1918352 (Refugee)
[2025] ARTA 1201
•7 April 2025
1918352 (Refugee) [2025] ARTA 1201 (7 April 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1918352
Tribunal:General Member M Hanna
Date:7 April 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 07 April 2025 at 12:55pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity and political opinion – Indigenous and human rights and economic conditions – application completed by another person and claims discontinued at hearing – new claim of interfaith marriage – Christian man and Muslim woman – opposition by family and threats and attack by uncle – offer to convert to Islam – civil marriage in Australia not recognised in home country – spontaneous and credible evidence – reasonable explanation for late claim and no adverse inference drawn – country information – civil and syariah laws and religious enforcement – wife subject to syariah law – societal harassment, discrimination and pressure to convert – state one perpetrator of harm and real chance of persecution in all areas – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (4), 5L, 36(2)(a), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2CASES
BEH15 v MIBP [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO16 v MIBP [2018] FCAFC 2
El Merhabi v MIMA [2000] FCA 42
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
NBCY v MIMIA [2004] FCA 922
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
S1891 of 2003 v MIMIA [2005] FMCA 1069
WAKK v MIMIA [2005] FCAFC 225Any 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 4 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old citizen of Malaysia who last arrived in Australia [in] September 2016 and applied for the visa on 14 December 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations and on 9 July 2019 the applicant sought a review of that decision from the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 21 November 2024 and 12 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant and his wife both understood and spoke cogent English and it was the applicant and his wife’s preference to speak in the English language for the most part with reference to the interpreter if and when needed. The Tribunal is satisfied that the applicant had a reasonable opportunity to present his case.
The applicant was represented in relation to the review. The applicant’s representative attended the Tribunal hearing.
BACKGROUND
At hearing and in the visa application, the applicant gave evidence about his personal background and immigration and work history in Malaysia and Australia as follows.
The applicant was born in Sandakan, Sabah Malaysia. He is of [Ethnicity] and Christian faith.
His immediate family consists of his parents and [siblings]. The applicant’s father is a retired [occupation 1] and his mother a retired [occupation 2]. The applicant’s parents live in Sabah. The applicant has [sisters] with the applicant being the only son of the family. [Number] of the applicant’s sisters are married with children living in Tawau, Selangor and Kota Kinabalu. His youngest sister is a [subject 1] student living in Selangor. Following his arrival in Australia, the applicant has maintained regular contact with his parents and sisters via WhatsApp.
Prior to his marriage to [Ms A] the applicant had never been married and/or in a de facto relationship and he does not have any children.
Before coming to Australia, the applicant had always lived with his family members in various cities/towns in Sabah, Malaysia and in Australia, the applicant has at all times lived with [Ms A] in metropolitan Melbourne.
The applicant completed his primary and secondary school education in Sabah in [Year]. He went on to complete a diploma during the period of 2004 – 2007 before undertaking university studies from 2007 – 2011. Following completion of his university degree in [Subject 2] the applicant was employed as [an occupation] for [a workplace 1] in Malaysia from 2011 – 2016. In Australia, the applicant has undertaken [workplace 2] work and has been employed in various [workplace 3] roles.
The applicant has previously travelled to Australia on two occasions as the holder of Subclass 601 Electronic Travel Authority (Subclass 601) visas following which he applied for an onshore student visa. This visa was granted on 22 December 2016 and was valid until 15 December 2018. The applicant lodged his application for the protection visa which is the subject of this review on 14 December 2018, and he currently holds a Subclass 010 Bridging A visa. The applicant has not departed Australia since his last arrival [in] September 2016.
The applicant has never travelled anywhere else outside of Malaysia.
The Tribunal accepts the above matters to be true.
Evidence before the Department
In his protection visa application, the applicant claimed in summary that he had left Malaysia because of political and economic reasons affecting the Indigenous people of Borneo in Sabah. He stated that as a native [Ethnicity], he participated in political activism fighting against racist sentiment directed at the Indigenous people of Borneo and for their basic human rights.
Department records indicate that the applicant was not invited to attend a protection visa interview and on 4 July 2019 the delegate refused to grant the applicant a protection visa as the delegate was not satisfied that he was owed protection as a refugee or under the complementary protection provisions.
Evidence before the Tribunal
On 9 July 2019, the applicant applied to the Tribunal for a review of the delegate’s decision. The applicant provided the Tribunal with a copy of the delegate’s decision. No further information and/or supporting evidence was submitted at the time of lodgement of his review application.
