1836498 (Refugee)

1836498 (Refugee) [2024] AATA 3982 (10 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Muhammad Ali Sukhera
CASE NUMBER:  1836498
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Rachelle Johnston
DATE:10 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 September 2024 at 10:03am
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – inter-faith relationship – Christian with Muslim boyfriend – pressured to convert by boyfriend’s family, and threatened with disownment by own family if she does – secret conversion and official harassment – mental health – relationship ceased and marriage with another Muslim man – inconsistent and implausible claims and evidence – residence and work history – previous multiple departures and returns not declared – genuineness and timing of claimed conversion – accuracy of interpretation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
DVO16 v MIBP; BNB17 v MIBP [2021] HCA 12
MIAC v SZQRB [2013] FCAFC 33
Perera v MIMA (1999) 92 FCR 6
SZGWN v MIAC (2008) 103 ALD 144
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 on 30 November 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 20 June 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant lodged a protection visa application on 20 June 2018. In that application she provided the following, among other things:
·     She was born in [Year] in Hospital [Town], Sabah, Malaysia.
·     She is a Christian and an ethnic Dusun.
·     She speaks, reads, and writes Malay and English and speaks Chinese.
·     Her family, including her mother, father, and [sisters], were born in [Town], Sabah, and reside in Malaysia.
·     Whilst in Malaysia she resided in [Location].
·     Between [Year] and [Year] she attended primary school in [Town], Sabah. Across [Year] to [Year] she attended three different high schools. Two were in [Town], Sabah, and the last one, which she attended between [Year] and [Year] was in Keningau, Sabah.
·     She worked in [job task 1] for a [company] between February 2009 and July 2016 in Kota Kinabalu, Sabah. Between July 2016 and March 2018 she worked in [job task 1] for a [company 1] in Koto Kinabalu.
·     She has travelled to [Countries 1-5] on holiday.
·     She met her de facto partner in May 2015 in [Location]. Her de facto partner was already living in Australia at the time she applied for protection.
The applicant makes the following claims in her protection visa application form:
·     She left Malaysia because she couldn’t stay in Malaysia and be with her boyfriend.
·     She has spent a lot of time thinking about staying with him and lost a lot of money buying a ticket for a flight to see him.
·     His family prevented them being together as she refused to convert to Muslim.
·     She tried to be a very good person so her boyfriend’s family will accept their relationship, but the law always wins.
·     She wishes to stay in Australia with her boyfriend and have a nice life and family without changing their religion.
·     She hopes to get a blessing from his family and her family for them to have a wedding.
·     If she cannot get a blessing from both sides of the family, she would rather be a de facto with her partner.
·     If she returns to Malaysia, she will be asked to convert which she refuses. Her partner’s family will warn her again and again to leave their son or to convert.
·     She has been mentally harmed, and it’s affected her life and her relationship with her family and people around her because she has become aggressive towards anyone who tries to separate her and her boyfriend.
·     She does not know how to seek help or any authorities that can help her. She has obtained negative responses by people around her day by day.
·     She tried to move but she still can’t stop thinking about her personal problems.
·     She has been mentally harassed from her family, her partner’s family, her friends, and society. She kept silent about her relationship for too long. Her parents said they are not going to admit she is their daughter if she converts because her father’s name will change after she converts which is not a happy statement towards all fathers who are non-Muslim. This makes her stressed about her relationship.
The applicant provided the following supporting documents with her protection visa application:
·     A copy of the bio-data page of her Malaysian Passport issued [in] 2016.
·     A Statutory Declaration by the applicant dated 14 June 2018 indicating she had been in a relationship with her boyfriend for more than two years.
·     Malaysian Identity Card with an address in [Location].
·     Malaysia Driving Licence with an address in [Village 1], [Town].
·     Australian [Bank] account in her name.
·     A copy of the Malaysian Islamic Family Law (Federal Territories) Act 1984.
·     A series of photographs of the applicant with a man, other people, and in the community.
Interview with the delegate
The applicant was not interviewed by the Department.
The delegate’s decision
On 30 November 2018, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied the applicant would be forced to convert to Islam on return to Malaysia. They considered that the Royal Malaysian Police has a willingness to enforce the law and that the State would be able to protect the applicant from any harm she fears on account of being forced to convert to Islam. The delegate was not satisfied the applicant would face serious harm in Malaysia because of her religion. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that she will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations.
Claims and evidence before the Tribunal
Review application
On 12 December 2018, the applicant applied for a review of the delegate’s decision. She provided the Tribunal with a copy of the delegate’s decision.
First hearing and supporting documents
The applicant appeared before the Tribunal on 27 May 2024 to give evidence and present arguments. No witnesses appeared before the Tribunal.
The hearing was conducted with the assistance of an interpreter in the Malay and English languages via videoconference. The Tribunal confirmed with the applicant they were able to understand the interpreter and that they did not have any issues with the interpretation. The Tribunal explained to the applicant to let the Tribunal know, rather than the interpreter, if there were any questions or anything she was not sure about and the Tribunal could ask its questions in a different way. The applicant spoke some English and elected on a few occasions to give evidence in English. The applicant was able to answer questions without hesitation, in detail, and with specificity, and her answers demonstrated an understanding of the questions being put to her.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. Two colleagues of the applicant’s representative attended the Tribunal hearing as observers with the applicant’s oral consent.
At the hearing the applicant provided the Tribunal with the following documents:
·     Articles relating to some girls missing in [Town] and later found safely in Sandakan, after having caught a bus to Sandakan to find work.
·     Articles about the disappearance of Malay pastor Joshua Hilmy and his wife Ruth Sitepu, and the disappearance and threats against pastor Raymond Koh.
·     Article about Malaysia’s ‘Grim Islamic Future’.
·     A photograph of four people in tribal attire from a faith-based website.
·     Four photographs of the applicant with other people, three of which appear to be of a ceremony.
The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present their case, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
Section 424A and s 424 correspondence, applicant’s response and further evidence
On 28 May 2024, the Tribunal wrote to the applicant in accordance with the terms of s 424A and s 424 of the Act. The Tribunal’s letter set out movement and departmental records before the Tribunal related to the applicant and her de facto partner and invited the applicant to comment or respond to the information within a specified time period. The letter also invited the applicant to provide further details about the photographs provided to the Tribunal at the first hearing.
On 5 June 2024, the applicant responded to the Tribunal’s s 424A and s 424 letter. In that correspondence the applicant claims there was an error of miscommunication on the interpreter’s part, the interpreter had a west Malaysian dialect which is different from her language which she stated is more like Indonesian Bahasa, and there were difficulties with the interpretation leading to confusion about the context of questions and mixing up of information. The applicant provided explanations in response to the Tribunal’s concerns. These responses are detailed in the Tribunal’s analysis and reasoning below. The applicant also stated she has mental health issues and that she is going through mental health treatment with a psychologist and that a report could be submitted to the Tribunal.
In her 5 June 2024 response to the Tribunal the applicant provided details about some of the photographs provided to the Tribunal at the hearing on 27 May 2024. She indicated one photograph is of herself and her cousin monitoring her in Koto Kinabalu. The other photograph is stated to be of the applicant and her coworkers at her wedding [in] March 2024 at her friend’s house. The photographs were discussed with the applicant at the resumed hearing on 29 August 2024 and are discussed in more detail in the Tribunal’s analysis below.
Attached to and referred to in the applicant’s correspondence of 5 June 2024 was a Certificate of Conversion to Islam issued [in] September 2016, also discussed with the applicant at the resumed hearing on 29 August 2024 and referred to in more detail in the Tribunal’s analysis below.
Second hearing and pre-hearing evidence
On 11 June 2024 the Tribunal wrote to the applicant indicating it would list a resumed hearing in the applicant’s matter and seeking confirmation from the applicant of the interpreter she required for the purpose of that hearing.
On 14 June 2024 the applicant requested an interpreter fluent in the Sabahan/North Borneo dialect. The applicant stated in that correspondence that she was currently undergoing medical treatment with a psychologist and requested a six-week period to gather medical evidence to support her claims.
On 17 June 2024 the Tribunal wrote to the applicant confirming they found a period of four weeks was appropriate before the resumed hearing would take place, with any further evidence, including medical documents, to be provided to the Tribunal at least seven days prior to that hearing. The Tribunal confirmed the resumed hearing would take place in person on 16 July 2024. The Tribunal gave weight to the applicant’s correspondence of 5 June 2024 where they had indicated they were undertaking mental health treatment and a report could be submitted if of assistance. The Tribunal considered the applicant had sufficient time to gather additional medical evidence in advance of the 16 July 2024 hearing.
On 3 July 2024 the applicant’s representative wrote to the Tribunal requesting the Tribunal delay the hearing until after 20 August 2024, noting he was not able to attend the hearing on 16 July 2024 as he was currently overseas attending to an urgent medical family matter and his return date was not confirmed.
