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

1. 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).

2. 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

3. 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

4. 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.

5. 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.

6. 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 decision was made on the papers, relying on country information.

7. Applicant 1 applied to the Tribunal for a review of this decision on 27 November 2018.

   Applicant 2 and Applicant 3

8. Although Applicant 2 arrived in Australia much earlier than his wife (in 2014), he did not lodge his protection visa application until December 2019, more than a year after his wife’s case had already been decided. Applicant 3 was added to his application following her birth in [specified year].

9. Applicant 2 raised claims of fears arising from threats and harassment against himself and his family from unlicensed money lenders in Indonesia. He also raised fears relating to his marriage saying that his wife is Malaysian and had been Christian but had converted to Islam for their marriage, and the marriage registration would be complicated with them being different nationalities and religions. He also raised concerns about Applicant 3 not having any clear citizenship status or visa, and for her safety. Applicant 2 addressed his five year delay in applying, stating that while he already hadn’t wanted to return, it wasn’t until he met and married his wife and she fell pregnant that he really started to worry about having to return to Indonesia.

10. The delegate refused the applicant concerning Applicants 2 and 3 on 8 November 2021, finding that Applicant 2’s claims regarding the money lenders were not credible. The delegate did not consider the claims regarding Applicant 2’s marriage and Applicant 3.

11. Applicants 2 and 3 applied to the Tribunal for a review of this decision on 5 November 2021.

    Conduct of (combined) review

12. Notwithstanding that separate applications and decisions were made on the cases at the primary level, it was apparent when the cases were constituted upon review that the applicants were a family group with at least some interrelated claims. The applicants gave their permission for their claims to all be explored in a joint hearing. They have also agreed to the Tribunal setting out its reasons in a combined decision. 

13. All three applicants attended an in-person hearing at the AAT office in Melbourne on            20 May 2024. Due to the complexity of the family’s circumstances and cases and time constraints on the first hearing, a second hearing was required, and on 29 August 2024, Applicants 1 and 2 participated in this second hearing via video.

14. In the first hearing, the Tribunal heard evidence from Applicants 1 and 2 individually as well as together. In the second hearing, all their evidence was heard together. Applicant 3 was too young to participate but was present throughout the first Tribunal hearing. She did not attend the second hearing; Applicants 1 and 2 were advised that her attendance would not be required.

15. Both hearings were conducted with the assistance of an interpreter in the English and Indonesian languages. Although Applicant 1’s native language is Malay, she advised she could speak fluent Indonesian and confirmed during both hearings that she was comfortable conversing in Indonesian. She did not raise any concerns or express any difficulties during the hearings and nor were any apparent to the Tribunal. The Tribunal is satisfied she was able to fully engage and participate in the hearing, as was Applicant 2.

16. At the second hearing, the applicants were advised that the Tribunal would be interested in, and willing to receive and consider, any further information, evidence, comments or responses in the two weeks following the hearing. This period and several more weeks have since passed but no further information of any kinds has been received. Nor have the applicants indicated an intention to provide more information or requested additional time.

    APPLICANTS’ NATIONALITIES AND RECEIVING COUNTRIES

17. It is claimed that Applicant 1 is a Malaysian citizen and Applicant 2 is an Indonesian citizen, and that although they married here in [year], neither of them have citizenship or a visa or current right to reside in each other’s countries. To support their claimed identity, nationality and familial relationship, they have provided copies (with originals sighted by the Tribunal) of Applicant 1’s Malaysian passport (and that of her sister who is also in Australia) and her Malaysian national identity card (MyKad) and Applicant 2’s Indonesian passport.

18. The Tribunal finds that for the purposes of this review, Applicant 1’s receiving country is Malaysia, and Applicant 2’s is Indonesia. There is nothing to suggest either of them have a current right to enter and reside in each other’s countries; the Tribunal finds that they do not.

19. As for Applicant 3, she was born in Australia in [year] and the applicants have provided her Victorian birth registration certificate. They have also provided her Indonesian passport, issued by Indonesian authorities [which] explicitly states that she holds Indonesian nationality. Despite this, her parents both expressed some doubts and concerns about whether she holds any legal status at all. This stems in part from their claim that their marriage has not been registered in either Indonesia or Malaysia. Applicant 2 also mentioned in the first hearing that he has doubts about his daughter’s status because they have not undergone any official processes in-country in Indonesia, and he is aware that processes involving nationality and identity cards usually take a long time in Indonesia.

20. The Tribunal acknowledges the parents’ doubts and concerns about their daughter’s nationality and citizenship status and how this may be affected by the issues described. But having viewed Applicant 3’s passport and considered the relevant Malaysian and Indonesian citizenship laws,[4] and the applicants’ religious faiths and the circumstances surrounding their marriage (also discussed below), the Tribunal finds that Applicant 3 does in fact hold Indonesian nationality and citizenship according to Indonesian law. The Tribunal finds that this is the case even though the marriage between her parents has not yet been registered under Indonesian law (discussed below). The Tribunal notes it was also the Department of Home Affairs’ finding that Applicant 3 has Indonesian nationality.

    [4] Law of the Republic of Indonesia No. 12 on Citizenship of the Republic of Indonesia: Article 4, available at: accessed 26 August 2024; 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; J. C. Y. Liew, ‘Homegrown Statelessness in Malaysia and the Promise of The Principle of Genuine and

21. There is no suggestion that Applicant 3 holds Malaysian nationality or citizenship by virtue of her mother’s Malaysian status or through any other avenue, and Malaysian law provides that children born overseas (other than in Singapore) to a Malaysian mother and a foreign father are considered to have received the father's citizenship and are not considered Malaysian citizens.[5] The Tribunal notes as well that Malaysia and Indonesia do not allow for dual citizenship. The Tribunal finds that Indonesia is Applicant 3’s receiving country for the purposes of this review.

    [5] R. Anand, ‘Unequal Before the Law: How Malaysian Moms and their Kids are Second-Class Citizens’, Between the Lines (Malaysia), 19 June 2021, available at DFAT, ‘DFAT Country Information Report Malaysia’, 29 June 2021, p.50; C. C. Low, ‘Report on Citizenship Law: Malaysia And Singapore’, Global Citizenship Observatory (GLOBALCIT), 1 February 2017, p.16 

22. 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

23. 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.

24. 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.

25. 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.

26. 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 religion

27. The 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.

28. 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

1. The Tribunal also gives weight to the applicants’ written and oral evidence, and their documentary evidence including their Malaysian nationality identity cards (MyKads) which show religious status, Australian and Victorian marriage registration documents, their Certificate of Islamic Marriage and their daughter’s birth certificate. Notably, Applicant 1’s MyKad indicates by omission that she was once non-Muslim and their Certificate of Islamic Marriage, indicates that they were both Muslim at the time of their marriage. It also shows they were validly married under Australian law and that their marriage was also solemnised under Islamic law by a religious marriage celebrant authorised by the Islamic Council of Victoria.