On 2 April 2024, in response to correspondence from the Tribunal notifying the applicant that his application was being prepared to be constituted to a Member, and that information was being sought to assist the Member in conducting the review, the applicant provided the Tribunal with a completed pre-hearing information form dated 28 March 2024. In this form the applicant provided up to date contact details and in response to the question as to whether he wanted to give any more information about his claims for protection and/or whether there were any other reasons why he was afraid to return to his home country, the applicant stated that submissions detailing his protection visa claims would be provided.
On 18 November 2024, the Tribunal received the following pre-hearing submissions and supporting evidence from the applicant’s representative:
· Undated written submissions setting out the applicant’s background and raising new claims for protection on the basis of the applicant’s interfaith marriage to a Muslim woman and as a consequence of this marriage, his fears of serious harm which threaten his capacity to subsist. The representative referred to country information where relevant to support her contention that the applicant’s fears of persecution on return to Malaysia are well founded due to his interfaith marriage;
·Undated state of claims from the applicant;
·Copies of the applicant and [Ms A]’s Australian commemorate and civil marriage certificates dated [March] 2023 and 12 April 2023 respectively; and
·Selection of unmarked photographs of the applicant and [Ms A].
On 19 November 2024, the Tribunal received the following additional pre-hearing submissions and supporting evidence:
·Copy of the applicant’s Malaysian driver’s licence;
·Copy of [Ms A]’s MyKad identity card;
·Copy of the applicant’s certificate of baptism; and
·Additional selection of unmarked photographs of the applicant and [Ms A].
Following the applicant’s first hearing, on 28 November 2024 the Tribunal received further supporting evidence in the form of a copy of police correspondence regarding the applicant having his identity documentation stolen together with a copy of the applicant’s MyKad identity card.
On 12 December 2024, prior to the applicant’s second hearing, the Tribunal also received the following additional pre-hearing submissions and supporting evidence:
·Additional photographs of the applicant and [Ms A] including photographs of their marriage ceremony.
·Copies of the applicant’s Australian driver’s licence together with evidence of the applicant and [Ms A]’s joint residence.
Finally, on 6, 8 and 15 January 2025 the Tribunal received the following post-hearing submissions and supporting evidence:
·Additional undated written submissions.
·A declaration from [Ms A]’s mother, [Ms B] attesting to [Ms A]’s single status in Malaysia.
·Letter from the applicant and sponsor’s marriage celebrant confirming their civil marriage ceremony having taken place [in] March 2023.
On 21 November 2024 and 12 December 2024, the applicant appeared before the Tribunal to give evidence and present arguments in support of his application.
The applicant gave evidence that he had first travelled to Australia in August 2015 in order to visit his then partner, [Ms A]. [Ms A] had travelled to Australia sometime earlier having first arrived in Australia [in] December 2014. The applicant gave evidence that he and [Ms A] had been in a long-term mutually exclusive relationship since sometime in 2008 having first met in 2007 as fellow students and classmates at the same university. The applicant went on to explain that as his relationship with [Ms A] became more serious, he had introduced her to his family who disapproved of the relationship because of the religious differences – [Ms A] is a Muslim and the applicant a Christian. The applicant gave evidence that during his university studies his family had openly showed their disapproval of the relationship, but it was not until he finished his university studies that his family intervened in order to stop the relationship.
The applicant stated that following completion of his studies in 2011, his mother had begun to talk to him about getting married and starting a family. When he raised with his parents that he was still in a relationship with [Ms A], the applicants’ parents continued to show strong opposition and told him to stop the relationship. The applicant did not follow his parent’s wishes and continued to see [Ms A]. The applicant’s maternal uncle then became involved and tried to convince the applicant to end the relationship. The applicant’s uncle approached [Ms A] directly at her workplace and told her to stop the relationship but as the applicant and [Ms A] continued with their relationship despite the family’s strong opposition, the applicant’s uncle approached [Ms A] a second time, this time threatening her if she did not end the relationship. The applicant and his wife both described that on this occasion the applicant’s uncle approached [Ms A] in an aggressive and threatening manner and the situation escalated with the applicant’s uncle having violently pushed [Ms A] who then fell and was injured during the incident. The applicant gave evidence that following this incident [Ms A] was quite shaken and was afraid to return to work for a week. She did not report the incident to the authorities as it was the applicant’s uncle, and she did not wish to cause further trouble for the applicant with his family. These events took place sometime in 2012. The couple then decided that they should keep their relationship a secret and whilst they continued to be together, they would often travel long distances outside of Kota Kinabalu where they both lived and worked in order to safely meet each other in another district.
The applicant then gave evidence that whilst the couple’s relationship continued like this during the period of 2012 – 2014 his family continued to question the applicant about the relationship and whether it had ended. He described his mother warning him that if his relationship continued with [Ms A] and his uncle decided to escalate things further, there would be nothing she could do to stop him. In both his written and oral, the applicant went to state that it was around this time that his uncle came to him directly and threatened the applicant that he would beat him up to ensure he would come to his senses, and he would lock him up if it came to that in order to preserve the family. The Tribunal notes that in her evidence [Ms A] stated that the applicant’s uncle was a police officer however the applicant made no mention of this either in his written and/or oral evidence.
When asked what his intention and/or plan was for the relationship at that time, the applicant became emotional and stated that he and [Ms A] just wanted to be together, but he needed the approval of his family to accept his wife. He went to state that if his parents accepted his wife and would allow him to convert to Islam, the couple could then get married however his family would not allow it. The applicant then became visibly emotional and after a period of silence he told the Tribunal that he was struggling as he did not wish to remember what his mother had said to him. He went on to explain that he had discussed with his parents that if he wanted to marry [Ms A], he would need to convert to Islam as it was not possible for her to leave her religion in Malaysia and in response his mother had threatened to harm herself if her only son was to convert to Islam.
The applicant gave evidence that his family were a strong Christian family and that he had grown up attending church service every Saturday. He attended Sunday School and described himself as an adherent to the Christian faith. He stated that he believed in and continued to actively practice his faith. More so he was adamant that he did not wish to disobey his parents and recalled that his mother having threatened to harm herself because of his situation was something that still haunts him to this day. When asked to describe [Ms A]’s faith and her family situation, the applicant gave evidence that his wife was also strong in her faith and that her family were also strict adherents to the Islamic faith. The applicant stated his wife prayed regularly, she would fast during Ramadan and attended mosque both in Malaysia and in Australia. He also stated that whilst he never met his wife’s father given, he had passed away sometime in 2005 before the couple first met, her mother and siblings were aware of their relationship and her mother was fine with their relationship as she believed that the applicant would convert to Islam.
The applicant then went on to state that following the situation with his uncle and his family, the applicant felt that he was faced with an impossible decision, namely, to choose between his family or his chosen partner. He stated that he was torn between wanting to continue with his relationship with [Ms A] but in doing so, knowing he would need to convert to Islam, yet he did not want to go against his family’s wishes. The applicant stated that he and [Ms A] discussed that at length that they did not want her to continue to be harassed yet [Ms A] did not wish to go to the police and/or report the applicant’s uncle as she did not want to make things worse for the applicant. She also feared that his uncle may come to her home and/or harass her family and they therefore discussed whether there was a possibility for them to move elsewhere within Malaysia where they could be together. However, given the fact that the applicant’s wife was Muslim and Syariah law applies across the whole of Malaysia in regards to matters such as marriage, there was nowhere in Malaysia where the couple’s interfaith relationship and/or marriage would be recognised or accepted. Consequently the couple came to the decision that they would send [Ms A] away for some time so that the applicant’s family would believe that they were no longer together.
The applicant’s wife gave evidence that she had had a cousin who had previously travelled to Australia for the purposes of study and that she had asked her cousin about life in Australia. The applicant and [Ms A] subsequently agreed that she would travel to Australia for some time until they figured out what to do. The applicant then went on to state that once [Ms A] had travelled to Australia, he considered running away with her but did not want to make the situation worse. So after some time, he advised his parents that he needed a holiday and he travelled to Australia to visit [Ms A]. The applicant then travelled to Australia a second time to visit [Ms A] and it was during this time that he sought some help from friends as to how he could remain in Australia. Having received advice that it was best for him to try to remain in Australia as a student, the applicant returned to Australia a third time and applied for the student visa. He gave evidence that whilst his motivation was to be with [Ms A], he did not want to tell his parents as much and so he told them that he wanted to continue with his studies abroad. Prior to the expiry of his student visa the applicant had again sought some help from friends as to how he could remain in Australia following which a friend put him in contact with a person who could help him apply to remain in Australia and work. The applicant then went on to state that he paid a Malaysian girl $150 to assist him with preparing his visa application and that he was of the understanding that such a visa would allow him to remain in Australia and work.