On 4 July 2024 the Tribunal wrote to the applicant indicating that having considered all the facts and circumstances of the individual case, it declined her request for the hearing to be adjourned until after 20 August 2024. The Tribunal considered the objectives of the Tribunal to be accessible, fair, just, economical, and quick, and the information from the applicant’s representative that his return date to Australia was not confirmed. The Tribunal confirmed with the applicant the resumed hearing would proceed on 16 July 2024 and that the Tribunal could provide her representative with a copy of the audio recording from the resumed hearing should they request it, as well as provide the applicant and her representative with a reasonable timeframe within which to make written submissions following the resumed hearing. The Tribunal sought confirmation from the applicant’s representative as to the timeframe within which they may need to prepare such submissions and if, in the circumstances, they were seeking any additional time to provide the Tribunal with medical or other material.
On 8 July 2024 the applicant’s representative provided the Tribunal with a copy of a psychological report from [Ms A], general psychologist, dated 19 June 2024.
On 12 July 2024 the applicant’s representative wrote to the Tribunal indicating he was currently overseas due to a family death, and he would not be available until 20 August 2024. It was stated in that correspondence that it would be challenging for the applicant’s representative to prepare and submit materials and it was essential for the applicant to be accompanied by her lawyer as it was her first hearing and she felt more at ease when her lawyer was there to advocate for her. A further request for a postponement was made, with an indication the applicant’s representative would otherwise participate in the hearing via videoconference from overseas.
Given the applicant’s representative referred in his correspondence of 12 July 2024 to a fixed unavailability of 20 August 2024, rather than an uncertain period of absence as was stated in prior correspondence, the Tribunal wrote to the applicant on 12 July 2024 seeking confirmation if her representative had a return date to Australia of 20 August 2024, such that he would be able to participate in a resumed hearing after that date.
On 12 July 2024 the applicant’s representative confirmed with the Tribunal he was overseas and due to return to Australia on 25 August 2025 and available to participate in a resumed hearing after that date.
On 15 July 2024 the Tribunal wrote to the applicant confirming the Tribunal had agreed to postpone the hearing scheduled for 16 July 2024 and indicated a hearing had been listed for 29 August 2024.
On 29 August 2024 the applicant appeared in person before the Tribunal to give evidence and present arguments. Again, no witnesses appeared before the Tribunal. The applicant’s representative attended the resumed hearing.
The hearing was conducted with the assistance of an interpreter in the Malay and English languages via videoconference. The interpreter confirmed with the Tribunal prior to the hearing they had familiarity with the Sabahan Malay dialect. The Tribunal confirmed with the applicant they were able to understand the interpreter and had no issues with the interpretation. The applicant’s answers to questions put to her by the Tribunal demonstrated her understanding of the questions asked of her.
The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present their case, and participate fully in the resumed hearing. Where relevant, the applicant’s oral evidence to the Tribunal at the resumed hearing is referred to in the analysis below.
The applicant’s mental health
In the applicant’s 5 June 2024 correspondence to the Tribunal the applicant’s representative stated the applicant has greatly suffered from mental health issues due to her circumstances, and her mental health issues severely affect her ability to think rationally and communicate.
As outlined above, on 8 July 2024 the applicant provided the Tribunal with a report from [Ms A], general psychologist, dated 19 June 2024. At the resumed hearing the applicant confirmed she had seen [Ms A] on two occasions and that she has ceased sessions with her due to cost issues. In her report [Ms A] outlines that the applicant has a diagnosis of Post-Traumatic Stress Disorder, Generalised Anxiety Disorder with Panic Attacks, and Major Depressive Disorder. Whilst [Ms A] reports the applicant appeared with depressed mood, anxious, fearful and uncertain for her future, she reports the applicant showed insight and judgment into the need for further counselling and not coping with life stressors; she demonstrated no unusual mannerisms; there were no indicators of aggression; her thoughts were rational, relevant and coherent; there was no evidence of thought disorder or of psychosis; there was no presentation or thoughts of self-harm or perpetual disturbance; and no evidence of hallucinations or perceptual disturbances.
At the resumed hearing the Tribunal acknowledged [Ms A]’s report and the applicant’s mental health symptoms and advised the applicant it would be guided by her as to the pace she needed to answer questions, if she needed any questions repeated, and if she needed any time for reflection for her answers. The Tribunal advised the applicant at both hearings the Tribunal would take breaks and for the applicant to advise it at any time if she needed a break earlier than any scheduled breaks.
The Tribunal raised with the applicant at the resumed hearing, during a discussion of [Ms A]’s mental health report, that whilst [Ms A] has provided a diagnosis for her mental health symptoms and commented that she is depressed and concerned for her future, the Tribunal may not find her mental health condition has in any way impacted her capacity to give evidence to the Tribunal. Neither the applicant nor her representative provided any comment in response.
The Tribunal does not find the applicant’s mental health issues severely affect her ability to think rationally and to communicate. At the hearings the applicant was able to answer questions across several hours consistently and without difficulty. Her answers were not confused, rambled, or disconnected to the questions put to her. She was clear, lucid, responsive, and rational. Whilst the Tribunal has not always accepted the evidence communicated by the applicant, detailed below, it finds the applicant presented her evidence in a straight-forward and logical manner. The applicant’s representative attended both hearings and on no occasion did the applicant or her representative raise any concerns in relation to the applicant’s capacity to give evidence to the Tribunal.
Whilst the Tribunal has not given weight to the background details for the applicant contained in [Ms A]’s report, discussed in more detail below, the Tribunal has given weight to [Ms A]’s observations of the applicant in her mental health examination, for which she has provided an independent and professional opinion. [Ms A] has stated that the applicant’s thoughts were rational, relevant, and coherent and there was no evidence of thought disorder or of psychosis and no evidence of hallucinations or perceptual disturbances.

Considering the details contained in [Ms A]’s report, the applicant’s presentation at both hearings and her capacity to answer questions with detailed and coherent answers, the Tribunal finds the applicant’s mental health symptoms did not impact her capacity to participate effectively in the hearings and that she was able to effectively communicate, present her case, be heard, and participate fully in the hearings.
CRITERIA FOR A PROTECTION VISA
The relevant law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a citizen of Malaysia and provided a copy of the bio-data page of her Malaysian passport to the Department. The delegate was satisfied that the applicant is using her own identity and that she is a citizen of Malaysia. The applicant has consistently claimed to be a citizen of Malaysia and presented her Malaysian passport to the Tribunal at her hearings. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of Malaysia and Malaysia is her receiving country for the purposes of assessing her claims for protection.
Analysis, reasons and findings
In her protection visa application, the applicant advanced claims related to her inter-faith relationship with her de facto partner, claiming if she returns to Malaysia she will be asked to convert which she refuses, that her partner’s family will warn her to leave him if she does not convert, that she has been mentally harassed from her family, her partner’s family, her friends, and society, and that her parents have said they will not admit she is their daughter if she converts.
At the hearings the Tribunal discussed with the applicant her protection claims, what she claims occurred in Malaysia, why she fears returning to Malaysia, and her work, schooling, family, travel, relationship, religious, and residential history.
At the first hearing the applicant advanced markedly different claims to those stated in her protection visa application. She claimed she is ethnically Dusun and always lived in her rural village of [Village 2], [Town] and that her parents wanted her to get married to someone of their choice, but she had met a Muslim Malay man, and ultimately her parents harmed her and prevented her relationship with her partner. She claimed she converted to Islam whilst in Malaysia to be with her boyfriend, and she was targeted by the religious authorities in Malaysia and required to undertake religious education. She claimed she will be targeted, kidnapped, and killed on return to Malaysia by the religious authorities due to her insult of the national religion, poisoned by her family for bringing shame on her culture and the Dusun community, and harmed by the family of the man she was arranged to marry who want to seek revenge for her betrayal.
She also raised concerns about not being a Muslim and living in Malaysia without conforming to Muslim practises, her financial circumstances and capacity to subsist on return to Malaysia, general concerns about kidnappings, and concerns for her mental health on return to Malaysia. At the first hearing the applicant updated the Tribunal that her relationship with her de facto partner ended in approximately 2020 and that she was no longer in contact with him. She stated he had maybe gone back to Malaysia, but she was not sure.
At the resumed hearing the Tribunal discussed with the applicant the photographs she had provided to the Tribunal at the first hearing and which she had explained in her correspondence to the Tribunal of 5 June 2024 represent her marriage to her new partner in Australia, Mr S, who she explained is a Muslim Malay national. The applicant did not spontaneously raise any concerns on return to Malaysia in relation to her current relationship with Mr S. She commented in response to country information and concerns the Tribunal raised with her at the resumed hearing, outlined in more detail below, that her family and community are fearful and would not accept her relationship with Mr S due to the different religions.