2. The Tribunal accepts that Applicant 1’s conversion is genuine, that she is a practising Muslim and intends to continue practising and raise her daughter in the Islamic faith. She said that after falling in love, she decided she needed to follow Applicant 2’s religion. She said her decision is genuine - she loves him, and she wants to practise the same faith, even though it has made her relationship with her own family very difficult. She confirmed that she is a practising Muslim and wants to continue practising Islam so she can understand the religion and guide her daughter who she wants to raise as Muslim and will need to learn Islam as she is growing up. She said it is very hard for her, but she wants to do it. Tribunal queried with Applicant 1[12] a line in her ‘Pre-hearing information form’ indicating that she did not want to convert to Islam, but based on the applicants’ response, the Tribunal accepts that what she meant is that she had not intended to convert, but for the sake of her marriage, she considered it appropriate to convert, and that she did so willingly.

   APPLICANT 1’S PROTECTION CLAIMS AGAINST MALAYSIA

   [12] second tribunal hearing

   Fears relating to religion and marriage 

3. The applicants claim that their faith and their marriage will present problems if they were to live in Malaysia. Specifically, Applicant 1 fears returning to Malaysia because she is still registered as a Christian in Malaysia and her marriage would not be recognised under Malaysian law. Applicant 1 told the Tribunal it would be difficult to register with Malaysian authorities because she is still registered as a single, non-Muslim person, and registering will involve a very long process, requiring her firstly to officially convert to Islam, and register the marriage. She said there is also a further layer of difficulty because theirs is a marriage between people from two different countries. She also fears returning because her conversion and her husband (due to his being Muslim and of Indonesian nationality) will not be accepted by her family and community. She also has fears arising from the fact that Applicant 3’s birth has not been registered with Malaysian authorities.

4. All of these are new claims which Applicant 1 did not raised before the Department, but the reasonable explanation for this is that she had not even met Applicant 2 by the time her case was decided. The Tribunal has no concerns about these being new claims and no adverse inference has been drawn on this basis.

   Concerns about registering conversion and marriage under Malaysian law

5. The Tribunal observed in the first hearing that it seemed Applicant 1 had already validly converted to Islam, and she responded that it is very easy to convert in Australia. She said she converted just one day before she got married here and it only took seconds, with the assistance of a religious leader. Whereas, she claimed, to convert to Islam under Malaysian law, she would have to report herself to a government agency where she would be issued a new identity and new name (relating to her Islamic conversion) and would also have to register with a Syariah government agency and start the process and attend counselling to learn more about Islam and the process for conversion. When asked why she wouldn’t be able to do this, she said she would need her parents’ approval which would be very difficult to get. She said she grew up in a Christian area and her sister had had to go through this process, and then she had to come to Australia.

6. The matter was further discussed at the second hearing. The Tribunal acknowledged that it seems Applicant 1 would need to register her Islamic conversion with authorities in Malaysia, probably in Sarawak, and that she would also need to register their marriage with Malaysian authorities. The Tribunal queried whether Applicant 1 foresaw any issues with doing this. She responded that when she had tried to register her daughter with the Malaysian consulate, they had advised that her paperwork was incomplete, and she would need to undergo the conversion again and get married again in front of them. When asked if there would be any issues with her doing so, she replied that the consulate staff had given her the impression that the whole situation was wrong and she should have done that from the beginning, before she fell pregnant. So, she felt rejected and did not want to pursue it. When asked if she felt she would face harm as a result of undergoing these processes, either with the consulate or High Commission in Australia or in Malaysia itself, Applicant 1 replied that it won’t be easy; she will have to apply through the state, and it will be difficult to get approval.

7. The Tribunal acknowledges Applicant 1’s description of her previous interaction with the consulate staff but it considers there may have been some misunderstandings or that there may otherwise be plausible explanations for her failed attempt at effecting those registrations. Examples may include hurdles to registering Applicant 3 because she is deemed to be an Indonesian citizen, and/or not having the relevant documentation at hand her marriage to a foreign spouse, or to establish the timing of her conversion and their marriage being more than seven months before the birth. There may also have been other miscommunications or misunderstandings. On the evidence before it, the Tribunal cannot make conclusive findings about Applicant 1’s previous interactions with the consulate on these matters, but whatever occurred, the Tribunal does not accept Applicant 1 would be unable to register her conversion and marriage, should she try again and undergo and comply with the necessary procedures. 

8. The Tribunal notes that on the matter of religious conversion, Malaysian law does not restrict the rights of non-Muslims to change their religious beliefs and affiliations.[13] Non-Malay ethnic groups in Malaysia, are allowed to profess any religion of their choice and/or to convert to Islam if they wish, so long as they are of sound mind and are 18 years (or, if they are younger, have the consent of their parent/guardian).[14] Conversions are regulated - Malaysia is one of the few Muslim nations that regulate conversion to Islam through legal provision.[15] However, even with the process differing from state to state, the information does not suggest the regulatory system and the process involved is prohibitive to conversion (or registration of conversion), or that individuals face a real chance of any harm as a consequence.

   [13] 2021 Report on International Religious Freedom: Malaysia', USDOS, 2 June 2022, p.4 

   [14] Dr M. S. Subramaniam, 'Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia', Center for Asian Legal Exchange (Nagoya University), 1 March 2018, p.5 ; Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) available at ; Sarawak: Part VII in Majlis Islam Sarawak Ordinance 2001

   [15] A. S. N. Khan & M. A. Samuri, ‘Unilateral conversion of minors to Islam: Legal discourse and Muslim converts’ narrative on custody and religious rights in Malaysia’, Kajian Malaysia: Journal of Malaysian Studies, 2021, p.3, available at ; Sarawak: Part VII in Majlis Islam Sarawak Ordinance 2001 ; Federal Territories: Part IX in Administration Of Islamic Law (Federal Territories) Act 1993 (ACT 505); 

9. The Tribunal shared at the second hearing some country information relating to conversion (to Islam) registration processes in Malaysia which suggest that the process is less onerous than she may believe. The Tribunal noted that information from DFAT indicates that conversion to Islam is procedurally straightforward.[16] It noted too, that the Jabatan Agama Islam Sarawak’s (Department of Islamic Affairs, Sarawak’s) website[17] provides instructions for the re-registration of persons who convert to Islam abroad. The website indicates that Muslim converts can present at any Department of Islamic Affairs of Sarawak Office with relevant evidence such as a certified true copy of their conversion card or certificate, as well as an identity card sized photo, and evidence of their identity. Neither these sources, nor  other open source searches revealed any information suggesting that Muslim converts seeking to register or re-register their conversion in Sarawak face any particular challenges or difficulties, nor lengthy delays in processing their registration. The Tribunal acknowledges too, that Applicant 1 would need to have her Islamic faith reflected on her MyKad[18], but again, the information before the Tribunal does not point to converts facing any difficulties in this respect.

   [16] DFAT, ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: accessed 28 August 2024

   [18] DFAT, ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: >

   Applicant 1 submitted that she would face hurdles because she does not have access to her birth certificate - it is being held by her grandmother who disapproves of her conversion and marriage and has already refused to provide it. The Tribunal put to her that she can prove her identity with her MyKad and passport and Applicant 1 replied that the authorities would also demand her original birth certificate, which she cannot provide. The Tribunal put to her that there would be processes for replacing lost birth certificates, but Applicant 1 said her parents would need to be a witness and they would not agree. The Tribunal has doubts about whether her family would be so uncooperative about this, particularly noting she does still maintain some relationship with them, even if their communications are not as warm as they once were. The Tribunal also has not seen any information indicating that the only avenue for replacement would be for her parents to be witnesses. At the very least, there are processes for Malaysians to apply for extracts of their birth certificates for a small fee, and on provision of certified copies of identity documents (of which they specify passports as an example).[19] The Tribunal does not accept Applicant 1 would be unable to obtain and provide the identity documents needed for her to register her conversion or marriage. 

   [19] Information about obtaining this can be found here: and the Extract of birth certificate form is available at https: - both accessed 8 October 2024

10. With specific regard to their marriage, the Tribunal put to the applicants information from the Malaysian High Commission’s (Melbourne) website which suggests that parties need to register international Islamic marriages directly with the States Islamic Department (JAI) of Malaysia, but that the High Commission can verify the marriage documents and issue an official letter subject to the applicants providing proof of their marriage and its solemnisation by an authorised celebrant / Imam, plus another form and documentation and small fee. The Tribunal put to the applicants that it would be open to them to take these steps. The Tribunal also noted to the applicants that their marriage was solemnised by an authorised religious marriage celebrant named on a list linked to the High Commission’s website. Therefore, it seems there should be no issue with them obtaining a verification letter from the High Commission and registering their marriage in Malaysia. The applicants did not respond.

11. The Tribunal put to the applicants that while it accepts there are administrative processes Applicant 1 would need to undergo to re-register her conversion and have the conversion and their marriage recognised by Malaysian authorities, in their particular circumstances, the Tribunal does not consider this will be problematic. Applicant 1 responded that she has no intention to register in Malaysia because she doesn’t intend to return there. She referred to her family’s opposition to her marriage and said her husband would have no idea how to live in Malaysia, so she is not planning to return there.

12. The Tribunal notes there are legal requirements including the requirement of guardian or wali consent for female parties to such marriage and that that Applicant 1’s parents were not supportive of her marrying Applicant 1. It is possible that she may need to apply to a Syariah Judge in Sarawak for wali Hakim consent to be affirmed in accordance with Islamic law.[20] But given her conversion and that the marriage was solemnised by an authorised official religious marriage celebrant authorised by the Islamic Council of Victoria, the Tribunal considers it is unlikely (to the point of being remote) that the applicants will face any hurdles in this or other respects registering their marriage in Malaysia.

    [20] Laws of Sarawak: Chapter 43 – Islamic Family Law Ordinance 2001, available at: >

    On the issue of Applicant 2’s different (Indonesian) citizenship, the Tribunal notes reference on the High Commission’s website to documentation (birth certificate and passport) that must be produced by a non-Malaysian spouse when seeking a marriage certificate from the Malaysian High Commission. Given this and noting there is no other information before the Tribunal suggesting otherwise, the Tribunal finds that marriages between Malaysians and foreign spouses can be recognised by the Malaysian authorities. The Tribunal does not accept Applicant 2’s citizenship will be an impediment to Applicant 1 registering her marriage under Malaysian law.

13. The Tribunal accepts Applicant 1’s evidence about her sister facing hurdles in converting without her family’s approval. However, she did manage to convert, and in Applicant 1’s case, she has officially converted in Australia before an Imam. While the Tribunal believes Applicant 1 genuinely holds these concerns, the Tribunal does not accept that she will be unable to register her conversion and marriage with Malaysian authorities, and nor does it accept she faces a real chance of being harmed in Malaysia on account of her marriage, family and religious circumstances.

14. The Tribunal acknowledged Applicant 1’s concerns regarding the difficulties she faced trying to effect these registrations through the consulate here in the past. However, the Tribunal put to her that it seems there are processes she can undergo to effect these registrations and have these things officially recognised. It put to her that given she has tried to do this in Australia already, that she would also take those steps if she returned to Malaysia. It put to her that it did not appear she would face a real chance of serious harm or a real risk of significant harm as a result of undergoing these processes or waiting for those processes to be completed. The applicants did not respond.

    Concerns about family and community

15. The applicants have also claimed to fear problems arising from Applicant 1’s family and community who will not accept her conversion to Islam, do not approve of their marriage, and will not accept Applicants 2 and 3.

16. Applicant 1 said in the second hearing that she has a relationship with her family in Malaysia, but their communication is not as warm as it was before she got married, and their discussions are generally restricted to talking about Applicant 3; she and her family never talk about Applicant 2. She said she speaks with her siblings in Malaysia every day, but that her relationship with her parents is no longer close or warm. She rarely interacts with her sister in Australia.

17. When asked what she feared would happen with her family if she returned to Malaysia, Applicant 1 said that her family are still strongly opposed to the marriage, and they had threatened her over her decision to marry and would push her to cancel her marriage.  The Tribunal queried how the family had threatened her and she said they had used strong words, making it clear she shouldn’t marry her husband, saying she had no idea about his country and that she would be excluded from their family if she proceeded with the marriage. The Tribunal queried if she felt concerned for her safety, or about them trying to hurt her and she replied that she wasn’t sure what physical actions they might take, but they could use black magic against her as that is still being practiced in Malaysia. In addressing why they haven’t already, she said black magic wouldn’t be effective to try on her now (because of the long distance) but if she returns, they might try using it to make her forget herself and forget that she is married. When asked if they have actually threatened to use black magic or harm her in any other way, she said she could sense it in their words because they could not accept or tolerate her marriage.

18. When asked if she had concerns of being harmed by anyone else in Malaysia, Applicant 1 said it was hard to predict what the reaction from her (Christian) community would be. She said she wasn’t aware of any cases of people marrying outside the religion so there is no precedent for it. She said they are not open minded about marriages with people outside their religion and citizenship. She said she expected a negative reaction, and racist behaviour. She also said she is of Dayak ethnicity which has its own different culture and traditions and the community also had views against marrying outside of their ethnic group. When asked if anyone had made threats over these matters, she said her uncle had had a nasty experience with Indonesians who attacked him with black magic, making him crazy, and he has had negative feelings towards Indonesians.

19. The applicants have also raised concerns about the fact that Applicant 1 was already pregnant when they got married on [date] (their daughter was born over seven months later on [date]). Applicant 1 said that this would be an issue for her under Islam, and also culturally, amongst her ethnic group. She said she fears that she and Applicant 3 will be excluded from her family and community, and that they would abuse Applicant 3 if they met her. She said the fact that the father is Indonesian, and of a different citizenship will also be a problem and people will insult her if they realise this.

20. The Tribunal notes section 23(4) of the Syariah Criminal Offences (Federal Territories) Act 1997 provides that ‘[f]or the purpose of subsection (3), any woman who gives birth to a fully developed child within a period of six qamariah months from the date of her marriage shall be deemed to have been pregnant out of wedlock’.[21] When it was raised with the applicants that it appeared that Applicant 3 would not be deemed illegitimate, the applicants agreed, but said although lawful, it is viewed extremely negatively in Islam, and among their communities. When asked how anyone would know the timing of conception, the applicants said people would work it out from the date of their marriage and their daughter’s birth, and Applicant 1 said she fears her family and community would punish her using black magic.  

