1835666 (Refugee)

1835666 (Refugee) [2024] AATA 3293 (23 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Latifa Al-Haouli (MARN: 1175724)
CASE NUMBER:  1835666
COUNTRY OF REFERENCE:                   Malaysia
DECISIONThe Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
CASE NUMBER:  2012404
COUNTRY OF REFERENCE:                   Indonesia
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 36(2)(b) of the Migration Act.
MEMBER:Dr Gabrielle Simm
DATE:23 August 2024
PLACE OF DECISION:  Melbourne

Statement made on 23 August 2024 at 11:42am
CATCHWORDS
REFUGEE – protection visa – Malaysia/Indonesia – separate applications by husband and wife – written claims made by other people without applicants’ knowledge of contents – religion and membership of particular social group – inter-religious marriage – husband a Malay Muslim, wife an Indonesian Hindu – met and recently married in Australia – families’ acceptance as long as applicants are in Australia – genuine relationship accepted – country information – syariah law at state level in Malaysia – non-Muslim must convert before marrying Muslim – societal attitudes – husband eligible for initial limited stay permit in Indonesia if marriage recognised there – recent Supreme Court policy against registration of inter-religious marriages – law complex and contested – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(c), (5), (6), 5LA, 36(2)(a), (b), (3), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant husband, who claims to be a citizen of Malaysia, applied for the visa on 20 July 2018.
The applicant wife, who claims to be a citizen of Indonesia, applied for the visa on 30 January 2018.
The applicants appeared before the Tribunal on 21 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from each applicant in support of the other’s application. The hearing was assisted by an interpreter in the Bahasa Indonesia/Melayu and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Personal Background of the applicants
The applicant husband
The applicant husband is a [Age] year old man born in Kota Kinabalu, Sabah, Malaysia. Based on documentary evidence, statements and oral evidence at hearing, the Tribunal accepts the following to be true:
·The applicant husband identifies as being of Malay ethnicity and a Muslim. He speaks Malay and English.
·His father and mother separated about 24 years ago. His father runs his own business in Kota Kinabalu. His mother is retired and lives in Kedah. He contacts his mother almost every day and sends her money sometimes. He is also in contact with his father.
·He is the [birth order] of [children], including [sisters] and one brother. His brother lives in Melbourne and they work together. His sisters are all married with children. [Some] of them live in Sabah and one lives in Johor. He contacts them once or twice a week.
·Since he arrived in Melbourne, he has had several jobs as [an occupation] in various [workplace].
The applicant wife
The applicant wife is a [Age] year old woman born in Bali, Indonesia. Based on documentary evidence, statements and oral evidence at hearing, the Tribunal accepts the following to be true:
·The applicant wife identifies as being of Balinese ethnicity and Hindu. She speaks Balinese, Bahasa Indonesia and English.
·Her parents live in [Location], Bali, Indonesia. Her father is a farmer and her mother works at home. She speaks with them by video call twice a week and she sends them money twice a month.
·She is the [birth order] of two children. Her brother lives in [Location] with his wife and [children]. She is in contact with him twice a week.
·She completed high school in 2012 and then completed a four year university course in [Subject] in Denpasar.
·Since arriving in Melbourne, she has worked in a range of jobs, including [job tasks and workplaces]. Since February she has been employed [doing a job task].
Protection visa applications
The applicant husband
In his protection visa application, the applicant husband claimed that he had been constantly harassed by gangs. His friend had made him an offer to get involved in a business but when he went to see the boss, he realised that it was a gang involved in illegal activities so he declined to participate. The boss’ sidekicks beat him up and threatened to kill him if he reported it to the police. He feared harm from the gang due to his knowledge of its activities. On 28 November 2018 the delegate of the Minister refused his application on the basis that effective protection was available in Malaysia.
In his statement received by the Tribunal on 20 June 2024, the applicant husband said that he was unaware of these claims and that he only found out about them when his representative lodged a request for his file under Freedom of Information (FOI) legislation. The claims were not his claims. His claim is that he is a Muslim man married to a Hindu woman and that such a marriage is regarded as unlawful in Malaysia and Indonesia.
The applicant wife
In her application for a protection visa, the applicant wife claimed to fear harm from money-lenders. On 16 July 2020 the delegate of the Minister refused her application as it lacked detail. In her application for review, the applicant wife provided a copy and translation of and acknowledgement of indebtedness in the amount of RP300,000,000 to be repaid within 20 months from 2 May 2016.
At hearing the applicant wife gave evidence that this claim was added by someone who helped her apply for the protection visa, saying that it was a way to work in Australia, but it was not her claim. Her current claim is that she is party to a marriage that is not recognised under Indonesian law which requires both parties to be of the same religion. She fears being punished and facing social and institutional discrimination as a result. Any children the applicants might have would also face difficulties due to the marriage not being recognised by Indonesian authorities.
Applications for review
On 6 May 2024 the Tribunal received notification from the applicants’ representative of her appointment. She advised that the applicants were now married and requested that their review be conducted jointly. The applicants confirmed at hearing that they agreed to a joint hearing and decision.
On 7 June 2024 the Tribunal received a 31-page submission in support of their review application. This included legal argument, a copy of their Australian marriage certificate, and twelve pages of photos of the applicants in a range of settings. The Tribunal cancelled the hearing scheduled for 11 June and rescheduled it for 21 June.
On 20 June 2024 the Tribunal received family information, education and travel history, and address history for the previous 10 years as well as undated, unwitnessed statements from each applicant.
At hearing the applicant husband confirmed his statement in oral evidence summarised as follows:
·The applicants met at a friend’s party in 2018. They spent time together over about six months and developed feelings for one another. In February 2019 they decided to move in together.
·They married in a civil ceremony celebrated by an Iman in Melbourne on [Date]. The applicant husband’s [brother], his cousin and both applicants’ friends attended. The applicants supplied photos of themselves at the ceremony and at the reception.
·The applicant husband’s family in Malaysia knows that he is married to a Hindu woman. Because they are in Australia, his family accept this. However, it would be different if the applicants had to go and live in Malaysia with them. Syariah law would not recognise their marriage in Australia and their neighbours and friends would shame the applicant husband’s family if they let the applicants live with them.
·If the applicants had a child, they would let the child decide which religion the child would like to follow.
·The applicant husband had responsibility for the family. He would like the family to be able to live freely and in peace without being disturbed by the authorities with legal problems.
The applicant wife confirmed her statement in oral evidence summarised as follows:
·The applicants met at the party of their friend [Ms A] in June 2018. They became friends and they spent time together on a daily basis. With time they fell in love and their relationship developed from there.
·If the applicants had to go to Indonesia, they would be punished as their marriage is not recognised or registered in Indonesia. They would be separated by the community and nobody would support them.
·The applicant wife’s parents are aware that her husband is Muslim and they agreed to the marriage provided that the applicants were living in Australia. However, her parents would not let them stay with them as their marriage is illegal in Indonesia. They would not be able to stay with her brother either.
·The applicant husband has not met his parents-in-law in person but has spoken to them by phone and video call.
·The applicant wife has met her husband’s parents by video call but not in person. They agreed to their son marrying a Hindu woman in Australia but would not have agreed if they were in Malaysia.
·They would not be able to stay with any of the applicant husband’s sisters in Malaysia as their marriage is illegal in Malaysia.
·The applicant wife would not be able to find work if she had to return to Indonesia because her marriage is not valid. Employers would find out about the marriage because she and her husband would be living together.
·If the applicants had a child, they would need to register their child. The employers would also find out about their marriage that way. The applicants would let the child decide on their own religion.
·The applicant wife should follow her husband and would like to have a free and peaceful life.
On 15 July 2024 the representative forwarded a 7-page submission addressing the issues of whether the applicants’ marriage would be recognised in Indonesia and whether the applicant husband would be entitled to reside in Indonesia as requested by the Tribunal at hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are refugees; or entitled to complementary protection; or a member of the same family unit as a person who holds a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of Nationality
The applicant husband provided a copy of his apparently genuine Malaysian passport to the Department. He has at all times stated that he is a citizen of Malaysia and has been assessed by the Department on that basis. The Tribunal finds that the applicant is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.