Credibility
The Tribunal has significant concerns with the applicant’s evidence relating to the extent of her connection to the Dusun community, her residential history in her adult years, her claimed conversion to Islam in Malaysia, her claim she was arranged to be married to a man in Malaysia, and her claimed harm in Malaysia. Overall, the Tribunal has formed the impression the applicant was drawing on personal experience from being born in [Town] and being of Dusun ethnicity, but that she has fabricated and misconstrued her personal history and experiences in Malaysia to present as a person who has always lived in a rural Dusun village in [Town] in order to bolster her claims she converted to Islam, was arranged to be married to another person in Malaysia, and that she experienced harm from her family, the Dusun community, the religious authorities, the police, and in respect of the arranged marriage. The Tribunal finds these claims not to be credible.
In making this finding the Tribunal has been mindful of factors that may have impacted the applicant’s ability to provide oral evidence at the hearings, including the use of interpreters (discussed in more detail below), nervousness, mental health concerns (outlined above), and the unfamiliarity of the Tribunal setting. The Tribunal also acknowledges a person before the Tribunal may forget dates, locations, distances, events, and personal experiences due to lapse of time or other reasons[1].
[1] Administrative Appeals Tribunal, Migration and Refugee Division, Guidelines on the Assessment of Credibility, July 2015.
Whilst minor variances between the applicant’s written and oral claims and across her evidence throughout the process would not cause the Tribunal to doubt her credibility, particularly where the applicant is unfamiliar with the environment of the Tribunal and has limited English language skills, considering on a cumulative basis the number of inconsistencies in the applicant’s evidence, particularly on central aspects of her claims, including her conversion to Islam or not, occasions when she was harmed in Malaysia, and her residential and work history in Malaysia, the Tribunal finds the applicant’s evidence to be inconsistent and unreliable.
In reaching this view, the Tribunal has had regard to substantial inconsistencies between the applicant’s oral evidence at hearing and her written protection visa application, movement records before the Tribunal that are inconsistent with the applicant’s claimed harm in Malaysia, new claims that were raised by the applicant at hearing without reasonable explanation for why they were not raised before the delegate made their decision, the shifting nature of the applicant’s oral evidence at hearing and in response to concerns raised by the Tribunal, and aspects of the applicant’s account of her past harm and experiences in Malaysia which the Tribunal finds to be implausible. The Tribunal’s concerns are discussed further below.
Dusun ethnicity, schooling, residential history, and work in Malaysia
At the first hearing the applicant stated she lived all the time in Malaysia in a regional village area in the hills in [Village 2], [Town] on her parent’s farm. She explained according to her culture it was necessary to follow cultural rituals and most of the time her life was around her village.
In discussing what cultural rituals the applicant was involved in, she explained as an ethnic Dusun, people from her tribe are not allowed to leave or study outside the village and if they needed to go outside the village and study they needed to obtain permission from the head of the village to decide if they could leave and if what they wanted to do was against their culture. The Tribunal pressed the applicant to explain what the cultural rituals were. The applicant described specific rituals undertaken in Dusun culture, such as monogit undertaken by the village Bobolian, the head of culture, to protect the person when they are away from the village from any harm, which involves prayer and the slaughter of animals.
The Tribunal explored with the applicant her schooling and work history. The applicant explained she completed [grade] to [grade] of school but did not complete high school. She explained her school was 4km away and she had to walk to school. In discussing her work in Malaysia, she stated because she did not have an education, she was only working where her father was asking if there was any work. The applicant stated she sometimes worked in [job task 2] in an office, sometimes in the delivery of goods, and that she helped to sell the items they grew such as rice, fruits and vegetables. The applicant explained she didn’t have any savings and that her mother had savings and would distribute money to her and give her money if she asked.
In terms of current contact with her family, the applicant explained she has minimal contact with her [sister] in Malaysia and no other contact with her family. Since arriving in Australia she stated she has helped her sibling a couple of times by sending her money, otherwise she has been working in [job task 3] work and using funds for herself. The applicant provided the Tribunal with a photograph at the first hearing of a group of people in tribal attire, taken from a website. At the resumed hearing the Tribunal enquired with the applicant the purpose of her providing that photograph to the Tribunal and what it represented. She explained it was of her ethnic group and that it can be seen how the government is treating her ethnic group. The Tribunal did not gather from the photograph how it represented the treatment of the Dusun people by the Malaysian Government. The Tribunal asked the applicant if she had any photographs of herself amongst her ethnic group, such as undertaking rituals or tribal or cultural activities. She stated she might do but they are in Malaysia and not with her. The applicant has not presented any photographs or independent information to the Tribunal illustrating the extent of her connection to the Dusun tribe or tribal activities or traditions.
The applicant’s evidence about her residential history and the duration of time she lived in the rural Dusun village was not consistent with the information stated in her protection visa application or supporting identification documentation she provided to the Department with her protection visa application. Nor did it correspond with movement records before the Tribunal. Her protection visa application provides she attended high school in Keningau, that she lived in [Location], Koto Kinabalu, and that she worked in Koto Kinabalu. Her identity card indicates she resided in [Location]. Information in her protection visa application and the movement records suggests she regularly travelled internationally. Whilst the applicant stated in her protection visa application she was born in [Town] and attended some schooling there, and her Malaysian Driving Licence valid from [March] 2018, the week the applicant departed Malaysia for Australia, lists an address in [Town] (although not in [Village 2]), the other details in the applicant’s protection visa application and the movement records indicate the applicant did not have a recent strong connection to the [Town] area or Dusun community, or that she resided in a remove village in [Village 2].
On 28 May 2024 the Tribunal wrote to the applicant in accordance with the terms of s 424A and s 424 of the Act. The Tribunal explained movement records before the Tribunal indicate she had travelled to Australia between [Day] December 2011 and [Day] December 2011, [Day] June 2012 and [Day] June 2012, [Day] September 2013 and [Day] September 2013, [September] 2016 and [October] 2016, [December] 2017 and [Day] March 2018, and that she has been in Australia since [Day] March 2018. It outlined that in her protection visa application she did not state she had travelled to Australia previously, and detailed only travel to [Countries 1-5].
The Tribunal also explained in its letter of 28 May 2024 that the applicant stated in her protection visa application she worked between February 2009 and July 2016 as [an occupation] at a company whose address is in Koto Kinabalu, and between July 2016 and March 2018 as [an occupation] at a different company whose address is in Koto Kinabalu. It also outlined she stated in her protection visa application that she lived between [Birth] and March 2018 in [Location] and that she met her de facto partner in [Location]. It explained her Malaysian Identity Card records her address as being in [Location].
The Tribunal explained in its letter that at hearing the applicant had stated she had only ever lived in [Village 2], [Town], Sabah, that she is ethnically Dusun, and that people from her ethnicity must obtain permission from the head of the village to leave the village. It outlined the information before the Tribunal suggests she has travelled frequently and that she may not have always lived in [Town]. The Tribunal explained the information before it may cause the Tribunal to doubt the truthfulness of her evidence and to consider that her claims lack credibility.
On 5 June 2024 the applicant responded in writing to the Tribunal’s s 424A and s 424 letter. In her response she stated her Malaysian ID card contains her relative’s address in [Location] and her address is recorded there as it is easier to contact her family by that address. She explained she could not register her identity card in her village as it is very remote, and it is the norm to go to neighbouring cities to register official documents.
The applicant also claimed in that correspondence that there was a miscommunication in her explanation of how people from her ethnicity must obtain permission to leave the village, and that it is limited to the exchanges of visiting and interacting with other tribal villages and tribes, and permission is only needed when you study or work in another village. The applicant stated she was working in [Location] for family friends, and she did not need to obtain permission from the village head as it did not fall in the category of culture and was not a village but a big city where there are different customs. She explained she was able to work in her job in [Location] as her family knew the employers and they were friends of her father.
In relation to the information about her frequent travels, the applicant stated she was able to travel frequently as it was normal for her to stay in the city where she worked for certain times and days as her family trusted her as she was staying with her relatives. She explained she was able to travel frequently as she only travelled limited days to not raise suspicion as she was not doing anything out of the normal, and her family were used to not having constant communication with her as the village did not have service and there was only one spot at the top of the mountain where you could receive service to make a call, and her house was at the bottom of the mountain. The applicant stated once her family found out about her relationship, she performed the cultural ritual of sogit to earn their trust again and repent for her mistake and she was accepted back into the community and allowed to continue living her life as she had done before.
