1910016 (Refugee)
[2025] ARTA 1441
•28 February 2025
1910016 (REFUGEE) [2025] ARTA 1441 (28 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1910016
Tribunal:General Member C Graydon
Date: 28 February 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 28 February 2025 at 6:17pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – born Buddhist but converted pro forma to Islam to marry – control and harassment by husband and family, and stalking by husband after separating – daughter retained by husband’s family, and after divorce, husband granted full custody of child under religious law – no right to reconvert, and possibility of prosecution for apostasy – ex-husband’s family well-known and influential – daughter now living with applicant’s mother – new relationship in Australia with man from another country and of another religion would not be recognised in home country – ex-husband aware of applicant’s current situation and interested in her return, and his family live in different areas and have access to national networks – country information – unlikely to be able to change status as state-recognised Muslim – civil and religious laws apply in all areas – restrictions on religious practice with penalties including corporal punishment and imprisonment – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (2A), (3), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any 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 Home Affairs on 29 April 2019 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 national of Malaysia, applied for the visa on 3 April 2018. The delegate refused to grant the visa on the basis that she did not meet either the refugee or complementary protection criteria under s36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 23 January 2025 to give evidence and present arguments. The applicant preferred to communicate in English and did not request an interpreter to be present. The Tribunal was satisfied the applicant was able to adequately give her evidence in English.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The applicant claims to be a [Age]-year-old Malaysian citizen who was born in [City], Sabah, Malaysia. In her protection visa application form, under the heading ‘Your reasons for claiming protection’, she claimed, in summary that:
· She was born a Buddhist but when she married her Muslim husband she had to convert to Islam.
· She suffered psychological harm after divorcing her husband when he was unfairly granted full custody of their daughter due to the bias against women in syariah law, including in custody decisions
· She hired a lawyer and filed a custody dispute case more than five years ago on the grounds that her ex-husband did not fulfil the obligations required by the syariah law, however the court was not progressing the case and a hearing date has still not yet been set
· She wants to convert back to her Buddhist religion and be recognised as a Buddhist but the laws of Malaysia prevent her from doing so and she may also risk being prosecuted for apostasy just for trying to leave the Islamic religion.
Supporting documents
In addition to her protection visa application, the applicant provided the Department with a copy of her Malaysian passport.
Protection visa application interview
The Department did not invite the applicant to attend an interview.
Delegate’s decision
The delegate refused to grant the visa on the basis that she may be able to legally convert back to Buddhism as she was not a Muslim from birth and that any penalty she received for apostasy would likely amount to less than ‘serious harm.’ In relation to her claim that the child custody case was unfair, the delegate found that it was sufficient that she was able to access a judicial process to have custody of her child adjudicated. The delegate concluded that the applicant’s claims did not meet either the refugee or complementary protection criteria and refused her visa application.
Before the Tribunal
On 22 April 2019 the applicant applied for review of the delegate’s decision and provided the Tribunal with the decision record as part of its review.
Pre-hearing submissions
On 9 September 2024 the applicant was invited to a hearing on 7 November 2024. On 31 October 2024 the applicant informed the Tribunal she had appointed a legal representative who requested the hearing be rescheduled to provide him with time to prepare the applicant’s case. On 4 November 2024 the Tribunal agreed to reschedule the hearing and on 18 November 2024 the applicant was invited to a rescheduled hearing on 23 January 2025.
On 22 January 2025 the applicant’s representative submitted to the Tribunal:
· A statutory declaration by the applicant dated 21 January 2025 reiterating her previous claims but adding some additional claims including:
oShe experienced mental abuse from her husband and ‘extreme pressure’ from her mother-in-law to practice Islam, and consequently became depressed which catalysed her decision to seek divorce.
oAfter the divorce, her ex-husband continued to stalk her.
oHer husband is from a well-known and influential Muslim family. Her father-in-law had been a politician and [public position] for twenty years and her [ex-husband’s relative] is also a current politician with a Muslim party.
oShe believes her ex-husband’s influential family will ensure she is prosecuted for apostacy and will face a heavy penalty including a fine, caning in public, three years jail and six months in a ‘Muslim rehabilitation centre.’
· A copy of a report by the US Department of State ‘2023 Report on Religious Freedom: Malaysia.’
· A copy of a newspaper article from [News source] ‘[Title]’, [Date].
· A copy of a newspaper article from The Malay Mail ‘Malaysia can’t enforce, but penalty for leaving Islam is death, Mufti reminds apostates’, 9 August 2017.
· Article by Nazri, J ‘What Happens When Muslims In Malaysia Try To Leave Islam?’ 10 May 2020.
The hearing
As noted above, the applicant appeared before the Tribunal on 23 January 2025 to give evidence and present arguments. The applicant’s migration agent also attended the hearing.
Where relevant, the applicant’s evidence is discussed in the Tribunal’s findings and reasons below.
The Tribunal provided the applicant until 6 February 2025 to provide further documentation of her claims that had been discussed during the hearing.
Post-hearing submissions and evidence
On 5 February 2025 the applicant’s representative submitted to the Tribunal the following documents in Malaysian untranslated, which the Tribunal has ascertained as:
· A covering letter headed the higher level of the National Syariah Court in Sabah dated [August] 2012 naming the applicant as the ‘plaintiff’ and her ex-husband as ‘the defendant’ and headed [Custody Other Order].
· A Court Order dated [May] 2012 naming the applicant as plaintiff and her ex-husband as defendant and referring to the plaintiff’s application dated [January] 2012 stating that with regards to the application by the plaintiff for custody rights naming the applicant’s daughter ‘[Miss A]’, the application is rejected. Rights of caregiving go to the defendant.
· Applicant’s ex-husband’s birth certificate: ‘[Mr B]’ born at [Hospital], [City], Sabah, on [Date] to father ‘[named]’ and mother ‘[named]’.
· Applicant’s ex-husband’s Malaysian National Identify Card in name ‘[Mr B]’, noting his religion is ‘Islam’.
· Temporary Marriage Certificate naming the applicant’s ex-husband and the applicant dated [February] 2006 stating the marriage relationship is recognised for a period of four months.
· English/Malay bilingual ‘Divorce Certificate’ issued by the Islamic Family Court Sabah, dated [December] 2011 naming the applicant and her ex-husband as the parties.
· English/Malay bilingual birth certificate for ‘[Miss A]’ born on [Date] to mother, named as applicant, and father, named as applicant’s ex-husband.
· Email sent to the applicant with the caption ‘On the right side is my ex-husband’s [relative], on the left is [name deleted] ([Public official]) containing a photograph of two men with the caption translated by Google Translate ‘[Deleted]’
· Photograph of the applicant praying in front of a Buddhist statue in a temple. Undated.
· Another photograph of the applicant praying in front of a different Buddhist statue in a temple. Undated.
· Photograph of the applicant and another woman at the ‘Sleeping Buddha Temple’ undated and other undated and unannotated photographs with Buddhist religious prayer items and a book in Chinese characters that may be a prayer book.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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–5LA, 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.
The current DFAT report is the ‘DFAT Country Information Report Malaysia’ dated 24 June 2024 (DFAT Report) and its relevant sections are referred to and discussed below.
APPLICANT’S CLAIMS AND EVIDENCE
The applicant’s personal background
The applicant gave evidence that she was born in [City], Sabah, in a Chinese Malaysian family. Her parents continue to live in Sabah. Her father is retired and her mother runs a [business 1]. She has a sister who is married and living in Melbourne and her two other siblings live in Sabah. Her sister is [an occupation] and her brother is unemployed and they live close to their parents.
The applicant grew up as a Buddhist. Her mother had a prayer room where she would practice Buddhist prayer. She would pray according to the Chinese calendar on the 1st and 15th of the month when meat was prohibited. They prayed at home except on special occasions when the applicant and her siblings attended the temple with their parents. The applicant remains a practising Buddhist, as do her siblings in Sabah. Her sister in Melbourne has married a Catholic but still attends the Buddhist temple with her son who says he wants to study Buddhism but does not know the Chinese characters and so he just attends the temple to pay his respects.
From the age of 12 the applicant wanted to be known as [Preferred name]. Her parents did not mind her using this name and from that time she used the name [Preferred name]. The applicant attended a Chinese primary school and a public mixed-sex secondary school until she changed to an all-girls school in Form 5. Her father was very strict and conservative but she considers she had a happy childhood despite the lack of freedom to go out. She remains close to her parents now, especially her mother, and regularly contacts her parents by video call on WhatsApp.
When she finished school the applicant worked with her father to help administer his [business 2]. After Form 5 secondary school she studied [subject 1] for six months at [an Institute] in [City], staying in her mother’s apartment there. Then her mother asked her to return home to help run [business 2] where she became the manager and administrator. She worked there until she married in 2006.
She met her ex-husband through her cousin who was best friends with him. The applicant started dating her ex-husband in 2000, around a year after they met. They did not see each other so often and lived apart for five years as her husband was already studying in Kuala Lumpur, however they spoke to each other a lot on the phone and saw each other around two or three times a year. After her ex-husband finished his study, they continued dating. Both sets of parents were quite happy with the match, although both wanted them to become engaged quickly. Her father was approving but her mother suggested she reflect on the decision to be with a Muslim and warned her that she would have to convert to Islam, that her husband could take up to four wives. This advice from her mother made her pause but she decided to go ahead with him as she was in love and willing to face these risks. She knew that she would have to convert to Islam to marry him but at that time her ex-husband’s parents seemed willing to give her time.
They became engaged when she was around [age] or [age] years old in a ceremony and celebration at her parents’ house. Around two months into their engagement, her fiancé’s parents wanted them to marry, which they did in March 2006 at her ex-husband’s house. The applicant told his parents at that time that she was not ready to dedicate herself to studying to complete her full conversion to Islam and they told her she could take her time. She converted to Islam at the same day and time as the wedding. They gave her a letter to read and she cannot recall the details but she thinks she signed a paper. She has a copy of the marriage certificate. Her ex-husband’s family was proud to be bringing a non-Muslim into the family as this brings ‘good karma’ for bringing another person into Islam.
After the wedding, she left her work at her father’s [business 2] and moved in with her husband’s family. His family were religiously conservative and she had to wear long sleeved and length clothing whenever she was around them but she refused to wear a hijab. They wanted her to change her name from a Chinese name to a Muslim name but she resisted and said that was her family name and she wanted to keep it. They were also not happy using her [preferred name]. She was pressured to compromise and the Muslim version of her name on her marriage and divorce certificates reads [the applicant – Muslim name – preferred name – Chinese name]. The week after she married, her mother-in-law asked her to start working with her in their family [business 3]. Her mother-in-law was pleased she was good at running businesses and she started working very hard. His parents also asked her straight away to start learning Arabic and attending classes after work to learn about Islam. She went to a few classes but then pretty soon she became pregnant before she had completed any significant study of Islam.
During her pregnancy she continued to work hard, six days a week. They expected her to pray multiples times a day but she did not. She never properly learned the routines and practices for prayer. When prayer time came, she would disappear to her room and every time they went to a religious gathering she would attend if she had to and then pretend to pray as she never learned how to do it properly. During Ramadan she had to get up early in the morning and they expected her to fast but she had gastric problems and so she would only fast for a short time and then she would secretly eat in her room.
Over time, her husband’s parents became increasingly unhappy with her. They constantly nagged her to pray or do this or that but she did not want to and so she just withdrew into her room and into herself more and more. Her husband did not support her and also pressured her to adopt Muslim practices. She thinks they tolerated her behaviour because she was working hard for them from morning until night and their business was doing well. They kept asking her to study the Koran after work but she was tired and went to bed. She was not able to continue her Buddhist practices in the time she was married to her husband but she was allowed to go back to her parents’ house for the Chinese New Year. Her husband’s parents said she could spend time with her family but always warned her against touching any Buddhist items and they banned her from praying or any Buddhist practices.
She did not like changing her clothing to Islamic wear after her marriage but she did agree to wear long pants and sleeves beyond her elbow. His family asked her to wear the hijab out of the house but she refused, saying it was too hot and she could not wear it at work due to the lack of air conditioning and that it made her feel very uncomfortable, like she was suffocating. Her husband’s family were unhappy about this but tolerated it as long as she fully covered her body. Her sister-in-law did not always wear the hijab as she was very young at the time. Sometimes the applicant had to wear the hijab at ceremonies or when she was forced to pray with the family.
At first her husband treated her well but when she became pregnant, his attitude towards her changed. He was always asking her to participate with the family in prayer and study but she always pushed back against this and said she was tired or busy with work and that she wanted to take her learning slowly. But he was not satisfied with her efforts to become a practising Muslim. Once when she was pregnant she was angry and telling at him that he was late and he was not happy with her tone and violently choked her. She tried to run away through the door but he pushed the door closed and said he was sorry and he would not do it again. She said that she would not hesitate to tell everyone and show them her bruises. After that he did not use physical violence against her but continued trying to control her behaviour and make her ‘more Muslim’.
Their daughter was born on [Date]. She wanted to name her [name] or [name] but her husband and his family objected and said those names did not sound Muslim enough. She pushed back, saying that her husband’s name ‘[Mr B – Given name]’ did not sound Muslim. They wanted her to have a Muslim name like [Miss A – Given name]. The compromise was that she was named [Miss A].
Things continued to get worse in her marriage. She asked her husband if they could move out of his parents’ house but he refused. She was becoming very stressed and exhausted as she was living with all the harassment and pressure from her husband and his family to practice Islam. At the same time she was working very long hours and managing a high-pressure job running his family’s business while also being the main caregiver to their daughter. She returned to work after only two months of maternity leave. Her husband supposedly worked for the business too, but never did much work. He went out late at night and pleased himself, while she stayed at home looking after their child, who did not sleep well and was often sick, and then she had to get up early every morning and do a full day’s work.
She eventually told her husband that she was ‘done’ and that she wanted a divorce. Her husband refused to divorce her. She waited until after Ramadan and asked him again. He refused again and said it would be a humiliation for the family. She said if he did not give her a divorce, that she would humiliate him too by telling the court he was drinking, gambling and stealing money from the business. So he then agreed to give her a divorce but said first they had to go to a counsellor. She said it was no use as she was ‘done’ and just wanted a divorce. She applied to the Sharia Court in Sabah and then in July or August 2011 she left him and took her daughter and went to stay at her parents’ house. In December 2011 she was divorced from her husband. She asked for alimony as she was entitled to but her mother-in-law said there was no way they would ever pay alimony to her and so she dropped this demand as she did not want to owe them anything.
After she separated from her husband she returned to her Buddhist practices in her parents’ house, but she did not practise openly as she had been advised to be careful of this as it would go against her in her divorce and child custody cases. This was especially because after she separated from him in 2011 her ex-husband started stalking her, following her around and demanding that she come back home. She blocked his number and then changed her phone. This has been continuing even after she came to Australia with her friends in Malaysia telling her in 2018 that her ex-husband was still driving to her hometown and asking around about her. Her friends warned her that her ex-husband was looking unhinged, drunk and aggressive and they warned her to stay away from him as they were worried about what he might do if she returned to Malaysia.
Since they separated her ex-parents-in-law had constantly asked to have the applicant’s daughter stay over. Eventually in December 2011 she acceded to her parents-in-law request and allowed her daughter to stay with them for a weekend. When she went to pick her up at the end of the weekend visit, her ex-parents in-law refused to hand her back over. The applicant argued but they refused. She was devastated but did not go to the police because she knew there would be no point as the police would definitely support the Muslim family in a dispute like this, even though she was the mother. She felt helpless to do anything. At first she was only allowed to talk to her daughter on the phone. Then they said if she wanted to see her daughter she would have to visit her at their place and let them know she was coming beforehand. She went many times to see her daughter at their house. It was always so difficult to leave her behind with them and they both always cried, but she felt she had no choice.
Up until the time she left Malaysia, she was still visiting her daughter at her ex-parents-in-law’s house. She had been her daughter’s main carer so it was shock to both of them to be apart. She had been ‘a bit of a strict Mum’ wanting her daughter to eat healthy food, but her ex-husband’s family always bribed her with sweets to stay with them. Over time her daughter adjusted but her ex-parents-in-law said she could not take her daughter back to her house as they did not trust that she would not run away with her or that she would give her halal food. They had wanted her daughter to start wearing a hijab from the age of two years old. She strongly objected to this but had no say in the matter, so she had to wear hijab from a very young age. Similarly, her daughter was given the circumcision operation against her will, as she also had no say in that decision. They kept many cats inside their house despite her daughter’s strong allergies and they ignored her requests to get rid of the cats for her daughter’s health. There were many fights between her and her ex-parents-in-law about the way her daughter was being raised and the decisions they took against her wishes.
