1907187 (Refugee)
[2025] ARTA 1014
•8 January 2025
1907187 (REFUGEE) [2025] ARTA 1014 (8 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1907187
Tribunal:General Member J Kotsifas
Date:8 January 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 08 January 2025 at 10:17am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Kadazan Dusan ethnic group – religion – Islam – religious conversion to Islam – apostasy – illegitimate child claim – fears harm from loan shark – applicant is no longer a person of interest to the loan sharks – son was conceived before marriage – raised as a Christian – applicant faces a real chance of serious harm – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 15 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant[1] is a [age]-year-old man who claims to be a citizen of Malaysia. He arrived in Australia on [date] July 2018 holding an Electronic Travel Authority (Subclass 601) visa and has not departed since that date. He applied for his protection visa on 26 September 2018.
[1] Department File: [deleted]
On 15 March 2019 the delegate refused to grant the applicant’s visa on the basis that the applicant is not a person to whom Australia has protection obligations.
The applicant applied to the Tribunal for a review of the delegate’s decision on 26 March 2019.[2]
[2] AAT Case 1907187
The applicant appeared before the Tribunal on 4 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was not represented at the hearing by any Australian lawyer or registered migration agent but was assisted at the hearing by his authorised recipient who attended the hearing by video link from Malaysia.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant’s personal background
The applicant was born in Keningau, Sabah Malaysia. His parents reside in Malaysia. He has 2 sisters who also reside in Malaysia.
The applicant was married on [date June] 2012 in Malaysia. His wife and 2 children reside in Malaysia. The applicant’s son is [age] years of age, and his daughter is [age] years of age.
The applicant belongs to the Kadazan Dusan ethnic group, and he was baptised as a Christian in April 2002, however he converted his religion [in] April 2012 to Islam as a requirement of entering into an Islamic marriage with his wife who is Muslim. Their children’s Malaysian identity cards shows their religion as Islam.
The applicant’s original application states that he completed high school in [year]. Between 2014 – 2016 he worked as a [occupation] and between 2016-2017 he worked in a [workplace]. From July 2018 until September 2018, he remained unemployed.
At the time the applicant applied for his protection visa he was living in [Victoria].
After arriving in Australia, the applicant initially worked in a [workplace] between 2018 – 2019 performing [specified] work and between 2019 – 2021 he worked as a [worker] in [a] factory in [Victoria]. He moved to Melbourne in 2021 and began working [in an] industry. He is currently employed [doing specified work]. He earns approximately $1,250 per week from his current employment.
The Tribunal accepts the above matters to be true.
Evidence before the Department
The applicant’s original claims for protection
The interview
Department records indicate that the applicant was not invited to attend a protection visa interview.
Fear of harm from loan shark
The applicant’s initial claims for protection can be summarised as follows:
·Their cousin used their name as a guarantor to borrow money from a loan shark.
·Their cousin ran away so the loan shark wants them to repay the money.
·The loan shark splashed red paint and wrote abusive words to them and their family.
·They were threatened with violence.
·They were threatened that their house would be burnt down, and their family would be forced to also make repayments.
·If they return to Malaysia, they will not feel safe as the ‘loan shark gangster’ will still haunt them and will threaten their family.
·They cannot relocate anywhere else as the loan sharks are everywhere.
·The police did not help him when he reported the matter and asked for protection.
The delegate’s decision
In relation to the applicant’s original claims, the delegate refused to grant the applicant a visa because the applicant can access police protection, the protection is durable and the protection consists of an appropriate criminal law, a reasonably effective police force and impartial judicial system. The delegate was satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. The delegate also found that as the applicant could obtain protection, there was not a real risk that the applicant would suffer significant harm as outlined in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Documents received prior to the hearing
The applicant filed with the Tribunal the following documents:
·Malaysian Islamic marriage certificate issued [February] 2013, showing he was married on [June] 2012.
·Translated Malaysian birth certificate for his son showing he was born on [date] in Malaysia. The date of registration on the birth certificate is stated to be [date]. The certificate bears the fathers and mother’s name. The father’s religion on the certificate is shown as Islam and the mother’s religion is also shown as Islam.
·Translated Malaysian birth certificate for his daughter showing she was born on [date] in Malaysia. The date of registration on the birth certificate is stated to be [date]. The certificate bears the fathers and mother’s name. The father’s religion on the certificate is shown as Islam and the mother’s religion is also shown as Islam.
·The applicant’s birth certificate showing his date of birth as [date].
·The applicant’s Malaysian Identity card (Mykad) which does not state any religion.
·The applicant’s wife’s Malaysian Identity card (Mykad) showing her religion as Islam.
·The Malaysian children’s identity card (Mykid) for each of the children showing their religion as Islam.
·The applicant’s Baptism certificate showing that he was baptised on [date] July 1996 in [a] Church in Sabah.
·Certificate of religious conversion for the applicant issued by the Sabah Islamic Religious Affairs department showing he converted his religion to Islam [in] April 2012.
·Affidavit of the applicant’s father sworn in Malaysia on 29 August 2024. The affidavit exhibits all of the documents referred to above with the addition of the following:
-News article dated 30 March 2024 – “Malaysian Store Attacked over socks bearing the name ‘Allah’.”