The Tribunal has considered the applicant’s written response and does not find it overcomes its concerns as to the inconsistencies in her evidence. Whilst the Tribunal is willing to accept the applicant’s explanation that cultural rituals are only required when someone visits or interacts with another tribal village, the Tribunal did not find the applicant’s explanation addressed its concern that her protection visa and the movement records indicate she frequently travelled outside Malaysia and worked for nine years in Koto Kinabalu, whereas at hearing she stated she always lived in the village and most of the time her life was around the village. The Tribunal does not find the applicant’s frequent travels, to Australia on five occasions and her other claimed travel in her protection visa application to five other international destinations is congruent with her claims she is from a rural Dusun community, lived her life in that community, and worked in farming, delivery, and some [job task 2] when her father asked if there was any work for her, and that she had no savings other than funds her mother distributed to her,
The Tribunal found the applicant’s explanation that she was able to work in [Location] as her family knew the employers similarly did not explain the inconsistency in her evidence at hearing that she always lived in the Dusun village in [Village 2]. The applicant’s 5 June 2024 response confirms she stayed in the city where she worked. In circumstances where the applicant has stated in her protection visa application she worked for two different employers across nine years in Koto Kinabalu, one of which is a large-scale import business, the Tribunal does not find persuasive the applicant’s evidence that her family knew the employers and arranged each of her roles. The Tribunal did not find the applicant’s explanation that she used a family address for her Malaysian Identity Card and that it was easier to contact her family and she could not register her identity card in her village persuasive where other identity information provided to the Department, such as her Driving Licence, indicates an address in [Town].

The Tribunal discussed with the applicant its concerns with her past residential, schooling, and address history at the resumed hearing and provided her with a further opportunity to provide information in response to the Tribunal’s concerns. The Tribunal explained that whilst she had stated in her evidence that she had always lived in [Town] and she had not completed high school and only worked where her father asked if there was any work, her protection visa application indicates she attended and completed three high schools, one of which was in Keningau, Sabah, between [Year] and [Year]. The Tribunal explained the applicant’s protection visa application also provides she was employed between July 2016 and March 2018 as [an occupation] at [Employer 1] in Koto Kinabalu, which appears to be a large [company 1], and between February 2009 and July 2016 at [Employer 2], a [company] in Koto Kinabalu. The Tribunal reiterated its concerns from its 28 May 2024 written correspondence, that the applicant’s protection visa application indicates she lived in [Location], she met her de facto partner in [Organisation] [Location], and her Malaysian Identity Card records her address is in [Location].
The Tribunal explained the information she provided at hearing appears to be inconsistent with what is stated in her protection visa application and does not match the address on her Malaysian Identity Card. I explained it may lead the Tribunal to find she has fabricated her oral evidence in order to strengthen claims that she always lived in the Dusun village, followed Dusun cultural traditions in her adulthood, had limited work history and exposure to urban Malaysian life, and that she was prevented due to Dusun culture from meeting with outsiders, refused an arranged marriage there, has insulted and brought shame on her culture, and will be harmed by her family, the Dusun tribe or in relation to the arranged marriage if she returns to Malaysia. The Tribunal explained it may find her evidence given at hearing in relation to her residential, schooling, and work history and the extent of her connection to Dusun cultural traditions is not credible.
In response the applicant stated she did study in high school but didn’t complete her studies and because of that it would be difficult for her to find a job and she could only work part time or in casual work. She also explained if she did find work in Malaysia it was always recommended by family and friends. The applicant stated it is true she always lived with her family in [Village 2] in the village in [Town] and for work she would venture out and stay in [Location] but not for long, sometimes only for five days. She indicated that she was always involved in her ethnic ways and even though she worked away from home she lived with her family and her address on her Malaysian Identity Card is the best option as information would go to that address rather than her remove village address which is not registered.
The Tribunal considered the applicant’s responses and did not find them persuasive or that they allayed its concerns. The applicant has provided specific and detailed information in her protection visa application, including names and addresses, of the schools that she attended and completed over [Year] to [Year], including five years of high school education, and the consistent work she undertook across 2009 to 2018, including work for eighteen months in a large-scale [company 1]. In these circumstances the Tribunal does not accept the applicant did not finish high school or that she would only be able to work part-time or in casual jobs in Malaysia. The Tribunal found her response that where she found work, it was always recommended by friends or family, did not address its concern that her protection visa application provides she worked for a duration of nine years in Koto Kinabalu. Nor did her response address the Tribunal’s concern that her protection visa application provides that she attended high school between [Year] and [Year] in Keningau, some 150kms from [Village 2].
The Tribunal did not find her response that she lived with her family and that she would venture out of the village and stay in [Location] to work, sometimes for five days, persuasive in circumstances where her protection visa application states she worked consistently in Koto Kinabalu between February 2009 to March 2018. Given the distance between [Location] and [Village 2] of 146km the Tribunal did not find it persuasive that the applicant was able to live with her family in the village whilst undertaking work in [Location], especially over the course of nine years, even if she had family in [Location] as claimed in her 5 June 2024 correspondence. Considering cumulatively the other references in the applicant’s evidence to her living or socialising in [Location], including her Malaysian Identity Card which provides her address is in [Location], and her evidence in her protection visa application that she lived in [Location] and met her de facto partner in [Organisation] [Location], the Tribunal did not find it persuasive that the applicant lived in the family village and intermittently travelled for periods to [Location] for work. Rather, the Tribunal finds the evidence supports the applicant lived independently in [Location], Koto Kinabalu, at least since 2009.
In its 28 May 2024 s 424A and s 424 letter to the applicant the Tribunal invited the applicant to provide information in relation to the photographs she provided to the Tribunal on 27 May 2024 at the first hearing. In her 5 June 2024 response the applicant stated one of the photographs was of her with her cousin, taken in the afternoon in Koto Kinabalu, and that she had just finished work and the photo displays her being followed and monitored by her cousin who had waited outside her workplace. She stated her cousin had been arranged by her family to watch her when they had found out about her relationship with her boyfriend to ensure she did not meet him. At the resumed hearing the Tribunal asked the applicant why, if her family had arranged for her cousin to wait outside her workplace and monitor her and follow her, there would be a photograph of her with him in those circumstances. In response she stated she took a photograph as she wanted to show and tell her ex-boyfriend someone is with her, and she is not free. The Tribunal did not find the applicant’s response persuasive where the photograph depicts the applicant standing next to a man looking at the camera in an outdoor setting, where a third person has taken the photograph, and there is no indication the applicant is being followed or monitored.
At the first hearing the applicant stated she completed her protection visa application herself with the assistance of friends and Google translate and that she was aware of the claims that were made in her protection visa application and that she was sure everything that she had put in her protection visa application was true and correct, as far as she knew and believed. Other than some additional claims that the applicant indicated she did not mention, addressed in more detail below, the applicant did not indicate there were any mistakes in her protection visa application as to her residential history, education, or work history.
The Tribunal has considered the applicant’s written and oral responses to its concerns and her evidence throughout the process and is prepared to accept the applicant was born in [Town] hospital, that she is ethnically Dusun, she grew up with her family in the [Town] District, and that her family remain in [Town]. The applicant provided details of specific Dusun cultural rituals in her oral and written evidence which the Tribunal is prepared to accept is indicative of her exposure to Dusun traditions and rituals whilst living in the [Town] District[2].
[2] Jikat Binol Darimbang, Jacqueline Pugh-Kitingan, Gaim James Lunkapis, ‘The Ritual Origins of Native Law in Sabah and Future Implications: The Case of Kimaragang’, JATI-Journal of Southeast Asian Studies, Volume 28(1), June 2023, 105-131; Syamsul Azizul Marinsah, Suraya Sintang, Abdul Hair Beddu Asis, Abg Mohd Razif Abg Muis, Mohd Anuar Ramli, ‘Incantation in Sogit Ritual: A Preliminary Study’, PalArch’s Journal of Archaeology of Egypt/Egyptology, 17(7), 2020, 9386-9410.
Given the Tribunal’s concerns set out above, the Tribunal does not accept the applicant resided in [Village 2] or that she spent most of her time in a rural Dusun village. Nor does the Tribunal accept on the evidence before it that the applicant’s family are from the rural Dusun community in [Village 2]. The Tribunal finds the applicant lived throughout her adult life, at least since 2009, in [Location], Koto Kinabalu, and that she has spent a significant period of her adult life in urban environments and not within a rural Dusun village or in [Town] with her family. The Tribunal is prepared to accept given her Driving License address that the applicant updated her address to [Town] prior to her departure to Australia. The Tribunal does not accept the applicant resided in [Location] with relatives.
The Tribunal does not accept the applicant did not finish high school. The Tribunal finds the applicant attended primary school in [Town] between [Year] and [Year], high school in [Town] between [Year] and [Year], and high school in Keningau between [Year] and [Year], as stated in her protection visa application.