She decided she had to fight using the law and so she applied to the Syariah Court for custody of her daughter. The first stage of the case took around four months, and then the Court told her verbally, (there was no written decision) that she had lost the case and that exclusive custody went to her ex-husband. When the judge told her that custody was awarded to her ex-husband, she objected and highlighted that her husband showed no interest in caring for their child and did not even attend the court hearings because he was drunk, so how could he be a good father? The judge just ignored her and granted custody to her ex-husband.
She appealed to the higher level of the Sharia Court and it also refused her case and there was a written record of this decision. Again, she felt the court did not listen to her and did not care at about what was best for her daughter. She then tried another appeal to a higher level of the Syariah Court but that case was never even listed or progressed. She believes her appeal did not move ahead in the process for several reasons. First, because her husband’s family are powerful, influential, and close to politicians and judges and they were working behind the scenes to make her case ‘go away’. Second, because the syariah law is always against the women and so there was never any way she could get fair justice in a court for her and her daughter.
Her mother-in-law confirmed her suspicions and told her to give up and withdraw her appeal as the family would ensure her case would never come to the Court and she would never succeed in getting custody of her daughter. After hearing nothing for a long time regarding her appeal, she also asked her lawyer what was going on. He said it appeared that her case was not progressing through a usual process and that the cause of the delay was likely political. She asked him to refund her money and he refused to.
A key problem throughout her married life has been the high profile and influential nature of her husband’s family. When she met her husband, his father [was] already [an official] in the Sabah Government and prior to that he had been [another role]. [Religious organisation and political party memberships.]. Her ex-husband’s [relative] was studying when she first married her husband but he then went on to become a [politician]. His name is [Mr F] and he has also been a member of [Party 1] and is now in [Party 2]. Being associated with a high-profile Muslim political family, one that spans over the older and younger generation, greatly increases the risk to her as her ex-husband and his family have both the motive and the power to hurt her, especially as they think she has caused a lot of damage to the family’s reputation and also made her ex-husband unhappy.
At the end of 2017, she decided she had enough of all this fighting with her ex-husband and his family and decided to leave Malaysia. Her mother had earlier spoken to her sister in Australia and asked if she could help bring her over to Australia as a safe country where she could secure her human rights. If she stayed in Malaysia she would forever be considered a Muslim and she could not continue to live that life, especially as she wanted to be free to continue her Buddhist faith. She has never taken any legal action in Malaysia to try to be recognised as a Buddhist, first because she was afraid this would have a negative effect on her chances of getting custody and secondly because she was afraid she would be prosecuted for apostasy especially as her ex-husband’s family would like to see her facing punishment.
Both of her ex-parents-in-law have now died, with her father-in-law dying first in [Year], however she remains afraid that her ex-husband and his [relative], who is now a politician himself, would continue to pursue her out of bitterness and for the perceived damage she did to the family’s reputation. According to her mother, her ex-husband has no money and is a drunkard. He lives off his siblings’ charity, is ‘in a bad way’ and blames her for the state of his life.
Her daughter is now [Age] years old and [in] secondary school. She will turn 18 in [Month Year] and be an adult. However she has not had an easy time. According to her daughter’s Mycard card, she is a Muslim and did not want to wear the hijab at school and has been bullied for this reason. Her daughter tells her that she is not a believer and does not want to be a Muslim. She wants to study [subject 2].
When the applicant’s ex-mother-in-law also passed away, her daughter stayed briefly with her father but then he left her alone in the house and was not caring for her. And so she was fearful for her daughter’s safety and asked her daughter to leave her father’s house and move to her mother’s house, where she has been living now for the last two or three years.
In Australia she has fallen in love and now has a de facto husband; a man originally from [Country] who is a committed [Religion 1]. He is in Australia on a temporary visa. They have lived together for more than two years and plan to marry this year or next year. He is [an occupation] and they met at [work]. They went to Western Australia together for work and then returned to Victoria. She is worried that if she is forced to return to Malaysia that she either will not be able to go with him, forcing them to break apart, or if they did go together, they would both face great difficulties as even if they were married in Australia, their marriage would not be recognised in Malaysia unless he converted to Islam, which he will not do as he is a committed [Religion 1]. If he does not convert to Islam then she could be charged with illegal relations outside of marriage. They could not live together in Malaysia and would also be forced to be apart.
The applicant is worried her ex-husband and his family may stir up problems for her if she returned to Malaysia now. Her mother told her ex-husband around two years ago that she is no longer a Muslim and now has a de facto husband. He reacted angrily to this news and she thinks he remains motivated to try to harm her if she returned, especially if she came to Malaysia with her de facto husband. She believes her ex-husband would report her to the authorities and that the JAIS police would definitely prosecute her, especially with her ex-husband and his [relative] pushing them along and seeking the maximum punishment for her. She repeated that she expects she would be convicted and sentenced to caning, a three-year prison sentence and forced religious rehabilitation in a camp. She is very fearful of this.
She added that her ex-husband’s [relative] has tried to be in contact with her. He tried to add himself to her [Social media account] but she refused and blocked him. The Tribunal asked when she last had direct contact (not mediated by her mother) with her ex-husband. She said she spoke to him last year to discuss arrangements for their daughter. He asked her if she was coming back and she told him she was not coming back as she has a life in Australia now. He did not threaten her but she felt uncomfortable and so blocked his number after that call. This call confirmed what her mother had told her, that her ex-husband is doing badly in his life and is looking for excuses to take it out on her. He is still a member of a powerful family and his [relative] is a pro Muslim politician who would not hesitate to push legal problems onto her. He could easily do this especially as she would likely be living in breach of syariah law in Malaysia.
The Tribunal asked the applicant if she was a practising Buddhist now and if so, how she practises her religion. She said that the following week she planned to go with her sister to the temple in [Town] to celebrate the Chinese New Year. They will take fruits and incense for the offerings. She does not often go to the temple as she is busy with work but both her and her de facto husband undertake their own separate religious prayers and activities at home. They have a special place in the house allocated to pray. She prays two or three times per week except during her menstrual periods. Her and her de facto husband are both relaxed about them having different religions but she is worried they could not be like this if they were living in Malaysia, as she is supposed to be a Muslim and he would be forced to be one too. If she had to return to Malaysia she is not going to pretend to be a Muslim as she has moved on in her life now and if she had to live in Malaysia she would continue to practice Buddhism, as that is who she is.
The Tribunal asked the applicant where she would go if she had to return to Malaysia. She said she would return to Sabah as she had always lived in Sabah and her parents are there. She would help manage her parents’ [business 1]. The Tribunal noted that the population in Sabah is much more diverse than in some other parts of Malaysia and asked if that might create a more relaxed environment for those Muslims not following the stricter Muslim practices. She responded that Islam is still the biggest religion and that the Government in Sabah, led by people involved in her ex-husband’s family, still follow the same strict standards as other parts of Malaysia. She added that the laws regarding apostasy and adultery are similar across the whole country so there is no where she could escape from these problems, or the fact that she is unable to officially change her religion back to Buddhism. She added that her ex-husband’s family have extended family members outside of Sabah, living also in Kuala Lumpur and in Johor. She has previously met some of them she went to Kuala Lumpur for a visit. As his family is a well-known family with people across the country, nowhere would be safe from them and the law reaches across the whole of the country.
The Tribunal highlighted that one of the reasons the delegate first rejected her case, was based on country information suggesting that some people who were not born as Muslims may be able to revert from Islam back to their original religion. The Tribunal invited the applicant to comment on this information. She responded that it was simply not true that most people in that situation in Malaysia were able to change their religion back. She said that just because there have been one or two cases where that has happened after a long legal battle does not mean that holds for everyone, especially as each syariah court and judge makes their own decision and most would not agree to do this.
The applicant added that if she returns to Malaysia she will be forced to die a Muslim and that her corpse would be taken by the Muslim Association and her remains buried in a Muslim cemetery, which she strongly objects to. She also strongly objects to being forced to pretend to be a Muslim for the rest of her life and not allowed to practice her own faith. She said she would be living in fear of legal action being taken against her at any time. It would also ruin her relationship with her de facto husband, whether he decided to stay in Australia because they could not be together in Malaysia, or if he came with her and then either had to convert to Islam to marry her or she could face prosecution for various crimes of living with him illegally.