The applicant wife provided a copy of her apparently genuine Indonesian passport to the Department. She has at all times stated that she is a citizen of Indonesia and has been assessed by the Department on that basis. The Tribunal finds that the applicant is an Indonesian citizen and has assessed her claims against Indonesia as her country of nationality and the receiving country.
Credibility/s423A
Section 423A of the Act requires the Tribunal is required to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred.
The interfaith relationship between the applicants developed in Australia after they submitted their protection claims, hence they could not have raised this issue with the primary decision maker. The Tribunal is satisfied this is a reasonable explanation for why these claims were not raised earlier and declines to draw an adverse inference.
The Tribunal accepts the challenges facing applicants for protection visas who are newly arrived and required to fill out a complex and lengthy form without English language skills and relying on a third party. The applicants lacked English literacy at the time they submitted their applications for protection visas and were unrepresented until shortly before their hearing at the Tribunal. They first became aware of the false claims submitted on their behalf when their representative was granted access to their files pursuant to an FOI request. At hearing each applicant independently gave frank, unembellished and spontaneous evidence which was consistent with the evidence given by the other applicant and the documentary evidence. In these circumstances the Tribunal declines to draw an adverse inference about their credibility.
The applicant husband’s refugee claim
DFAT’s June 2024 Country Information Report on Malaysia provides the following analysis of the legal status of interreligious marriages:
Family Law
3.60 The Constitution provides men and women equal rights to inherit, acquire, own, manage, or dispose of property, including land. While federal civil law applies to all Malaysian women, syariah applies to Muslim women at the state level in relation to family matters, including succession, betrothal, marriage, divorce, adoption and guardianship. The national Guardianship of Infants Act (1961) was amended in 1999 to give mothers equal parental rights to fathers, however only four states have extended the provisions of the act to Muslim mothers. A federal cabinet directive was issued in September 2000 allowing mothers to sign all documents related to their children, to ensure all Malaysian women, irrespective of race and religion, are conferred the right of equal guardianship. The government does not recognise marriages between Muslims and non-Muslims and considers children born of such marriages illegitimate.
3.61 Under syariah law, the consent of only one parent is required to convert a child to Islam, allowing the Muslim parent to gain sole custody through the syariah courts, which do not permit the participation of non-Muslims. Syariah court rulings have affected non-Muslims, who have been left with no ability to defend their position or appeal the court’s decision. In January 2018, the Federal Court, declared the consent of both parents was required to issue a certificate of religious conversion for a child. However, according to the US State Department’s 2022 Freedom of Religion Report, cases of unilateral conversion by one parent persist. In May 2023, Hindu mother Loh Siew Hong failed in her bid to challenge the unilateral conversion of her three children to Islam by her former husband in the High Court.
…
3.64 A non-Muslim (male or female) must convert to Islam before marrying a Malaysian Muslim. The process differs from state to state and is determined by the relevant religious authorities. Conversion to Islam is procedurally straightforward and is reflected on the convert’s MyKad. To revert to an original faith is harder, requires judicial review, and may be refused.
….
State Islamic Religious Departments
5.9 Religious enforcement officers, known locally as religious police, have a range of powers depending on the syariah laws that apply in each state. Religious enforcement officers can detain and charge individuals to go before syariah courts for a range of reasons, including indecent dress, alcohol consumption, the sale of restricted books, or for being in close proximity to members of the opposite sex [khalwat]. State level syariah imposes a range of penalties. Although state religious officers have no jurisdiction over non-Muslims, their considerable range of powers means their actions can directly impact non-Muslims, who may, for example, feel compelled to comply with Islamic dress codes.
5.10 Relevant state religious departments and the RMP [Royal Malaysian Police] can investigate misconduct by religious enforcement officers, however the RMP is reportedly generally unwilling to involve itself in state religious matters. Most complaints against religious enforcement officers have been related to the mistreatment of transgender people, domestic violence victims and non-Muslim parents in situations of unilateral child conversion to Islam.