-News article dated 15 July 2024 – “KK Mart Founder, wife freed of criminal charges over ‘Allah’ socks issue, company and supplier fined RM60,000 each.”
·Statement of applicant (undated) received by the Tribunal on 3 March 2024.
The applicant’s new claims
Apostasy and child conceived before marriage
The applicant’s statement dated 3 March 2024 raises the following new claims:
-Back in Malaysia I accidentally pregnanted a muslim woman (which now is my wife) and I was willing to take responsibility to marry her, but not to change my religion, but due to Malaysia’s Law, since I am a Christian, I was forced to convert to Islam.
-My wife understood my religion and she was okay if we both remain with our own religion, but her family insisted forcing me to be a muslim.
-This has to do with my 1st child. His name is [name]. Notice that his name doesn’t have my name because my wife’s family believes that because he was born before we got a proper marriage (in Islamic way) therefore he should not be named after my name. I strongly believe this will impact his future if he knows what happened earlier, especially he is only a [age]-year-old kid.
-I once tried to change his name at the district office, but they told me I can only do that only if I change my identity card completely to a muslim one then only I will be able to change my child’s name. They even come to my house couples of times just to tell me to do the same thing. Those said above are the reasons I seek protection in Australia.
The affidavit of the applicant’s father raises the following matters:
·The applicant fears persecution from his own government for the offence of attempted apostacy under s.63 of the Syariah Criminal Offences Enactment 1995 and s.38 of the Islamic Family Law Enactment 2004.
·The applicant faces a hefty fine and even imprisonment from the authorities.
·The applicant fears for his safety if he returns to Malaysia.
·The applicant’s rights to freedom of religion and personal liberty will be violated.
·The applicant and his wife agreed that the applicant shall continue to be a practicing Christian and attend church services despite his religious conversion to Islam.
·The applicant has not changed his religion on his Malaysian Identity Card after he converted to Islam.
·The applicant has been harassed by the local Islamic agency known as the Majis Ugama Islam Sabah (MUIS) by forcing him to change the status of his Malaysian Identity card and to register his children as Islam. The MUIS would visit the applicant once every three months.
·The applicant and his wife did not want to specify the religion of their children on their identity cards but were forced to register their children with Islam as their religion shown on their respective identity cards.
·The applicant and his wife took their children to the National Registration Department at Japatan Pendaftaran Negara (JPN) to make an application to remove the religion of Islam from both of their children’s Malaysian Identity cards. The JPN rejected their applications.
·Due to this the MUIS was alerted and visited the applicant and his family.
·During the visits the applicant was threatened with imprisonment should he not change his Malaysian Identity card to Islam
On 11 September 2024, after the hearing had concluded, the Tribunal received the following documents:
·Letter from [a] Ministry Australia dated 8 September 2024 confirming that the applicant is a recognised and active member of the [Ministry] Australia, a Christian Protestant congregation located in [Victoria]. The letter states that the applicant has been attending regular church services and has been involved in spiritual activities as a practicing member of the Christian Protestant faith.
·Photograph which the applicant maintains is a photo of him being baptised.
·A photo showing children engaging in church game activities.
·Letter dated 6 September 2024 from the Pastor of [a church], [Malaysia] confirming that the applicant was a member of the church and was active from kindergarten to youth and until he left Malaysia.
·Affidavit of the applicant’s wife sworn 10 September 2024 stating that prior to their marriage, they agreed that they would both practice their own faiths freely and individually. Despite her husband’s change of religion to Islam for the purpose of their Islamic marriage, he has not changed his Identity card to reflect any change in his religion. She also states that the local Islamic agency known as Matjis Ugama Islam Sabah (MUIS) has constantly harassed her husband about changing his religious status on his identity card and that they have even threatened her husband with imprisonment unless he changes his identity card. Her affidavit also states that her parents and family members are not happy that her husband does not openly practice Islam and that he has not fully embraced the Islamic faith despite his religious conversion to Islam and that since he left Malaysia, her family have been encouraging her to discontinue her marriage to her husband because of his failure to openly embrace Islam. She states that she fears her husband will be harmed if he returns to Malaysia because her family will spread rumours about him and report him to the Islamic authorities for apostacy.
Evidence from the hearing
The Tribunal asked the applicant if he had prepared his own protection application and he stated that a friend whom he had worked with assisted him to prepare his application.
The Tribunal asked the applicant why his most recent claims were not referred to in his original application and he stated that he relied on his friend to complete the application and assumed he had done this when he prepared the applicant’s protection application.
The Tribunal asked the applicant if he recalled what claims were originally made when he lodged his protection application and he told the Tribunal that he did not recall what claims were made.
The Tribunal read the applicant’s original claims and asked the applicant to confirm whether the loan shark claims were true and whether the applicant still wanted the Tribunal to consider them. The applicant told the Tribunal that the original claims are true, and he still relied on his original claim in addition to his new claims.
Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. The Tribunal accepts the applicant’s evidence that he relied on a friend to prepare his original application and had assumed that his friend had included all claims including his apostasy claim and his claim about his child. The Tribunal considers that in these circumstances, and also noting that he was not invited to an interview with the Department, there is a reasonable explanation as to why these claims and evidence were not raised before the primary decision was made. The Tribunal draws no adverse inference to the applicant’s credibility.
The Loan Sharks claim
The Tribunal asked the applicant to explain why he fears harm from an illegal money lender, and he stated that in 2006, some 18 years ago, his cousin called him and told him that he needed to borrow money. The applicant stated that his cousin asked him to be guarantor on a loan and he agreed because his cousin had his own successful business and could pay the loan. The applicant stated that the loan was for RM20,000 from an illegal money lender.
The Tribunal asked the applicant about the terms of the loan, and he stated that he did not know what the terms were. The Tribunal asked the applicant whether he signed any loan agreement and he indicated that he did not sign anything and was only required to provide a copy of his Malaysian Identity card. The applicant told the Tribunal that in 2010, a loan shark came to his house and stated that the loan amount that was required to be repaid had increased because his cousin had not made any repayments for some time. He told the Tribunal that the amount now owed with interest had increased to RM40,000. The Tribunal pointed out to the applicant that his initial claim stated the loan was for RM100,000. The applicant stated that he did not know why this amount was referred to in his original claim.
The applicant stated that he tried calling his cousin after the loan shark had visited his house, but his calls were not answered. He stated that he spoke to his aunty (cousins’ mother) to try and get in contact with his cousin, and she told him that his cousin had left the house and that he had moved to Kuala Lumpur, but she did not know where he was living. The applicant stated that he went to his cousin’s business premises where he ran a [business], but the business appeared to have closed. The Tribunal asked the applicant of he was aware of what repayments if any his cousin had made, and he stated that he did not know.
The Tribunal asked the applicant if he had ever been threatened or harmed by the loan shark and he stated that he was never harmed other than being grabbed by the shirt by two loan sharks one day asking for repayments, but the applicant yelled for help and the loan sharks ran away. The Tribunal asked the applicant when this occurred, but the applicant was unable to recall.
The Tribunal asked the applicant about his claim that the loan sharks had splashed paint over his house and written abusive and threatening words to him and his family. The applicant stated that it was not his family home but was his wife’s family home. The Tribunal asked the applicant when this incident occurred and he stated that he was unable to recall but it may have been in 2010, some 14 years ago. The applicant stated that he was not at the house when this occurred.
The applicant stated that in 2010 he moved to [a town] about one hour away from his family home for work. He told the Tribunal that his wife did not come with him, and he rented accommodation for work purposes and would visit his wife when he was not working. The applicant stated that in 2016 he moved to [a town] to work in a [workplace]. He told the Tribunal that his wife and children stayed with his parents in Keningau.
The Tribunal put to the applicant that as his cousin’s loan was taken in 2006 which is 18 years ago and that he had been threatened by the loan sharks in 2010 some 14 years ago, the loan sharks may no longer have any interest in him. The applicant told the Tribunal that he thinks the loan sharks are still trying to find him. The Tribunal asked the applicant when he last had contact with the loan sharks, and he stated that they came to his wife’s parents house in 2015 and his parents’ house in 2016 looking for him. The Tribunal asked the applicant if he has had any contact with his cousin and he stated that he has disappeared, and no one knows where he has gone. The Tribunal asked the applicant if he had spoken to his aunty about his cousin’s whereabouts and he stated that he called her in 2010 but she did not know where he lives or how to contact him.
The Tribunal discussed with the applicant his access to police protection and whether he had requested police protection from the loan sharks. The applicant stated that there was no use in making a police complaint about the loans sharks because it would only make matters worse, and he does not have any documents regarding the loan and without any documentation the police will not assist him.
The Tribunal also discussed with the applicant about the possibility that he could relocate to another city with his family where he could not be located. The applicant stated that he did not know where he could relocate to if he was returned to Malaysia.
The Tribunal shared with the applicant additional country information which it considered relevant to the applicant’s case. Specifically, the Tribunal discussed with the applicant the DFAT Report regarding the security situation in Malaysia. The Tribunal summarised and canvassed with the applicant the country information, including both from DFAT[3] and open source[4], suggesting that state protection is available to him if he returns to Malaysia. Whilst acknowledging that the DFAT Report highlights concern about police corruption, the police are generally regarded as a professional and effective police force.[5] According to DFAT:
The RMP is based on the British constabulary model and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80–85 per cent Bumiputera.
[3] DFAT Country Information Report Malaysia, 24 June 2024
[4] Selangor police cripple 10 Ah Long syndicates | Malay Mail[5] DFAT Country Information Report Malaysia, 24 June 2024
The applicant was invited to respond to the DFAT report and other country information about the effectiveness of the police in combating crime and access to police protection. He stated that despite the DFAT report, the police could not protect him 24 hours per day, 7 days per week.
The illegitimate child claim
The applicant told the Tribunal that his son was conceived before he was married and that this has caused issues about the child’s name under Islamic law. The applicant told the Tribunal that although his son was born after he was married, he was conceived before the marriage and is considered as an illegitimate child and is not able to take the father’s name.
