021).
I accept that there are numerous gangs operating in Malaysia including the gangs referred to by the applicant during the hearing. The country information indicates that the gangs are involved in crime and extortion rather than targeting an individual in an ongoing way for expressing their opinion.
I have also considered other country information relating to gangs in Malaysia. The articles I located were historical but not inconsistent with the most recent DFAT report. On 29 August 2013 it was reported that the Malaysian Home Ministry had disclosed the names of 49 illegal gangs with 40,313 criminal members. It was reported that the gangs have been deemed illegal under s 5(1) of Malaysia’s Societies Act (1996). It was also reported that most of the members worked as bouncers, car park attendants and car repossession contractors and were involved in crimes ranging from murders to robbery to drug distribution.[5]
[5] IBTimes India, 29 August 2013; ‘Malaysian Home Ministry Discloses Names of 49 Illegal Gangs with 40,313 Criminal members’, >
I accept that the gangs referred to by the applicant in his evidence were on the list of illegal gangs.[6] There are also reports of gangs brazenly going public on social media.[7]
[6] ‘Highlight: Ministry reveals names of banned gangs’, theedgemalaysia.com (30 August 2013).
[7] ‘Gangs in Malaysia brazenly going public on social media’, The Jakarta Post 14 August 2013, >
Due to the applicant’s evidence that his argument with those related to gangs stemmed from comments made about fairness within Malaysian society and he drew a link to Islam, I located information about Pekida.
The information was discussed with the applicant at the hearing. Pekida is an acronym derived from the name of the non-governmental organisation Pertubuhan Kebajikan dan Dakwah Islamiah Malaysia. A March 2007 article from Bernaman, Malaysia’s national news agency reported comment by Pekida’s acting president that Pekida ‘is an organisation which champions Islamic interests’. In an article published on 2 February 2014, by The Ant Daily, an online Malaysian news and current affairs publication, writer Rashitha Abdul Hamid referred to ‘the shadowy world of Pekida…an umbrella body of organisations that counts among its patrons, politicians in high office, but yet it is not a political body per se’:
Some view it as a loose grouping of organisations that are associated with the criminal underworld, while some believe they are the vanguards of the monarchy, the Malay race and Islam.
On one hand, its leaders can be seen in the company of the leaders of the nation, and on the other, its members are alleged to be in cahoots with criminal gangs like the outlawed Tiga Line. They are said to use secret hand gestures that could have only originated from such secret claims.
…
Very little is known about it and the extent of its reach in the corridors of power and some believe, with secret societies, some of which were recently outlawed in the police crackdown on gangsters.
…
According to a police source, Pekida’s initial objectives were virtuous and it adhered strictly to religious teachings an the preaching of Islam, but over time this changed as some of its wayward members deviated from the organisation’s primary purpose. Unable to adhere to strict religious codes, these wayward memb3ers left to form gangs like Tiga Line and Double 7.
…
Pekida’s members include many highly-placed political and military figures including cabinet members, government officials and high-ranking policemen. It is said to be one of the best funded organisations in the country.
…
According to a former Pekida member, the gang Tiger Line, Double 7, Mera, Semerah Padi and Pewaris were formed by Pekida members who had turned rogue, and these people brought disrepute to the organisation when they wrongly linked themselves to Pekida.[8]
[8] Hamid, RA 2014, ‘Pekida: Shadowy defenders of race, religion and royalty’, The Ant Daily, 2 February <
In an article published in January 2015, Sophie Lemiere referred to links between Pekida and Malaysia’s largest political party the United Malays National Organisation (UMNO) stating:
For over 30 years, Pekida has been one of the shadow allies of the ruling party, UMNO; emerging in the media only in 2008. The election results of 2008 were seen as an awakening of political consciousness among the majority of Malaysians. Facing this new wave of awareness, certain UMNO leaders felt even more threatened, fearing that their power and the accompanying benefits might be jeopardised by the growing discontent emanating from Malaysians, particularly the Malays. The strategy of the gangs and the party thus changed and new NGOs and gangs mushroomed in the public sphere, forming what is often seen as a new ethno-nationalist “ultra-Malay” movement.[9]
[9] Lemiere, S 2015, ‘Gansta to the roots: Gansta beyond stereotypes’, New Mandala, 7 January >
Pekida claims it is unlike other gangs as its members are not involved in criminal activities and they are advised to follow Islamic teachings.[10] It has been reported that the Deputy Prime Minister of Malaysia in 2013 said in 2013 that the Tiga Line were not real thugs and that they were Pekida.[11]
[10] Hamid, RA 2014, ‘Pekida exists for power, profit and money’, The Ant Daily, 3 February
[11] Home Minister reported saying underground group “not real thugs”, calls them “our friends” posted on October 7, 2013 by Puteraminang;
The applicant claims that he was physically assaulted by others connected to gangs in Malaysia. He also claims that he was verbally threatened by them in Malaysia and through WhatsApp and Facebook since he moved to Australia. He claims that the last threat was received approximately three years ago. The applicant was unable to produce to the Tribunal any copies of those threats he said, due to his old phone becoming disabled three years ago and his inability to access his old Facebook account. The applicant did not provide any such evidence to the Department in support of his application for a protection visa. He claims a friend had told him seven months ago that a threat had been made against him.