The Tribunal is prepared to accept the applicant worked in [job task 2] in an office, in the delivery of goods, and in the sale of items from farming at various points in her adult life, however it does not accept the applicant only worked in those positions or that she only worked casually or part-time and at workplaces arranged by her family or where her family knew the employers. The Tribunal finds the applicant worked in Koto Kinabalu consistently from February 2009 to March 2018 in roles connected to [job task 1], other than when travelling. The Tribunal does not accept the applicant’s family surveyed her outside her workplace or whilst she was in Koto Kinabalu or that they arranged anyone else to monitor her or follow her at her workplaces or anywhere else.
The Tribunal accepts the applicant has travelled to [Countries 1-5] and that she travelled to Australia between [Day] December 2011 and [Day] December 2011, [Day] June 2012 and [Day] June 2012, [Day] September 2013 and [Day] September 2013, [September] 2016 and [October] 2016, and [December] 2017 and [March] 2018, before returning to Australia [in] March 2018.
Conversation to Islam, contact with the religious authorities, and family and tribal harm
In her protection visa application the applicant claimed she left Malaysia because she couldn’t stay in Malaysia and be with her boyfriend, his family prevented them being together as she refused to convert to Muslim, she wishes to remain in Australia with her boyfriend and have a nice life and family without changing their religion, and if she returns to Malaysia she will be asked to convert, which she refuses, and her partner’s family will ask her to leave their son or convert. She claimed her parents said they are not going to admit she is their daughter if she converts because her father’s name will change.
At the first hearing the applicant stated to the Tribunal that because she wanted to be with her boyfriend, she secretly converted to Islam in Malaysia without her family knowing it. She stated her boyfriend made her convert to be with him, but then her family still wanted to force her to marry someone else, but she planned to escape with her boyfriend. The applicant explained in her culture Muslims and Malay people are not allowed to enter her tribe and that because her culture is very strong, they prevent people from getting married with outsiders.
The applicant stated her boyfriend asked her to convert to get married, and that his family wanted her to study Islam so she attended lessons, but it was not easy, and she couldn’t catch up with the lessons. She stated she had converted just to get married, not to practise Islam. The applicant explained she ultimately had contact with the religious authorities and her family found out about her relationship with Mr H and harmed her.
In discussing her claimed conversion to Islam, religious education in Malaysia, contact with the religious authorities, and exposure of her inter-faith relationship to her family the applicant provided the following details at the first hearing:
·     She attended study sessions about religion and was taught by one teacher who introduced themselves as a student of religion. She told them she didn’t intend to become a Muslim to learn the religion, and that her intention was to get married to her boyfriend. She told this person everything.
·     She got a call a few days later from the Department of Religion, where she was asked if it was true that she had just become a Muslim to enable her to get married. She explained she had become a Muslim to be with her boyfriend.
·     After that, two teachers and one student came to interview her. They kicked her chair and called her a pig Dusun. She was told she had insulted the religion by pretending to enter the religion and do anything she likes in the Muslim country. She was asked if she still wanted to continue her religious learning and if she wanted to change her statement she had previously made. She was scared and indicated she needed time to think.
·     Her family then found out she had been falling for a man that was not the same race as her.
·     The elder sister of a man her family wanted her to get married to spotted her and her boyfriend and informed her family. She returned home to find her father already there. He grabbed her head, slapped her, kicked her in front of the other family and asked her what she had done. She did not know how they had found out and why her father was angry, but she could tell he must have found out from the other family that she has a boyfriend.
·     Her father locked her in a bedroom whilst he talked to the other family. When he came back to her, he continued to hit her and physically hurt her. He reminded her about her culture and rituals and threatened her with the loss of her life if she continued with her relationship. He told her if she did not stop her relationship the same thing that happened to her cousin, who died because of poison in her food because she loved a man outside of her race, would happen to her.
·     After a few weeks she got another call from the religious department. She was taken to a building under an office building. Before she was taken into a room, two police officers asked her to leave her bag and phone and provide her name. She had to write her name inside a book they had. She was then taken inside and interviewed by her teacher. She was reminded that in Islam, once you become a Muslim there is no turning back. The applicant stated she said she understood, then she was told she has to complete her studies, and that a place would be arranged for her to study. She was told it would take three to six months for her to complete her studies, during which she could not work or go back to her home. She was told, when asked when her studies would start, that someone will call her.
·     When she was in the religious department, she saw the list of names and recognised the name of a lady she knew, as her case was a bit similar to her own. That lady didn’t want to practise Islam and wanted to leave the religion. After a while she tried to contact that lady but was not able to contact her and she never met her again. Nor was she able to connect with her to talk to her again.
·     After the meeting at the office building, she was scared and went back home. She was also fearful of her family and of being poisoned. She also had fears of people missing, as at this time there was a case of a missing Pastor who had been kidnapped and this caused her to be more scared.
The Tribunal asked the applicant at the first hearing when it was that her family found out about her having a boyfriend and what was happening. In response she stated around October or November 2017. She then corrected herself and said no, it was around June, July 2017, and that is correct.
The Tribunal asked the applicant at the first hearing how her conversion to Islam took place. She stated she said to her boyfriend if it’s going to be that difficult, she will do that. Her boyfriend arranged her to meet a religious teacher and she had to go to the office of the Department of Religion, then once there she had to read the Shahada and in less than two minutes, she officially became a Muslim. Then she had a sign a few documents for registration. In relation to her religious beliefs, she stated at hearing she is a Christian but in Malaysia by law she is a Muslim.
The Tribunal asked the applicant at the first hearing if she had any documentation she could give the Tribunal indicating her conversion. In response she stated she doesn’t have the document officially because she’s so scared of her family and at that time, she didn’t bring any documents back home and didn’t have it with her.
The Tribunal asked the applicant at the first hearing when the conversion took place. She stated around June. The Tribunal asked if that was 2017, and she stated yes, correct.
The Tribunal also asked the applicant at the first hearing if she remembered when approximately it was that she was last taken by the religious department, when she went underground and she was discussing her situation with them. The Tribunal asked specifically when she was told she had to study for three to six months. In response she stated in the beginning of February. The Tribunal asked if she heard from the religious department again after that, to which she responded they called her to have a general talk to make sure she was still there. The Tribunal asked what happened after that call and until she lodged her protection visa application in Australia. The applicant explained around February with the cases increasing like the Dusun pastor who got kidnapped so when the case was going up around March, she contacted her boyfriend and told him if he didn’t do anything about it she might be one of them. She stated on the [Day] she left Malaysia.
The Tribunal checked back with the applicant at the first hearing the details of what she had stated in her evidence, indicating it wanted to make sure it understood what had happened. It outlined she had stated the religious department contacted her in early February 2018 where she was told she would have to study for three to six months and not work, they contacted her on the phone to make sure she was still there in her village, and then [in] March she came to Australia and lodged her protection visa application after that date. The applicant responded by stating yeah, then that she forgot to mention one more thing, when the religious people contacted her through the phone, she believed one car was following her and she was always careful going out as she was scared of her family. The applicant did not disagree with the other narrative of events she had given to the Tribunal and which the Tribunal repeated back to her, including the specific dates and sequence of events.
In relation to the car incident, the applicant stated she noticed the car always following her. One afternoon she was hit from the back by the car. She explained she took a photo of the car to ask for compensation and that when she went to the police station to report it, the officer taking her report stated it was a special officer’s car and told her she had made up the story. She stated she ceased lodging her report once she knew it was a police car. The applicant stated she knew she was being followed within a few days. In discussing the car and who the police were, she stated she could see the police car stated SDK on it, so it was from the Sandakan district. She also explained she was aware of the car following her as she was always careful and watching because she was scared of her parents and noticed the car was sometimes at the back of her. When the Tribunal asked why at this time she did not move to another part of Malaysia, away from her parents, she stated in other parts of Malaysia she would be exposed to a lot of Muslim fanatics and the religious department.

At the first hearing the applicant indicated to the Tribunal she had travelled to Australia for a short time in 2017. The Tribunal explored this with the applicant and asked if that travel was before or after her family had found out about her boyfriend, which it explained to the applicant she had stated was in July 2017. She stated they didn’t know yet, but they kind of knew as well as there was a lot of gossip around.
The Tribunal clarified with the applicant at the first hearing when her travels to Australia occurred in connection to her parent’s awareness of her relationship. For certainty, the Tribunal explained to the applicant that earlier in the hearing she had explained separate to her travel to Australia, for which she was still here now, she also travelled to Australia in 2017. The Tribunal asked in relation to that separate travel to Australia in 2017, whether it occurred before or after her family had found out about her boyfriend and before or after her father had harmed her and kept her in her room as she had described. In response the applicant stated it was before they knew it.
