1901903 (Refugee)

This matter concerned a Malaysian woman who applied for a protection visa in Australia. The applicant, an ethnic Malay and therefore considered a Muslim under Malaysian law, had moved to Australia in 2018. She later met and formed a relationship with an Australian citizen, whom she married in a civil ceremony in March 2023. Their daughter was born in [Year]. The applicant claimed she did not practice Islam and feared persecution in Malaysia due to her perceived apostasy and her inter-faith marriage and child, which are not recognised under Malaysian law. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had a well-founded fear of persecution for reasons of religion or membership of a particular social group, and whether effective protection measures were available to her in Malaysia.

The Tribunal considered the applicant's evidence and credibility, finding it consistent and supported by documentary evidence. It accepted that the applicant, despite being born Malay and thus automatically considered Muslim in Malaysia, did not follow Islam and questioned its tenets from a young age. The Tribunal noted that apostasy is difficult to achieve legally in Malaysia and can be an offence under state-based syariah law, carrying potential penalties. Furthermore, the applicant's civil marriage to a non-Muslim Australian citizen was not recognised in Malaysia, and their child, an Australian citizen, would be considered illegitimate and not a Malaysian citizen. The Tribunal found that the applicant faced a real chance of serious harm, including threats to her liberty, physical harassment, ill-treatment, and denial of basic services, from both Malaysian authorities and parts of society. This harm was considered to be for reasons of her religion and membership of a particular social group, defined as a Muslim woman in an interfaith relationship or marriage. The Tribunal concluded that effective protection measures were not available to her in Malaysia.

The Tribunal determined that the applicant's relationship and marriage were not entered into for the purpose of strengthening her protection claim. Applying the principles of the Migration Act 1958, the Tribunal was satisfied that the applicant was a refugee and that Australia had protection obligations towards her under s 36(2)(a) of the Act. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa.