1829644 (Refugee)

[2024] AATA 2494

1829644 (Refugee) [2024] AATA 2494 (19 April 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1829644

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Jason Pennell

DATE OF DECISION:  19 April 2024

DATE CORRIGENDUM

SIGNED:31 May 2024

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

paragraph 23 of the decision record states “[…] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed”. This is to be replaced with “[…] For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.”

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1829644

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:  Jason Pennell

DATE:  19 April 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies

s 36(2)(a) of the Migration Act.

Statement made on 19 April 2024 at 10.13am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – mixed religious relationship – religion – Christian – Borneo Evangelical Church – Muslim conversion to Christianity – marriage would not be recognised – children would be considered illegitimate – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Darboy [1998] FCA 931
Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Pei Lan He v MIMA [2001] FCA 446
Prasad v MIEA (1985) 6 FCR 155
VCAD v MIMIA [2004] FCA 1005
WZAOO v MIAC (2012) 134 ALD 332

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 2 October 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 31 March 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and are not a members of the same family unit as a non- citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants.1

3.    On 15 March 2024 the applicant made a request that the hearing of her review applicant be conducted by video because she lives in a remote rural town. The Tribunal agreed to the applicant request for a video hearing. As such the applicant appeared before the Tribunal via MS teams 16 April 2024 at 10.00am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

CRITERIA FOR A PROTECTION VISA

4.    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.

5. 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.

6.    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).

7.    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.

1. 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

1 s.36(2)(b) and s 36(2)(c) of the Act

obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

APPLICANT’S CLAIMS AND EVIDENCE

Applicant’s identity and country of reference

1. The applicant claims to that she was born on [date] in [Town 1], Sabah Malaysia. The applicant provided the Department with a certified copy of her valid passport which confirmed her date and place of birth.2 There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Malaysia. As such her protection claim will be assessed against Malaysia as the country of reference and ‘receiving country’

Applicant’s migration history

1. The applicant arrived in Australia [in] January 2018 on a UD-601 Electronic Travel Authority (ETA) and applied for a protection visa (XA-866) on 31 March 2018. The applicant has remained in Australia since the date of her application for a protection visa.

Applicant’s claim for protection

1. The applicant’s claims for protection were detailed in her protection visa application as follows (including grammatical errors): 3

   Provide reasons why this applicant left that country or those countries:

   I am running away to Australia to avoid from getting married. My family has arranged me to marry with a man that I does not even know, so I come to Australia to find a sanctuary for me and maybe make a better life here.

   Did you experience harm in that country or those countries?

   Yes. I was forced from my parents to get marry that man.

   Did you seek help within the country or those countries after the harm?

   No. It is a family arrangement and family decision and I still young that do not know where to seek help.

   Did this applicant move, or try to move, to another part of the that country or those countries to seek safety?

   No. Wherever I go, my family will find out and get me and want me to marry that man.

   Explain what the applicant thinks will happen to them if they are returned to that country or those countries:

1. Applicant’s passport Dept File [Number] Doc ID:[number]

2. Applicant’s Protection Visa Application Dept File [Number] Doc ID: [number]

I need to marry with that man.

Does this applicant think they will be harmed or mistreated if they return to that country or those countries?

Yes. I need to marry with that man.

Does this applicant think the authorities of that country, or those countries, can and will protect this applicant if they go back?

No. It is a family arrangement.

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

No. If I’m back to Malaysia my family will find out me and keep force me to get married.

1. The delegate of the Minister summarised the applicant’s claims as follows:4

   ·She left Malaysia to avoid being forced into an arrgaed marriage by her family to a man she does not know.

   ·She did not know where to seek help in Malaysia because of her age.

   ·She did not seek safety by moving to another part of Malaysia because her family would be able to find her.

   ·If she returns to Malaysia she will be forced to marry.

   ·Authorities will not provide her with protection if she returns to Malaysia because it is a family arrangement.

The applicant’s evidence.