The Tribunal put to the applicant his claims as set out in his protection visa application. When asked if they were his claims the applicant stated that they were not and that he wished to resile from such claims. He stated that at the time of preparing his visa application, he had told the girl that was helping him that he could not return to Malaysia because of his interfaith relationship with [Ms A] and that he wanted to be able remain in Australia and work. The Tribunal notes that the applicant was forthcoming in his evidence as to the above matters and gave such evidence in a straightforward and credible manner. Accordingly, the Tribunal accepts the applicant’s evidence in this regard and finds that the applicant does not claim to fear harm on the basis of political and economic reasons, nor does he fear harm on the basis of his ethnicity as native [Ethnicity]. For clarity, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm on these basis.
When asked about the couple’s life in Australia the applicant stated that he and [Ms A] had always lived happily together without fear of harassment or judgement. He stated that they had lived in share houses with other people and that they shared a room and always presented as a couple. He went on to state that he works two jobs to support himself and his wife. Both the applicant and his wife also gave evidence that both parties continued to actively practice their respective faiths in Australia and that they celebrated religious events together. The applicant and his wife gave evidence that at all times throughout their relationship they have maintained respect towards each other’s religion and their adherence to their respective faiths. The applicant’s wife gave evidence that she has never wanted to force the applicant to convert to Islam as doing so would feel like she was forcing him to be with her and she never wished for the applicant to feel that way. She became quite emotional when describing the applicant’s strength of faith and his continued closeness to his family with whom he regularly prayed. She also described herself as a faithful practising Muslim but that she sometimes saw herself as not being a good Muslim because of their circumstances. When asked what is to stop the applicant from converting to Islam so that their marriage could be recognised in Malaysia, the applicant’s wife stated that the applicant was a faithful Christian, and he did not want to convert. She also stated that he loved his family very much and that he was haunted by his mother’s declaration that she would rather die than know her son had converted to Islam.
The applicant and [Ms A] were legally married in Australia [in] March 2023. The applicant and his wife provided evidence that their marriage ceremony was a non-religious civil ceremony officiated by a registered marriage celebrant who also provided a letter of support to that effect. When asked why they had not gotten married in Australia earlier given the length of time they had both been in Australia, the applicant and his wife gave consistent and convincing evidence that it was not until recently that they came to know that they could legally get married in Australia. The applicant gave evidence that the couple had assumed that they were unable to legally marry in Australia unless they were Australian permanent residents or citizens and that it was only when they came to hear of another couple in a similar situation getting married that they found out they could legally get married despite their migration status and/or their different religious beliefs.
When asked if the couple could return to Malaysia now, the applicant gave evidence that as an interfaith married couple, they cannot return to Malaysia as their marriage is not legally recognised and they would be targeted by the Malaysian authorities. He also stated that if they were to return, they would face harm in the form of harassment and threats from his family, particularly his uncle who has previously harmed and threatened both the applicant and his wife. The applicant also gave evidence that he would be under pressure to convert if the couple wanted to get married and have their relationship recognised or alternatively, as the Muslim party, his wife would be subject to syariah law and could face punishment such as canning, a fine or imprisonment.
When asked if they could relocate elsewhere in Malaysia other than where their respective families lived, the applicant stated that they could not as Malaysia is a Muslim country and syariah law applies everywhere.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
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, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Identity and country of nationality
The applicant’s nationality is not in issue. The applicant is a [Age]-year-old male born in Sandakan, Sabah Malaysia. The applicant travelled to Australia on a valid Malaysian passport and states that he is a national of Malaysia. In support of his protection visa application, the applicant provided a copy of his Malaysian passport. The delegate accepted that the applicant had provided sufficient evidence of his identity and nationality and accepted the applicant’s identity. On the evidence before it, the Tribunal is satisfied that the applicant is a national of Malaysia and has assessed his claims against Malaysia as his country of reference and ‘receiving country’ respectively.
Credibility
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[1] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[2]
[2] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, 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 made out.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Late claims – section 367A of the Act
In addition to the above principles, s367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. As the applicant lodged his protection visa application in December 2018, after the applicant’s claims to fear harm for reasons of his interfaith relationship, the Tribunal must now consider whether the applicant has a reasonable explanation as to why such claims were not raised before the primary decision was made.
