1834802 (Refugee) - [2024] AATA 4226

1834802 (Refugee) [2024] AATA 4226 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1834802
COUNTRY OF REFERENCE:                   Malaysia
CASE NUMBER:  2117518[1]
[1] Applicants 2 and 3 are joint applicants and share the same Tribunal review case number.

[Home Affairs reference number][2]
[2] Applicants 2 and 3 are joint applicants and share the same Home Affairs Reference.
COUNTRY OF REFERENCE: Indonesia[3]
[3] The country of reference for both Applicants 2 and 3 is Indonesia.
MEMBER:Jessica McLeod
DATE:9 October 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 9 October 2024 at 3.59pm
CATCHWORDS
REF REFUGEE – protection visa – Indonesia – particular social group – mixed nationality marriage – inter-faith marriage – threats from unregistered moneylenders – Indonesian citizenship – registration of religious conversion and marriage in Malaysia – temporary travel ban in Malaysia – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FCA 751
WZARI v MIMAC [2013] FCA 788
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

This decision record encompasses a review of two decisions made by different delegates of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are members of a family group comprised of Applicant 1 (a Malaysian citizen), her husband (Applicant 2, who is an Indonesian citizen) and their [age] year old daughter (Applicant 3, who was born in Australia and holds an Indonesian passport).
Application history
Applicants 1 and 2 met in Australia and married here [on date], but they arrived separately (years apart) and they applied for their protection visas separately, at different times. Their daughter (Applicant 3) was born while Applicant 2’s application was still pending and she was added to his application.
Applicant 1
Applicant 1 first arrived in Australia in 2017, then departed in March 2018. She re-entered Australia just nine days later and lodged her protection visa application in May 2018.
In her application, Applicant 1 claimed she could not return to Malaysia because of economic and social problems in Malaysia and because she needed to support and care for her sister in Australia, who had faced problems trying to revert back to her original Christian faith from Islam following an earlier conversion.
The delegate in Applicant 1’s case refused the grant of visa on 15 November 2018. Applicant 1 was not invited to discuss her claims at interview; the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1834802 (Refugee)

Details

AGLC: 1834802 (Refugee) [2024] AATA 4226
Case: [2024] AATA 4226
Decision Date: 9 October 2024

CaseChat Overview and Summary

The case involved applicants seeking a protection visa. The dispute centred on whether the applicants met the criteria for a protection visa, specifically concerning their claims of persecution and the assessment of Indonesia and Malaysia as potential receiving countries. The decision was made by Jessica McLeod.

The court was required to determine if the applicants had a well-founded fear of persecution for reasons of race, religion, nationality, or membership of a particular social group, as defined by the Migration Act 1958. This involved assessing the credibility of their claims, the nature of their marriage and religious conversion, and the potential risks they might face upon removal to either Indonesia or Malaysia. A key issue was whether the applicants, particularly Applicant 3, would be able to access effective protection in a receiving country.

The court considered the applicants' backgrounds, including Applicant 1's Christian upbringing and Dayak ethnicity, and Applicant 2's Indonesian citizenship and Javanese ethnicity. It accepted that Applicant 1 converted to Islam for her marriage to Applicant 2, and that their daughter was being raised as Muslim. The court noted that while interfaith marriages are complicated in Indonesia and not permitted under Malaysian law without conversion, such conversions are not uncommon. The court found that Applicant 3, as an Indonesian citizen, would be assessed against Indonesia as a receiving country. The court also considered the complementary protection criterion, which requires a real risk of significant harm as a necessary and foreseeable consequence of removal.