1. The applicant’s evidence to the Tribunal was that the claims made in her protection visa application were incorrect. Her evidence was that the applicant was completed by a friend who misunderstood the nature of her claims. The applicant specifically stated that she had not been promised to marry another man in Malaysia. Instead, she claims that she has travelled to Australia with her boyfriend [Mr A]. Her evidence was that because [Mr A] is a Muslim, she is not able to marry him and return to Malaysia.

2. The applicant’s evidence was that she was born on [date] in [Town 1], Sabah Malaysia. The applicant claims that she speaks read and writes Malay and speaks English.5 The applicant is ethnic Kadazan, indigenous to the state of Sabah in Malaysia.

3. The applicant’s father worked as [an occupation 1] and passed away in or about 2011. Her mother continues to live in [Town 1], Sabah Malaysia where she owns and operates a small [store]. The applicant has [specified family members], all of whom continue to live in Sabah, Malaysia.

4. The applicant attended school in [Town 1], Sabah, Malaysia and completed high school. The applicant did not attend college or University. After school the applicant worked part time in the [store] before traveling to Australia.

5. The applicant is a Christian. He evidence was that she is a member of the Borneo Evangelical Church or SIB. Her evidence was that she attended church and prayed regularly in Malaysia and has continued to attend church and pray in Australia.

6. The applicant’s evidence was that she travelled to Australia with [Mr A] so that they could get married. [Mr A] is a Muslim. They met each other [in 2009] and have been in a relationship since that time. [Mr A] attended

4 Protection Visa Decision record; AAT file No 1829644 Doc ID 4801520

5 Applicant’s Protection Visa Application Dept File [Number] Doc ID: [number]

[college] in Sabah during which time the applicant and [Mr A] maintained their relationship by telephone. It was the applicant’s evidence that it was their plan to escape Malaysia and get married once [Mr A] had completed his course.

1. The applicant’s evidence was that because [Mr A] is a Muslim, and she is a Christian it is not possible for them to be married in Malaysia. They are not yet married because they are waiting for the outcome of their visa status. Nevertheless, her evidence was that she and [Mr A] are not able to get married in Malaysia. Her evidence was that their marriage would not be recognised in Malaysia and as a result any children they have will be considered illegitimate in Malaysia.

2. In addition, she claims that to marry [Mr A] and for their marriage to be recognised in Malaysia, it will be necessary for her to convert to Islam contrary to her faith. This she refuses to do. The applicant stated that [Mr A] is prepared to convert to Christianity so they can be married. However, she claims that it will be extremely difficult for him to convert from Islam to Christianity in Malaysia. She claims that both her and [Mr A] will be subjected to discrimination and harassment if he converted to Christianity so they can marry.

Applicant’s supporting documentation.

1. The following supporting material was submitted to the Department and Tribunal in support of the applicant’s protection claims:

CONSIDERATION OF CLAIMS AND EVIDENCE

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

Credibility

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

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.6 Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.7

1. Section 5AAA of the Act

2. MIEA v Guo (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v

   MIEA (1985) 6 FCR 155 at [169–70]

1. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.8 Care must be taken not to exclude from consideration the totality of some evidence where a portion of it could reasonably have been accepted.

2. If the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.9 However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

Accepted facts.

1. Based on the documentary evidence provided by the applicant to the Department and the Tribunal and her oral evidence to the Tribunal, the Tribunal finds and accepts that:

   (a)the applicant was born on [date] in [Town 1], Sabah Malaysia.

   (b)the applicant speaks read and writes Malay and speaks English.10

   (c)the applicant is ethnic Kadazan.

   (d)the applicant’s father worked as [an occupation 1] and passed away in or about 2011.

   (e)the applicatns mother continues to live in [Town 1], Sabah Malaysia and owns and operates a small [store].

   (f)the applicant has [specified family members], all of whom continue to live in Sabah, Malaysia.

   (g)the applicant completed high school in [Town 1], Sabah, Malaysia.