The applicant told the Tribunal that he and his wife wanted to change his son’s Malaysian Identity card to reflect his name, but he was unable to do so despite converting to Islam for his marriage. He told the Tribunal that the authorities would not allow the change of name for his son because his own Malaysian Identity card did not show his religion as Islam. He told the Tribunal that his own identity card did not state any religion, and this was because he was a Christian when he obtained his identity card. The applicant told the Tribunal that he was told by the authorities that once he changed his identity card to reflect his religion as Islam, his child’s name could then be changed to reflect his name.
The applicant told the Tribunal that he did not want to change his identity card to reflect his conversion to Islam because he was a practicing Christian and only agreed to change his religion to Islam to marry his wife and please her parents.
The Tribunal asked the applicant what harm he would suffer if his son’s name did not bear the father’s name. The applicant stated that his daughter bears his name because she was born in [year] after he and his wife were married, and his two children have different names. The applicant stated that this would cause stress and embarrassment for his son while growing up in Malaysia because without the father’s name, everyone will know that he was born out of wedlock. The applicant told the Tribunal that because of this his son would be teased, ostracized and looked down upon at school and in the community generally.
Relevantly, the Malaysian government does not recognise marriages between Muslims and non-Muslims and considers children born of such marriages illegitimate.[6] The most recent DFAT report[7] provides the following:
Children born overseas to Malaysian parents receive Malaysian citizenship after registration at a Malaysian consulate, or at the National Registration Department in Malaysia. In February 2023, the Malaysian cabinet agreed to amend the Federal Constitution to enable children born overseas to Malaysian mothers married to foreigners to automatically become citizens. Previously, only children of Malaysian fathers born overseas automatically became citizens. As at the time of publication, this amendment was not yet in effect (see also Family Law).
National identity cards are compulsory for all citizens aged 12 years and above. The National Registration Department introduced the MyKad system in 2001, replacing an earlier identity card. At the time, Malaysia became the first country in the world to use an identification card incorporating both photo identification and fingerprint biometric data on an in-built computer chip.
The MyKad shows an individual’s name, address, biometric data (including photograph and fingerprints) and their status as a Muslim (by omission, it signals an individual’s status as a non-Muslim). Although the main purpose of the MyKad is to provide proof of identity, it can technically serve many other functions, including as an alternative driver’s license, a health document storing medical records, an ATM card and a payment card for tolls and other taxes. DFAT Country Information Report Malaysia.
Citizens receive a MyKid card at birth, which is upgraded to a MyKad at 12 years of age. It is a requirement that the photograph remains valid and that the MyKad is updated when an individual is between 18 to 25 years of age, and thereafter whenever details change. In accordance with the National Registration Regulations (1990), the MyKad card must be always carried. Failure to do so attracts a fine of between MYR 3,000 (AUD 990) and MYR 20,000 (AUD 6,600) or a jail term of up to three years. It is also a legal requirement for MyKad cardholders to keep their residence details up to date. As Sabah and Sarawak maintain separate immigration controls, citizens with permanent residency in these states are denoted by the letter’s ‘H’ and ‘K’ respectively on the bottom right corner of their MyKa
[6] DFAT Country Information Report Malaysia, 24 June 2024 at 3.60
[7] DFAT Country Information Report Malaysia, 24 June 2024 at 5.36–5.39
Sex outside of marriage and pregnancy outside of marriage are deemed offences for Muslims under syariah law.[8] In 2010 three women were caned six times after a religious court found them guilty of having sex out of wedlock.[9] Under s 112 of the Evidence Act 1950, a child is deemed a legitimate child under law if he/she “is born or conceived during subsistence of a valid marriage where a husband of a married woman is determined as the legal father of the child. If the parents are divorced, then the child must be born within 280 days after the marriage dissolved with the condition that the mother has not remarried within the period of time”.[10] Otherwise, he or she is considered to be a filius nullius or the son (or daughter) of “nobody” under the law.[11] Further, under syariah law, a new born baby is legitimised if he/she is born after 6 lunar months (180 days) after the date of the marriage, and this is because in Islam the minimum period of gestation/pregnancy is 180 days.[12] According to the common law, an ‘illegitimate’ child is related only to his/her mother and has no relationship with the biological father.[13]
The Apostasy claim
[8] ‘The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia’, Women’s Aid Organisation and the Joint Action Group for Gender Equality, 29 January 2019, p.169,
[9] Malaysia canes women for having sex out of wedlock | Reuters – 18 February 2010
[10] “What’s in a name? For Malaysian Muslims born out of wedlock, stigma, and alienation”, South China Morning Post, September 3, 2017.
[11] Ibid
[12] Ibid
[13] Ibid
The applicant told the Tribunal that he is Christian, and his wife is a Muslim woman. He stated that they were dating for some time before she fell pregnant however they were not married. The applicant told the Tribunal that he wanted to marry his wife even if it meant that he had to formally change his religion to Islam. He told the Tribunal that he had no choice because his wife’s family were deeply religious, and they were very upset when they found out his wife was pregnant to a Christian man. His decision to convert to Islam in order to marry his wife deeply upset his parents and family who were all Christians and deeply religious. The applicant told the Tribunal that if he did not marry his wife once she was pregnant, there would be serious consequences for her in Malaysia as an unmarried pregnant Muslim woman. He stated that apart from his concerns that his wife and child would be harassed and discriminated against by the authorities in Malaysia, he was also concerned what his wife’s parents and family may do to her. He stated that he was also concerned about her safety.