    [21] Government of Malaysia, ‘Syariah Criminal Offences (Federal Territories) Act 1997’, Act 559, Date of Royal Assent: 27 March 1997, Date of Gazettal: 31 March 1997, Date of coming into operation: 1 April 1997, 20221201110920 

1. The Tribunal acknowledged Applicant 1’s concerns about how her conversion, marriage and different ethnicity and citizenship of her husband would be received within her family and community. But as the Tribunal put to them, Applicant 1 does still have some continuing relationship with her family and they are taking an interest in caring about her daughter, Applicant 3, and it seems as though her concerns about black magic and any other harm being enacted against her seem are purely speculative. The Tribunal explained it has doubts about there being a real chance of those things happening. The applicants did not respond.

2. The Tribunal acknowledged the applicant’s claims regarding being excluded from her family. It put to her that it held some doubts about whether she would be, given she does still maintain some kind of relationship. It also noted some doubt as to whether such exclusion would amount to serious or significant harm. Applicant 1 responded that she knew her family and how they feel, and the probability of what they might do, although it was hard to explain.

3. The Tribunal acknowledged Applicant 1’s claims about fearing harm from her broader community, but it put to her that it hadn’t seen any evidence indicating that persons in Sarawak, or within the Dayak community are subjected to harm because they have converted to Islam or married a Muslim person or had a child in the circumstances that she has, or married someone of a different ethnicity or citizenship. Applicant 1 responded that people do use black magic to harm others there, and there are many stories about it, but it is not making the news. The Tribunal invited the applicants to provide more information about this following the hearing, but it has now been more than a month since the second hearing and no further information has been received. 

   Findings on claims relating to religion and marriage

4. In conclusion, having regard to all of the above, while the Tribunal accepts there are administrative processes Applicant 1 would need to undergo to register her conversion and her marriage with Malaysian authorities, in their particular circumstances, the Tribunal does not consider this will be problematic. The applicant has already converted and the Tribunal finds she would willingly undergo the process to have her conversion registered and recognised, and her Islamic marriage has been solemnised and there is no apparent reason she would not be granted wali Hakim consent by a Syariah judge (if that is even deemed necessary). It is possible the applicants will encounter a fee for late registration, but the Tribunal is not satisfied the applicants who have been working in Australia, could not cover this. Further, even if they fail to register their marriage, given the solemnisation of their marriage was performed by an authorised religious marriage celebrant in accordance with the Islamic principles, they may still be considered as being married from the Islamic point of view. [22]

   [22] F.Y. Ngo & K. Dhaliwal, ‘Family law in Malaysia: overview’, Thomas Reuters: Practical Law, 1 October 2020 

5. The Tribunal is not satisfied that there is a real chance Applicant 1 will face the kind of problems arising for couples in inter-faith relationships or those whose marriage is otherwise unrecognised. The Tribunal does not accept that she will be unable to register her conversion and marriage and have them validly recognised under Malaysian law. It does not accept either that the need to go through the required processes (for conversion, updating her myKad and registering her conversion and marriage) amounts to, or would in any way involve serious or significant harm, nor that she would face a real chance or a real risk of such while undergoing or waiting for processes to be completed. The Tribunal does not accept there is a real chance or a real risk of Applicant 1 facing serious or significant harm for any reasons relating to her conversion or marriage registration.

6. The Tribunal does not accept either, that Applicant 1 will face any official consequences for the timing of Applicant 3’s birth or that Applicant 3 will be deemed under the law to be illegitimate (or that Applicant 1 would be viewed under the law as the mother of an illegitimate child). Nor does it accept there is a real chance of her being subjected to official consequences amounting to serious or significant harm for the registration issues discussed above, or for her delay in registering or re-registering her conversion or marriage.

7. The Tribunal notes that Applicant 1 already had some problems with her family before coming to Australia, because she supported her sister’s religious conversion and marriage, in opposition to other family members. It accepts that she may also encounter negativity directed towards her by members of her family and religious/ethnic community, who do not approve of her conversion and marriage to a Muslim and non-Dayek Indonesian man, and her marrying while pregnant, and having a daughter who is Indonesian and Muslim. She may even have to address some misconceptions about her circumstances. For example, it may not be immediately obvious to members of the community or broader society that she is a married woman, or a married mother. Even so, the Tribunal does not accept she will face a real chance or real risk of serious or significant harm over this.

8. As discussed above, noting she still maintains some relationship with members of her family it does not accept she would be excluded as she claims, and even if she were, the Tribunal does not accept this would amount to serious or significant harm (or to her facing a real chance or real risk of such). And as the evidence does not point to anyone in particular threatening or seeking to harm her or the other applicants through black magic, the Tribunal considers the claims about being harmed through black magic to be speculative, remote and not real. Nor does the country information or evidence support that her conversion, marriage, the timing of her marriage in relation to Applicant 3’s birth and her husband and daughter’s profiles (or the apparent absence of them) would result in her being targeted and subjected to serious or significant harm by members of her community, or the broader Malaysian society. The Tribunal does not accept there is a real chance or a real risk of this occurring. Not does it accept there is a real chance of anyone forcing her to leave her marriage, or to forget it.

9. Overall, the Tribunal finds that Applicant 1 does not have a well-founded fear of persecution in Malaysia for any reasons arising out of her religious conversion, marriage, daughter’s birth and familial profile and circumstances, nor the status of registrations, or her family’s and community’s views, or societal views relating to such things. The Tribunal also finds in relation to these matters that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to a Malaysia, there is a real risk that she will suffer significant harm. She does not meet s 36(2)(a) or s 36(2)(aa). For clarity’s sake, the Tribunal also finds that Applicants 2 and 3 do not meet s 36(2)(a) or s 36(2)(aa) in relation to these claims.

   Concerns about needing to care for sister

10. Applicant 1’s application form indicated that she needs to stay in Australia 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. While Applicant 1 maintains this was true, the circumstances have changed. They had an argument and fell out with each other over Applicant 1’s conversion and marriage to Applicant 2 because even though the sister herself converted for a marriage, her views and circumstances changed, and she does not support these things for Applicant 1. Although Applicant 1 gave evidence in the Tribunal hearings for her sister’s Tribunal case in 2020, they are no longer close, and they rarely speak any more.

11. The Tribunal accepts Applicant 1’s evidence on these matters. Given the circumstances, it finds that she is no longer seeking to stay in Australia for the sake of supporting this sister. Applicant 1 has not claimed she fears harm from this sister, or anyone else on the basis of previously supporting her, or the fact that they have fallen out. She has not claimed, and the information does not support that she faces a real chance or a real risk of any harm in Malaysia on the basis of those claims raised in her written application.

12. The Tribunal finds that neither Applicant 1 (nor Applicants 2 or 3) meet  36(2)(a) or s 36(2)(aa) in relation to these claims.

    Concerns relating to economic/financial problems and social problems

13. Applicant 1’s claims in relation to economic / financial problems and social problems are discussed in conjunction with the other applicants’ claims about this below.

    Possible travel ban

14. It arises on the material (from the DFAT report)[23] that Applicant 1 may be subject to a temporary travel ban after she returns.