Findings
The Tribunal records at the outset that it found the applicant gave his evidence in a credible, spontaneous and forthright manner and accordingly the Tribunal is prepared to accept as true the claims made by the applicant at hearing, and as set out above.
Further the Tribunal records that whilst at hearing it raised with the applicant it’s concerns regarding the significant delay in the applicant raising the claim of his interfaith relationship being the reason why he feared harm on return to Malaysia, the Tribunal notes and accepts the applicant’s evidence that at the time of preparing his visa application for protection, he had been assisted by someone that his friends had referred him to and that he had not been familiar with and did not know what a protection visa was or what the process involved. The Tribunal accepts the applicant’s evidence that at the time of preparing his visa application he had told this person that he could not return to Malaysia because of his interfaith relationship and that he therefore wished to be able to remain in Australia and work, yet that individual had advanced alternatives claims for protection in the application. The Tribunal further notes and accepts that whilst the applicant and [Ms A] have been in a relationship since sometime in 2008, the couple’s legal marriage in Australia took place [in] March 2023, sometime after the lodgement and determination of the applicant’s primary protection visa application. Accordingly, and given all of the circumstances set out above, the Tribunal accepts the applicant’s evidence in this regard and finds that there is a reasonable explanation as to why such a claim was not raised, or evidence was not presented, before the primary decision was made and accordingly draws no adverse inference as to the applicant’s credibility in this regard. The inference n s367A will not apply.
Fear of harm on the basis of interfaith marriage – future risk of harm
The Tribunal has now turned its mind to consideration of the applicant’s claim to fear harm on return to Malaysia from his family, the Malaysian authorities and the community at large because of his interfaith marriage with his wife [Ms A]. The Tribunal accepts on both the oral and written evidence before it that the applicant is a practising Christian who is in a committed, mutually exclusive and ongoing relationship with a Muslim Malay woman and that he is therefore a party to an interfaith marriage. The Tribunal also accepts that the applicant’s evidence as to the background of his relationship with his wife and his family’s opposition to such a relationship as set out in paragraphs 25 – 34 above. Most notably the Tribunal accepts that the applicant and his wife are both faithful adherents to their respective faiths and that whilst they each practice their own religions in Australia, at the same time they also respect the other party’s religion and share in each other’s religious celebrations.
The Tribunal also accepts that should the applicant and his wife be forced to return to Malaysia now or in the reasonably foreseeable future, the applicant would seek to continue with the practice of his Christian faith and that he does not intend to convert to Islam. The Tribunal accepts the applicant’s evidence in regards to his reasons as to why he is not willing to convert to Islam and accepts his evidence as set out above in regards to his family circumstances and the pressure he is under as a consequence of his family’s opposition to his relationship with [Ms A]. The Tribunal also accepts, in relation to the applicant’s wife, that she does not wish to leave the Muslim faith and that given Malaysia’s legal and cultural context, she is in fact not able to do so[5].
[5] DFAT Country Information Report: Malaysia, 24 June 2024 at para 3.55 and 3.58.
DFAT country information reports that Malaysia is a conservative Islamic nation where:
· “the religious status of Muslims is recorded on their birth certificates and on their MyKad, reportedly to assist with the application of syariah religious laws…[and that]… married Muslims must carry photo identification of themselves with their spouses as proof of marriage.”[6]
· It “has a two-track legal system: common law, administered at the federal level; and Islamic religious law, known as syariah (also spelled sharia), which is administered at the state level and varies by jurisdiction.”[7]
· “Family and personal laws governing Muslims, as well as laws relating to religious offences, are promulgated at the state level…”[8] and…“Matters considered by states under syariah relate to succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and the determination of matters of Islamic law and Malay customs.”[9]
· “Syariah applies only to ‘persons professing the religion of Islam’. However, the enforcement of syariah sometimes affects non-Muslims, particularly on matters involving religious conversion and family.”[10]
· “State-level Islamic religious departments enforce syariah through Islamic courts and have jurisdiction over Muslims in each state in matters of family law and religious observances.”[11]… [and where]… “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…”[12]
· “Formally leaving or converting from Islam (apostasy) is extremely difficult…[and]… Apostasy is a criminal offense punishable by a fine or prison term in the states of Perak, Melaka, Sabah, Pahang, Kelantan and Terengganu, with the additional maximum penalty in Kelantan and Terengganu of death (this has never been imposed)…[13] and where “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…”
· Under which “The government does not recognise marriages between Muslims and non-Muslims and considers children born of such marriages illegitimate.”[14] and
· Where in order to have your marriage recognised “A non-Muslim (male or female) must convert to Islam before marrying a Malaysian Muslim.”[15]
[6] Ibid at para 3.39.
[7] Ibid at para 3.40.
[8] Ibid at para 3.41.
[9] Ibid at para 3.42.
[10] Ibid at para 3.43. See also Malaysia - United States Department of State
[11] Ibid at para 5.3.
[12] Ibid at para 5.9.
[13] Ibid at para 3.55.
[14] Ibid at para 3.60.
[15] Ibid at para 3.64.
Other independent sources confirm that “interfaith marriage between a non-Muslim and a Muslim is not permitted either under the civil law or the Syariah law [and that] the law appears to be unambiguous… Muslims are not allowed to marry non-Muslims unless the non-Muslim person converts to Islam.[16] For example, Section 10 of the Islamic Family Law (Federal Territories) Act 1984 states:
(1) No man shall marry a non-Muslim except a Kitabiyah.
(2) No woman shall marry a non-Muslim.
Similar laws, if not the same, apply in most other Malaysian States.
[16] Dr M.S. Subramaniam, 'Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia', Center for Asian Legal Exchange (Nagoya University), 1 March 2018, pg.15.
The US State Department 2023 Report on International Religious Freedom: Malaysia also confirms that the Malaysian legal framework does not recognise interfaith marriages between a non-Muslim and a Muslim party unless the non-Muslim party converts to Islam. “A non-Muslim wishing to marry a Muslim must convert to Islam for the sharia court to officially recognise the marriage…”[17]
[17] US State Department 2023 Report on International Religious Freedom: Malaysia – Section II. Status of Government Respect for Religious Freedom
Having accepted on the evidence before it that the applicant and his wife are in a committed interfaith marriage, that the parties intend to continue with their marriage in the future, that the applicant is of Christian faith and does not intend to convert to Islam and taking into consideration the available country information as set out above, the Tribunal finds that the applicant faces a real chance of serious harm in Malaysia for the essential and significant reason of his interfaith marriage to a Muslim woman. The Tribunal accepts that the applicant and his wife’s civil marriage under Australian law is not recognised in Malaysia[18] and that Malaysian law prohibits a marriage between a Muslim and a non-Muslim unless the non-Muslim converts to Islam. The Tribunal accepts that this law is absolute and unequivocal and that as a consequence, should the applicant and his wife be required to return to Malaysia, the applicant’s wife faces a real chance of punishment for the contravention of syariah laws in the form of fines, imprisonment and caning.
[18] When a Malaysian Muslim enters interfaith marriage overseas | FMT; Malaysia’s religious tilt drives mixed-faith couples overseas to find ‘somewhere more accepting’ | South China Morning Post
The Tribunal accepts that the applicant’s wife is easily identifiable as a Malaysian Muslim given her name, her dress, her religious practice and her religion as clearly stated on her national identity MyKad card. The Tribunal equally accepts that the applicant is readily identifiable as a non-Muslim given his Christian name, his religious practice and the omission of any religion recorded on his national identity MyKad card. Consequently, were the applicant and his wife forced to return to Malaysia and attempt to live together as a couple, their interfaith marriage and relationship would be easily identifiable to their community and the authorities when for example, the couple were asked to produce photo identification of themselves as a married couple. Such public identification of their unlawful interfaith marriage is likely to be just as visible whenever the couple were to deal with the Malaysian authorities, employers or for example in the event that the couple were to have a child and are required to obtain the legal registrations for such a child.
Furthermore, and as noted above, whilst the Tribunal accepts that in the event that the couple’s relationship and interfaith marriage was to be discovered by the authorities, it would be the applicant’s wife who, as the Muslim party, would be subject to breach of Syariah laws, the Tribunal finds that any such Syariah judgements and/or penalties or punishment applied to the applicant’s wife would directly affect the applicant as the non-Muslim party who would have to be witness to such harm inflicted upon his wife as a result of his relationship with her. Therefore, the Tribunal finds that applicant and his wife would be living in an environment of constant fear and insecurity in the knowledge that their relationship may be, or is very likely to be discovered and/or reported to the religious authorities and were the consequent laws to be applied to his wife, the applicant is likely to suffer the harm of forced separation from his partner as a result of her imprisonment, and/or the mental harm and anguish that any such punishment was inflicted upon his on wife as a result of their relationship. As the courts have found, severe harm to a member of an applicant’s family can amount to persecution of an applicant.[19] The Federal Court in NBCY v Minister for Immigration held that, ‘[b]oth in principle and on authority “persecution”, in the sense of serious detriment or harm to a person, can arise from a threat to their family and those to whom that person is strongly attached by bonds of kinship, love, friendship or commitment’.[20]
[19] NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922; El Merhabi v MIMA [2000] FCA 42 at [16]-[17]. See also MZZNF v MIBP [2015] FCCA 1792 [29].
[20] NBCY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 922 [25].
Finally, the Tribunal also finds that where the applicant’s interfaith marriage and relationship with his wife was to be discovered by the Malaysian authorities, and/or the Malay Muslim community at large, the applicant would face a real chance of serious harm in the form of ongoing systematic and discriminatory conduct, harassment and/or pressure to either convert to Islam or separate from his wife.
Given the above matters, and having had regard to the totality of the applicant’s circumstances and the cumulative effect of the harm faced[21], including but not limited to the potential impact that any breach of syariah laws by the applicant’s wife and subsequent enforcement or punishment would have on her, the applicant having to live in constant fear of the couple’s interfaith marriage coming to the attention of the authorities, the pressure from the family of the applicant’s partner and wider community to convert to Islam and/or separate from his wife and the inability of the applicant and his wife to live freely as married couple without fear of punishment or harassment, the Tribunal finds that the combined effect of these forms of harm amounts to serious harm to the applicant under s5J of the Act.
[21] S1891 of 2003 v MIMIA [2005] FMCA 1069 [30]-[31].
The Tribunal finds that the harm arises for the essential and significant reasons of the applicant’s religion, namely that he is not a Muslim and does not hold Islamic religious beliefs, that he is in an interfaith relationship which offends against the religion or religious interpretation of the alleged persecutors and that he does not wish to conform to the Islamic laws of the state. It also finds that the applicant’s fears of harm arise on the basis of being, and/or being perceived as, a member of the particular social group characterised as “Malaysian couples who are in a prohibited interfaith relationship.” The Tribunal finds that this particular social group would satisfy the definition set out in s5L of the Act.
The Tribunal finds that religion and the applicant’s membership of the above particular social group are equally the essential and significant reasons for the persecution (s5J(4)(a)) and that the persecution involves serious harm (s5J(4)((b)) and that the persecution involves systematic and discriminatory conduct (s5J(4)(c)) targeted towards non-Muslims in Malaysia who are a party to prohibited interfaith relationships that do not conform to state religious laws and societal expectations.
As one of the perpetrators of harm in this case is the Malaysian state, the Tribunal accepts that state protection is not available to the applicant and the real chance of persecution relates to all areas of Malaysia.
The Tribunal finds that there are no reasonable steps that the applicant could take to modify his behaviour to avoid a real chance of persecution. Any such modifications would fall within the various exceptions set out in s5J(3) including conflicting with a characteristic that is fundamental to the person’s identity or conscience, and/or requiring the person to alter or conceal his religious beliefs, or cease to be involved in the practice of his faith. The Tribunal further considers that the applicant and his wife having to live apart in order to try and conceal the true status of their relationship would not be a reasonable modification of behaviour so as to avoid a real chance of persecution.
For the reasons given above, the Tribunal accepts that the applicant has a well-founded fear of persecution for reasons of his religion and membership of a particular social group characterised as “Malaysian couples who are in a prohibited interfaith relationship” if he returns to that country, now or in the reasonably foreseeable future. It follows that the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Third Country Protection
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by ss 36(3), (4), (5) and (5A) of the Act. Section 36(3) provides that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if they have not availed themself of that right, unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply. Sections 36(4), (5) and (5A) apply where the applicant has a well-founded fear of being persecuted or a real risk of suffering significant harm in the third country, or a well-founded fear of being returned to another country where they will be persecuted or there would be a real risk of them suffering significant harm.
Nothing in the material before the Tribunal indicates that the applicant has a right to enter and reside in any third country apart from Australia. It follows that s 36(3) does not apply in the circumstances of this case.
CONCLUSION
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).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing: 21 November 2024 and 12 December 2024
Representative: Ms Latifa Al-Haouli (MARN: 1175724)
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.
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