As previously stated, I found the applicant’s evidence regarding what actually occurred during the assault at the first hearing to be vague even allowing for the passage of time. He then gave another version of events at the second hearing. His evidence at the first hearing regarding the injuries he sustained and the treatment he sought and received for those injuries was also confusing and inconsistent. I consider the applicant has embellished the seriousness of this argument and the ongoing ramifications of it for him. I do not accept that the applicant was hospitalised as a result of the argument. I do not accept that he was punched and kicked by a group of people. Considering both versions of the physical altercation provided by the applicant I consider that the version provided at the second hearing was plausible. I accept that two years before the applicant travelled to Australia he was involved in an argument which escalated to a physical assault with an individual. I do not accept that the applicant sustained any serious physical or mental injuries as a result of that incident. I do not accept that the applicant was hospitalised for any injuries sustained in the incident. I am prepared to accept that the applicant’s views and perception of unfairness in his community played some part in the argument.
Leaving his workplace concerns aside for the moment, on the applicant’s evidence, he continued to reside physically unharmed for a period of two years before he left Malaysia. I do not accept that the applicant remained a target for gang members or any other person after the incident. The applicant claims he cannot control his anger and that that led to the incident in the past and his inability to control his anger will lead to other such incidents in the future. I do not accept that the applicant is unable to manage his own behaviour to avoid arguments becoming physical. He has not been involved in any other physical altercation or assault since the incident two years before he left Malaysia. I find that the incident two years before he left Malaysia was a one off incident.
The applicant’s evidence regarding the threats he received in Australia was also vague. It is my assessment that the applicant’s evidence that he has received ongoing threats from gang members is not credible. The applicant did not produce any evidence of the threats to the Department prior to the delegate’s decision nor to the Tribunal in the course of the review. I do not accept the applicant’s explanation for not providing such evidence to be reasonable. It has now been six and a half years since the applicant left Malaysia and eight and a half years since the incident. I do not accept that the applicant is a person of interest to any gang members or any other person in Malaysia who wishes or intends to harm him.
Claim of harm in the workplace
I found the evidence regarding his experience of discrimination in the workplace to be vague and confusing. His evidence at the second hearing about what prompted him to leave Malaysia as set out at [59] was that he was having difficulty concentrating at work and was feeling stressed. That evidence is not consistent with his claims at the first hearing that he was discriminated against at work. The applicant described the ‘discrimination’ in the work place as being given roles, performing them and then being moved to another role presumably requiring different skills and the lack of promotion. However, I found his evidence regarding why he was treated that way by his employer to be vague. I do not accept that the applicant was discriminated against at work, bullied or in any way mistreated for any reason. I find that the applicant experienced stress in the workplace due to his own perception that he was being treated unfairly at times.
Racism
At the second hearing the applicant expressed the view that his treatment in Malaysia amounted to racism. Relying on the other findings of fact above and the fact that the applicant is a Malay of Muslim faith I do not accept that the applicant has experienced racism in Malaysia.
Summary of findings of fact
I have not accepted that the applicant has renounced Islam or will do so in the future if he returns to Malaysia. I have accepted that the applicant was involved in an argument which resulted in a physical assault two years before he travelled to Australia and that that was a one off incident. I have found that the applicant did not sustain any serious physical or mental injuries as a result of that incident. I have found that the applicant was not hospitalised for any injuries relating to that incident. I have found that the applicant has not received any threats of harm from gang members in Malaysia or any other person since that incident. I have also found that the applicant has not received any threats of harm related to the relationship he has with his partner in Australia. I have also found that the relationship is not in a serious and committed relationship from the applicant’s perspective. I have also found that the applicant’s relationship will not continue if he returns to Malaysia. I have found that the applicant has not experienced racism in Malaysia. I have found that the applicant has not experienced bullying, discrimination or mistreatment in the workplace in Malaysia. I accept that the applicant experienced a level of stress and anxiety while living in Malaysia. I accept that that level of stress and anxiety related to his views and perception of unfairness occurring in Malaysian society, his community and workplace.