    [23] DFAT, ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: also DFAT, ‘DFAT Country Information Report Malaysia’, 29 June 2021, 20210629092134

15. Information from DFAT indicates that thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return because of their absence. Authorities generally pay little attention to Malaysians who over‐stay their work or tourist visas or breach visa conditions in other countries. Failed asylum seekers are also unlikely to face adverse attention from the Malaysian government and the government would not generally know that they had claimed asylum.[24] However, under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries (whether or not they apply for asylum) may be blacklisted and prevented from further travel, this is normally for a period of up to two years. Cases are unlikely to come to attention unless the person is removed from another country or applies to renew a passport while overseas.[25]

    [24] DFAT, ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: also DFAT, ‘DFAT Country Information Report Malaysia’, 29 June 2021, 20210629092134

    [25] DFAT, ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: also DFAT, ‘DFAT Country Information Report Malaysia’, 29 June 2021, 20210629092134

16. Applicant 1’s passport has expired, and it is likely she will become known to the authorities if she applies for her passport renewal or is removed from Australia. However, the applicant has not at this point overstayed any visa and there is nothing to indicate she has breached or will breach any visa conditions. Given that, the Tribunal considers there is only a remote (and not real) chance that she would be subject to the ban on her passport and travel.

17. But even if the Tribunal is wrong about that, there is nothing to suggest that Applicant 1 would face any more serious consequences for any reason than the normal two year ban. The Tribunal notes that if her husband and daughter are in Indonesia, this would be a long time before she could leave Malaysia in order to visit them, however, there is nothing to indicate they would be denied visas or permission to enter Malaysia to visit her. The Tribunal is not satisfied that the temporary bans would amount to serious harm (nor significant harm for the purposes of complementary protection). Additionally, it is satisfied that any such penalties the applicant may face result from this matter involve an application of Malaysian law and there is no evidence before the Tribunal that such laws are discriminatory on their terms, are applied in a discriminatory manner or are selectively enforced. The Tribunal finds that any penalty in this respect would be the result of a law of general application applied to all Malaysians who overstay their visa or breach visa conditions in other countries and does not amount to persecution for the purpose of ss.5H(1) and 5J(1) of the Act.

18. The Tribunal finds that the application of a travel ban against Applicant 1 would not give rise to Applicant 1 (nor Applicants 2 or 3) having a well-founded fear of persecution.

19. As for Complementary Protection, similarly to the travel ban in relation to the education loan debt, there is no suggestion on the evidence before the Tribunal, that the relevant law that might apply to effect a travel ban in this circumstance are not lawful or that they are otherwise inconsistent with the International Covenant on Civil and Political Rights (ICCPR). They are generally applicable laws that apply to everyone in Malaysia and the evidence suggest that Applicant 1 would be discriminated against in the enforcement of such laws, nor in fact that she would suffer harm in their enforcement. As such, the Tribunal is not satisfied any repercussions the applicant would face as a result would amount to significant harm.

20. The Tribunal finds that that are not substantial grounds for believing that if a travel ban is applied, there is a real risk Applicant 1 would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia.

21. Accordingly, the Tribunal finds that the applicant does not meet s 36(2)(a) or s 36(2)(aa) in relation to this matter. For clarity’s sake, the Tribunal also finds that any travel ban applied to Applicant 1 would not give rise to a well-founded fear of persecution or a real risk of significant harm for Applicants 3 and 3 in relation to Indonesia.

    Concerns about Applicant 2 and Applicant 3 in Malaysia

22. The Tribunal 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 and Malaysian nationality.

23. Country information indicates that registration is one of the four pathways to Malaysian citizenship[26], and as noted above, the Tribunal has found (as the Department also found), found Applicant 3 has Indonesian and not Malaysian citizenship. The Tribunal has also found, that as a matter of fact, that if the applicants are not granted protection in Australia, Applicant 3 would go to Indonesia and reside there with her father, where she has citizenship and the rights that flow from it. It is possible that in future, Applicant 3 (and Applicant 2) may reside in Malaysia with Applicant 1, but the Tribunal does not consider that that will occur in the reasonably foreseeable future.

    [26]'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; J. C. Y. Liew, ‘Homegrown Statelessness in Malaysia and the Promise of The Principle of Genuine and

    Effective Links’, Statelessness and Citizenship Review, Volume 1(1), 95–135, 2019, p.104, available at

24. As such, and as Applicant 3’s receiving country is Indonesia, the Tribunal does not accept that there is a real chance or a real risk of Applicant 3 facing any harm in Malaysia in the reasonably foreseeable future. The Tribunal also finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of Applicant 3 being removed to Indonesia, she would face a real risk of any harm in Malaysia.

25. Applying the same reasoning, noting that Applicant 2’s receiving country is Indonesia, the Tribunal finds he does not face a real chance of any harm in Malaysia in the reasonably foreseeable future, and that there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Indonesia, he would face a real risk of any harm in Malaysia.

    APPLICANT 2 AND APPLICANT 3’S PROTECTION CLAIMS AGAINST INDONESIA

    Marriage and issues relating to Applicant 3 living in Indonesia

26. Although the applicants have referred to their marriage not being registered in Indonesia, they have not raised claims about there being any impediments, or that they fear harm on the basis of this registration not yet being effected. Country information does not suggest either, that persons in their situation would face issues or problems doing this, or that they would face a real chance or risk of any harm for any related reason.[27]

    [27] Article 56(1) of Law No. 1 of 1974 on Marriage; Article 37(1) of Law No. 23 of 2006 on Population Administration; Tampubolon Legal Solutions, ‘How to register a marriage held abroad in Indonesia’: tampubolonlegalsolutions.com/post/how-to-register-a-marriage-held-abroad-in-indonesia

27. Much like above, the Tribunal finds, as a matter of fact, that Applicant 2 would register his marriage in Indonesia. There would be administrative processes to comply with, but the information does not suggest he will face any impediments or that he or Applicant 3 would face a real chance of any harm for any reasons related to the marriage. And as noted above, while there is some question about the lawful position of inter-faith marriages, Applicant 3 has converted and there is no apparent reason why this would not also be accepted by Indonesia.

28. They may encounter some negativity directed from members of the family and religious/ethnic community, who do not approve Applicant 2’s marriage to Applicant 1, or have issues with them marrying while pregnant, and having a daughter who is has a Malaysian and Dayak mother. Like Applicant 1, Applicant 2 may even have to address some misconceptions about their circumstances.

29. However, the Tribunal does not accept Applicant 2 would be excluded as he claims, and even if he were, the Tribunal does not accept this would amount to serious or significant harm (or to his facing a real chance or real risk of such). Neither the country information or evidence from the applicants point to him or Applicant 3 facing a real chance or real risk of any serious or significant harm from the authorities, any family members, members of their community, or the broader Indonesian society for any reason connected with the marriage, mother’s profile or their familial circumstances. The Tribunal finds that they do not face a real chance or real risk of serious or significant harm for these reasons.