The applicant told the Tribunal that he and his siblings were baptised as Christians and his parents were practicing Christians. He told the Tribunal that his parents were very active in church and that they did not accept his religious conversion in order to marry his wife. The applicant told the Tribunal that he and his family regularly attended church and celebrated Christian events such as Christmas and Easter. He told the Tribunal that his parents’ house contained Christian icons and symbols.
The applicant told the Tribunal that despite his religious conversion he continued to practice his Christian faith at home with his wife’s blessing. The applicant told the Tribunal that since his arrival in Australia he also regularly attended church. The Tribunal asked the applicant what church he attended, and he indicated that he was a member of [a] Church located in [Victoria]. The Tribunal asked the applicant if he could tell the Tribunal his priest’s name and he was able to confirm his name and details of the church and its activities.
The applicant told the Tribunal that if he was required to return to Malaysia, he would continue to practice his Christian faith but by doing so he would expose himself to harm and arrest because he would be regarded as apostate and once arrested, he would be sent to an Islamic rehabilitation centre or imprisoned.
The applicant told the Tribunal that he would have difficulty attending church and would be precluded from practicing his religious faith openly and freely in Malaysia without the fear of persecution and arrest because his official and recorded religious is Islam.
The applicant told the Tribunal that he had attempted to remove reference to Islam on his children’s identity cards because he and his wife agreed that their children should be free to choose their own religion when they were old enough to do so. He told the Tribunal that the authorities would not allow him to do this. He stated that after he attempted to do so, he was reported to the Malaysian religious authorities who then started to harass and pressure him to change his own identity card to reflect his religion as Islam. He told the Tribunal that the authorities would regularly visit his house and threaten him with arrest if he did not do so.
The applicant told the Tribunal that the religious authorities told him that they would make a report to Majlis Ugama Islam Negeri Sabah which is the main religious authority in Sabah if he did not alter his identity card to show his religion as Islam. He told the Tribunal that this authority had threatened him with arrest and imprisonment and that they had made such threats every three months when they visited his house to enquire about what progress he had made to change his identity card. The applicant told the Tribunal that he kept giving them excuses when they came to his house and told them he would change his identity card, but he told them this to avoid their constant harassment. He told the Tribunal that he had no intention of changing his identity card to reflect Islam as his religion and did not see the need to do so given he had converted to Islam even if it was merely for the purposes of his marriage.
The Tribunal asked the applicant if he could continue to practice his Christian faith discreetly if returned to Malaysia and he indicated that he was worried that his wife’s family and neighbours would find out if he attempted this and they would report him to the religious authorities. The applicant told the Tribunal that his wife was fully supportive of him praying at home and would never disclose this to her family, but he was concerned his children may say something inadvertently to his wife’s parents and this would create serious problems for him as his wife’s parents are deeply religious.
The applicant’s evidence was that it would be impossible for him to attend church either alone or with his parents and siblings in Malaysia because he is formally considered a Muslim and if he did so, he would be reported to the authorities. The applicant told the Tribunal that despite his religious conversion for marriage purposes he knows very little about Islam as his wife does not practice the Islamic faith at home.
Relevantly, DFAT reports that “A non-Muslim (male or female) must convert to Islam before marrying a Malaysian Muslim. The process differs from state to state and is determined by the relevant religious authorities. Conversion to Islam is procedurally straightforward and is reflected on the convert’s MyKad. To revert to an original faith is harder, requires judicial review, and may be refused”[14]
[14] DFAT Country Information Report Malaysia, 24 June 2024 at 3.64
DFAT’s most recent report provides the following[15]:
Ethnic Malays are defined in the Malaysian constitution as Muslims from birth and are identified as Muslim on their ID cards. Formally leaving or converting from Islam (apostasy) is extremely difficult. Despite the guarantee of freedom of religion under Article 11 of the Constitution, civil courts have ruled they have no power to intervene in apostasy cases under the jurisdiction of Malaysia’s syariah courts (see Legal System). Apostasy is a criminal offense punishable by a fine or prison term in the states of Perak, Melaka, Sabah, Pahang, Kelantan and Terengganu, with the additional maximum penalty in Kelantan and Terengganu of death (this has never been imposed).
Some Islamic leaders in Malaysia have referred to apostasy as a ‘virus’ which threatens the nation. While formal apostasy (and conversion) is very difficult, many urban Muslims in Malaysia are non-observant. In-country sources told DFAT that ‘a Malay can be a secular Muslim, but they will always be a Muslim, it’s cultural.’ In-country sources reported that there were some Malaysian Muslims who eat during the day during Ramadan, drink alcohol and do not attend mosque. While people who are identified as Muslim on their MyKad card but discreetly practice another faith often do so without adverse attention, they sometimes face considerable family and social pressure to observe Islam. If they join another faith community such as a church, that community can face risk of legal action from the authorities for proselytising.