Does the applicant satisfy the refugee criterion for protection?
I accept that there is a real chance that the applicant will suffer a level of stress and anxiety if he returns to Malaysia both due to the fact that he has not resided in Malaysia since [February] 2018 and due to his views and perception of unfairness occurring in Malaysian society.
However, I do not accept that there is a real chance that the applicant will face ‘serious harm’ if he returns to Malaysia now or in the reasonably foreseeable future. Section 5J(5) of the Act does not provide an exhaustive list of the types of harm that may constitute ‘serious harm’. Serious harm may include serious mental harm. Examples of serious mental harm involve the conduct of mock executions or threats to the life of people very closely associated with the person seeking protection.[12] I have found that the applicant has not been diagnosed with any mental health condition. I have found that the applicant does not have any diagnosed medical condition or mental health condition that impairs his ability or capacity to regulate his emotions and refrain from physical attacks, assault or retaliation. I am satisfied that the level of stress and anxiety experienced by the applicant in Malaysia does not rise to the level of serious mental harm or any other type of harm.
[12] Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 at [25].
I have accepted that the applicant was involved in an argument which resulted in a physical assault two years before he travelled to Australia. I have found that the applicant did not sustain any serious physical or mental injuries as a result of the incident. I have found that the applicant was not hospitalised for any injuries sustained in that incident. I am not satisfied that the physical harm experienced by the applicant during this one incident was significant. I am satisfied that the level of harm experienced by the applicant during the incident does not rise to the level of serious physical harm or any other type of harm.
Even when the harm discussed above is considered cumulatively, I am satisfied that the level of harm experienced by the applicant in Malaysia does not rise to the level of serious harm.
I have found that the one incident which involved some physical harm was a one off incident and that the applicant is able to avoid such incidents in the future. I have already found that the harm experienced by the applicant in Malaysia does not rise to the level of serious harm. While I accept that the applicant may experience some stress or anxiety if he returns to Malaysia given the period of time he has not resided in Australia, and because of his perceptions and views about unfairness in his community and Malaysian society, I do not accept that the level of stress and anxiety the applicant will suffer if he returns to Malaysia rises to the level of serious mental harm or any other type of harm for the purposes of s 5J(4)(b) of the Act. I do not accept that there is a real chance that the applicant will face serious mental harm if he returns to Malaysia now or in the reasonably foreseeable future. I do not accept that there is a real chance that the applicant will face ‘serious harm’ of any kind if he returns to Malaysia now or in the reasonably foreseeable future.
Does the applicant satisfy the complementary protection criterion for protection?
Based on the findings I have made in relation to the harm experienced by the applicant in Malaysia I find that the harm does not amount to any of the types of significant harm defined in s 36(2A) of the Act. I am not satisfied that the stress and anxiety experienced by the applicant in Malaysia and the physical harm experienced by the applicant in the one incident I have found occurred would amount to the infliction of severe physical or mental pain or suffering or extreme humiliation which is unreasonable. I therefore find that it would not satisfy the definitions of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment in s 5(1) of the Act.
For the reasons already given, I accept that there is a real risk that the applicant will suffer a level of stress and anxiety as a necessary and foreseeable consequence of his removal to Malaysia. However, based on the findings of fact I have made, I find this does not amount to any of the types of significant harm defined in s 36(2A). I am not satisfied that it amounts to the infliction on the applicant of severe physical or mental pain or suffering or extreme humiliation which is unreasonable. Further, I am not satisfied that it would satisfy the requirement for there to be a perpetrator with the intention to inflict on the applicant severe physical or mental pain or suffering or extreme humiliation which is unreasonable. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[13] I therefore find that it would not satisfy the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in s 5(1) of the Act.
[13] SZTAL v Minister for Immigration and Border Protection; SZTCM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).
I do not accept that there is a real risk that the applicant will suffer significant harm as that term is defined in s 36(2A) of the Act as a consequence of his return to Malaysia. I have considered the applicant’s claims individually and cumulatively and the applicant’s circumstances as raised by him and discussed in these reasons. I do not accept that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of his being removed from Australia to Malaysia.
Conclusion
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).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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