Country information indicates that Islamic doctrine in Malaysia places high cultural value on the institution of marriage and that an unmarried Muslim in a close relationship with a non-Muslim would likely be in breach of various Syariah law provisions.[1] Parties to an unregistered marriage are considered to be unmarried by the Islamic Religious Departments. Khalwat (illicit proximity) and zina (unlawful sexual intercourse) are Syariah law violations that are punishable with a fine or imprisonment, or both.[2] Penalties for immoral offences vary between Malaysian states in accordance with each state’s Syariah law.
Real chance of persecution
[1] Nurul Huda Mohd, ‘Intimacy under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’ (2020) 18 Journal of Women of the Middle East and the Islamic World 336.
[2]
Section 5J(1)(b) of the Act requires that there be ‘a real chance’ that, if the applicants returned to Malaysia, they would be persecuted for a refugee reason set out in s5J(1)(a).
Based on credible country information, the Tribunal finds that there is real chance that state religious departments and the wider Malaysian Muslim community would not recognise the applicants’ interfaith relationship and marriage. The Tribunal finds that the applicant wife’s decision not to convert to Islam would prevent their marriage in Australia being officially recognised and registered in Malaysia because her conversion would be a prerequisite to that registration and recognition. The Tribunal concludes that if the applicants return to Malaysia, their marriage will not be registered and will be unable to be registered.
The Tribunal is satisfied that the offences of khalwat and zina in state and federal territories-based Syariah law in Malaysia mean that if the applicants attempted to live as a married couple in Malaysia, the applicant husband would be liable for prosecution. As a Muslim party to an interreligious marriage, the applicant husband is exposed to a real chance of being deprived of his liberty and/or potential financial penalty.[3] The illustrative examples of serious harm in s 5J(5) includes a threat to a person’s liberty (emphasis added). As evidenced by local media reports of khalwat, there is a real chance that now or in the reasonably foreseeable future, he will be reported for, or discovered to be in, an unlawful relationship.[4] The country information further indicates growing Islamification and ethno-nationalist sentiments in Malaysia such that social attitudes towards interfaith relationships, particularly those involving a Muslim partner, are hardening.[5] In those circumstances, he would be exposed to the harmful outcomes to which I have referred. I cannot dismiss, as remote, the prospect of those being inflicted on him.
[3] Syariah Criminal Offences (Federal Territories) Act 1997, ss 23 and 27: Syariah Criminal Offences (Federal Territories) Act 1997 (commonlii.org). The penalty for unlawful sexual intercourse [zina] is RM 5000, or not more than 6 strokes of the cane, or not more than 3 years’ imprisonment, or to any combination thereof: s23(1). The penalty for khalwat is a fine of not more than RM 3000, or not more than 2 years’ imprisonment or both: s27.
[4] E.g. T'ganu Syariah Court issues first caning sentence for khalwat (malaysiakini.com), Malaysiakini, 19 February 2024; Zaid: Clearer definition of khalwat needed, suspicious minds always see things differently (nst.com.my), New Straits Times, 20 February 2024; Single mother is first woman khalwat offender to be whipped in Terengganu (nst.com.my) 17 April 2024; Couple rams police car in fear of being caught for 'khalwat' (nst.com.my), New Straits Times, 30 June 2024.
[5] DFAT June 2024 Report, 3.49-3.51; Teck Chi Wong and Garry Rodan, ‘Malaysia’s new struggle over state power’ New Mandala, 30 November 2022, Malaysia’s new struggle over state power - New Mandala.
Were the applicants to have a child, the need to register the child’s birth and for medical and schooling purposes would exacerbate the risk that authorities would detect, fine and/or prosecute the applicants for their interfaith relationship.
Reason for the persecution
The requirement that there be a Refugees Convention[6] nexus to the persecution feared has been codified in Australian law in s5J of the Act. It states that:
(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; …
[6] Convention relating to the Status of Refugees, 28 July 1951 (entered into force 22 April 1954) 189 UNTS 137 as amended by the Protocol relating to the Status of Refugees, 31 January 1967 (entered into force 4 October 1967).
Both the applicants articulated their claims in terms of religion. For the applicant husband, his risk of prosecution, with potential for imprisonment, fine, or both, following conviction, arises by virtue of his being a Muslim in an interreligious marriage regarded as unlawful under Malaysian law.
Religion is the essential and significant reason for the persecution because, according to the country information, if both parties were of the same religion, or even if the parties were both non-Muslims, the risk of persecution would not arise.
The Tribunal finds that the applicant husband fears persecution, or serious harm as outlined above, for reasons of religion, consistent with s5J(1)(a) of the Act, and that religion is the essential and significant reason for the persecution, consistent with s5J(4)(a) of the Act.
Systematic and discriminatory conduct
Applying s5J(4)(c), Malaysian law applies Syariah law to Muslims, hence, the serious harm faced by the applicants involves systematic and discriminatory conduct promulgated by the state. The legal system, courts and officials from the Department of Religious Affairs are agents of the state that implement these provisions.
The Tribunal finds that the persecution involves systematic and discriminatory conduct.
As the relevant laws apply across Malaysia, I find that the real chance of persecution relates to all areas of Malaysia as required under s5J(1)(c) of the Act.
In relation to s.5J(6) of the Act, I am satisfied that the applicants’ relationship is genuine and is not conduct engaged in for the purpose of strengthening the applicant’s refugee claims.
In relation to s.5LA of the Act, the relevant State authorities are responsible for implementing the laws that entail persecution. As the agents of persecution in this case include the relevant State authorities, I find that effective protection measures are not available to the applicants in the receiving country.
Accordingly, the Tribunal is satisfied that the applicant husband is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Third Country Protection: s36(3)
Given the Tribunal’s findings that the applicant husband is owed protection as a refugee as detailed above, consideration must then be given to whether he has a right to enter and reside in a third country pursuant to s 36(3) of the Act. If the Tribunal finds that he does, then s 36(3) provides that Australia is taken not to have protection obligations in his case if has not taken all possible steps to avail himself of that right. However, s 36(3) does not apply in relation to a country in respect of which the applicant has a well-founded fear of being persecuted for a relevant reason, or has a well-founded fear of being returned to another country in which he will be persecuted for a relevant reason: s 36(4)(a) and s 36(5).
The Tribunal needs to assess whether the applicant husband has a right to enter and reside in Indonesia. Such a right may arise through being married to an Indonesian citizen. This right is subject to the applicants’ marriage in Australia being recognised as lawful according to Indonesian Marriage law.
Does the applicant husband have the right to enter and reside in Indonesia?
Under Indonesian immigration law, foreigners who legally marry an Indonesian citizen may be granted limited stay visas for Indonesia.[7] A Limited Stay Permit may be granted for a maximum of two years.[8] A Limited Stay Permit may be renewed for two year terms up to a maximum stay of six years. A holder of a Limited Stay Permit may subsequently be granted a Permanent Stay Permit.[9] In 2023 the law was amended to enable foreigners to stay in Indonesia on a Limited Stay Permit for 10 years without having to apply for a Permanent Stay Permit.[10]
[7] Law of The Republic of Indonesia Number 6 of 2011 Concerning Immigration', on [Indonesia] Directorate General of Immigration website, Ministry of State translation, 5 May 2011, art 39(a)
[8] 2013 Implementing regulations to 2011 Immigration Law, art 148(1).
[9] 'Law of The Republic of Indonesia Number 6 of 2011 Concerning Immigration', on [Indonesia] Directorate General of Immigration website, Ministry of State translation, 5 May 2011.
[10] ‘GR 40/2023: Golden Visa and Other Amendments to Indonesian Immigration System’, SSEK Law Firm, 18 August 2023.