30. For clarity’s sake, Applicant 1 also does not face a real chance of real risk of harm in Malaysia for these reasons.

31. The applicants do not meet s 36(2)(a) or s 36(2)(aa) for these reasons.

    Issues relating to Applicant 3 living in Indonesia

32. The Tribunal queried if the applicants had any concerns about their daughter living in Indonesia. Applicant 2 said it would be very hard as his family has a very dim view of their daughter, as a result of his marrying someone of a different culture. She will not be welcome, and he foresees she would have a very difficult life. Applicant 1 said that she rejects the idea of her daughter being sent to Indonesia. She does not know the culture there, and her identity and legal identity has been formed in Australia. Applicant 1 also said she worries about how her daughter might be treated by her older sibling in Indonesia. Both parents also referred to Australia being a safe environment where she has opportunities, a decent life and education.

33. The Tribunal accepts that there will be some adjustment challenges for Applicant 3. She is [age] years old and has never been to Indonesia, and she may be faced with separation from her mother. However while Applicant 1 raised concerns about she might be treated by her [sibling] and Applicant 2 referred to his family having a dim view and not welcoming her, they have not claimed that she has been specifically threatened, or that they believe someone will try to harm her, for reasons of her having been born and lived in Australia and having a Malaysian mother and/or a mother of Dayak ethnicity – or for any other reasons. There is no credible evidence she will subject to, or face a real chance or real risk of, any serious or significant harm arising from any deliberate or intentional act or omission or systematic and discriminatory conduct.

1. The Tribunal considers that Applicant 3 will be supported in her transition by her father, who despite having been away almost 10 years, the Tribunal considers will have enough familiarity with the environment to ensure she is safe and supported.

2. In relation to the concerns about her education, DFAT advises that Indonesians have a right to free basic education up to year nine and that there are few barriers to accessing this, though the quality of education varies. The Tribunal acknowledges that the applicants are concerned about Applicant 3 not having the same educational opportunities as she would have access to in Australia, but there is nothing indicating she would be denied an opportunity to engage in schooling for any reason. The Tribunal finds that any reduced educational opportunities or quality she may have would not amount to serious or significant harm (or a real chance / risk of such).

3. Overall, the Tribunal does not accept that there is a real chance or a real risk of Applicant 3 (nor Applicant 2) facing persecution or anything which would amount to serious or significant harm in Indonesia now or in the reasonably foreseeable future. Nor does the Tribunal accept this in relation to Applicant 1 in Malaysia.

   Fear of unregistered money lenders

4. Applicant 2 first raised fears of unregistered money lenders in his protection visa application lodged in December 2019. Applicant 2 said he had left Indonesia because he and his family members were being harassed and constantly threatened by unregistered moneylenders demanding payment. He said they would visit their home and shout vulgarities and threaten kidnapping. They also splashed his house and car with paint. He said they were constantly watching him and believed they would find him anywhere in the country. He was scared they were going to harm him and his family, or that they might hire local gangsters and thugs to do it. He said he did not believe he would be protected as the authorities were in the lenders’ pockets.

5. At the (written) invitation of the delegate in May 2020, Applicant 2 provided further details. He said his ex-wife had borrowed a large sum of money from unregistered money lenders for her business affairs, and to finance his travel to Australia. He said sent her repayment money from Australia but although she lied and said she had repaid the debt with monthly instalments, he learned that for his first year in Australia she had run away with his money and was cheating on him with another man. He said he had nothing; she took everything from him including his property. She also borrowed money from family members and others who were demanding he repay them. He said he was unable to provide evidence of the loan because it had been in his ex-wife’s name, and they had divorced in 2017. He said he was threatened by the lenders and didn’t want to return to Indonesia because of this, and because he had lost his wife and property.

6. Applicant 2 spoke to the Tribunal about this matter in the hearings in 2024, and by this time, he confirmed that the debt accrued by his ex-wife has all been repaid. And while he and his parents had also borrowed money to enable him to come to Australia, this has also been repaid. The applicants confirmed that the only debt they are repaying between them is for Applicant 1’s education loan (PTPTN loan). He has indicated that his fears of returning now relate to his marriage and family circumstances with Applicants 1 and 3 and a custody dispute over his daughter who lives in Indonesia.

7. The Tribunal is satisfied that the fears raised in the visa application in 2019 have dissipated. There evidence does not suggest that the moneylenders have continued to make demands for money or have otherwise maintained an interest in Applicant 2, or his remaining family members in Indonesia, following the repayment of the debt. Nor does it suggest that there are any threats to the applicants’ safety or wellbeing arising from the other debt which has also now been repaid, nor from Applicant 1’s PTPTN loan.

8. The Tribunal finds that that Applicants 2 and 3 do not have a well-founded fear of persecution relating to any of these reasons and that there is not a real risk of their suffering significant harm as a necessary and foreseeable consequence of removal to Indonesia. For clarity’s sake, the Tribunal also finds Applicant 1 does not have a well-founded fear of persecution and does not face a real risk of significant harm for these reasons, in Malaysia.

9. The applicants do not meet s 36(2)(a) or s 36(2)(aa) in relation to these claims relating to the unregistered money lender, or the money borrowed for Applicant 2 to come to Australia, or any debts. 

   Fears arising from custody dispute over Applicant 2’s eldest daughter

10. Applicant 2 has raised claims to the Tribunal relating to custody of his daughter from his previous marriage in Indonesia (his eldest daughter).  He said she was only [age range] old when he left Indonesia, and she is now [age] years old and lives with his parents-in-law. He said his relationship between him and his ex-wife has been very poor. His brother who mediated between them for several years and managed to keep things civilised between them, passed away in around 2020 and since then the relationship further deteriorated. He fears returning to Indonesia and not being able to have access to, or custody of, his daughter. He said that if he returns, he will try to get access and custody, but his father-in-law has threatened he will only succeed over his dead body and so he believes there will be lethal consequences. Applicant 2 also suggested there could be risks for Applicant 3 if the situation ends badly. He and Applicant 1 hope they will be able to bring the daughter over from Indonesia to live with them in Australia.

11. When asked about his contact with these family members, Applicant 2 said that he speaks with his daughter and ex-mother-in-law (her grandmother) and has always sent money for her care. But he has not spoken with his father-in-law in roughly nine years. He has no contact whatsoever with his ex-wife.

12. The Tribunal queried why Applicant 2 thought the situation could become so serious that it would be fatal. He responded that his brother had once angrily taken his daughter to their own family’s village for a visit and the father-in-law opposed his taking her there and threatened that Applicant 2 should be careful if he returns to Indonesia. 

13. The Tribunal queried what Applicant 2 would actually do about the situation with his daughter if he returned to Indonesia. He replied that he will try to go get his daughter and he will have a troublesome, physical confrontation with his ex-wife’s family. He said her brothers are police and soldiers so it will be hard for him to succeed. He said he can only see danger and risk if he returns to Indonesia. The Tribunal asked him why he wouldn’t try a legal process to obtain custody of his daughter. He replied that his father-in-law behaves like mafia and has connections; if he tries a legal avenue, his father-in-law will do something, and will arrange for someone to shoot him. The Tribunal noted the applicant had not seen or spoken to his father-in-law in nine years and queried the applicant as to why he believes his father-in-law will act violently towards him. Applicant 2 replied that he knows his father-in-law’s character and behaviour; according to his ex-wife, his father-in-law once stabbed someone and went to jail for it. The Tribunal noted that none of these claims about custody dispute or issues with his father-in-law had been raised in his application, or in his written response to the delegates questions. Applicant 2 responded that he had been under pressure at the time and was worried that he might be apprehended so he was quickly lodged the application with the help of a friend, but they had missed some information.