Relevant grounds

1. To be considered a refugee pursuant to s 36(2)(a) of the Act, it is necessary that if an applicant is returned to her country, she has a well-founded fear of persecution by reason of her race, religion, nationality, membership of a PSG or political opinion pursuant to s 5J(1)(a) of the Act. In this case, it was open to the applicant to submit that her claim for protection falls within the scope of s 5J(1)(a) of the Act by reason of her religion and/or her membership of a PSG as a person engaged in a mixed relationship.

2. It was open to the applicant to claim that she has a well-founded fear of persecution within the scope of s 5(1)(a) of the Act because of her religion as a Christian person who is in a relationship with a Muslim.

3. The Federal Court in in MIMA v Darboy11 when considering the scope of ‘religion’ within the context of the Convention referred to the High Court’s judgment in Church of the New Faith as follows:

   The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

8Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J at [482]

1. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196]

10 Applicant’s Protection Visa Application Dept File [Number] Doc ID: [number]
11 [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA

[2001] FCA 257 (Cooper J, 16 March 2001) at [19]–[22])

1. The UNHCR Handbook provides an overview of the scope of ‘religion’12 as:

   71The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   73Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.

2. The question of whether an applicant has a well-founded fear of being persecuted because of his/her religion can arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.13 It will often depend on the motivation of the persecutor or, in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.14 It requires an assessment of all the relevant circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.15

1. In this case, the applicant claims that as a Christian, she will be persecuted if she is returned to Malaysia because she is in a relationship with a Muslim. As such, the Tribunal accepts that her claim as a Christian does fall within the scope of s 5(1)(a) of the Act.

Applicant as a member of a PSG

1. In addition, it was open to the applicant to submit that her claims fall within the scope of s 5J(1)(a) of the Act as a member of a PSG as a female Christian who is in relationship with a Muslim. Section 5L of the Act states:

   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.

12UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73], WZAOO v MIAC (2012) 134 ALD 332 at [12], citing W161/01A v MIMA [2002] FCA 285 (To be an

apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith)

14VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.

15  Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)

(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.

1. To be considered a member of a PSG, it is necessary for the applicant to share (or be perceived as sharing) an innate or immutable characteristic with each member of the group, or that the characteristic be fundamental to a member’s identity or conscience, or distinguishes the group apart from society.16 In this case, the Tribunal accepts that the applicant’s faith as a female Christian is an innate or immutable characteristic that is fundamental to her identity or consciousness that it identifies her as part of a group and distinguishes the group from society as required under the Act. As such the Tribunal accepts her claims falls within the scope of s 5J(1)(a) of the Act.

The applicant’s well-founded fear

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

2. In Chan v MIEA17 the Court held, when considering ‘well-founded fear’ for the purposes of the Convention, that it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.18

3. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.

4. However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J19 stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

5. In MIEA v Guo, the Court stated that: 20

   Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well- founded if it is merely assumed or if it is mere speculation.

6. For the reasons detailed below, the Tribunal has accepted, that on an objective basis, the applicant has a well-founded fear of persecution if she is returned to Malaysia.

16  Section 5L of the Act

17 (1989) 169 CLR 379 at 396

18(1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ

19  Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397
20  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293

Applicants written claims.

1. Her evidence was that the applicant was completed by a friend who misunderstood the nature of her claims. As a result, the claims made in her protection visa application were incorrect. The applicant denied that she was subject to an arranged marriage by her parents or that she fears persecution because of an arranged marriage as claimed.

2. Therefore, based on the applicant evidence the Tribunal finds that there is no real chance or risk that the applicant will be seriously or significantly harmed if she is returned to Malaysia because of an arranged marriage.