Islamic laws are typically enforced by RELA or police, as Islamic authorities tend to lack manpower. In-country sources told DFAT enforcement had relaxed in recent years but remained stricter in Kelantan and other Eastern peninsula states. Enforcement takes the form of authorities checking identity cards (e.g., of restaurant, bar or hotel patrons) to see if individuals are identified as Muslim. RELA officers reportedly have no power to compel production of identity cards, but police do. In-country sources reported that Malaysians who ‘do not look Malay’ were less likely to be harassed by authorities.
Individuals who have attempted to leave the Islamic faith have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts, often without success. An individual wishing to convert from Islam must first obtain permission from a state syariah court and be declared Murtad (‘infidel’). In-country sources reported that courts can order such individuals to be subject to three years of faith rehabilitation in a rehabilitation camp. In-country sources told DFAT about a case of an individual who undertook three years of ‘rehabilitation’ but was still denied permission to leave Islam. DFAT is unaware of any Malay Muslims being successful with an application for apostasy. DFAT is also unaware of any convictions for apostasy since 2000, when four people were sentenced to three years’ jail for the offence.
There are two categories of Malaysians who may be able to convert from Islam. The first category includes those applying to renounce the faith because they were recorded as Muslim ‘in error’ (because of non-Malay origin, such as being from Sabah); according to local media reports in 2017, approximately one in four such applications were successful between 2000 and 2010. The second category includes those who seek to revert to their original faith following a divorce, following conversion to Islam for marriage (legally required when a non-Muslim marries a Muslim). The right to revert from Islam was confirmed by the High Court in 2016.
[15] Ibid at 3.55 – 3.59
According to a 2024 Open Doors International World Watch Research report,[16] Malaysia is one out of only 11 countries in the world to have apostasy punishable by death. The report notes the following:
“Converts have faced abuse and pressure to renounce Christianity after families found their Bibles and other Christian materials. Most of them have been ostracized and driven out of their homes. Even reading the Bible or other Christian materials in digital form comes at a risk and converts have to ensure that they are truly alone, and their homes or surroundings are free from anyone watching. Some converts reported that Bibles can be used as evidence of apostasy or blasphemy.”
[16] Open Doors International / World Watch Research January 2024
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent report from DFAT is the Country Information Report for Malaysia 24 June 2024.The Tribunal has considered this report, as well as other relevant country information referenced in this decision.[17]
[17] DFAT Country Information Report Malaysia – 24 June 2024
REASONS AND FINDINGS
The issue in this case is whether there is a real chance that if the applicant returns to Malaysia they will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether 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 they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside, and the matter remitted for reconsideration.
Based on the evidence before the Tribunal, the Tribunal accepts and finds that the applicant does not have a right to enter and reside in a country other than their own country of origin – Malaysia. Therefore, the Tribunal accepts that s 36(3) of the Act does not apply to the applicant’s circumstances.
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[18]
[18] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[19]
[19] Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALO 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained in their Departmental file.[20] He has at all times stated that he is a citizen of Malaysia and have been assessed on that basis by the Department.[21]. The Tribunal finds that the applicant is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
[20] Department File: Department File: [deleted]
[21] Ibid
Does the applicant satisfy the refugee criterion for protection?
The loan shark claim
The Tribunal has a number of concerns about the reliability of the applicant’s evidence in relation to his loan shark claims. The applicant original application stated that his cousin borrowed RM100,000 and his evidence to the Tribunal was that the amount was RM20,000. The applicant was unable to tell the Tribunal what the terms of the loan were and what interest applied. He was not aware of whether any repayments had been made by his cousin and he did not recall if he signed any guarantor documents other than providing to the loan sharks a copy of his Malaysian ID card. The Tribunal does not accept the applicant’s evidence that his cousin disappeared and could not be located and that his cousin’s own mother had no idea where he had moved to or how he could be contacted.
The Tribunal is also of the view that the applicant does not have a genuine fear of being harmed by anyone should he be returned to Malaysia. Based on the evidence before the Tribunal, the Tribunal does not accept that there is a real chance that the applicant will be seriously harmed by the loan shark or anyone else. The applicant’s cousin’s loan was taken in 2006, some 18 years ago and the applicant’s last contact with the loan sharks was in 2010 some 14 years ago. The Tribunal does not accept as reliable, the applicant’s evidence that in 2015 and 2016, the loan sharks had made enquiries with his family and his wife’s family about his whereabouts. Given this significant passage of time, the Tribunal finds that the applicant is no longer a person of interest to the loan sharks or that they would seek to harm him if returned to Malaysia.
Having considered all of the circumstances of the applicant’s claims including the credibility concerns detailed above, the Tribunal finds that the applicant does not have a subjectively held well-founded fear of persecution from the loan shark or any other person on his return to Malaysia.
Even if the Tribunal were to accept, which it does not, that there is a real chance that the applicant will be subjected to serious harm by the loan shark upon being removed, the Tribunal is not satisfied that the applicant’s fear of harm is essentially and significantly for any of the reasons outlined in s 5J(1)(a), namely his race, religion, nationality, political opinion or membership of a particular social group as defined under s 5K of the Act. Indeed, the applicant explicitly acknowledged at the hearing that the loan shark was only motivated to recover money from the applicant and had no other reason to harm the applicant.