14. The Tribunal shared with the applicants that it doubted whether Applicants 2 and 3 would face a real chance of serious or significant harm if they returned/lived in Indonesia.

15. It put to them that that the main issue appeared to relate to a potential conflict with Applicant 2’s father-in-law, but it doubted that the situation would play out in the manner described and doubted that it would result in them facing a real chance of serious harm, or real risk of significant harm.

100.   It put to them that it doubted Applicant 2’s claim that he would try to go and take his daughter in the manner described knowing that it might ignite a conflict with her grandfather she has been living with. The Tribunal shared with the applicants its impression that Applicant 2 is a father who cares about his daughter in Indonesia, who makes and effort to provide for her and thinks about her future and would ultimately try to do the best thing for her, whether he returned to Indonesia or lived elsewhere. As such, the Tribunal shared that it considered that Applicant 2’s claim that he would go and take his daughter might be an exaggeration, as it rather suspected he would exercise more caution and would try to communicate with the family about how he could have a closer relationship with his daughter. Further, the Tribunal put that it seemed speculative that the father-in-law would react violently when they haven’t spoken in nine years and noting that Applicant 2 seems to have a good relationship with his daughter and her grandmother (the father-in-law’s wife).The Tribunal noted from the applicants’ body language that they disagreed with the information put, though they did not offer a response at that time. The Tribunal acknowledged this, and reminded the applicants that it would reflect on the situation again, and would consider any further response, whether during the hearing, or in the two weeks following the hearing. They indicated that they understood, but no further information has been received.

101.   Having reflected on all the issues, while the Tribunal accepts that Applicant 2 is concerned about custody arrangements with his daughter, consistent with what was put to the applicants, the Tribunal finds that Applicant 2 has exaggerated on his claims and that as a matter of fact, Applicant 2 would exercise caution and would try to communicate with the family about how he could have a closer relationship with his daughter. It does not accept he would go and try to take her, and it finds that the chance that the father-in-law, brothers-in-law or other family members would react violently or would try to harm Applicant 2 or Applicant 3 is entirely speculative, and remote and not real.

102.   The Tribunal accepts that it will be hard for Applicant 2 to return to Indonesia and not be able to live with, and have custody of, his eldest daughter, but it does not accept this will (for Applicant 2, Applicant 3) amount to, or result in, a real chance or real risk of any serious harm as it is contemplated in the Act, or significant harm as it is specifically defined in the Act. Applicants 2 and 3 do not meet s 36(2)(a) or s 36(2)(aa) in relation to these claims.

103.   The Tribunal also finds Applicant 1 does not meet s 36(2)(a) or s 36(2)(aa) in relation to this matter, in Malaysia.

ALL APPLICANTS’ FEARS RELATING TO ECONOMIC AND SOCIAL PROBLEMS

104.   In her application form, Applicant 1 raised concerns about economic and social problems in Malaysia. She mentioned being a former graduate who was unemployed for over a year before coming to Australia. She said that as she did not have a regular job and her sister had come here due to her own problems, she decided to come to care for her sister in Australia. She also referred to wanting to stay in Australia because it is a country concerned with people’s welfare and safeguarding rights.

105.   Regarding her economic circumstances, at the first hearing, she that unbeknownst to her at the time, her parents had taken out a loan to finance her studies. She said she now needs to repay the loan (MYR [amount] is still owing) and help her parents with some other debts and pay for their living costs. When asked about her debt situation in the second hearing, Applicant 1 said she has now repaid one debt, but that she is still repaying money for her education loan in instalments to the PTPTN in Malaysia. The applicants confirmed in the second hearing that the only debt they are repaying between them is for Applicant 1’s education loan (PTPTN loan).  

106.   The Tribunal accepts that Applicant 1 was unemployed in the year leading up to coming to Australia in 2018. In Australia, she has done various jobs in [specified] work. In addition to her daughter, she and her husband also send money to contribute to supporting their parents, Applicant 2’s daughter and other family members.

107.   Applicant 2 also spoke about the challenges he and the applicants would face in Indonesia. He said it would be hugely difficult for him to start over again in Indonesia. He said that life was very hard there for him; he lived below the poverty line. He had to borrow money to come here, but his wellbeing has improved.

108.   The Tribunal acknowledged the applicant’s claims regarding their economic circumstances, and their concerns about how they would support themselves, their daughter and other family members. But, as it raised with the applicants, it did not appear that any economic harm that they may face would arise because of their race, religion, nationality, political opinion or membership of a particular social group. It put to them that it did not seem that any of these five reasons are reasons they wouldn’t be able to obtain work and earn a living and support themselves and their family. Further, the Tribunal explained that the complementary protection criteria is aimed at protecting people from intentional harm by other people, rather than from threats and conditions that are faced by the population generally, for example because of the economy or employment situation. While the Tribunal acknowledged that the applicants may face difficulties to re-establish themselves in their countries and try to find work and support their family members, it explained that this may not trigger Australia’s protection obligations. The applicants did not respond, but the Tribunal reminded them that they could still provide information in the two weeks following the hearing, but no further information has been provided.

Findings

PTPTN Education loan debt

109.   The Tribunal accepts that Applicant 1 still needs to repay her PTPTN education loan. However, she has not suggested that she has previously defaulted or been blacklisted or suffered any harm or penalty arising from her circumstances with the loan and the Tribunal does not accept that if she returned to Malaysia, Applicant 1 would be unable to find some work and continue contributing to the repayment of the debt. In the event that she defaulted, the Tribunal is not satisfied from any evidence provided by the applicants, nor from the Ministry of Higher Education’s website for the PTPTN Education Loan Scheme, that Applicant 1 would be treated in a discriminatory manner, or that she would be blacklisted in any way or face a real chance of any penalty that would amount to serious harm, nor a real risk of any penalty that would amount to significant harm.

110.   There are enforcement actions that can be taken against those who default, including legal proceedings and a ban on departure[28], but as with the travel ban discussed above, the Tribunal is satisfied that any such penalties Applicant 1 may face arising from non-payment of the education loan would result from the application of Malaysian laws and there is no evidence before me that such laws are discriminatory on their terms, are applied in a discriminatory manner or are selectively enforced. The Tribunal finds that any penalties in this respect would be the result of a law of general application applied to those who default on the government education loans and does not amount to persecution for the purpose of ss.5H(1) and 5J(1) of the Act.

[28] DFAT, ‘DFAT Country Information Report Malaysia’, 29 June 2021, 20210629092134; Malaysian Ministry of Higher Education, ‘My PTPTN: Repayment FAQs’ as at 14 March 2023: Portal Rasmi PTPTN - Soalan Lazim or type="1">

The Tribunal finds that in relation to the education loan debt, Applicant 1 does not have a well-founded fear of persecution under s 5J(1), is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).