Applicant’s religion

1. The applicant claims that she is an ethnic Kadazan and a Christian. The Tribunal notes that Kadazan as an ethnic group indigenous to the State of Sabah in Malaysia. The majority of Kadazan’s are Christian.21 The applicant claims that she is a member of the Borneo Evangelical Church (SIB) and that she attended church on a regular basis.22 The country information reports that the SIB is the largest evangelical Protestant church in Malaysia with approximately 500 congregations and over 500,000 members.23

2. The country information24 states that Article 3(1) of the Malaysian Constitution provides that ‘Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation’. In addition, Article 11 states that every person has the right to profess and practise his or her religion and subject to cl 4, to propagate it.25 The country information reports26 that Christians account for approximately 10 per cent of the total population of Malaysia. Some of the indigenous populations, particularly in Sabah and Sarawak have chosen traditional spirituality or Christianity.27 Approximately, two-thirds of Malaysia’s Christians reside in Sabah and Sarawak where they account for approximately a third of the population.28 In Sabah, Christians account for around 30.4 percent of the population.29

3. Nevertheless, the Malaysia government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim. As a result, it can be difficult for ethnic Malays to practise Christianity in Malaysia. It’s reported that Christian ethnic Malays can experience official and societal discrimination because of their religion.30 In some instances people have been forced to convert to Islam in unethical circumstances making it nearly impossible to leave the Islamic religion.31

21University of Maryland, Centre for International Development and Conflict Management Assessment for Kadazans in Malaysia. oupId=82004

22known as SIB (Sidang Injil Borneo). (see 1517 Media, Planting an Indigenous Church: The Case of the Borneo Evangelical Mission. Tan, Jin Huat, 2011. DBpedia Borneo Evangelical Church; http:sdbpedia.org/page/Borneo_Evangelical_Church
24  DFAT report at p.24
25  ibid
26  ibid
27  ibid

28UCANews, ‘Malaysia Christians pray for peace, equality, freedom’. 26 July 2022 ww.ucanews.com/amp/malaysia-christians-pray-for-peace-equality-freedom/98155

29 ibid

30Radical ‘What is Life like for Malaysian Christians’? By Harper McKay 2023 https//:radical.net/article/life-for-malaysian-christians/

1. The Ethics & Religious Liberty Commission ‘Religious Freedom and Liberty Partnership in Malaysia’ 26 July 2018. liberty-partnership-in-malaysia/

1. As a result of the difficulty in converting from Islam, fewer ethnic Malays practise Christianity in proportion to the overall population.32 Christianity has become more restricted in Malaysia as it has become more Islamic.33 Restrictions have been placed on the construction of new churches, although existing ones are allowed to operate. Christians are not allowed to attempt the conversion of Muslims and their literature must have a note saying it is for non-Muslims only.34 Similarly, the film The Passion of the Christ was restricted only to Christian viewers.35 In 2008 the Ministry of Home Affairs banned the Catholic newspaper, The Herald, from using the work ‘Allah’ under The Printing Presses and Publications Act 1984.36 In 2009 a Malaysia court ruled that the word ‘Allah’ could be used by The Herald, but this was overturned in 2013.37 The ban did not apply to the states in East Malaysia due to their relative autonomy.38 In March 2022, the Kuala Lumpur High Court overturned the 1986 ban,39 which has been appealed by the government.40

2. The DFAT report assess that Christians generally live free from societal discrimination on a day-to-day basis and can worship freely without significant official interference. However, by promoting or proselytising Christianity to Muslims, Christians face a moderate risk of harassment by the state authorities that may include violence or abduction.

3. In this case, the Tribunal accepts the applicant is a Christian as claimed. There was no evidence that the applicant would engage in activities that promote or proselytise Christianity or cause her to promote or proselytise Christianity to the Muslim community if they were returned to Malaysia. However, in circumstances where she is married or in a relationship with a Muslim person, it may be considered that the applicant has engaged in promoting or proselytising Christianity to the Islamic community, particularly if her partner, [Mr A] coverts to Christianity. In such circumstances the Tribunal accepts there is a real chance the applicant will face harassment by state authorities if she is returned to Malaysia.

Applicant’s relationship.

1. The applicant claims that because she is in relationship with a Muslim man there is a real chance, she will suffer serious harm if returned to Malaysia. The applicant claims that if she is returned to Malaysia, she will not be able to marry [Mr A] because their marriage will not be recognised. As a result, she will suffer serious harm including the fact that their children will be considered illegitimate.