In discussing why the applicant fears harm on return to Malaysia at the first hearing, she stated she fears she will be targeted by the Islamic religious department for an investigation and sent to detention as she has insulted the national religion of Malaysia. She claimed she will be arrested and abducted by the religious department as once you have been targeted, they will not leave you alone and that they have a report of people who have been reported in each district. The applicant stated she would be monitored by the religious authorities, the police, and Jabatan Agama Islam Selangor (JAIS). She also claimed to have brought shame on and insulted her family and culture and that she would be poisoned by her family and not accepted by her family or community. The applicant confirmed the articles she provided to the Tribunal of other people being kidnapped was to show other cases in Malaysia of kidnapping. In his closing submissions at the first hearing her representative submitted she would be targeted by her own community, her family, and the religious police.
The Tribunal has significant concerns with the applicant’s evidence relating to her claimed conversion to Islam, the harm she experienced from her family and the Dusun community, and the contact she had with the religious department and police and does not find these claims to be credible. The applicant’s evidence given at the first hearing does not match movement records before the Tribunal which indicate the applicant was in Australia at the time she claimed to have been contacted by the religious department. Movement records before the Tribunal also indicate the applicant’s de facto partner was in Australia at the time she claims the elder sister of the man her family wanted her to marry saw her and her boyfriend in Malaysia and when her family found out about her relationship, leading her family to harm her. Movement records also indicate the applicant’s de facto boyfriend was in Australia for at least seven months before the applicant’s claimed date of her conversion to Islam. The applicant’s claims she converted to Islam in Malaysia are also substantially inconsistent with what is stated in her protection visa application. The Tribunal raised its concerns with the applicant’s evidence in accordance with s 424A of the Act, as detailed below, and has found the applicant has subsequently revised her evidence in order to respond to the Tribunal’s concerns. These concerns are addressed in more detail below.
Firstly, the applicant’s evidence at the first hearing is not consistent with information contained in movement records before the Tribunal relating to the applicant and her de facto partner at the time she claimed protection. At the first hearing the Tribunal explained to the applicant it had concerns about inconsistencies in her evidence. The Tribunal explained information before the Tribunal indicates she travelled to Australia [in] December 2017 and returned to Malaysia [in] March 2018. The Tribunal raised its concerns as to the credibility of her claims she converted to Islam, was harmed by her family in relation to her relationship, and that she had any contact with the religious department given the inconsistences between her evidence and the movement records and what is stated in her protection visa application. The Tribunal explained it would send her a letter in accordance with s 424A of the Act and invited the applicant to comment at hearing on the Tribunal’s concerns if she wished to. The applicant indicated she would respond to the Tribunal’s concerns in writing.
In its correspondence of 28 May 2024 sent in accordance with s 424A and s 424 of the Act the Tribunal explained movement records before the Tribunal indicate the applicant arrived in Australia [in] December 2017, departed Australia [in] March 2018, and returned to Australia on 28 March 2018. It explained in the applicant’s oral evidence to the Tribunal she stated she converted to Islam in June 2017 and in February 2018 she was interviewed in person by the Department of Religion (understood by the Tribunal to be the Department of Islamic Development Malaysia) who told her that she would need to complete her Islamic religious studies over three to six months. The Tribunal explained the movement records suggest she was in Australia at the time she claims she was interviewed by the Department of Religion and that it may cause the Tribunal to doubt the truthfulness of her evidence and to consider that her claims lack credibility and affirm the decision of the Departmental delegate.
The Tribunal also outlined in its correspondence that movement records before the Tribunal indicate her de facto partner at the time she lodged her protection visa application, Mr H, arrived in Australia [in] October 2016 and departed Australia [in] October 2020. It explained in her oral evidence to the Tribunal she had stated she converted to Islam in June 2017 and in July 2017 her family found out about her relationship with her boyfriend after the elder sister of the man her family wanted to her to marry spotted her and her boyfriend. The Tribunal explained she had stated her father then grabbed her at her family home, slapped and kicked her, and locked her in a bedroom and threatened her life. The Tribunal outlined the movement records before it suggests her boyfriend was in Australia at the time she claims the elder sister of the man her family wanted her to marry spotted her and her boyfriend and when her family found out about her relationship and suggests her boyfriend was in Australia for at least seven months before she claims to have converted to Islam. The Tribunal explained this may cause it to doubt the truthfulness of her evidence and consider that her claims lack credibility, and it may be the reason or part of the reason for affirming the decision under review.
On 5 June 2024 the applicant responded to the Tribunal’s concerns in writing. In her response she stated there was an error of miscommunication on the interpreter’s part and that she recognised the interpreter as having a west Malaysian dialect which is different to her language which she stated was more like Indonesian Bahasa. The applicant claimed she had difficulty understanding what the interpreter was trying to relay to her and she could see the interpreter having difficulty understanding what she was conveying as the interpreter often missed some words she would say or summarise her information. In her response the applicant claimed on several occasions she had to interrupt and communicate information to the Tribunal and that this led to her being confused about the context of the questions and mixing up her information.
The applicant explained wrong dates have been recorded owing to a misunderstanding due to the interpretation and that she converted to Islam on 22 September 2016. The applicant attached a Certificate of Conversion to Islam with her response of 5 June 2024. She also stated in that response she is not sure who specifically she was interviewed by and that they introduced themselves as Ustazah and Ustad and that they represented the Islamic Council. She reiterated she was further interrogated by the person who was the student from the religious school and that her chair was kicked, and she was called kafir pig. The applicant stated she was interviewed between 14 March 2018 and 19 March 2018 and that she had returned to Malaysia during that period hoping she could return to her life but fled Malaysia after this interview as it made her feel unsafe and fear for her life.

100. The applicant claimed in her response that she misunderstood the interpreter and confused the dates and that her family found out about the relationship with her boyfriend around July 2016 and this is when the elder sister of the man she was arranged to marry spotted her with her boyfriend and told both families. She stated her boyfriend left for Australia after continuous threats from the person the applicant was arranged to marry and his family, arriving in Australia after her conversion. She claims her family found out about her relationship around July 2016 but assumed the relationship ended after she completed the traditional ritual sogit.
101. The Tribunal has considered the applicant’s concerns about the interpretation in the first hearing, her written response to the Tribunal’s s 424A and s 424 letter, and her oral evidence. The Tribunal has listened to an audio recording from the first hearing. The Tribunal finds the applicant was able to answer questions at the first hearing without hesitation or clarification and her answers demonstrated an understanding of the questions being put to her. Her answers and the interpretation were detailed and specific and did indicate to the Tribunal to be a summarised version of her evidence. There were isolated instances where the interpreter indicated she did now know the full words that had been stated by the applicant or where she was unable to translate a specific word and the Tribunal sought clarification from the applicant. On some isolated occasions the applicant elected to interrupt the interpreter to re-interpret what had been said, clarify specific words, or re-state the interpretation in a different way, for example re-interpreting the interpreter’s sentence ‘this car always follows me’ to ‘I noted the car always follows me’. On occasion the applicant elaborated on her evidence as interpreted by the interpreter by then speaking in English.
102. The Tribunal finds the interpreter interpreted the applicant’s evidence accurately at the first hearing so as to convey the idea or concept being communicated. The Tribunal acknowledges, as stated in Perera v MIMA that whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language[3]. The Tribunal finds the interpretation at the first hearing met this standard. The Tribunal places weight on the following factors in finding that the interpretation at the first hearing conveyed the ideas and concepts being communicated by the applicant:
[3] Perera v MIMA (1999) 92 FCR 6.
·     The Tribunal confirmed with the applicant at the commencement of the hearing that she understood the interpreter and that she did not have any issues with the interpretation. The Tribunal stated to the applicant at the start of the hearing if there were any questions or anything she was not sure about when the Tribunal asked her to please ask the Tribunal for any clarification and the Tribunal would ask her in a different way.
·     The applicant did not raise any concerns with the interpretation at the first hearing, including during or after the break mid-way through the hearing, during which the applicant had an opportunity to converse with her representative and raise any concerns with the interpretation. Nor did the applicant’s representative raise any concerns with the Tribunal about the interpretation at the first hearing, including after the break. The applicant’s representative communicated with the Tribunal after the break during the first hearing that the applicant felt cold and a request was made to adjust the air-conditioning, indicating to the Tribunal the applicant felt comfortable raising concerns with her representative and of making requests of the Tribunal.
·     Over the course of the first hearing, which was over three hours in duration, the applicant was able to consistently answer questions with detailed answers. There was not any apparent confusion in exchanges between the applicant and the interpreter, repeated requests for clarification or re-interpretation, or for questions to be asked in a different way. The consistency with which the applicant answered questions the Tribunal put to her via the interpreter and her detailed answers indicated coherence, awareness, and responsiveness rather than confusion or misunderstanding. There were instances where the applicant corrected her own evidence on reflection. The specific instances within which the applicant re-interpreted the interpretation, clarified some words, and elaborated in English indicate to the Tribunal the applicant had an understanding of the questions being relayed via the interpreter and in English. Where the applicant spoke to the Tribunal at length in English, the Tribunal asked the applicant if she wished to re-state her evidence via the interpreter, which it was.