Her ex-husband’s family’s political connections are a major risk. She added that everyone in Malaysia knows that she did not follow the instructions of her ex-husband’s family and did not want to be a Muslim. This caused his family great embarrassment, as did the divorce process and the custody case. People gossiped about these issues a lot, both at the time and ever since. The people in her ex-husband’s family care deeply about their Muslim reputation and they think she has brought the family into disrepute. If she went back they would eagerly take any opportunity to take revenge against her in Malaysia for all the trouble they think she has caused their family and for the mess her ex-husband’s life continues to be in. She added that ordinary Muslim Malaysians would also discriminate against her and look down on her as she is not originally Muslim but is supposed to be following Muslim practices but refuses to, as she has in the past, despite all the family pressure. She added that she and her daughter have already suffered enough.
She added that her daughter is now [Age] years old and will need money for college and so she sends money to her and to her parents each month. She does not have a lot of savings in Australia but saved to pay fees so she could study a Certificate III in [subject 3]. She finished her Certificate last year and now works [through] an agency. The Tribunal explained that her efforts to take these steps in her life were commendable but that the Tribunal cannot take such factors into consideration in making its decision as it can only apply the criteria relating to those owed protection obligations as refugees or under complementary protection provisions.
The Tribunal invited the applicant’s legal representative to suggest any questions not covered or to make submissions. He said that everything had been covered, but he wanted to emphasise that in the applicant’s case, it is the combination of her particular family connections, with the fact that she will suffer under syariah law and that it is implemented with a lot of discretion that varies from state to state and judge to judge. He added that the applicant is very fearful she would face three years imprisonment, caning and religious rehabilitation and that this is not far-fetched in the current circumstances in Malaysia. He added that mistreatment in rehabilitation centres can include starvation, beating and other use of force. He also emphasised the deep gender bias that infects syariah law and how this is particularly unjust when it is applied to a woman who is not even a Muslim and who cannot escape her Muslim status in Malaysia. She would be expected to follow Muslim practices that she has always opposed even when she was married to a Muslim, let alone now that she is not and wishes to continue her relationship with her [Religion 1] de facto husband.
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 under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of 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 set aside and remitted.
Country of nationality
The applicant has provided a copy of her Malaysian passport. She has consistently claimed to be from Malaysia. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Malaysia.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country. While the applicant is in a de facto marriage-like relationship with a [Country] national, she does not have a right to live in [Country] unless she is granted ‘Exemption Status’ to enter, reside and study in [Country].[1] A requirement is that ‘Applicant must be legally married to a [Country] Citizen’ and the application process requires a certified copy of a marriage certificate. Based on the applicant’s current marital status and other information before it, the Tribunal is satisfied that the applicant is not ‘legally married’ to her partner and therefore has no entitlement to Exemption Status to enter and reside in [Country].
[1] See [Country] Government website: [URL].
The Tribunal is satisfied that s 36(3) of the Act does not apply. The Tribunal is satisfied that Malaysia is her receiving country and has assessed her claims against that country.
Is the applicant a refugee?
Credibility of applicant’s claims
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 applicants themselves, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make out the applicants’ case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191 and Prasad v MIEA (1985) 6 FCR 155 at 169–70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
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 (See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J, Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
At hearing the Tribunal found the applicant’s oral evidence to be spontaneous, detailed and internally consistent throughout. She did not appear to embellish or exaggerate her claims, for example, her evidence clarifying that her ex-husband did not use physical violence against her except on one occasion. In addition, since the hearing the applicant has submitted a significant dossier of documentary evidence establishing core facts anchoring the basis of her claims including: her marriage certificate, divorce certificate, daughter’s birth certificate, ex-husband’s birth certificate, court order relating to daughter’s custody case and photographic evidence of her observing her Buddhist faith.
The Tribunal has also conducted its own research regarding the claimed political backgrounds of the applicant’s ex-father-in-law and her [ex-husband’s relative]. The Tribunal also notes that her ex-husband’s birth certificate (also submitted after the hearing), names the person she claims to be her ex-father-in-law as his father, thus corroborating the applicant’s claim regarding the identity of her ex-father-in-law. Notably, various newspaper articles also confirm the identity of the applicant’s [ex-husband’s relative], who is documented to be [an occupation 1] and a politician who has run for state office. Articles include references to him ‘following in the footsteps’ of [the] applicant’s ex-father-in-law .
Based on the combination of the applicant’s testimony and documentary evidence, the Tribunal makes the following findings:
·The applicant was born into a practising Buddhist family and remains a practising Buddhist.
·In around 2000 the applicant started dating a Muslim man, [Mr B]. In late 2005 they were engaged to be married. Then [in] February 2006 the applicant married [Mr B]. On the same day and at the marriage ceremony, she converted to Islam, as is required by law to enter into a recognised marriage with a Muslim.
·Her ex-husband’s family are a conservative Sunni Malay family heavily involved in politics. Her now deceased father-in-law [was] a high profile and well-known member of [Party 1]. He was [Public sector positions].[2]
[2] [References].
·Her ex-husband’s [relative], [Mr F], [an occupation 1], was also a member of [Party 1] but then joined [Party 2], a component party of the [Party 1] coalition. In 2019 he became [Party 2 organisational role] for [Municipality]. He was then appointed [organisational role] for [Sub-district]. In 2020 he ran (unsuccessfully) for [Public sector position] and he remains [organisational role] of [Party 2] for [Sub-district].[3]
[3] [References].
·After the marriage the applicant moved into her husband’s parents’ house. She was subjected to ongoing and progressively increasing pressure from both her husband and her parents-in-law to become a practising Muslim, including to change her name to an Islamic name, study Islam, dress in Islamic clothing, regularly pray, observe dietary requirements, attend the mosque, fast during Ramadan and observe other Muslim events.
·Throughout her marriage she consistently resisted Muslim practices. She stopped studying Islam soon after her marriage when she became pregnant; she refused to wear a hijab but agreed to wear loose fitting clothing; she avoided praying and when she could not, pretended to pray as she did not believe in Islam and did not learn the proper rituals attached to Muslim prayer; during Ramadan she secretly ate food in her room.
·The Tribunal also accepts the applicant’s claim that she refused to stop using her Chinese birth names and her chosen name ([Preferred name]) but agreed to add Muslim names for some official purposes. This is consistent with documentation she has submitted including her marriage and divorce certificates where her name is listed as ‘[Chinese name – Preferred name – Muslim name]’ andher daughter’s birth certificate where her name is listed as ‘[Chinese name]’.
·Her acts of resistance to practising Islam resulted in a poor relationship with her husband’s family, especially her parents-in-law who she lived with, who tried to pressure her to become more observant. Her husband was also angered by her resistance to adopting Muslim knowledge and practices. On one occasion her husband physically choked her. Over the years of their marriage he was commonly verbally and emotionally abusive towards her.
·On [Date] the applicant and her husband had a daughter [Miss A].
·In 2011 she asked her husband for a divorce and separated from him, taking their daughter with her to her parents’ house. After she separated from her husband, the applicant continued practising her Buddhist faith at her parents’ house but only at home as she was afraid of being prosecuted as she officially remained a Muslim and she also feared if this became known to her husband it would go against her in her divorce case. Initially her husband refused to grant her a divorce, but [in] December 2011 the divorce was finalised.
·In December 2011 the applicant allowed her daughter to spend the weekend with her parents-in-law but at the end of the weekend they refused to hand over daughter back to her, saying that she would live with them from then on.
·She applied for custody of her daughter to the Syariah Court in Sabah. In a verbal decision, the primary Court awarded custody to her husband.
·She then appealed to a higher level of the Syariah Court in Sabah and in October 2012 the Court awarded custody to her husband despite him not attending any of the hearings as he was drunk and disinterest in caring for his daughter.
·Soon after this Court ruling, she engaged a lawyer and lodged a further appeal of the decision to a higher-level Syariah Court. Her mother-in-law threatened that the family would ensure her appeal did not progress or succeed and tried to get her to withdraw her appeal. The applicant did not withdraw her appeal.
·The appeal did not progress from the time it was lodged in late 2012. Up until the time the applicant left Malaysia in January 2018, her appeal had not progressed at all. Her lawyer advised her this lack of progress was unusual and likely due to political interference from her husband’s family in the case.