32  ibid

33S.Rajarrathnam School of International Studies Singapore, Sabah’s Unrelenting Exclusionary and Inclusionary Politics by Vilashini Somiah & Jose Ricardo Sto.Domingo 5 May 2021.

34Michigan State University, Windows on Asia, Malaysia -Religion, 2011, sia/religion.htm

35  ibid
36  DFAT Report at p.30

37The Diplomat, ‘In Malaysia, its Two Words for One God’ by Luke Hunt 17 October 2013 Star ‘Christians in Sabah and Sarawak can continue using ‘Allah’’ 22 October 2013; sabah-and-sarawak-can-continue-using-allah/

39DFAT report at p.30; Malay Mail, ‘High Court quashes govt’s 1986 ban on ‘Allah’ use by Christians, affirms Sarawakian Bumiputera’s right to religion and non-discrimination’ by Ida Lim 20 March 2021 on-allah-use-by-christians-affirms-sarawa/1956527

40The Straits Times ‘Malaysia govt challenges ruling letting Christians use the word ‘Allah’” 16 March 2021; http:/ use-the-word-allah

1. The country information41 reports state governments do not recognise marriages between Muslims and non-Muslims and children born to such marriages are considered illegitimate. Section 10 of the Islamic Family Law (Federal Territory) Act 198442 provides that that no man can marry a non-Muslim woman and vice versa. As a result, in Malaysia, to marry a Muslim person a non-Muslim must convert to Islam. 43 Further, any children produced from such a union will be automatically registered as Muslims at birth.44

2. In addition, marriages registered overseas between Malaysian Muslims and non- Muslim foreigners are neither allowed nor recognised under Malaysian law.45 The Law Reform (Marriage and Divorce) Act 1976 does not apply to a Muslim or to anyone who gets married under Islamic laws if their partner is a non-Muslim and as such their marriage cannot be registered under the civil law in Malaysia.46

3. The applicant’s evidence was that [Mr A] was prepared to covert to Christianity so that they could get married. The country information47 reports that formally leaving or converting from Islam is extremely difficult. Despite Article 11 of the Malaysian Constitution guaranteeing freedom of religion in Malaysia, the civil courts have ruled that they have no power to intervene in apostasy cases that fall under the jurisdiction of Malaysia’s syariah courts.48 Its reported that individuals who have attempted to covert from Islam face a long and expensive legal battle involving both the federal civil courts and the state syariah courts.49 Permission must first be obtained for a state syariah court50 and that such permission is rarely given.51 In some states such as Melaka, Pahang, Perak and Sabah (the applicants state), apostasy is a crime punishable by a fine, prison or caning.52 In states such as Kelantan and Terengganu state laws allows the death penalty for apostasy although the federal law does not allow it.53 A number of cases have been reported in which individuals have attempted to convert from Islam or other wise accused of apostasy who have been compelled to attend religious rehabilitation centres.54

4. DFAT reports that Muslim who attempt to convert from Islam or marry a non-Muslim face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert. Based on the available country information, the Tribunal accepts that it would be difficult and highly unlikely that [Mr A] could convert from Islam to Christianity for the purposes of marrying the applicant, if the applicant and he returned to Malaysia.

5. The country information states that for the applicant to enter a recognised marriage in Malaysia with [Mr A] she must convert to Islam. The Tribunal has accepted and found

41  DFAT Report at p.31

42  Section 10 of the Islamic Family Law (Federal Territory) Act 1984

43My Government ‘Marriage procedures between Muslim and Non-Muslim’ 13 August 2009 s/Society%20and%20Life/Citizen/Family/Marriage/ProcedureMarriageMuslimandNonMuslim/Page s/MarriageBetweenMuslimandNonMuslim.aspx

44  ibid

45Free Malaysia Today “When a Malaysian Muslim enters an interfaith marriage overseas.’ 9 June 2023. interfaith-marriage-overseas/