·     The interpreter is a Certified Provisional Interpreter in the Malay language. The interpreter took an affirmation at the commencement of the hearing to interpret everything accurately and truthfully. The interpreter provided firsthand delivery in interpretation and did not default to stating ‘she said’ or provide interpretation other than in the first person or provide a summarised version of the applicant’s evidence.
103. The applicant has claimed in her written response of 5 June 2024 that the dialect of Malay spoken by the interpreter is different from her language which is more like Indonesian Bahasa and that this resulted in her having difficulty understanding the interpreter and the interpreter had difficulties conveying what she said. For the reasons outlined above, the Tribunal does not find that to be the case, particularly where the applicant was able to answer questions in detail over the duration of the hearing and at times corrected her own answers on reflection. Whilst the Tribunal accepts there were times the applicant corrected specific words the interpreter said, and the interpreter paused on occasion to reflect on a specific word the applicant had said in order to interpret, and that the interpretation was not perfect, the Tribunal finds there was no apparent dialect issues resulting in confusion or difficulty in understanding between the interpreter and the applicant as to the questions the Tribunal was asking or difficulties in the interpreter conveying the applicant’s evidence to the Tribunal.
104. The Tribunal has considered that credibility assessments made when an interpreter has been utilised can be compounded by cultural issues, such as direct questions that may be considered inappropriate, and certain topics that may cause discomfort[4], and that difficulties in communication affecting the standard of interpretation may occur if the interpreter is in a different location from the applicant and the Tribunal member. The Tribunal does not find in this case the nature of the questions asked or the circumstances of the interpreter appearing via videoconference have resulted in any errors of interpretation, particularly in circumstances where the Tribunal clarified important issues with the applicant via different types of questions.
[4] DVO16 v MIBP; BNB17 v MIBP [2021] HCA 12 at [54].
105. Given the applicant’s evidence at the first hearing about the date of her claimed conversion to Islam and the timeframe within which she claimed to have been exposed with her boyfriend in Malaysia and to have interacted with the religious department were inconsistent with movement records before the Tribunal, the Tribunal intentionally asked the applicant about the timeframe within which certain events happened in Malaysia and how they were connected to her travels to Australia in different ways at the first hearing to ensure she had an opportunity to provide her evidence and confirm the timeframes. The Tribunal also repeated to the applicant its understanding of her evidence on certain critical points, as set out above, asking her to confirm the Tribunal’s understanding was correct or re-stating what it had heard her say, for example indicating that she had stated her family found out about her boyfriend in July 2017, and the Tribunal understood the religious departed contacted her in early February 2018. In these circumstances, where the applicant has consistently explained at the first hearing what the date range was that she converted to Islam, when she experienced harm from her family, and when she had contact with the religious department, and confirmed aspects of that evidence on summation or re-statement from the Tribunal, the Tribunal finds an interpretation issue has not led to a date error in her evidence, nor confusion on her part due to the interpretation of questions.
106. For the reasons outlined above, the Tribunal finds the applicant’s evidence was interpreted accurately at the first hearing so as to convey the idea or concept being communicated[5] and it does not accept her 5 June 2024 written explanation for the inconsistencies between her oral evidence and the movement records before the Tribunal. The Tribunal does not accept there were issues with the interpretation, that the interpreter had any difficulty understanding what the applicant was trying to convey in the first hearing, or that the applicant had to interrupt the interpreter on several occasions over the course of the three and a half hour hearing to explain her evidence. The Tribunal finds the applicant has revised her evidence in her 5 June 2024 correspondence to the Tribunal and presented new dates that she converted to Islam, was observed to have been seen with her boyfriend in Malaysia, to have been harmed by her family, to have had contact with the religious department, and to have undertaken cultural rituals, in an attempt to respond to the inconsistences in the movement records and the concerns raised by the Tribunal in its s 424A letter.
[5] SZGWN v MIAC (2008) 103 ALD 144 at [21], citing Gaio v The Queen (1960) 104 CLR 419 at 433 and WACO v MIMIA (2003) FCR 511 at [66].
107. Secondly, the Tribunal has significant concerns that the applicant’s claimed conversion to Islam was not raised in her protection visa application, and nor was the harm she claims she experienced from her family or the religious authorities in Malaysia. The applicant’s evidence about her claimed conversion in Malaysia is inconsistent with her written claims. When discussing her protection visa application generally with her during the first hearing the applicant stated that she did not mention in her protection visa application that she had been hit and didn’t indicate that she had secretly converted to Islam because she was scared, and she didn’t think long term. She stated she had limited English and relied on Google translate.
108. At the first hearing the Tribunal discussed its concern with the applicant that she had raised a number of claims at hearing that were not stated in her protection visa application or raised before the Department made its decision on 30 November 2018. It explained s 423A of the Migration Act requires the Tribunal to draw an unfavourable inference on the credibility of those claims unless she could satisfy the Tribunal that she has a reasonable explanation why they were not raised before the Department made its decision. The Tribunal also explained it was concerned with the inconsistencies between what is stated in her protection visa application and what she had stated at hearing, and that in her protection visa application she had stated she refused to convert to Islam and her partner’s family may ask her to convert if she retuned to Malaysia, whereas at hearing she had stated she converted to Islam secretly in Malaysia and she attended Islamic classes and was contacted by the religious department. The Tribunal invited the applicant to comment on its concerns and the inconsistencies in her evidence.

185. The applicant also raised concerns about the services available to her in Sabah as an Indigenous Malay. The Tribunal has found the applicant will return to Koto Kinabalu, Sabah. The Tribunal discussed with the applicant at hearing that DFAT assess that Indigenous peoples of Malaysia face a low risk of official discrimination in the form of inadequate service provision and failure to protect customary land rights. Whilst the applicant claimed there are no benefits for Indigenous Sabah people, there isn’t basic needs such as highways and water and the government owns and takes the land when they want to, she has provided no independent information to the Tribunal that any land she owns is being taken from her or that she has been denied access to basic services, employment, or government services for any specific reason. When the Tribunal put it to the applicant that whilst the standard of living in Australia may be higher than in Sabah, that there was nothing to indicate she is being intentionally denied access to services or day-to-day needs for any reason, and that it may not find her concerns amount to serious harm in accordance with the Act, she did not comment.
186. The Tribunal finds on the evidence before it the applicant has been able to work in varied roles in Malaysia and acquire funds to travel extensively internationally. She has not been denied employment or services for any reason. Whilst the Tribunal appreciates the services and standard of living available to the applicant in Sabah is not as high as that in Australia, it does not find these concerns amount to serious harm in accordance with s 5J(4)(b) of the Act or that she is being denied access to services or a standard of living such that her concerns or those conditions have any nexus with the reasons set out in s 5J(1)(a).
187. In relation to the applicant’s concerns she will be kidnapped or killed and that she will experience general violence on return to Malaysia, as raised with the applicant at hearing, country information indicates the security situation across Malaysia is generally stable and kidnapping instances are high in coastal areas of eastern Sabah. The applicant’s evidence at hearing was that there are cases of women being killed and it not being reported in the media, and they are being covered up. Whilst the Tribunal acknowledges kidnappings do occur in Malaysia, as raised with the applicant at hearing, there is no evidence before the Tribunal that indicates the applicant would specifically be the target of a kidnapping of or general violence on return to Malaysia.
188. The applicant’s responses to the Tribunal’s concerns about whether she specifically would face a real chance of harm on return to Malaysia centred on her religious case where the government has kept secret information, the circumstances of the other woman in her community who had attended religious classes and vanished, and religious extremists and police who would be offended and target her. As outlined above, the Tribunal has not accepted the applicant converted to Islam or that she had any contact with the religious authorities or police, or that she is known to the religious authorities or police or would be a target of harm from the government, religious authorities, or the police on return to Malaysia for any reason.
189. The Tribunal considered the articles provided by the applicant to the Tribunal that refer to kidnappings, and which the applicant stated at hearing were a reference to what happens in Malaysia about kidnappings. The Tribunal finds they similarly do not support that the applicant specifically would be a target of harm or of kidnapping on return to Malaysia. The articles refer to women suspected of being kidnapped who were ultimately found to have travelled to Sandakan to find work, and to religious pastors, of which the applicant has made no claim to be one, suspected of being kidnapped in relation to evangelising. The applicant’s profile is markedly different to the pastors described in the articles and she has made no claims she would be a target of harm for evangelising or preaching against Islam or owing to her specific religious profile. Considering the applicant’s oral and written evidence and her claims individually and cumulatively and taking into account the Tribunal’s findings set out above, the Tribunal finds there is no real chance the applicant will be kidnapped or that she specifically will be the target of harm from anyone on return to Malaysia in the reasonably foreseeable future, including in relation to her ethnicity and religion.
