1829644 (Refugee)

The applicant, a citizen of Malaysia, sought review of a decision by the Minister to refuse to grant a protection visa. The applicant claimed to be a member of a particular social group, defined by their mixed religious relationship and the consequences of their intended marriage. Specifically, the applicant, a Christian, was in a relationship with a Muslim man who had converted to Christianity. The applicant contended that if they were to marry, their union would not be legally recognised in Malaysia, and any children born of the marriage would be considered illegitimate, facing significant social and legal disadvantages. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant belonged to a particular social group for the purpose of the *Migration Act 1958* (Cth). This involved determining whether the group, defined by the intersection of their religious beliefs, their mixed-faith relationship, and the legal and social ramifications of their intended marriage in Malaysia, constituted a "particular social group" as contemplated by the Refugee Convention and its application in Australian migration law.

The Court considered the established criteria for identifying a particular social group, which typically require the group to be based on shared characteristics that are immutable or fundamental to identity, and that are recognised as such by society. The Court reasoned that the applicant's situation, involving a genuine conversion to Christianity and a relationship with a co-religionist, coupled with the severe legal and social consequences of their intended marriage and potential offspring being deemed illegitimate under Malaysian law, established a nexus of shared characteristics that distinguished them as a group. The Court found that the Minister's delegate had failed to adequately consider the specific circumstances of the applicant's claimed social group and the real risks they faced.

Consequently, the Federal Court set aside the decision under review and remitted the application for a protection visa to the Minister for reconsideration according to law.