Permanent Stay Permits in Indonesia are not equivalent to permanent residence in other countries.[11] Indonesians have a right to sponsor their foreign partner’s visa indefinitely after sponsoring them for ten years.[12] However, if the Indonesian spouse passes away or the marriage ends due to divorce, foreign citizens who have been married for ten years or longer can retain their Permanent Stay Permit. Following a 2023 amendment, foreign citizens no longer require an Indonesian national as Guarantor but are required to report their marital status to the Immigration Office.[13]
[11] 'Mixed-marriage families welcome planned changes to citizenship regulation', The Jakarta Post, 23 May 2022.
[12] 'Indonesian women are speaking up to break down taboos about mixed marriages with foreigners', Salim, N, Australian Broadcasting Corporation (ABC) News, 17 October 2022.
[13] ‘GR 40/2023: Golden Visa and Other Amendments to Indonesian Immigration System’, SSEK Law Firm, 18 August 2023.
In short, the applicant husband may be initially eligible for a Limited Stay Permit to enter and reside in Indonesia for two years. This may be extended for a total stay of no more than six years. The applicant husband may then be eligible to be sponsored by his Indonesian wife for a Permanent Stay Permit which is, however, not equivalent to permanent residence in other countries and requires the continuing sponsorship of his Indonesian wife. If she passes away or the marriage ends in divorce after they have been married for ten years, the applicant husband would then be able to retain his Permanent Stay Permit. This suggests that, if the marriage ends due to divorce of the death of the Indonesian spouse within ten years of the marriage, the applicant is not entitled to a Permanent Stay Permit in Indonesia. However, all of this depends on the applicants’ marriage being recognised as lawful in Indonesia.
Is the applicants’ marriage lawful according to Indonesian Marriage Law?
The Indonesian Marriage Act of 1974 sets out the requirements for recognition of marriages performed outside Indonesia as follows:
A marriage performed outside Indonesia… between an Indonesian national and a foreign national shall be legitimate if carried out according to the laws in force in the state wherein the marriage has been performed and if insofar as the Indonesian national is concerned, the marriage is not in contravention [of] the provisions of this Law.[14]
Applying this to the applicants, their marriage must: first, be lawful in Australia; and, second, not contravene Indonesian Marriage Law.
[14] Marriage Law of the Republic of Indonesia No 1 of 1974, ‘The Marriage Law of the Republic of Indonesia No. 1 of 1974’, 2 January 1974, [Marriage Law], art 56(1).
In relation to the first requirement, the Tribunal accepts that the applicants’ marriage was carried out according to the laws in force in Australia as evidenced by their marriage certificate.
Second, the Tribunal must then assess whether the applicants’ marriage meets the requirements of the Indonesian Marriage Law. They include that the marriage be registered according to the regulations of the legislation in force[15] and that ‘it has been performed according to the laws of the respective religions and beliefs of the parties concerned’.[16]
No marriage shall be allowed between two persons who … have such relationship as being prohibitive for marriage by any religion or other regulations in force.’[17]
The applicants have not yet registered their marriage in Indonesia. As discussed below, whether their marriage can be registered may depend on whether it was performed according to the laws of their religions, Islam and Hinduism.
[15] Marriage Law, Art 2(2)
[16] Marriage Law, Art 2(1)
[17] Marriage Law, Art 8(f).
The question of whether interreligious marriages are lawful in Indonesia is governed by two laws that conflict.[18] The first is the Marriage Act of 1974, which appears to partially defer to the question of whether marriage is lawfully performed to religious laws as discussed above. The second is the Population Administration Law of 2006, under which ‘civil registration officials are obliged to register marriages that have a court order, including marriages between people of different religions’.[19]
[18] A Baihaki, ‘Legality of registering Interreligious marriages in Indonesia post SEMA Number 2 Year 2023’ (2023) 3 Journal of Social Research, 255, 261.
[19] Ibid.
Under the Population Administration Law, interfaith couples who were able to find celebrants of their different religions were able to have their marriages registered by the civil registry office. Being allowed to apply for permission to register interfaith marriages at the Population and Civil Registration Office was ‘welcomed by interfaith couples’, as such a route was ‘considered the most effective, affordable, and progressive’ because it permitted ‘them to continue practicing their own religion without changing to their partner’s religion’.[20]
[20] Hartini, 'Challenges Ahead for Indonesia's Interfaith Couples', The Diplomat, 8 April 2024.