46  ibid
47  DFAT Report at p.31.
48  ibid
49  ibid
50  ibid
51  ibid
52  ibid
53  ibid
54  Ibid

that the applicant is a Christian and a member of the SIB. Her evidence was that her faith as a Christian was important to her identity and beliefs. As a result, she refuses to convert to Islam for the purposes of marrying [Mr A]. The applicant’s evidence was that she wanted to have children and it was important to her, as a Christian, that her children were born legitimately and that they be baptised as Christians. Her evidence was that if she is returned to Malaysia she will continue to practice as a Christian including attending church on a regular basis.

1. The Tribunal notes that in considering factual questions, asylum seekers are not required, and cannot be expected, to take reasonable steps to avoid persecutory harm, or to live ‘discreetly’ to avoid such harm.55 If the applicant is returned to Malaysia, for her marriage to be recognised in Malaysia she would be forced to renounce her faith and religious beliefs. The applicant’s evidence was that she refused to convert to Islam and wanted her children to be Christian. For her marriage to be considered legitimate in Malaysia the applicant would be forced to convert to another religion to get married. Failure to covert would mean that her children will be considered illegitimate. In both instances her children would be considered Muslim against her wishes. That is, she would be forced to alter her behaviour, including her personal and religious beliefs, and to reject her community as a Christian person. Therefore, in circumstances where the applicant, as a female Christian person, must take steps to adopt a new religion contrary to her personal belief and her community, to be able to marry her partner in Malaysia, the Tribunal accepts that there is a real chance the applicant will suffer serious ham if she is returned to Malaysia.

2. Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that the applicant is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a)

CONCLUSION

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s 36(2)(a) of the Act.

DECISION

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

Jason Pennell Senior Member

55 Appellant S395/2002 v MIMA (2003) 216 CLR 473, per McHugh and Kirby JJ at [50]

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)    disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)   any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)    the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)    the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)    protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)    the person can access the protection; and

   (b)    the protection is durable; and

   (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

   (a)    the non-citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non-citizen; or

   (c)    the non-citizen will be subjected to torture; or

   (d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…

Annexure ‘A’

Christians56

3.53Christians accounted for close to 10 per cent of the total population in 2010, the last year for which official data is available, and are predominantly located in Sabah and Sarawak. While a broad range of ethnicities practises Christianity, approximately 20 per cent of the Chinese Malaysian community is Christian, and reports indicate a growing number of converts to Christianity are ethnic Chinese middle-class individuals who were originally Buddhists or Confucianists. While Christian politicians are present in most political parties, they tend not to represent specifically Christian interests.

3.54There are comparatively few Malays who practise Christianity in proportion to the overall population. This is because it is very difficult to convert from Islam (the religion of most Malays – see Ethnic Malays) and illegal to proselytise to Malays (see Religious Conversion and Apostasy). Christians of a Malay background, in particular, may be forced to hide their faith from family, friends and colleagues. Christianity is portrayed by some Malay/Muslim political parties such as PAS as a threat to Islam.

3.55Although Christians claim to have used the word ‘Allah’ (Arabic for God) for centuries in their religious practice in Malaysia, official impediments are in place on their use of the word. The Home Affairs Ministry banned the Catholic newspaper, The Herald, from using the word ’Allah‘ under the Printing Presses and Publications Act (1984) in 2008. The Malaysian Court of Appeals and Federal Court upheld the ban at the time. Religious tensions escalated in 2017-18 including attacks on churches, following an October 2017 decision by the High Court of Kuala Lumpur to reject a Sabah church’s request for a judicial review of the ban on Christians’ use of the word ‘Allah’. However, in March 2021, the Court ruled that Christians could use ‘Allah’ with the judge calling the ban ‘unconstitutional’. The Government announced it would appeal the decision.

3.56Four Christian pastors suspected of proselytising disappeared between 2016 and 2017, with probable state involvement (see Enforced or Involuntary Disappearances). Church leaders have called on the government to take steps to clarify and separate the jurisdictions of the religious authorities and the RMP.