The decision affirmed the previous decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal acknowledges the practical and emotional difficulties the applicants might face if they are not granted protection (or other) visas to stay in Australia, and it notes Applicant 1’s concern about not being able to register her daughter with Malaysian authorities, and consequences that could flow from living in Malaysia without being registered under Malaysian birth registration processes or having Malaysian nationality. However, as discussed with the applicants, as the Tribunal’s view (like the Department’s) is that Applicant 3 has Indonesian citizenship, her claims are being assessed against Indonesia, in conjunction with Applicant 2. The applicants were accepting of this approach. Further, the Tribunal discussed with the applicants their fears and concerns about living in both countries even as a family (all of which would be necessary considerations if third country protection was to be considered) and it is satisfied that they have contemplated Applicant 3’s residence in Indonesia. The Tribunal finds, as a matter of fact, that Applicant 3 would go to Indonesia, where she has citizenship and the rights of an Indonesian citizen.APPLICANTS’ BACKGROUNDS, MARRIAGE AND RELIGION Apart from Applicant 2’s birthplace (discussed below), the Tribunal accepts the below matters, relating to the applicants’ backgrounds, family and religious circumstances, to be true. Applicant 1 states that she was born and grew up in a Christian family in Bintulu, Sarawak, Malaysia, and that she is of Dayak ethnicity (the Dayak being non-Malay indigenous peoples in Sarawak).[6] She also lived in lived in Betong, Sarawak and in Kuala Lumpur. Just before she came to Australia, she was living in Bintulu with her parents and her siblings (except for her eldest sister who was already in Australia). All of her family in Malaysia live in Bintulu, Sarawak. She said her family owns their family home, but she does not own any property herself. Her mother has some [illnesses]. Her father has some health problems, but not chronic. Her parents are supported by some of their children, including herself. She has never been previously married or had any other children prior to meeting Applicant 2 and marrying him in [year], and having Applicant 3 in [year]. [6] Australian Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: >Applicant 2 states that he is Muslim, is of Javanese ethnicity and was born in Indonesia and lived in various different places within the country. His application and passport both indicate that he was born in Serang (and his application further specified this was Serang, in Jawa Barat (West Java). However, he insisted in both hearings that he was in fact born in Banyuwangi in East Java. He said he had been living in Serang for the few months before coming to Australia, but he was born in Banyuwangi. While the Tribunal has some concerns about the information in the application and passport not matching Applicant 2’s oral evidence, it considers Applicant 2’s evidence about his background has been generally credible and given in good faith and as such, considers that there may be some plausible explanation for the difference, even if at this time is it unknown to the Tribunal. In any event, the Tribunal accepts that Applicant 2 is an Indonesian citizen, born in Indonesia and who at least resided in Banyuwangi from a young age. The Tribunal considers that his specific birthplace within Indonesia has little to no bearing on this assessment.Applicant 2 states that he moved around a lot growing up (including to different Indonesian islands), having been raised between his mother and his grandmother. He lived in Banyuwangi until he was about [age] years old, in his [number] year of schooling (which he did not complete) and then moved to Flores and Kalimantan. He also spent some time in [Town 1]. He lived in Kalimantan for eight years doing [occupation 1] jobs. He also earned money other times by doing other jobs such as tree cutting. Just before coming to Australia, he was living by himself in Banten in West Java as a friend had offered him work there, doing [occupation 1] work. However, he often went back to Banyuwangi because his then wife (now his ex-wife from whom he is divorced) was living there.Regarding his previous marriage and his family in Indonesia, Applicant 2 said that one year into his stay in Australia, he started having problems in his business and his then wife cheated on him. She also splurged away all the money he earned. After a lengthy legal process, the divorce certificate was issued in 2017. He has a daughter with his ex-wife. She is [age] years old and lives with his father-in-law’s wife (her step-grandmother) in Lamongan, East Java. His ex-wife has re-married and has [other] children from that marriage. He has always, since his daughter’s birth, been financially responsible for her, and her education. He also contributes financially to his other family members, including his [siblings], who he described as being very poor. His parents have both passed away since he has been in Australia. The rest of his family live in Banyuwangi. He came to Australia in 2014, on the encouragement of his parents to work and earn money here, and since being here, he has been able to buy a small house in Banyuwangi. Marriage and religionThe Tribunal accepts Applicants 1 and 2 met in Australia, through Applicant 1’s sister who was already here. They fell in love and married here in [year] and Applicant 1 (who was born and raised Christian) converted to Islam for their marriage. Their daughter was born in Australia in [year] and they are raising her to be Muslim.In reaching these findings, the Tribunal gives weight to country information indicating that in both Malaysia and Indonesia, one party’s conversion to Islam in order to marry is not uncommon[7]. While in Indonesia, interfaith marriages are technically permitted, the situation is complicated by a 2005 fatwa against them and the fact that certain religious teachings forbid them.[8] And in Applicant 2’s case, conversion to Islam was required under Malaysian law. Interfaith marriage between a non-Muslim and a Muslim is not permitted either under the Malaysian civil law or the Syariah law.[9] Malaysian state governments do not recognise such marriages either, and nor can interfaith marriages be recognised under Malaysian law if they are contracted abroad.[10] There are some limited exceptions[11], but the Tribunal accepts that in the applicants’ circumstances, Applicant 2 needed to convert to Islam in order for her marriage to be recognised under Malaysian law. [7] Australian Department of Foreign Affairs and Trade DFAT, ‘DFAT Country Information Report - Indonesia’, 24 July 2023, available at: DFAT, ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: US Department of State, '2022 Report on International Religious Freedom: Indonesia', 15 May 2023, 20230516094331 [9]DFAT, ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: Law Library of Congress, 'Prohibition of Interfaith Marriage', Law Library of Congress, 1 September 2015, CISNET no. 20190124103257; Dr M.S. Subramaniam, Center for Asian Legal Exchange (Nagoya University), 'Judicial Dilemma: Secular or Syariah for Interfaith Family Disputes in Malaysia', 1 March 2018, accessed 6 June 2024[10] Free Malaysia Today, ‘When a Malaysian Muslim enters interfaith marriage overseas', 9 June 2023, 20230817165532; South China Morning Post, ‘Malaysia’s religious tilt drives mixed-faith couples overseas to find ‘somewhere more accepting’’, 16 July 2023, 20230818093742 [11] In limited circumstances, there may be a pathway – if the non-Muslim woman is a Kitabiyah, however it is reportedly almost impossible for couples to prove Kitabiyah status and marry that way: (Kitabiyah refers to ‘person of the book’ but the interpretation is narrowed to: descendants of the Bani Ya’qub, Christians whose ancestors were Christians before the prophethood of the Prophet Muhammad, and Jews whose ancestors were Jews before the prophethood of the Prophet Isa): Allagan, T M P, University of Groningen, 'International mixed marriage in Indonesia and ASEAN: International mixed marriage and its recognition in Indonesia towards one ASEAN community', 2019, 20230214160807; Law Library of Congress, 'Prohibition of Interfaith Marriage', Law Library of Congress, 01 September 2015, 20190124103257; F. Mihlar, Minority Rights Group International, ‘Ethnic and religious discrimination big challenge for Malaysia's minorities’, 12 April 2011, CXCB3E63421379; S.B Kamaruddin, The National University of Malaysia, ‘Child Custody Cases Between Muslim and Non Muslim Parents Needed Resolution’, 25 May 2012, available at accessed 6 June 2024

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.ATTACHMENT C - EXTRACT FROM MIGRATION ACT 19585 (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 familyFor 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 familyFor 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.…