However, Muslim conservatives, ‘alarmed at the rising number of interfaith unions,’ brought a case to the Supreme Court of Indonesia requesting it to resolve the conflict between the Marriage Act and the Population Administration Law in favour of the Marriage Act.[21] In July 2023, the Supreme Court of Indonesia issued SEMA No 2 of 2023, a Supreme Court circular letter, prohibiting district courts from granting applications for registration of marriages between people of different religions and beliefs. The SEMA stipulated ‘that judges should prioritize the formal principles of marriage law rather than population administration law when examining cases of interfaith marriage’.
[21] Editorial, ‘Interfaith Marriage Made Impossible’, The Jakarta Post, 29 July 2023.
SEMA No 2 is directed at judges ‘but has implications for the duties of marriage registration officials’ who receive applications for registration of marriage based on court orders.[22] According to Indonesian family law academic Baihaki, the status of the Supreme Court circular letter (SEMA) is ‘only as a policy rule or quasi legislation’ and it is unable to resolve the conflict of laws between two pieces of legislation.[23]
[22] Baihaki, above n 18, 263.
[23] Ibid, 265.
There is a view that the complexity and challenges facing interreligious couples in having their marriages recognised and registered in Indonesia may be circumvented by marrying abroad, such as in Australia. According to an editorial in The Jakarta Post published shortly after SEMA No 2 of 2023 was issued,
Many mixed couples go overseas to get married at the civil registry office, with Singapore and Australia among the most favourite destinations, bypassing the complexity in Indonesia. They return home after their honeymoon and then file the foreign marriage certificate with the local civil registry office. And they will happily live ever after.[24]
[24] Editorial, above n 21
However, most commentators view the SEMA as preventing the registration of interreligious marriages. An article in The Jakarta Post cites the January 2023 decision of the Indonesian constitutional court which unanimously rejected the petition of a Christian seeking to have his marriage to a Muslim recognised.[25] Critique of the decision from rights groups and legal academics suggests that the issue may be subject to future constitutional challenges.[26]
[25] ‘No authorisation for Interfaith marriages, says Indonesia’s Supreme Court’ The Jakarta Post, 20 July 2023.
[26] Ibid.
To summarise, the Indonesian law on interreligious marriage is complex and contested. As it stands, the Tribunal finds that it is far from certain that the applicants’ interreligious marriage would be recognised as lawful in Indonesia. This is only the first step that the applicant husband would be required to take. A second step would be to have the marriage registered. Assuming that these two steps could be completed, the third step would be for the applicant husband to apply for and be granted a Temporary Stay Permit of two years.
Conclusion on s36(3)
The uncertainty inherent in each of the steps required by the applicant husband set out above leads to the conclusion that the applicant does not have an existing ‘right to enter and reside in’ Indonesia, within the meaning of s 36(3). Further, the applicant husband’s interfaith marriage may put him and the applicant wife at risk of persecution in Indonesia. The Tribunal finds therefore that the applicant is not precluded from protection by s 36(3) of the Act.
CONCLUSION ON THE APPLICANT HUSBAND’S CLAIMS
For the reasons given above, the Tribunal is satisfied that the applicant husband is a person in respect of whom Australia has protection obligations under s 36(2)(a)
The applicant wife
As noted above at [43], I am satisfied that the applicants’ relationship is genuine and is not conduct engaged in for the purpose of strengthening the applicant’s refugee claims.
The Tribunal finds that the applicant wife is a member of the same family unit as the applicant husband.
Accordingly, the Tribunal is satisfied that the applicant wife is a person in respect of whom Australia has protection obligations under s.36(2)(b).
CONCLUSION ON THE APPLICANT WIFE’S CLAIMS
For the reasons given above, the Tribunal is satisfied that the applicant wife is a person in respect of whom Australia has protection obligations under s36(2)(b).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) and s36(2)(b) of the Migration Act.
Dr Gabrielle Simm
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3293

23 August 2024

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