·From 2022 she has been in a de facto relationship with a man from [Country] who is a committed practising [Religion 1]. Later this year or next year the applicant plans to marry him. He is a committed practising [Religion 1] and would not be willing to convert to Islam in order to live within a legally recognised marriage in Malaysia.
·If the applicant returned to Malaysia she would not be willing to pretend to be a Muslim as she has moved on from that phase of her life and she would continue to practice her Buddhist faith.
Assessment of applicant’s claims
Protection claim: freedom of religion
The applicant claims that if she was forced to return to Malaysia she would have no choice but to live and even die as a Muslim as she would be unable to change this legal status for the rest of her life. This is despite her not believing in the Muslim faith and her practising Buddhism, which she plans to continue doing wherever she is, including in Malaysia. She fears that if she did try to change her religion from Islam to Buddhism in Malaysia, or if she was detected practising her actual religion, Buddhism, she may be prosecuted for apostasy and subjected to heavy penalty, which could include imprisonment, caning or detention in a religious rehabilitation institution, or a combination of these. She also fears she may be investigated, prosecuted and sentenced for breach of other syariah laws, especially if she were to live with her de facto husband in Malaysia without him converting to Islam and marrying according to syariah law requirements. Another consequence of being treated as a Muslim is loss of her superior other legal rights to greater gender equality, which as a non-Muslim, she would otherwise enjoy under federal civil Malaysian law.
Common and central to all the applicant’s claims is the issue of freedom of religion. In issue in the applicant’s case is the religion imputed to her by the Malaysian state, and the problem of its lack of alignment to her actual religion. Given the centrality of religion to the applicant’s claims, the Tribunal finds that religion is the essential and significant reason the applicant claims to fear a real chance of serious harm in Malaysia. Thus the necessary nexus required in s 5J(4) of the Act, between a refugee ‘ground’ and the applicant’s fear of persecution, is made out in her case.
Turning to the claims themselves, while the Malaysian Constitution recognises the right to freedom of religion in theory,[4] there are several ‘carve outs’ to this principle that apply in law and in practice and therefore this guarantee cannot be said to meaningfully apply in Malaysia. Carve-outs include the State’s non-recognition of mixed-faith marriages and other legal provisions allowing the Muslim faith to be imposed on certain groups and the limitations imposed on Muslims not to convert to other religions.
[4] See Article 11(1) of the Malaysia Constitution which states every person has the right to profess and practise his religion, while still maintaining the primacy of Islam under Article 3(1) which states that ‘Islam is the religion of the Federation’.
As per the applicant’s claim, the Tribunal accepts that ‘the government does not recognise marriages between Muslims and non-Muslims’,[5] which is why she was compelled to convert to Islam in order to marry her Muslim husband in 2006.
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.[6]
[5] Ibid. [3.60].
[6] Ibid. [3.64].
The issue of Muslim apostasy is highly sensitive in Malaysia and the current trend appears to be that existing laws against apostasy being more widely interpreted, in response to pressure from religious organisations. For example, in 2023 it was reported that in Selangor, the Islamic religious council for Selangor, Majlis Agama Islam Selangor (MAIS), declared that Muslims could not attend other religions’ places of worship including for the purpose of learning about other religions.
In March, MAIS[7] declared Muslims could not participate in activities or visit non-Muslim houses of worship, noting the authorities could punish violators with up to one-year imprisonment or a fine of approximately $2,000 (10,000 ringgit).[8]
This is consistent with the overall picture emerging regarding the current social, political and legal context in Malaysia, which does not bode well for a person in the applicant’s circumstances who is hoping she can live a non-Muslim life in Malaysia. As reported by Suaram,
The legislative and social shifts around religious expression and governance in Malaysia reflect a trend toward a more assertive Islamic framework within public and legal domains. This trend is characterised by expanding the role and influence of Syariah law, tightening restrictions on religious minorities, and intensifying social responses to perceived threats to Islamic values.[9]
[7] Majlis Agama Islam Selangor (MAIS).
[8] United States Commission on International Religious Freedom ‘2024 Annual Report’, 65. See Malay Mail ‘Mais Chairman: Unlawful for Muslims to visit non-Muslim houses of workshop to learn about other religions’
[9] Suaram ‘Malaysia Human Rights Report 2024 Overview’, 2024,79.
Regarding the applicant’s ability to legally convert from the Muslim religion to her Buddhist faith, the country information supports her claim that this would be very difficult for her to achieve and that she may face punishment in the process of trying to do so. The DFAT report states that:
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.[10]
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.[11]
[10] DFAT Country Information Report Malaysia, 24 June 2024 [3.55].
[11] Ibid.[3.58].
The DFAT report also suggests that despite these known high-level difficulties, there may be some categories of state-recognised Muslims who are still able to convert to other religions including those whose religious status was mistakenly recorded as ‘Muslim’ and those who seek to revert to their original faith following divorce, as the applicant seeks to do.
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.[12]
[12] Ibid. [3.59].
This information highlights how even those whose religious status has been mistakenly recorded as Muslim have only a 25% chance of success of getting this corrected. Notably the 2024 DFAT report does not include the data provided in the 2018 DFAT report stating that only 168 out of 863 Muslims who applied to convert from Islam between 2000 to 2010 were successful.[13] That is less than twenty percent. The Tribunal notes that the delegate who cited this data in his decision, still placed significant weight on the assumption that she ‘may’ be able to successful convert and revert to Buddhism.
[13] DFAT Country Information Report – Malaysia (Version 2), Department of Foreign Affairs and Trade (Australia), 19 April 2018, [3.60], CIS7B839419347.
However the Tribunal places less weight than the delegate did on the possibility she can change her state-recognised religious status, also noting the dominate narrative in the DFAT 2024 report, which emphasises the difficulty of reverting to an original faith and the lack of certainty about the outcome.
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 [3.64].
The Tribunal does not assume that because the High Court found in one case in 2016, allowing an applicant to revert to their original religion, that it is possible to extrapolate from this that a similar approach is therefore now applied in all Malaysian courts. The evidence points otherwise, especially in relation to the syariah courts, where the civil court precedents are commonly not applied and it remains a matter of strong legal contest whether syariah courts in Malaysia are bound by constitutional principles and apex civil law courts’ decisions.
Below is an account from a Malaysian lawyer from 2022 who practices in the area of conversion applications including by those such as the applicant who were not originally Muslim.
These are my views on the Federal Constitution, the law and its practice where it relates to apostasy, and my experience conducting such cases in Kuala Lumpur and Putrajaya in the Federal Territories of Malaysia; I do not consider its theological aspects….
The process of an application to renounce Islam in the Wilayah Persekutuan syariah courts is a daunting one for a non-Muslim masquerading as a Muslim unfamiliar with the practice and culture of Islam. Such a person has to file a claim in the syariah high court and cite the Majlis Agama Islam Wilayah Persekutuan (MAIWP) as the defendant. The claim is served on MAIWP who will file a statement of defence to oppose the application. As a matter of course, MAIWP will apply to the court to have the person go for religious counselling sessions managed and conducted by the Mufti’s Department. The Mufti’s Department is responsible for advising on matters of Islamic law. The person can oppose such an application but it will inevitably be granted. It’s standard practice. A person’s usual reaction is not to challenge this process because they do not want the process to take any longer than it needs to.
The person will have to attend between twelve to fourteen hours of such counselling sessions. After that, a report is prepared which purports to assess the person’s knowledge about Islam. The report also provides a recommendation about what should be done about that person’s ignorance about matters relating to the Islamic faith. The recommendation unsurprisingly is almost always that the person does not understand Islam enough and requires more religious counselling.
Once the report is served, the court will fix trial dates. Often just like the civil courts, a witness statement is prepared setting out how they came to convert into Islam, the reasons why they wished to leave and specific denials of the tenets of the Islamic faith. They will take the syariah court oath and then confirm the witness as their evidence. The defendant’s syariah lawyer will cross-examine the person about their faith and often simply establish that the person validly converted according to law. There may or may not be re-examination. If there are other witnesses they will go through the same process. Once their examination is completed, the defendant will call their witnesses. It is usually the counsellor that prepared the religious counselling report and the officer that conducted the conversion. They will go through the same process of examination as the person’s witnesses. Just like a civil trial, after examination of the defendant’s witnesses is concluded, written submissions are directed by the court and then prepared, filed and exchanged between the lawyers. The high court then decides the case.
If the person wins then I would like to meet this person. Hello, pleased to meet you. I have some questions for you, if I may. Teh tarik on me. Because in my short experience at the syariah bar, I have not had any such applications granted. I have no personal knowledge of any such applications being granted either. Maybe I just haven’t done enough. The application is not only dismissed but the court often further orders the person to go for further religious counselling classes and through a repentance process. No time period is stipulated how long the person is supposed to undertake these classes and processes. The Mufti’s Department is ordered to prepare suitable religious counselling classes for the person to attend.
A person dissatisfied with the syariah high court’s decision may appeal against it within fourteen days to the syariah court of appeal. Just like a civil appeal to the court of appeal, a notice of appeal is filed and served on MAIWP. A record of appeal is prepared, filed and served. Case management dates are fixed to keep track and ensure the case moves along. Written submissions are directed, prepared, filed and exchanged. A decision date is fixed. On said date, the decision is delivered. In my time thus far, rarely have I had to argue anything substantive orally thus far, either at the high court or appellate level.
If the appeal is allowed then I’d like to meet you too. But if the appeal is dismissed as my clients’ have been then the only avenue left is to judicially review the syariah courts’ orders in the civil High Court.
Taking it up to the civil courts
If there are demonstrable grounds of illegality, irrationality or procedural impropriety, or whatever mix, then the civil courts are entitled if not obliged to intervene and set aside the syariah courts’ orders: see the Federal Court decision of Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors and Other Appeals [2018] 3 CLJ 145. But this process is not a straightforward one either. Judicial review is a two-stage process. First permission to judicial review must first be obtained from the High Court. If that is refused that decision can be appealed to the Court of Appeal. If there are appropriate questions of law then a further appeal to the Federal Court. If the person’s appeal is finally allowed in the Federal Court, all it means is that that means the person is given permission to judicial review.
The case is then sent back down to the High Court to be heard on the merits of the judicial review application. If leave were given, that whole appeal process would be avoided. If the High Court grants the judicial review all well and good. If not, it is to the Court of Appeal and again to the Federal Court if there are appropriate questions of law. That in a nutshell is the entire process and potential pathways for a person that wishes to formally renounce Islam.
That is what they have to do to reconcile the schism between their de facto identity (identity in fact) and de jure identity (identity in law). That is what such a convert has to go through simply to be legally recognized as not a Muslim, especially if the courts refuse them at every turn. That is the huge amount of time, money, effort, emotional investment, and mental fortitude a convert has to spend simply to be legally recognized again as a non-Muslim again.
But even then, there is no guarantee they will get the release they seek. Often they don’t. It is clear how the syariah courts decide such cases. It remains to be seen whether the civil courts adopt the same reasoning and thinking as the syariah courts post-Lina Joy v MAIWP [2007] 4 MLJ 585. Lina Joy is a famous case. She was born into a Muslim family. Her given name was Azalina binti Jailani. She decided to convert to Christianity because she wanted to marry a Christian man. She applied to change her name on her identity card (IC) with the national registration department(NRD). She was successful. However, due to regulations that came into force and applied retrospectively which required the word ‘Islam’ to be printed on IC cards of Muslims, her IC was returned with her new name together with the word ‘Islam’ printed on it. That defeated the point of the name change. She applied to have the word removed but was rejected by the NRD. She challenged the regulations and their constitutionality in court. She eventually lost in the Federal Court. It ruled the regulations were constitutional. It also ruled the syariah courts had exclusive jurisdiction in determining whether a person was a Muslim or not.[15] [Emphasis added]
[15] Fahri Azzat, ‘Renouncing Islamc in the Federal Territories of Malaysia’, 18 February 2022, available at: Renouncing Islam in the Federal Territories of Malaysia - From the Bar Stool.
The Tribunal gives weight to this lawyer’s account from 2022 as it is highly detailed and demonstrates practical experience in running conversion application cases and witnessing their outcomes, including those run by colleagues. The Tribunal accepts that it provides a realistic insight into the demands of the legal process involved and the high chance of failure in either the syariah or federal civil courts. The Tribunal finds that even if the applicant did pursue a legal process in Malaysia to convert from Islam, her prospects of success are very low and thus her case must be assessed on the basis that she cannot change her state-recognised religious status at the present time.
Moreover, the Tribunal must also consider the applicant’s likely circumstances into the foreseeable future and so has reviewed relevant emerging legal developments in Malaysia, which may impact on the applicant should she be compelled to return to Malaysia.
In February 2024 the Federal Court made a landmark decision finding 16 of the 18 provisions of the Kelantan Syariah law to be unconstitutional,[16] marking another important case towards recognition of the primacy of constitutional rights in Malaysia. However this case, along with others which have also advanced this principle, have catalysed a significant backlash. A raft of new laws has recently been proposed by the current Government to address the perceived problem of the primacy of constitutional rights ‘trumping’ syariah law, as discussed by Suaram, the Malaysian national human rights institution in their 2024 report:
Legislative developments in 2024 reflect a robust drive to strengthen the Syariah Court’s role and expand religious authority. Proposed amendments, such as the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355) amendments and the Mufti (Federal Territories) Bill 2024 have sparked public debate, as these aim to broaden Syariah courts' power and further institutionalise the role of the Mufti. These legislative initiatives mark a departure from 2023’s more cautious approach, as these government-backed bills could potentially lead to additional constraints on religious expression and elevation of Islamic authority within the legal framework. This expansion, which was interpreted by some conservatives as a response to the perceived erosion of power of Syariah court due to progressive development in court rulings favouring the civil side, has raised concerns about the potential adverse effects on non-Muslim communities and Muslim minority sects, underscoring growing tensions between Syariah law and civil rights.[17] [Emphasis added]
And:
The legislative and social shifts around religious expression and governance in Malaysia reflect a trend toward a more assertive Islamic framework within public and legal domains. This trend is characterised by expanding the role and influence of Syariah law, tightening restrictions on religious minorities, and intensifying social responses to perceived threats to Islamic values. Key elements of this trend reveal an evolving approach that impacts various dimensions of governance, freedom of expression, and minority rights. In 2024, Malaysian courts took a proactive stance, notably in cases like Loh Siew Hong's, where the judiciary reinforced constitutional protections, particularly against unilateral conversions. These rulings signal a judiciary willing to prioritise constitutional rights over exclusive religious authority, contrast to the relatively quieter legal landscape of 2023. These judicial decisions hint at a potential recalibration of legal approaches to religious authority, especially in cases impacting vulnerable groups and minorities. Developments in 2024 indicate a complex relationship between religious expression and the state’s emphasis on Islamic authority. Malaysia faces a critical balancing act, as judicial rulings increasingly affirm constitutional protections, and legislative efforts intensify around religious authority.[18] [Emphasis added]
This country information supports a view that not only is the applicant highly unlikely to be able to change her religious status upon her return to Malaysia but also that this situation is unlikely to change, increasing the chance she would have to officially remain a Muslim in Malaysia, possibly for the rest of her life.
[16] Suaram ‘Malaysia Human Rights Report 2024 Overview’, 2024, 89. See also New Strait Times, ‘Law being challenged not ordained by Allah, but by the state legislature: Chief Justice’, 9 February 2024.
[17] Suaram ‘Malaysia Human Rights Report 2024 Overview’, 2024, 79.
[18] Ibid, 79-80.
The Tribunal now considers the questions of whether the applicant: being unable to change her state-recognised religion; and being unable to practice her actual religion; and her losing federal civil law rights as a consequence of being subject to the laws for Muslim women, would together constitute treatment amounting to ‘serious harm’. The Tribunal will then consider the particular risks and harms the applicant may face as a woman in her circumstances who is subject to syariah law in Malaysia.
Freedom of religion as a basic human right
The Tribunal notes that being coerced to be a particular religion, especially when that status also prevents a person from practising their true religion, must be regarded as a breach of the right to freedom of religion. The right to freedom of religion is in international human rights law, a fundamental, non-derogable human right that is recognised in the Universal Declaration of Human Rights[19] and the International Covenant on Civil and Political Rights, with Articles 18(1) and (2) being particularly relevant to the applicant’s circumstances (emphasis added):
18(1). Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
18(2). No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. [Emphasis added]
[19] Article 18 UDHR.