The Tribunal acknowledges that while the DFAT report identifies some problems with corruption in the Malaysian police force, there is no indication that assistance from the police would be withheld from the applicant if incidents or threats of harm were reported to the police. The Tribunal accepts that the police and the courts would be willing and able to offer protection to the applicant and could provide such protection if he was to return to Malaysia, by the relevant state through its courts or by the police.
Moreover, there is nothing to suggest that the applicant could not access such protection which is clearly durable, and which consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2). Accordingly, the Tribunal finds that effective protection measures, as set out in s 5LA, would be available to the applicant if he returned to Malaysia, so that he does not have a well-founded fear of prosecution as required by s 5J(2).
The illegitimate child claim
The Tribunal accepts that the applicant’s wife fell pregnant before they were married and that their first child was born [number] months after they were married which disclosed a sexual relationship outside of marriage and this was against the tenets of Islamic religion.
The Tribunal also accepts that the applicant’s son does not bear his name because he was conceived before his parents were married. The applicant gave evidence of his concern about his son’s acceptance into the wider community and his fears that he may be looked down upon or bullied at school because of the circumstances of his birth.
The Tribunal further accepts the wider Muslim community may look down on the applicant’s son if they were to become aware that his son was conceived before marriage, however, the applicant’s son is not a party to the applicant’s application for protection or these proceedings and the Tribunal does not accept there to be a real chance that either the Malaysian authorities or members of the wider community would seek to physically harass or harm the applicant for this reason.
In this regard, the Tribunal notes that the applicant was married on [date June] 2012 and his son was born on [date], some [number] months after the marriage. The Tribunal has considered whether any lack of acceptance or ostracism by the community or authorities as a result of his son having been conceived prior to his marriage constitutes persecution of the applicant. Under s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person.
Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:
(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.
Tribunal does not accept there to be a real chance that the applicant’s life or liberty would be threatened by any group or person nor that the authorities or community will respond with significant physical harassment or physical ill-treatment of the applicant. Nor does the Tribunal accept there to be a real chance the applicant will be denied access to basic services or the capacity to earn a livelihood of any kind or subjected to economic hardship that threatens her capacity to exist and support his family because of the circumstances of his marriage and the birth of his son.
Whilst the list of instances of serious harm set out above is not exhaustive, the Tribunal does not consider that the applicant’s feared harm rises to the level of serious harm as set out in s 5J(5). For these reasons, the Tribunal does not accept there to be a real chance that the applicant will face serious harm from the authorities because his sexual relationship with his wife commenced prior to their marriage or because their son was conceived prior to their marriage against the tenets of Islam.
The Apostasy claim
The applicant presented as a credible witness in relation to his claims for protection on the basis that he fears persecution for apostacy if returned to Malaysia. The Tribunal has considered the material that was provided to the Tribunal, particularly the applicant’s baptism certificate, photos of his family practicing their Christian faith, as well as letters from his church both in Malaysia and in Australia which confirm that the applicant was and continues to be an active member of his church. The Tribunal accepts that the applicant was raised as a Christian and converted to Islam only in order to marry his wife who was pregnant with their first child. The Tribunal accepts the applicant’s evidence that his wife’s parents had insisted that he convert to Islam before they would agree to the marriage.
The Tribunal also accepts, that despite the applicant’s conversion, he has maintained his connection with his Christian faith and after he was married and has resisted pressure to change his religion on his Malaysian identity card so as to reflect his conversion to Islam.
The Tribunals accepts the applicant’s evidence that if required to return to Malaysia he would continue to practice his Christian faith and despite his religious conversion to Islam he has never embraced Islam. The Tribunal accepts the applicant’s evidence that he has never practiced Islam apart from the requirement to convert in order to marry and if he returned to Malaysia and would not hide his Christian faith despite his fears of being arrested and imprisoned for apostacy.
The Tribunal notes that prior to his religious conversion to Islam, the applicant was able to practice his Christian faith without fear of harm. If required to return to Malaysia, the applicant would now be returning to Malaysia having converted to Islam and would face a real chance of being exposed as an apostate and be reported to the authorities with significant repercussions for him and his family. In order to avoid a real chance of persecution and harm the applicant would be required to hide his Christian faith which in the Tribunals view is inconsistent with characteristics that are fundamental to the applicant’s identity as a Christian man and would require him to conceal his true identity. The Tribunal finds that there are no reasonable steps the applicant could take upon his return to modify his behaviour so as to avoid a real chance of persecution from the religious authorities.