3.57In November 2016, Pope Francis appointed Archbishop Emeritus Anthony Soter Fernandez as Malaysia’s first-ever Cardinal, serving until his death in October 2020. In June 2016, Pope Francis received Malaysia’s first Resident Ambassador to the Holy See; the government announced his appointment in March 2016, with a successor commencing in June 2019.

3.58DFAT assesses that Christians generally live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. Those proselytising or promoting Christianity to Muslims face a moderate risk of harassment by state authorities that, in some cases, has included violence or abduction.

…………………………….

Religious Conversion and Apostasy57

3.65Formally leaving or converting from Islam – apostasy – is extremely difficult. Despite the guarantee of freedom of religion under Article 11 of the Constitution, the civil courts have ruled that they have no power to intervene in apostasy cases that fall under the jurisdiction of Malaysia’s syariah courts.

56 DFAT Report at 29

57 DFAT Report at 31

3.66Several syariah-based laws apply to Muslims at the state level. State governments do not recognise marriages between Muslims and non-Muslims, and children born of such marriages are considered illegitimate. DFAT is aware of cases where one spouse has (after marriage) converted to Islam, and subsequently claimed that non-Muslim family members have lost all rights to inheritance and custody of children. In January 2018, the Federal Court ruled that both parents had to consent to change a child’s religion (see Family Law). While it is relatively common for individuals to convert to Islam in order to marry a Muslim (according to one report, 9 per cent of all marriages in 2019 were inter-ethnic and about half of those involved a Muslim spouse and thus mandatory conversion), families in some communities may view this negatively.

3.67Individuals who have attempted to convert from Islam have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts. An individual wishing to convert from Islam must first obtain permission from a state syariah court. The court will declare them an apostate. State syariah courts rarely grant such declarations and, in some states, including Melaka, Pahang, Perak and Sabah, apostasy is a crime punishable by fine, a jail sentence, or caning. DFAT is not aware of cases in which such punishments have been applied in practice. In Kelantan and Terengganu, state laws allow the death penalty for apostasy, although federal law does not allow its implementation. In February 2018, the High Court ruled that only syariah courts could hear cases on conversion from Islam.

3.68The US Department of State has reported on a number of cases in which individuals who have attempted to convert from Islam, or have otherwise been accused of apostasy, have been compelled to attend religious rehabilitation centres. In 2018, a woman who was suspected of atheism and ‘deviancy’ was reportedly compelled to live in an Islamic rehabilitation centre for six months. In many cases, converts concealed their new beliefs. Religious converts have also reported difficulty changing their religion on their national identification cards.

3.69Only 168 of 863 Muslims who attempted to convert between 2000 and 2010 reportedly received permission to do so. DFAT has no more recent data on such conversion. In these cases, the syariah courts determined that all 168 applicants had not been Muslim to begin with, which thereby prevented any legal precedent supporting conversion from Islam. The landmark case of Lina Joy, a Muslim who converted to Christianity to marry a Christian in 1998, demonstrated the impediments to conversion from Islam. The federal court found in 2007 that she was legally a Muslim and her religious status could not be removed from her national identity card, as ‘a person cannot, at one’s whim and fancies renounce or embrace a religion’. She was thus unable to marry her Christian partner. Conversely, in December 2015, a 40 year-old man in Sarawak, who had been a Christian until his parents converted to Islam when he was eight years old, received a letter of release from Islam by the civil court on the basis that his conversion occurred when he was a minor, and had no choice in the matter. The civil court judge ruled that the syariah court had no jurisdiction and the ‘Lina Joy’ case did not apply, as he was not a Muslim from birth.