The non-derogable aspect of the right to freedom of religion, even during declared states of public emergency, alongside its status as a peremptory norm – as jus cogens in nature – highlights the status of freedom of religion as a highest order right, one where the seriousness of breach of this right cannot be sensibly questioned:
Under international human rights law, there is a universally agreed set of non-derogable principles on which ideologically-defined ‘lawful’ encroachment cannot be justified. The human right to freedom of religion or belief belongs to this category. Religious rights and freedoms have been accepted and recognised by the international community of States parties as peremptory norms, as jus cogens in nature by virtue of their presence in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). It is the universal nature of non-derogable human rights that States parties to the ICCPR may not derogate from them, not even ‘in time of national emergency’. Article 4 of the ICCPR establishes religious freedom as a non-derogable right. It guarantees a rightful immunity from coercion of interior and/or exterior acts contrary to conscience or belief.[20]
[20] Joseph, R. ‘Religious Freedom is a Non-derogable Human Right’, 15 December 2023. Available at: PMC-CGCRI-2023-1469.pdf.
States parties to the ICCPR are obliged to reject any part of domestic law that purports to authorise the abuse of the non-derogable human rights set out in the Universal Declaration Article 18 and the ICCPR Articles 18 and 27, or the removal of legal protection for ‘freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching’.
Following from the foundational status of freedom of religion in international human rights law, the Australian Constitution also recognises the fundamental nature of religious freedom and belief, in s 116:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.[21] [Emphasis added]
While the Tribunal does not specifically rely on this provision of the Australian Constitution in making its decision, it supports a view that in exercising its jurisdiction and interpreting Australian law, the Tribunal should also ensure that the effect or consequence of its decisions is not to impose religious observance upon any person against their will, as is clearly also the legislative intent behind provisions of the Migration Act recognising that persons who face persecution for reason of their religion are owed protection obligations and entitled to protection as refugees.[22]
Right to respect of the family as a basic human right
[21] Commonwealth of Australia Constitution Act.
[22] See s 5J(1)(a) recognising religion as a protection ground and s 5J(3)(c)(i) recognising religious practice and beliefs to be an exception to a requirement to take reasonable steps to modify behaviour to avoid a real chance of persecution.
The Tribunal also notes that whether the applicant returns to Malaysia with her de facto husband and faces negative legal consequences, or whether they are forced to split up due to their understandable unwillingness to face these legal consequences, either way, the applicant’s right to state protection of her family unit is also at stake. Protection of the family is another fundamental right recognised in human rights law under both the Universal Declaration of Human Rights and the ICCPR:
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.[23]
The right to respect for the family is also a fundamental human right, only derogable ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’ and such measures may only be taken ‘to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’.[24]
[23] See Article 16(3) UDHR, and Article 23(1) ICCPR.
[24] See Article 4 ICCPR.
As the right to freedom of religion is fundamental to identity and conscience, it is not something that the applicant should be expected to modify. Forcing her to maintain a Muslim legal status, preventing her from practising her own religion, while also compelling her de facto husband to convert to Islam and cease practising his [Religion 1], in order to preserve a right to be together, would be a breach of both the applicant’s fundamental rights and those of her partner.
Loss of legal protections and rights as a woman under federal civil law as a form of harm
In addition, the Tribunal has considered how as a state-recognised Muslim, the applicant would be subjected to syariah law at the state level in relation to family matters, including succession, betrothal, marriage, divorce, adoption and guardianship,[25] the precise areas of law which would affect her life the most. The Tribunal further notes that by being subjected to syariah law, the applicant in effect loses the superior level of rights protection afforded to her as a woman under federal civil law. For example, under federal law women are exempt from corporal punishment or caning however a similar exemption does not apply to women under syariah law:
Federal law exempts men older than 50 years (unless convicted of rape), men sentenced to death, and women from caning.[26]
[25] DFAT Country Information Report Malaysia, 24 June 2024 [3.60].
[26] Ibid. [4.17].
There are many other examples of how the applicant’s rights as a woman would be curtailed under syariah law compared to her entitlements and rights under federal civil law, if she were not a state-recognised Muslim including in relation to marriage, divorce, ability to own land, division of marital property, inheritance. While Article 8(2) of the Malaysian Constitution was amended in 2001 to prohibit gender discrimination, this has not been applied in relation to Syariah law which does not recognise principles of gender equality. The gender equality provision in the Malaysian Constitution has been used to underpin many important legal battles, including the ongoing litigation and law reform to allow Malaysian women to confer nationality on their children on an equal basis as men.[27]
[27] Lim, I ‘Citizenship for Malaysian mums’ kids: Govt looks into settling case before Federal Court’s March 10 hearing’ 19 February 2025, MalayMail.
[41] Global Ikhwan Services and Business Holdings (GISB) is an Islamic business conglomerate that runs many ‘welfare centres’ in Malaysia. There are reports that it is linked to a religious sect, Al-Arqam, which was banned in Malaysia in1994. See Reuters, ‘Malaysia charges 22 people linked to Islamic firm GISB with organised crime’, 23 October 2024.
Women in GISB-run welfare homes reportedly faced coercive practices that forced them to conform to specific religious teachings and fundraising activities. This exploitation not only violated their rights to freely choose their beliefs but also subjected them to undue pressure in religious settings. Reports indicated instances of physical and sexual abuse, with the organisation’s religious standing being leveraged to evade scrutiny and legal consequences. Women were reported to be indoctrinated at universities, forced to marry men within the sect and being dehumanised as slaves and reproductive machines for their husbands.[42]
[42] Suaram ‘Malaysia Human Rights Report 2024 Overview’, 2024, 82, see also Lemiere, S. ‘Commentary: Too many knew, too few acted in GISB child abuse scandal in Malaysia’ 9 October 2024, Channel News Asia. 4
In relation to religious rehabilitation centres in Sabah, an earlier report on the approach taken to Muslim converts confirms they may be subjected to up to three years religious rehabilitation in the Jheains’ faith rehabilitation centre in Kinarut.[43]
[43] Malaysia Today ‘Sabah apostates: Repent or go to ‘jail’ ,2 January 2011.
Other ways being a state-recognised Muslim may impact on the applicant’s rights
112. The applicant has specifically claimed she fears that as she will most likely be a state-recognised Muslim at the time of her death, her body would be buried in a Muslim cemetery, contrary to her religious beliefs to be cremated. Section 98(2)(3) of the Sabah Syariah Criminal Offences Enactment 1995 contain the offence of ‘wilfully burying a Muslim corpse in a non-Muslim cemetery’ carrying a penalty of a fine of up to 3000RM or up to one year imprisonment or both, and empowers the Syariah Court to ‘order the corpse be excavated, removed and be dealt with in accordance to Islamic custom.’ Thus there is a legal basis for the applicant’s concerns.
113. There is also a long history of legal controversy regarding the burial of state-recognised Muslims, where relatives claim they are not in fact Muslims, in Muslim cemeteries, including in Sabah.[44] More recent reports of legal challenges regarding whether federal civil courts have jurisdiction to determine a person’s religion at the time of their death and thus their mode of mortuary rites, have determined that this remains the exclusive jurisdiction of religious courts and authorities.[45] The sensitivity of this issue around religion and mortuary rights is highlighted by the Government’s recent decision to direct the Islamic Development Department to issue guidelines regarding the conduct of Muslims at a non-Muslim’s funeral and non-Muslim events more generally.[46] Thus, it is quite foreseeable that if the applicant is unable to convert from Islam during her lifetime, that her fear of being denied Buddhist mortuary rights, is well-founded.
[44] Malaysia Today ‘Sabah apostates: Repent or go to jail’, 2 January 2011; The Irish Times ‘State-ordered burial angers Malaysia’s non-Muslim minority’, 30 December 2005.
[45] Lim, I. A Hindu family’s bid to stop MAIS from reburying Malaysian man as alleged Muslim convert’, 20 February 2023.
[46] FMT Reporters, ‘Islam permits Muslims to attend non-Muslim funerals say ex-religious minister’, 10 February 2025; CAN ‘ Malaysia’s proposed ‘guidelines’ for Muslims attending non-Muslim events, draws brickbats but some defend move’, 6 February 2025.
Relocation options
114. In assessing the applicant’s case, the Tribunal must be satisfied that the applicant may face a real chance of serious harm across the whole of Malaysia and not only in her home area of Sabah. The Tribunal notes that the applicant’s status as a state-recognised Muslim and her likely inability to change that status, will apply to her across all parts of Malaysia. While syariah laws do contain some variations between Malaysian states, they all contain similar criminal penal codes and punishments, including for apostasy and the other syariah offences the applicant may be liable under. The Tribunal finds that the risks posed to the applicant’s freedom of religion, including the application of syariah law, would apply to her wherever she was located in Malaysia.