112.   As for Complementary Protection, under Australian law, acts or omissions arising only from, inherent in, or incidental to, lawful sanctions that are not inconsistent with the ICCPR will not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. There is no suggestion on the evidence, that the relevant laws that might apply in this circumstance relating to non-payment of a government education loan are not lawful or that they are otherwise consistent with the ICCPR. They are generally applicable laws that apply to everyone in Malaysia if they take out such education loan and the applicants have not suggested and nor does the evidence suggest, that she would be discriminated against in the enforcement of such laws, nor in fact that she would suffer harm in their enforcement. As such, the Tribunal is not satisfied any repercussions the applicant would face as a result would amount to significant harm.

113.   The Tribunal finds that there are not substantial grounds for believing that in relation to the education loan debt, there is a real risk Applicant 1 would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. Accordingly, the Tribunal finds that neither she (nor Applicants 2 or 3) meet section 36(2)(aa) in relation to this matter.

Other economic/financial difficulties

114.   The Tribunal acknowledges that Applicants 1 and 2 will face financial difficulties in returning to both Malaysia (Applicant 1) and Indonesia (Applicants 2 and 3).

115.   However, as discussed with them, the Tribunal is not satisfied that any economic harm that they may face would arise because of their race, religion, nationality, political opinion or membership of a particular social group.

116.   The Tribunal has considered DFAT’s most recent country information reports on Malaysia[29] and Indonesia[30] and it is satisfied that the information in those reports does not point to someone being denied work or opportunities to earn a living or access basic services on the basis of any reasons that would be connected with the applicants’ profiles and circumstances. Given this and based on the personal circumstances of the applicant as reflected above and in the discussions at hearing, the Tribunal finds that any hardship the applicants might experience on return arise from the economic conditions in Malaysia and Indonesia and usual competition for employment, not from any refugee reason mentioned in s.5J(1)(a) or from any systematic and discriminatory conduct or intentional acts or omissions to cause any of them harm.

[29] Australian Department of Foreign Affairs and Trade, ‘DFAT Country Information Report - Malaysia’, 24 June 2024, available at: accessed 26 September 2024.

[30] Australian Department of Foreign Affairs and Trade DFAT, ‘DFAT Country Information Report - Indonesia’, 24 July 2023, available at:  The Tribunal finds that in relation to these matters, the applicants do not meet the criteria in s 5J(1)(a) of the Act. Nor do they meet the criteria in s 5J(4)(a) or (c) of the Act. They do not meet the criteria in s 36(2)(a) in relation to their economic and financial claims.

118.   Further, for the purposes of the complementary protection assessment, the Tribunal finds that the applicants do not face a real risk of facing the death penalty or being arbitrarily deprived of their lives or being tortured. Nor do they face a real risk of being subject to any intentional acts or omissions that would result in any of them suffering cruel or inhuman treatment or punishment or degrading treatment or punishment, in either Malaysia or Indonesia.

119.   Further, the Tribunal considers that the risk of harm to the applicants’ economic circumstances arise out of the state of the Malaysian and Indonesian economies and competition in employment, and these are things faced by the population of Malaysia and Indonesia generally, rather than by the applicants personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the applicants will suffer significant harm.

120.   The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant 1 being removed from Australia to Malaysia and Applicant 2 and 3 being removed from Australia to Indonesia, there is a real risk of any of them suffering any harm that would amount to significant harm.

121.   Accordingly, the Tribunal finds that the applicants do not meet s 36(2)(aa) for reasons relating to economic or financial hardship.

ALL APPLICANTS’ CONCERNS ABOUT SOCIAL PROBLEMS / HUMAN RIGHTS ISSUES

122.   The Tribunal has considered the (very general) comments made by the applicants in relation to Australia’s respect for people’s welfare and human rights. It has considered their claims and personal circumstances, but the evidence does not indicate that any of them face a real chance of serious harm or a real risk of significant harm arising from social problems, or welfare issues in Malaysia, or Indonesia, nor from failing in their countries’ human rights frameworks.

123.   The Tribunal finds that in relation to these claims, the applicants do not have a well-founded fear of persecution, nor a real risk of facing any harm that would amount to significant harm.

124.   The Tribunal finds that they do not meet 36 (2)(a) in relation to such matters.

ALL APPLICANTS’ FEAR OF SEPARATION FROM EACH OTHER

125.   The Tribunal acknowledges the applicants want to remain together as a family. But as it explained to them in the second hearing, if their case is unsuccessful before the Tribunal and the courts (if they appeal), the reality may be that they may be removed to different countries – Applicant 1 to Malaysia and Applicants 2 and 3 to Indonesia. The Tribunal explained to them that their separation from each other would not of itself give rise to protection under the refugee or complementary protection criteria.

1. The Tribunal accepts that if this eventuates, it will be emotionally difficult for the applicants, and may add to their financial challenges if they are not living together and sharing resources and that a reunification would involve additional travel costs at the very least. However being separated from a partner and/or child does not give rise to a well-founded fear of persecution as defined in s 5J of the Act, as the fear of persecution is not for one or more reasons set out in s 5J(a) and does not involve systematic and discriminatory conduct as required by s 5J(4)(c).

127.   With regard to complementary protection, court authorities – specifically judgments in SZRSN v MIAC and GLD18 v MHA – confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A). [31]

[31] SZRSN v MIAC [2013] FCA 751 (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 WZARI v MIMAC [2013] FCA 788

128.   The applicants do not meet s 36(2)(a) or s 36(2)(aa) for the reason that they are facing the prospect of separation.

CONCLUSIONS

129.   The Tribunal has sympathy for the applicants. It is clear that they are in a genuine, loving relationship and are successfully raising their daughter together in Australia. However, the Tribunal is not satisfied Applicant 1  will face a real chance of serious harm or a real risk of significant harm from anyone in Malaysia for any one of any combination of the reasons given, and nor will Applicants 2 and 3 in Indonesia.

130.   Even when considered cumulatively, the Tribunal is not satisfied that any of the applicants have a well-founded fear of persecution, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to their receiving countries of Malaysia (Applicant 1) and Indonesia (Applicants 2 and 3), that there is a real risk that any of them will suffer significant harm.

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

1. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa). 

133.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.  

DECISION

134.   The Tribunal affirms the decision not to grant the applicants protection visas.

Jessica McLeod
Member

ATTACHMENT A – MANDATORY CONSIDERATIONS

135.   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. In this review, these include reports on Malaysia and Indonesia.

ATTACHMENT B - CRITERIA FOR A PROTECTION VISA

136.   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.

137.   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.

1. 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).

139.   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 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 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)   that is not inconsistent with Article 7 of the Covenant; or

   (d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)   that is not inconsistent with Article 7 of the Covenant; or

   (b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)   for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)   for the purpose of intimidating or coercing the person or a third person; or

   (d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)   a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H  Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)   in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note: For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J   Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)   significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)   denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

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

   5K  Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

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

   5L   Membership of a particular social group other than family

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

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

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

   (c)   any of the following apply:

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

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

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

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

   5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

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

   …

   36   Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

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

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

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

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

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

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

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

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

   (2A)A non‑citizen will suffer significant harm if:

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

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

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

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

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

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

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

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

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

   …

   
   

Effective Links’, Statelessness and Citizenship Review, Volume 1(1), 95–135, 2019, p.104, available at