3.70In January 2020, the NGO G25, a group made of former top-ranking civil servants, released a report titled Administration of Matters Pertaining to Islam, based on research on the background and history of Islamic administration over the years. The group asserted that, as the Federal Constitution guarantees freedom of worship to each citizen of Malaysia, including Muslims, those who insist on leaving Islam (which they discouraged) ‘must not be charged with a criminal offence’. DFAT has not been able to verify whether criminal charges in such cases have been applied in practice. In February 2021, Mohd Na’im, the chief judge of the Perak Shariah court, stated that the country’s Islamic judicial system only had authority over Muslims in Malaysia and could not act on cases of apostasy outside the nation.

3.71DFAT assesses that Muslims who attempt to convert from Islam or marry a non-Muslim face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert. DFAT is not able to comment on the likelihood, in practice, of punishment for apostasy in states in which apostasy is criminalised.

…………………………….. Family Law58

3.77The Constitution provides men and women equal rights to inherit, acquire, own, manage, or dispose of any property, including land. While federal civil law applies to all Malaysian women, syariah applies to Muslim women at the state level for a number of family matters, including succession, betrothal, marriage, divorce, adoption and guardianship. The national Guardianship of Infants Act (1961) was amended in 1999 to give mothers equal parental rights to fathers, but only four states to date have extended the provisions of the Act to Muslim mothers. At the federal level, a cabinet directive was issued in September 2000 to allow mothers to sign all documents related to their children, to ensure all Malaysian women, irrespective of race and religion, are conferred the right of equal guardianship. The government does not recognise marriages between Muslims and non-Muslims and considers children born of such marriages illegitimate.

3.78Under syariah-based laws, the consent of only one parent is required to convert a child to Islam, allowing the Muslim parent to gain sole custody through the syariah courts (which do not permit the participation of non-Muslims). This has created cases where syariah court rulings have affected non-Muslims who have no ability to defend their position or appeal the court’s decision. In January 2018, Malaysia’s highest court, the Federal Court (see Judiciary), declared in a landmark decision that the consent of both parents was required to issue a certificate of religious conversion for a child. The court’s decision has not yet been reflected in legislation. In 2019, the state of Selangor attempted to pass legislation to permit unilateral conversion within its borders; however, this law, which might have been unconstitutional in any case, failed to pass.

3.79With regard to adoption, the National Registration Department does not automatically recognise adopted children as Malaysian when the identity and citizenship of their biological parents is unknown. Sources report that if an individual wishes to adopt an unregistered, stateless child, they can enter into a court-ordered guardianship arrangement until the child reaches the age of 18, while awaiting approval for formal adoption. Sources also report that two years after adoption is formalised, the guardian can provide the court-ordered guardianship documentation and the child’s birth certificate to obtain a certificate of adoption.

3.80Citizenship requirements are not clearly defined by statute. Both the Adoption Act and the Registration of Adoptions Act are silent on the issue of citizenship for adopted children, and Sabah and Sarawak have separate laws governing the issue. Sources report a certificate of adoption does not necessarily give a child the right to citizenship, and such children remain unable to access services. Where a child’s original immigration status is uncertain or unknown, the National Registration Department will declare the child as a ‘permanent resident’ or ‘non-citizen’ on the re-issued birth certificate or the certificate of adoption, and disregard the fact that the adoptive parents may be Malaysian citizens. According to media reporting, the government has been known to refuse citizenship to those with unknown birth parents, despite having been legally adopted by Malaysian parents, or because they were born out of wedlock to a

58 DFAT Report at 33

Malaysian father and non-Malaysian mother. It is technically possible, albeit rare and time consuming, for such children to be granted citizenship through a judicial review.

3.81A non-Muslim (male or female) must convert before marrying a Malaysian Muslim. The process of conversion differs from state to state as determined by the relevant religious authorities. The Federal Territories require an individual to ‘utter in reasonably intelligible Arabic’ the two clauses of the ‘Affirmation of Faith’, after which the individual is adjudged to have become a Muslim. The Islamic authority in the convert’s place of residence conducts the conversion. Some NGOs also conduct religious conversions in Malaysia. The local Islamic authority issues a certificate of conversion, which updates the religious status on the national identity card. A foreigner must present a declaration from the home government of their initial religious status in order to change their religion.