The submission of the Human Rights Commission of Malaysia to the Australian Inquiry into the Status of the Human Right to Freedom of Religion or Belief, observed that strict adherence to the prohibition on apostasy has led to situations where individuals who were registered as Muslims, but not practicing the religion, faced difficulty in removing their status as Muslims. The submission referred to the case of Rosliza Binti Ibrahim, who had been registered as a Muslim but not practising the religion, faced difficulty as her application to declare that the Islamic State laws did not apply to her were opposed by the State Religious authorities.[22]
[22] INQUIRY INTO THE STATUS OF THE HUMAN RIGHT TO FREEDOM OF RELIGION OR BELIEF – SUBMISSION 226 FROM THE HUMAN RIGHTS COMMISSION OF MALAYSIA (SUHAKAM) – 2016
The US Department of States 2022 Religious Freedom Report for Malaysia[23] observes the following:
Muslims who seek to convert to another religion must first obtain approval from a sharia court to declare them as “apostates.” Sharia courts seldom grant such requests, especially for those born Muslim and ethnic Malays, and are reluctant to allow conversion for those who had previously converted to Islam. Penalties for apostasy vary by state. In the states of Perak, Melaka, Sabah, and Pahang, apostasy is a criminal offense punishable by a fine or prison term. In Pahang, courts may also impose up to six strokes of the cane for apostasy. The maximum penalty for apostasy in the states of Kelantan and Terengganu is death, but courts have never imposed this penalty, and its legality remains untested. NGOs report that most converts from Islam prefer to do so privately, without legal approval. Nationally, civil courts generally cede authority to sharia courts in cases concerning conversion from Islam. In some states, sharia courts allow one parent to convert children to Islam without the consent of the second parent. The law does not restrict the rights of non-Muslims to change their religious beliefs and affiliation. A non-Muslim wishing to marry a Muslim must convert to Islam for the sharia court to officially recognize the marriage.
State religious authorities generally followed guidelines on what constituted deviant Islamic behaviour or belief implemented through the national-level Steering Committee on Addressing Deviationist Teachings. Those differing from the official interpretation of Islam continued to face adverse government action, including assignment to “rehabilitation” in centres that taught and enforced government-approved Islamic practices. The government forbade individuals to leave such centres until they completed the program, which varied in length but often lasted approximately six months. These counselling programs continued to be designed to ensure detainees adopted the government’s official interpretation of Islam.
The government arrested several individuals during the year for blasphemy, including a writer and a comedian. The government continued to take action against some individuals who diverged from the official interpretation of Islam, including subjecting some to “rehabilitation” in centres that taught and enforced government-approved Islamic practice. The Human Rights Commission of Malaysia (SUHAKAM) announced that its public inquiry into the 2016 disappearance of a Christian pastor and his wife found that the couple were likely victims of “enforced disappearance” but found no evidence that the couple were abducted by “agents of the state.”
[23] 2022 Malaysia – Religious Freedom Report- 441219-MALAYSIA-2022-INTERNATIONAL-RELIGIOUS-FREEDOM-REPORT.pdf
Having regard to DFAT’s report and the US Department’s Religious Freedom Report, as an apostate, the applicant faces a real chance of being forced to attend a religious rehabilitation centre and would be unable to leave the centre until he has completed the conversion program which could last up to six months. Even if the applicant was to modify his behaviour to avoid scrutiny, he still faces a real chance of being exposed as a Christian follower and be reported to relevant authorities. In the state of Sabah where the applicant lives, apostasy is a criminal offence punishable by fine or prison term. Having regard to country information that has been referred to previously, the Tribunal finds that that the applicant faces a real chance of serious harm including being sent to a rehabilitation centre, being prosecuted and imprisoned and be subjected to other forms of punishment for breaching Sharia law.
In view of the above, the Tribunal is satisfied the applicant would face a real chance of
serious harm if he returned to Malaysia now or in the reasonably foreseeable future. The
harm includes penalties under Syariah law, rehabilitation, and official and societal discrimination. The Tribunal is satisfied the harm feared would amount to serious harm under the Act, including a threat to the applicant’s liberty, would involve systematic and discriminatory conduct, and would be for the essential and significant reason of his religious profile, namely as a person who has renounced Islam (an apostate).The Tribunal is satisfied that the persecution feared by the applicant relates to all areas of
Malaysia. Syariah courts and religious authorities operate throughout the country and consequently the Tribunal finds that wherever the applicant may choose to live with his family upon his return to Malaysia, he faces a real chance of being targeted, exposed and punished. The Tribunal also finds that State protection from this harm would not be available from State authorities.
The Tribunal is satisfied the applicant has a well-founded fear of persecution for reasons of his religious profile if he were to return to Malaysia, now or in the reasonably foreseeable future. It follows that the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a)
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of Hearing: 4 September 2024
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.
…
Bukit Aman team rounds up over 100 suspected gang members in Klang | The Star
Free Malaysia Today, 30 January 2021, Ah Long ‘call centres’ silenced, 200 phones seized in police blitz in Johor | Free Malaysia Today (FMT)
Cops say tracking down 10 more members of organised crime syndicate in Selangor | Malay Mail – Malay Mail – 29 May 2024
Police take down African-led robbery gang, two shot dead [WATCH] – New Straits Times – 6 September 2024
Cops cripple five-gang alliance with arrests of 21 | The Star – 29 May 2024
20 charged for involvement in ‘Gang TR’ | FMT – 29 May 2024
Police bust cable theft gang, arrest seven men – The Sun – 15 August 2024
8 triad members, including 7 minors, charged with attacking teens | FMT – 24 June 2014
550 triad members arrested in Selangor since 2019 | FMT – 10 April 2021
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