115. The only substantive difference between the legal risks facing her in Sabah compared to elsewhere in Malaysia relate to her particular profile and family background, which substantially increase the chance of her coming to the attention of religious authorities in Sabah. As discussed earlier, this could occur via her ex-husband or his family members, or via community members that know her. The Tribunal has already found that once she has come to the attention of religious authorities and was subject to investigation or prosecution, the risk of political influence from her ex-husband’s family would increase the chance of such a process being followed through and her receiving a higher-end sentence.
116. Nonetheless this does not mean that even if she was living somewhere where her family profile and background is not widely known in her local community, that she does not still face a residual risk of serious harm that remains higher than a ‘real chance’. Given the applicant will be readily identifiable as a state-recognised Muslim through her name and through her national identity card, which may be checked anywhere or at any time by police or religious authorities, she still faces a relatively high level of risk that at some point her conduct or behaviour will come to the attention of authorities.
117. Religious police operate across all of Malaysia and have a wide range of powers to detain and charge people suspected of breaching syariah law.
Religious enforcement officers, known locally as religious police, have a range of powers depending on the syariah laws that apply in each state. Religious enforcement officers can detain and charge individuals to go before syariah courts for a range of reasons, including indecent dress, alcohol consumption, the sale of restricted books, or for being in close proximity to members of the opposite sex. State level syariah imposes a range of penalties. Although state religious officers have no jurisdiction over non-Muslims, their considerable range of powers means their actions can directly impact non-Muslims, who may, for example, feel compelled to comply with Islamic dress codes.[47]
[47] DFAT Country Information Report Malaysia, 24 June 2024 [5.9].
The US Department of State reported as follows in its International Religious Freedom Report for 2023:
State-level Islamic religious enforcement officers continued to have the authority to accompany police on raids of private premises and public establishments and to enforce sharia on Muslims, including for violations such as indecent dress, distribution of banned publications, alcohol consumption, or khalwat (close proximity to a nonfamily member of the opposite sex).[48]
[48] 2023 Report on International Religious Freedom: Malaysia', US Department of State, 26 June 2024, p.7, 20240627095012.
118. Once authorities identify her as a state-recognised Muslim and her (likely) obvious non-compliance with provisions of syariah law, especially if she was cohabiting with her de facto husband without him converting to Islam or them marrying according to syariah law, then the risk of ‘serious harm’ to her would consequentially flow. Even if she were not detected through her being ‘picked up’ directly by police or religious authorities in her daily life, it would not be unusual for neighbours to question the living arrangements or other daily habits of their new neighbours and to report any suspicions they may have to the authorities. There is also a risk they may take action against the applicant directly, especially as reports of vigilantism by private citizens is on the rise.
There are concerns on the rising trend of creeping theocracy from the authorities, moral
vigilantism by private citizens, and intensifying Syariah punishments which could worsen the
issues of intolerance and extremism in a multiethnic and multireligious country like
Malaysia.[49]
[49] Suaram ‘Malaysia Human Rights Report 2024 Overview’, 2024, 95.
Thus even if the applicant’s specific family background is not known in her local community, the Tribunal finds that while she may not be immediately detected or suspected to be an apostate or immediately reported for suspected breaches of syariah law, the risk of this happening within the foreseeable future is quite likely and thus she would still face a higher than ‘real chance’ of experiencing serious harm.
119. In addition, the applicant has highlighted that members of her ex-husband’s family live in various locations across Malaysia, including in Johor and in Kuala Lumpur, and also have connections with national political parties providing a national network through which news of the applicant’s presence could be transmitted, either sooner or later. Thus even the notion that she could live anonymously in some other part of Malaysia without her family history and profile becoming known in her local community either immediately on her return or in the foreseeable future, seems highly unlikely also.
120. As the core risks she faces in Sabah would remain a constant throughout the whole of Malaysia, the Tribunal finds that her relocating to another part of Malaysia may reduce the level of risk she faces somewhat, but would not reduce it below the threshold of her continuing to face a real chance of serious harm.
Lack of effective state protection
121. Given that the applicant fears the application of state laws, both civil and syariah laws, and the exercise of power by state and religious authorities in implementing and enforcing those laws, the Tribunal finds that the applicant will not receive effective state protection from the harms she fears. Rather, the possibility of the applicant receiving effective state protection from the application of state laws, administered by state actors, is even somewhat nonsensical in her case.
122. In addition, there is country information indicating that state religious authorities are often not held accountable when they overstep even their sanctioned roles. This was highlighted by the long delay in any action being taken against GISB-run ‘welfare centres’ despite credible reports of abuse against women and children occurring several years earlier. Suaram highlights this lack of oversight and accountability of religious authorities in Malaysia as a particular concern:
These issues underscore the need for greater oversight of religious organisations and stronger protections for vulnerable individuals, particularly in contexts where religious authority can be misused. There must be a clear mechanism established for reporting, monitoring, and enforcement from the public that leads to investigation and corrective measures to demonstrate the willingness of relevant authorities to be accountable and transparent in preventing and countering religious abuse of exploitation. Although JAKIM responded to these allegations with clarifications that intervention in GISB affairs began as early as in 2019, with closed-door meetings with the National Council of Islamic Religious Affairs (MKI), the Attorney-General’s Chambers, and a special convening of national security agencies in 2022, it remained puzzling why the authorities only enforced the law after five years. [50]
[50] Suaram ‘Malaysia Human Rights Report 2024 Overview’, 2024, 83.
The Tribunal finds that the applicant would not be able to access effective state protection from serious harm from state or authorities in Malaysia.
Conclusion
123. In summary, whatever the applicant does, she faces infringement of her fundamental human rights if she is compelled to return to Malaysia. It is highly likely she will be unable to change her state-ascribed religious status as a Muslim, and even if she tries, she may be prosecuted for apostacy and face a serious sentence. Remaining a Muslim by law will have a series of serious consequences for her. These include preventing her from practising her own religion, including attending a temple, or face a constant risk of prosecution for apostacy. As a state-recognised Muslim woman, she faces loss of legal protections against gender discrimination she would otherwise enjoy under federal civil law on personal status and other issues, which would impact on her throughout her life in fundamental ways. She must either separate from her de facto husband and return to Malaysia alone to avoid the legal consequences of living in an unrecognised relationship with him; or if he accompanies her he must convert to Islam, something he will not do, or otherwise the applicant faces prosecution under syariah law for living in a prohibited relationship and may face penalties that would constitute serious harm. The constant fear and threat of being ‘dobbed in’, or otherwise detected and then investigated and prosecuted, would also create a considerable and constant psychological burden or harm to the applicant and to her de facto husband.
124. In addition, noting also the increased trend towards religious conservatism and the emergence of vigilante groups seeking to enforce Islamic law, the Tribunal accepts that the applicant and her de facto husband would face disapproval from members of the wider Malaysian community who would not recognise the applicant’s inter-faith relationship and would regard it as contrary to Islamic law unless the applicant’s de facto husband converted to Islam and they married. The Tribunal accepts there is a real chance that both the applicant and her de facto husband may suffer discrimination, harassment and potentially mistreatment, which could amount to serious harm from members of the Islamic community in Malaysia who disapproved of the applicant, a Muslim, living in an inter-faith relationship in breach of syariah law. The applicant also faces a high risk that when she dies she will be denied Buddhist mortuary rights that are important to her as a Buddhist, adding further to the harm she faces.
125. Having carefully considered all of the available evidence, the Tribunal finds that there is a real chance that the applicant would suffer serious harm from the Malaysian authorities, and/or members of the Islamic community more generally, if she were compelled to return to Malaysia. The Tribunal finds that religion would be the essential and significant reason for such harm. It further finds that she would not be safe from these harms in any part of Malaysia as the laws and authorities she fears apply to her across the whole country and the police and other state actors will not provide her with effective state protection from the application and enforcement of state syariah laws.
126. The Tribunal is satisfied that the applicant’s fears of persecution in Malaysia are well founded and that the applicant is a refugee as defined by s 5H(1)(a) of the Act.
127. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
128. 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: 23 January 2025
Representative: Mr Paul O'Connor (MARN: 0854511)
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.
…
0
6
0