190. In relation to the applicant’s claims she will experience financial hardship on return to Malaysia and it would be a miracle to find work, as discussed with the applicant at hearing and outlined above, Malaysia’s economy is steady, overall unemployment is decreasing, including in Sabah, and there are government initiatives such as job fairs in place in Sabah to address unemployment rates. As raised with the applicant at hearing, the Tribunal finds that there is no intentional act to cause her economic harm or to deny her work in Malaysia and that her economic concerns on return to Malaysia are not for a s 5J(1)(a) reason.
191. The Tribunal has accepted the applicant has recently attended two psychological sessions for her mental health symptoms and that she attended one other session with a mental health professional after arriving in Australia. At the resumed hearing the Tribunal raised with the applicant although mental health services in Malaysia are expensive and hard to access and there is some stigma attached to mental health, services do exist, non-government organisations provide some support, and mental health spending is part of the national health budget. The applicant’s comments in response to the Tribunal’s concerns as raised at hearing centred on her claim she will be killed by her family or put in prison and that mental health is her second concern. She did not claim she would be targeted or harmed by anyone because of her mental health. In circumstances where the applicant would not be denied access to treatment, services or medication for any reason, and where she has not claimed she would be harmed in respect of her mental health symptoms on return to Malaysia by anyone, the Tribunal finds her mental health concerns on return to Malaysia do not involve serious harm to the person in accordance with s 5J(4) and that they are not for a s 5J(1)(a) reason.
192. The Tribunal has accepted the applicant is in a spousal relationship with Mr S. It has not accepted Mr S will return to Malaysia with the applicant. Whilst the applicant did not spontaneously advance any claims that she would be harmed on return to Malaysia on account of her relationship with Mr S, the Tribunal explored the applicant’s relationship with Mr S at hearing and discussed country information as to the prevalence of interfaith relationships in Sabah. The Tribunal explained it may not find the applicant faces a real chance of serious harm on return to Malaysia on account of her relationship with Mr S. Whilst the applicant stated at the resumed hearing that when she returns the same problem will appear because of different religions, the Tribunal finds that will not be the case.
193. As outlined above, the Tribunal has not accepted the applicant’s family or the Dusun community or anyone else threated or harmed the applicant in Malaysia on account of her past interfaith relationship with Mr H. In these circumstances the Tribunal finds there is no real chance the applicant’s family, and the Dusun community will threaten or harm her on return to Malaysia on account of the interfaith relationship she has commenced in Australia with Mr S. The Tribunal is prepared to accept if members of the applicant’s friendship circle, or community discover she entered an inter-faith relationship in Australia she may be subject to some negative attitudes and comments. The Tribunal finds any negative attitudes or comments the applicant faces, or a combination of negative attitudes and comments, does not amount to serious harm in accordance with s 5J(4)(b) of the Act. The Tribunal is not satisfied any negative comments or attitudes the applicant faces would be exacerbated such that they amount to serious harm on account of her mental health symptoms.
194. The applicant did not claim, and there is nothing in the material to suggest, that she fears persecution for any other reason in Malaysia.
195. For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicant returns to Malaysia now or in the reasonably foreseeable future that she faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, the applicant does not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).
Does the applicant meet the complementary protection criterion?
196. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).
197. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
198. For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience harm from her family, the Dusun community, the religious authorities, the police or in relation to her Dusun ethnicity, religion, general violence, and kidnappings if she returns to Malaysia. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[23]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicant does not face a real risk of significant harm from her family, the Dusun community, the religious authorities, the police, or in relation to her Dusun ethnicity, religion, general violence, and kidnappings if she returns to Malaysia.
[23] MIAC v SZQRB [2013] FCAFC 33.
199. As discussed above, the applicant has claimed there are a lack of services in Sabah, including in respect of infrastructure. As raised with the applicant at hearing, there is no evidence before the Tribunal that there is any intentional act on the part of any person, body, or group to deny her access to services or to prevent her from meeting her day-to-day needs. When the Tribunal raised with the applicant at hearing that it may not find her concerns about the standard of living in Sabah amounts to significant harm she did not respond. Whilst the Tribunal acknowledges the standard of living in Malaysia and across Sabah is not of the same standard as in Australia, the Tribunal finds the applicant’s concerns about the standard of services and infrastructure available in Sabah do not come within the exhaustive definition of significant harm in s 36(2A).
200. In relation to the applicant’s mental health concerns on return to Malaysia, the Tribunal accepts the applicant is concerned for her future, is experiencing depression, and that she has recently obtained professional psychological services from [Ms A]. The Tribunal acknowledges the country information indicates the applicant may experience some social stigma on account of her mental health symptoms on return to Malaysia, and that whilst mental health services are available, they are not as abundant as they are in Australia and are expensive. The applicant has not claimed she will be harmed due to her mental health symptoms on return to Malaysia. The Tribunal finds where the applicant is reported by [Ms A] to have no thought disorder, psychosis, perpetual disturbance, or hallucinations, and where she has been able to work consistently whilst experiencing mental health symptoms in Australia, she will not experience a level of social stigma on return to Malaysia on account of her mental health symptoms amounting to significant harm. Where the applicant will have access to mental health services in Malaysia, has not claimed she will be targeted by anyone for any reason owing to her mental health in Malaysia, and has been able to consistently work in Australia during periods where she has experienced mental health symptoms, the Tribunal finds the applicant’s mental health concerns on return to Malaysia do not amount to significant harm in accordance with s 36(2A).
201. The Tribunal has considered the applicant’s claims she will experience financial difficulties on return to Malysia and that it will be a miracle to find work because of her education level. The Tribunal appreciates the applicant has left her life in Malaysia behind and that she will need to find new work and housing and re-establish herself. Whilst the applicant claimed she would not find employment due to her education level and that she did not finish high school, the Tribunal has found that she completed high school between [year range] and that she worked in a range of jobs in Malaysia, including [job task 2], delivery work, and roles associated with [job task 1] between 2009 and 2018 in Koto Kinabalu. Since arriving in Australia the applicant has worked in various [roles]. The Tribunal finds the applicant has demonstrated a capacity to re-establish herself in difficult circumstances, including finding employment and housing in Australia after her departure from Malaysia and after the demise of her relationship with Mr H in 2020.
202. The Tribunal has considered the impact of the applicant’s mental health on her capacity to undertake employment and her economic situation on return to Malaysia. In circumstances where the applicant has been working four to five days per week in her current [role] the Tribunal finds her mental health condition has not impacted her capacity to undertake employment and obtain a subsistence in Australia and that it would not impact her capacity to find and obtain suitable employment in Malaysia, even if her mental health symptoms are enhanced on return to Malaysia owing to her changed circumstances. Whilst the Tribunal acknowledges the applicant will face less favourable economic conditions in Malaysia and a period of financial uncertainty whilst she re-establishes herself and obtains employment, as discussed with the applicant at hearing, in circumstances where she has a past work history and the economy in Malaysia is steady and there are initiatives in place to enhance employment opportunities in Sabah, the Tribunal finds the applicant’s economic concerns on return to Malaysia do not amount to significant harm in accordance with s 36(2A).
203. The Tribunal has accepted the applicant has commenced a relationship with Mr S in Australia. As outlined above, the Tribunal has not accepted the applicant and Mr S are married under Islamic law or Australian law or that Mr S would return to Malaysia with the applicant. Whilst the Tribunal acknowledges the applicant may experience some negative comments or attitudes in Malaysia from people in her community, or friendship circles who are aware of her interfaith relationship in Australia the Tribunal does not find such conduct, or the cumulative effect of negative comments or attitudes, amounts to significant harm in accordance with s 36(2A) of the Act. The Tribunal does not accept the applicant’s mental health symptoms would exacerbate the impact of such conduct such that it amounts to significant harm.
204. The applicant stated at the resumed hearing that her family and the Dusun community would be fearful of her relationship and not accept it due to the different religions. Given the Tribunal has not accepted the applicant’s family or the Dusun community or anyone else threated or harmed the applicant in Malaysia on account of her past interfaith relationship with Mr H, the Tribunal finds there is no real risk they will harm her in the reasonably foreseeable future on return to Malaysia in relation to her commencement of an interfaith relationship in Australia with Mr S.
205. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to Malaysia that she will be arbitrarily deprived of her life or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
206. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
207. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
208. Having concluded that the applicant does 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 applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
209. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).
DECISION
210. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachelle Johnston
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 3982

10 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction