1924100 (Refugee)
[2025] ARTA 1494
•6 May 2025
1924100 (REFUGEE) [2025] ARTA 1494 (6 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1924100
Tribunal:General Member N Schmitz
Date:6 May 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 06 May 2025 at 1:49pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Malay ethnicity –– religion – Shi’a Muslim – did not suffer financial or employment difficulties – a Shi’a Muslim convert – voluntary departure from Australia – vague, unsatisfactory and unconvincing evidence – delay in applying for protection in Australia – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 359, 367A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Sujeendran Sivalingam v MIMA [1998] FCA 1167
ZLVZ v MIAC [2008] FCA 1816Any 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 5 August 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 national of Malaysia. She first arrived in Australia on [date] April 2019 on an Electronic Travel Authority (ETA) visa. She applied for the protection visa on 2 July 2019. The delegate refused to grant the visa on the basis that she did not meet the protection criteria.
On 28 August 2019, the applicant applied to the Administrative Appeals Tribunal (the AAT) for a review of that decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal). The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”) provides that review applications which were not finalised before 14 October 2024 are deemed to be applications for review by the ART and are to be continued and determined as such.
The applicant appeared before the Tribunal on 27 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The hearing was extended by one hour and a second interpreter was arranged to allow the applicant to complete her evidence. The Tribunal is satisfied that the applicant was accorded with procedural fairness and given a meaningful opportunity to present her case to the Tribunal.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The applicant must satisfy the statutory requirements
The Tribunal is not required to make the applicant’s case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; and Abebe v Commonwealth of Australia (1999) 197 CLR 510.
Fact Finding and Assessing Credibility
When assessing claims, the Tribunal must make findings of fact in relation to the claims made. Asylum cases present particular complexities in regard to fact finding. An applicant may have difficulties presenting evidence due to experiences in their home country. The full Federal Court in Sujeendran Sivalingam v MIMA [1998] FCA 1167 stated:
Refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[1] Therefore, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[2]
[1] AAT, MRD, Guidelines on the Assessment of Credibility dated 20 December 2017.
[2] Fox v Percy (2003) 214 CLR 118.
The Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims; ZLVZ v MIAC [2008] FCA 1816 at [25].
The Tribunal is not required to uncritically accept all or any of the applicant’s claims; Randhawa v MILGEA (1994) 52 FCR 437. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 34 ALD 347.
The mere fact that an applicant claims a fear of ‘serious harm’ for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed; Randhawa v MILGEA (1994) 52 FCR 437. Similarly, an applicant who claims to face a ‘real risk’ of ‘significant harm’ does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements have been made out; MIEA v Guo (1997) 191 CLR 559; and Prasad v MIEA (1985) 6 FCR 155.
Country of Nationality
The applicant arrived in Australia using an apparently genuine Malaysian passport, a copy of which is contained in the Departmental file. She has at all times stated that she is a citizen of Malaysia and has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as the country of nationality and the receiving country.
Evidence before this review
The Tribunal has taken into consideration evidence adduced to the Department and Tribunal, including oral evidence given by the applicant at hearing and independent country information about Malaysia.
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, or as 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 affirmed.
Applicant’s protection claims to the Department
In her protection visa application, the applicant claimed she left Malaysia due to being depressed about Malaysia’s economy and her monthly expenses exceeding her monthly income. She declared that she did not experience harm in Malaysia. She did not relocate within Malaysia due to the same economic problems existing throughout Malaysia. She claimed that if she returns to Malaysia she will not be able to ‘live like a regular person’ and ‘get depression on this matter’. She did not believe the authorities could assist her with her financial problems.
At hearing, the applicant gave evidence that she did not rely on the claim of economic harm which was ‘made up’ by a person who assisted her with her visa application and was ‘not true’. She confirmed that she only relied on her new claim that she is a Shi’a Muslim convert discussed below.
Based on the oral evidence of the applicant at hearing, the Tribunal is satisfied that the applicant has resiled from the claim of economic harm made in her protection visa application. The Tribunal finds that the applicant did not suffer financial or employment difficulties in Malaysia for this or for any other reason. The Tribunal does not accept that the applicant fears she will suffer financial or employment difficulties upon her return to Malaysia for any reasons connected to these claims.
Given the applicant’s evidence, the Tribunal finds that there is not a real chance that the applicant will face economic harm if she returns to Malaysia now or in the reasonably foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3] For the same reasons, the Tribunal finds there is not a real risk that she will suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia from Australia.
[3] MIAC v SZQRB [2013] FCAFC 33
Personal Information Provided to the Department
In her protection application form, the applicant declared that she was born in Selangor, Malaysia and was an unmarried female of Malay ethnicity and of the Islamic faith. She did not declare a religious denomination (i.e. Sunni or Shi’a Muslim).
She declared that she resided at a single residential address in [Town 1], Selangor, Malaysia from birth until her time of departure on [date] April 2019. From birth until December 2018 she declared she was financially supported by her family.
She declared that she completed her primary and secondary school education between January [year] and December [year]. From January [year] until April 2019 she was unemployed.
At the time of application, she declared that she was in contact with her relatives outside Australia stating, ‘I’m using a phone call to my parent, at least once a week and they living Malaysia’.
She claimed to have no personal contacts in Australia. From 4 April 2028 until the time of visa application, the applicant was residing in [City 1] and employed in the agricultural industry as a farm worker on a [farm].
Pre-hearing Information Form
On 22 January 2025, the Tribunal requested by email that the applicant complete a pre-hearing information form. The form asked the applicant whether she wanted to give any more information about her claims for protection or whether there are any other reasons why she is afraid to return to her home country. On 28 January 2025, the applicant returned a signed pre-hearing information form and an additional page which read as follows:
To your honor, I am [name], I’m very honored for this opportunity and will try to convey my story clearly so that it is easy to understand. I would like to correct my previous application and add a few more things. Among the important things are that I was not accepted because of my different religion (I am Shia), I have experienced sexual harassment which made me feel threatened and unsafe, I have been mentally abused and I also suffer from severe depression and so on.
I’ve been kicked out of my family at the age of [age] because I decided to change my religion. My family is a very religious family so the decision I made made them very angry and could not accept it well. I was considered a deviant from religion and a sinner. I was kicked out of the house.,I started working and renting a room to survive. I went through that difficult phase alone. It was very difficult and painful for me to go through everything alone. My life became unmanageable, my health was neglected because of the drastic changes that caused my mental health and life to be severely affected.
I tried to build a new life and started working harder so that I could support myself further. But suddenly everything changed when the rumours about me being kicked out of my family for apostasy spread. They started treating me differently they insulted me, looked down on me and treated me rudely. I started being looked cynically and mentally abused by people around me. It made me feel really threatened and scared. I started facing sexual harassment at work and so on. I was followed by a stranger several times and that traumatized me, I felt very unsafe going anywhere and always felt like I was being followed. I suffered from very severe depression. I felt very insecure with my life which made me often try to harm myself. I experienced sudden weight loss due to depression, I often fainted due to poor health.
The environment that put pressure on me and seemed unable to accept my presence well made me determined to migrate to a foreign country to try to build the life I wanted. I started doing research and found that the job opportunities and cost of living here were very good and there was a large Shia community here, which convinced me to choose Australia as a place to migrate. I was very touched by the warm welcome I received from the people here. I received a lot of mental and physical help. My mental health began to improve day by day. I was very impressed by the way people here respected other religions and treated immigrants like me. I received various facilities in terms of learning and employment provided for refugees. I am very threatened and afraid of my life there and I am trying so hard to survive and come here to change my fate. I can't imagine my life there if I didn't decide to come here in the first place. I really begging and ask for your help to get the opportunity to be and get protection here.I beg you to please consider my application thank you so much,I really appreciate it.
Completion of applicant’s visa application
At hearing the applicant gave evidence that she did not prepare her visa application herself because when she first arrived in Australia her English was not good. When asked who prepared the visa application she stated, ‘My friend knows English and helped me to deal with the application’. The Tribunal asked if that were the case, why there was no declaration that she had received assistance with the form. The applicant replied that her friend did not tell her about the declaration. She however claimed she read the contents of the visa application before it was lodged.
The Tribunal indicated it had some difficulty accepting her evidence due to various information and declarations in the visa application form. This included the fact that there was no appointed authorised recipient or representative. The form was submitted by a ‘self-registered user’ using the applicant’s personal email address [deleted] which was the same email address nominated to receive communications from the Department. The Tribunal also noted to the applicant that this was the same email address that the applicant had used to communicate with the Tribunal. This information was put twice to the applicant for comment. The applicant replied, ‘That email account was registered by myself using my mobile device’.
Personal Background Claimed at Hearing
At hearing the applicant claimed directly before coming to Australia that she was living alone for approximately one year at a rental property in [Town 1], Selangor. She claimed she lived alone due to her family not accepting her conversion to Shi’a Islam and abandoning her. When asked what the address was the applicant claimed she could not remember. Prior to this she claimed she was living with her family, comprising of her parents and [siblings] in [Town 1].
The applicant claimed she was not in contact with her family when she left Malaysia and remained in no contact at the time of hearing. She claimed she lost contact with them due to changing her religion, stating that they ‘don’t want me to contact them’ and therefore she did not. When asked when she last had contact with them she claimed she could not remember.
The applicant claimed she did not complete her education and stopped secondary school at the age of [age] years because her family abandoned her due to her changing her religion. After finishing school, she claimed she was employed at a [shop] for approximately seven months in Kuala Lumpur.
The applicant told the Tribunal that since coming to Australia that she has had various employment including at a [farm] since April 2019 and at the time of hearing she was employed as a factory worker. She currently resides at a share house and has obtained a probationary licence.
New Claim made to the Tribunal – Shi’a Muslim Convert
At hearing the applicant claimed to be a Shi’a Muslim who left Malaysia because she feared religious persecution due to her Shi’a Muslim faith. She stated she was born a Sunni Muslim and that all of her family are Sunni Muslims. When asked how she practised her faith growing up she stated she attended mosque two to three times a fortnight.
The applicant was asked about her religious beliefs, including when she converted, why she converted, what attracted her to the faith, what was so important about the Shi’a religion that would cause her to leave her Sunni religion after practising for [number] years, how she learnt of the Shi’a teachings, and when and how she practised Shi’a Islam in Malaysia. The applicant was also asked about the important differences between the Sunni and Shi’a faith.
The applicant was asked about how she practised her claimed Shi’a faith in Australia and how she would practice her Shi’a faith if she returned to Malaysia. The applicant had no evidence to support that she was a Shi’a Muslim or that she had converted to Shi’a Islam. The applicant’s evidence is discussed further below in the Tribunal’s findings.
The Tribunal asked the applicant whether her family had any issues with her converting and practising Shi’a Islam. She replied that when her family found out they abandoned her. When asked how they found out she claimed her mother observed her pray at home with a kabala stone in June 2017. When asked how her mother responded she claimed her mother ‘scolded’ her and that she left the family home.
The Tribunal asked if she suffered any harm whilst living in Malaysia on account of her claimed religion. The applicant initially stated that she was not harmed but abandoned by her family and ostracised by the community and friends. She also claimed to have experienced sexual harassment from a colleague. When asked to describe the harassment she stated she ‘did not get respect’ and was touched a couple of times. When asked how her colleagues found out she was a Shi’a Muslim she claimed her brother erected posters which identified her as being a Shi’a Muslim. Later in the hearing the applicant claimed her brother beat her up in June 2017.
Pursuant to s 367A of the Act the Tribunal explained that it is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation for why the claim was not made or the evidence not presented before the primary decision was made. The applicant was asked why she did not include the claim of being a Shi’a Muslim in her protection visa application.
The applicant claimed her protection visa application was completed by her friend who did not know she was a Shi’a Muslim because she was scared if she told the truth he may not help her. The Tribunal indicated it had some difficulty accepting that she would enlist the help of a friend who she did not trust if they were her friend and noting her letter at [31] above where she claimed that since being in Australia she had been welcomed, accepted and received help and that the people were respectful of different religions and treated immigrants like the applicant. The Tribunal also indicated it had difficulty accepting her claims due to various information and declarations in her visa application which indicated she completed the form herself. The applicant was asked if she wished to comment. The applicant then claimed she was new to Australia, had trust issues and was not brave enough to tell the truth.
At hearing the Tribunal discussed various inconsistencies between the applicant’s visa application and her oral evidence. This included her residential, education and employment history and financial support and contact with her family. The Tribunal also discussed her claims of harm such as being beaten up by her brother and sexual harassment which were inconsistent with her visa application where she declared she had never experienced harm and declared no work history. The Tribunal also asked why she did not declare her religious denomination noting she was onshore in Australia at the time of visa application. The applicant claimed she did not tell her friend the truth and her correct details and that they did the application for her.
The Tribunal noted to the applicant that she arrived in Australia on [date] April 2019 but did not apply for a protection visa until 2 July 2019 approximately three months later and just before her ETA visa was due to expire. The applicant was asked why she did not lodge a protection visa shortly after her arrival. This was of interest to the Tribunal given her claims of why she left Malaysia and given her earlier evidence that she knew that protection was available in Australia and protection and human rights were good. The applicant replied that her English at the time was not good and that she did not have the confidence to do it on her own. ‘After three months my friend came to offer it’.
At hearing the Tribunal discussed DFAT country information which indicates: [4]
·That Shi’a Muslims face a low risk of societal discrimination and a moderate risk of official discrimination. Shi’a and Sunni Muslims live side by side, some intermarry, and some have family members that practise either the Shi’a or Sunni Muslim faith. National identity cards mark individuals as Muslims, but do not distinguish what branch of the religion they follow. There are no restrictions on movement within Malaysia specific to Shi’a Muslims.
·Enforcement efforts are focused on conversions and proselytising or promoting Shi’a Islam. That is, people who are activists and Shi’a Muslim religious leaders, can be subject to harassment and in rare cases violence by state authorities, rather than followers for assembly or worship.
[4] DFAT - DFAT Country Information Report Malaysia dated 24 June 2024.
The applicant was asked if she wished to comment. She replied ‘What I experience is not the same. The acceptance is not the same’.
Noting the applicant’s evidence that she was publicly identified as a Shi’a Muslim by her brother erecting posters in Malaysia and her claims at [31] above that rumours were spreading about her for apostasy, the Tribunal referred to country information which suggested that if a person was wanted or of interest to government authorities it is difficult for them to obtain a visa and depart the country without coming to the attention of authorities. The Tribunal explained this is because Malaysia has a sophisticated biometric database at the airport and seaports which means that people are stopped at the border.[5] The applicant was asked if she was of interest to authorities why she was able to leave Malaysia in 2019 without issue and return and depart again in January and March 2023. The applicant clarified her evidence, stating she had no issues with the government and only with her family and ‘the people around me’.
[5] Ibid.
The Tribunal asked the applicant whether she wished to tell the Tribunal anything in addition which she felt had not been adequately covered during the hearing. The applicant replied in the negative.
Arrival and Departure from Australia
The applicant gave evidence that she applied for her ETA visa herself when in Selangor, [Town 1], and that she did not have any issues organising the visa or departing Malaysia. When asked why she first came to Australia, the applicant replied, because she knew protection was available in Australia and that protection and human rights were good. When asked what her plans were she replied, ‘To seek protection here’.
The Tribunal asked the applicant whether since lodging her protection visa application on 2 July 2019 whether she had departed Australia. The applicant replied ‘Never’.
The Tribunal advised pursuant to s 359A of the Act, that there was some information that would be the reason or a part of the reason for the Tribunal affirming the decision under review. That information was that travel movement records disclosed that the applicant since lodging her protection visa application had departed Australia on [date] January 2023 and returned to Australia on [date] March 2023. That information was relevant, as the applicant’s voluntary departure from Australia may suggest that her claims of harm in Malaysia were not true and that her claims of future harm will not happen. The applicant was asked if she wished to comment on the information.
The applicant claimed she returned to Selangor, Malaysia, as her father was in a critical condition in hospital and she had been told by his doctor that he was going to die. She stated she had been very close to her father since she was young but since converting to Shi’a Islam they had been estranged.
The Tribunal asked the applicant why she had initially told the Tribunal that she had not departed Australia since lodging her protection visa application. The applicant claimed she misunderstood the question.
The Tribunal asked the applicant how she became aware that her father was critically ill given her claims that she was estranged from her family. The applicant claimed she was informed by a neighbour and that she stalked her sister on social media using a fake social media account and saw family news.
The Tribunal asked the applicant if she saw or spoke to her family during her return visit to Malaysia. The applicant initially told the Tribunal that she did not speak to anyone or inform her family of her return. She later claimed her older brother became aware that she had returned and shouted at her and prevented her from seeing her father as she was no longer considered family. She told the Tribunal that she did not see her father. When asked where she stayed during her two-month visit she replied that she rented near the hospital. Despite being given three opportunities to explain where she stayed the applicant was unable to provide any detail. When asked what else she did during her two month visit she claimed she made personal arrangements such as withdraw money from the bank.
Reasons and Findings - Shi’a Convert
Whilst the Tribunal has considered all the facts and evidence submitted, it refers in its findings only to the evidence it considers necessary to explain its reasoning. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in this case. The Tribunal is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case.[6]
[6] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145.
The Tribunal does not accept that the applicant converted to Shi’a Islam in Malaysia as claimed and that she is a practising Shi’a Muslim and that she has any fear of harm on that basis if she returns. The reasons for this are considered cumulatively below.
First, the evidence presented by the applicant to the Department and to the Tribunal differed in significant aspects and when viewed in cumulation with the other factors discussed in this decision record causes the Tribunal to conclude that the evidence of the applicant is not credible. Section 367A sets out that where an applicant raises a claim or presents evidence before the Tribunal that was not raised in the application before the primary decision maker, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence unless satisfied the applicant has a reasonable explanation for not raising it earlier.
The Tribunal has considered the applicant’s reasons for not disclosing her Shi’a faith. This factor was known to the applicant prior to lodging her visa application and the Tribunal considers it to be of paramount importance to the applicant’s claim of religious persecution. The Tribunal does not accept that the applicant would enlist the help of a friend who she did not trust to detail her correct protection claims given it formed a critical element of her claim. The applicant’s claims of fearing disclosing her religion are also inconsistent with her claimed past experience of acceptance and tolerance from the community since her arrival in Australia as detailed in her letter above. For these same reasons, the Tribunal does not accept that the applicant would not tell her friend the truth about her personal circumstances including her residential, education and employment history and financial support/contact with her family. The Tribunal further notes the applicant first raised the Shi’a claim in her pre-hearing information form on 28 January 2025, over five years and six months after she applied for the visa and after learning of the reasons for the visa refusal.
The Tribunal further notes that the applicant’s claim that her visa application was prepared by a friend are contradicted by multiple declarations and information in the visa application form which indicate it was completed by the applicant. The visa application also contained information that would only be within the personal knowledge of the applicant, including her circumstances in Malaysia and her claims. Whilst an input error may explain a single inaccuracy in the visa application form, the cumulation of inconsistencies experienced by the applicant is simply not plausible. The Tribunal did not regard the applicant’s claims that she could not recall where she lived independently for one year in Malaysia to be credible given the duration or when she last had contact with her family noting her return visit to Malaysia in 2023 to visit her ill father. The Tribunal does not accept the explanation given is reasonable and accordingly places adverse weight in this regard.
Second, the Tribunal regards the applicant’s reasons for converting to Shi’a Islam to be scant and unconvincing. For example, when asked why she converted she claimed it was after she deepened her knowledge about the religion and observed that ‘they practiced what they preached’. When asked whose idea it was to change her religion, she claimed she had a few friends who were Shi’a’s who she learnt from and they persuaded her to convert and attend Shi’a classes with them. When asked what attracted her to the faith she claimed that her friends’ families were ‘very welcoming’ and that they were different to Sunni’s and to her own family. When asked why she became more interested in the religion she claimed the Shi’a religion made her ‘more peaceful’ and at ‘ease’ and ‘not judged whenever I make mistakes’. When asked why she left her Sunni faith after [number] years of practising, she replied that her family were very religious and that they did not ‘practice it fully unlike my friend’s family’.
Third, the Tribunal found the applicant’s evidence about her practice of Shi’a Islam in Malaysia to be vague and unsatisfactory and the applicant was unable to articulate with any conviction that she had converted to Shi’a Islam and that she was a practising Shi’a. For example, when asked when she converted she initially told the Tribunal that she converted in August 2016. She later claimed it was in April 2016. When this inconsistency was raised with the applicant she conceded she had provided inconsistent dates but relied on the earlier date. The Tribunal considers that if the event had happened as claimed it would have been indelible or approaching indelible. The Tribunal finds that it is not something that someone in the applicant’s position would have forgotten.
When asked how she converted she claimed she changed through her friend’s teacher and that there were prayers she had to read and then take an oath. When asked if she had any evidence to corroborate she had converted to Shi’a Islam the applicant replied in the negative. When asked how she practiced Shi’a Islam in Malaysia the applicant replied, ‘I don’t usually but if I practice I can’t do it openly…I pray secretly so my family do not know’. When asked what was so important about the Shi’a religion that would cause her to convert from being a Sunni Muslim the applicant replied ‘I feel that Shi’a is the truth. Sunni is not like Shi’a. I believe that I should follow the truth. As compared to Sunni Shi’a is the truth. I should follow the right path’. When asked about the important differences between the Sunni and Shi’a faith the applicant was unable to do so despite telling the Tribunal that she had attended Shi’a Islam classes twice a week since the age of [age] years. When the Tribunal attempted to explore her knowledge and understanding of the Shi’a religion, the Tribunal found the evidence of the applicant to be tangential and evasive.
Fourth, whilst the applicant claimed she fled Malaysia approximately six years ago so that she could freely practise her Shi’a faith, her evidence about her practise of Shi’a Islam in Australia was vague, unsatisfactory and unconvincing. For example:
a.When asked if she attended a mosque in Australia she replied ‘Sometimes’. When asked by the Tribunal what that meant, the applicant repeated ‘Sometimes’. When asked a third time what she meant by ‘Sometimes’ the applicant replied ‘Sometimes I pray at the mosque and sometimes my friends invite me to come to mosque and attend religious lectures;
b.When asked to identify the name of the mosque and location the applicant claimed she could not recall;
c.When asked to identify the Imam she replied, ‘I don’t know’;
d.When asked when she started attending the mosque the applicant stated when she first moved to Melbourne in 2022.
e.When asked how often she attends mosque she replied ‘I don’t go that often. Probably two or three times in a month. Because I pray at home mostly’.
f.When asked if she had joined a mosque and if not, why not, she replied ‘No, because I am working and have no time. I just go there to attend classes or just to pray’.
g.When asked what she had been doing in Australia since her arrival approximately six years ago, the applicant replied that she was ‘still learning and my knowledge is limited’;
h.When asked how she practiced her Shi’a faith in Australia and whether she had any evidence in support she replied that she did not have any evidence and stated ‘I can pray anywhere without the fear of being criticised because there are a lot of Shi’a and different religions’;
i.When asked if there was anyone in Australia that the Tribunal could talk to about her Shi’a faith in Australia the applicant stated ‘Over here I can practice my religion and pray freely and practice anywhere. She confirmed there was no one and no evidence to support that she was a practising Shi’a Islam in Australia.
When the Tribunal indicated that it had difficulty accepting the genuineness of her conversion given her apparent lack of knowledge of the Shi’a faith, the applicant claimed she was telling the truth at hearing, that she had been busy working and that she was still learning about the religion.
Usually when a person is speaking from direct evidence, they are able to provide a level of detail concerning the events which transpired. The Tribunal is entitled to have regard to an applicant's level of knowledge of matters about which the applicant would reasonably be expected to know if their claims were truthful; Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827. The Tribunal is mindful not to require an unrealistic degree of precision and detail or to impose too high a standard when assessing the applicant’s level of knowledge.
In isolation, this may explain the applicant’s inability to provide details in respect of some matters, however, when the Tribunal considers the totality of the applicant’s evidence, the Tribunal does not accept that the applicant would be unable to provide such details. The Tribunal considers the applicant’s evidence regarding her Shi’a beliefs and her practising of the Shi’a faith to be incongruent with her claims of being a Shi’a devotee since [age] years of age. The applicant answers to questions about Shi’a Islam were devoid of any detail and anecdotal to the extent that the Tribunal concludes that she is not and has never been a Shi’a Muslim. Whilst the Tribunal accepts that person can be a Shi’a Muslim without attending mosque the Tribunal does not regard the applicant’s reasons for her lack of involvement in the Shi’a faith in Australia to be satisfactory, namely her employment. Overall, the Tribunal did not find the applicant to be a reliable or credible witness.
Fifth, other than making an oral assertion that she was a Shi’a Muslim, the applicant provided no corroborative evidence to support her claims that she was a Shi’a Muslim or had converted to Shi’a Islam such as letters from an Imam in either Australia or Malaysia. While not determinative in itself, the Tribunal considers it would be reasonable to expect there to be some evidence.
Sixth, the applicant voluntarily returned to Malaysia between January and March 2023, despite applying for a protection visa because she feared religious persecution and harm from her family and the community. She originally told the Tribunal that she had ‘Never’ departed Australia since lodging her protection visa application. The Tribunal does not accept that the applicant misunderstood the question, as the Tribunal referred to a specific date and in clear and plain English asked, ‘Since lodging your protection visa application on 2 July 2019 have you departed Australia?’. In addition, at the commencement of the hearing, the Tribunal Member explained that if the applicant did not understand the question, she was to immediately inform the Tribunal Member who could rephrase or repeat the question. She did not do so.
The Tribunal also does not accept that she mistakenly overlooked her overseas travel given the travel was undertaken relatively recently; it comprised of one return visit; to her home country of Malaysia; to visit a critically ill relative, namely her father; and given the duration of the trip, namely over eight weeks which the Tribunal does not regard to be insignificant. The Tribunal considers that the applicant initially denied leaving Australia as she was acutely aware of the illogicality of returning to a country where she claimed to fear religious persecution and knew it undermined her protection claims. The return to Malaysia, the fact that she initially denied leaving Australia, and in combination with the Tribunal’s credibility concerns demonstrates that the applicant is prepared to make any representations or omissions she thinks will advance her case to obtain a protection visa. The Tribunal is satisfied that the applicant’s return to Malaysia demonstrates that the applicant has manufactured her protection claims and that she returned to Malaysia because she faces no chance of harm in that country.
Seventh, the applicant applied for the protection visa approximately three months after her last arrival in Australia. Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that an applicant does not have a well-founded fear of harm; Zhang v RRT & Anor [1997] FCA 423 and Kavun v MIMA [2000] FCA 370. Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness of an applicant’s fear of persecution; Subramaniam v MIMA [1998] FCA 305.
The Tribunal has viewed the delay in the context of the applicant relocating to a new country and having to re-establish herself and her claims that her English was not good. Even taking into account these considerations, the Tribunal finds the timing of the protection visa to be inconsistent with the applicant’s narrative about her reasons for leaving Malaysia. It is also inconsistent with her evidence that she came to Australia to seek protection because she knew protection was available and that ‘protection and human rights’ were good here. The Tribunal does not consider the applicant’s explanation for delaying her protection visa to be credible and finds it more likely that if the applicant’s protection visa claims were true, she would have lodged the protection visa application shortly after her arrival in Australia.
For all the above reasons, the Tribunal does not accept that the applicant converted from Sunni Islam to Shi’a Islam whilst residing in Malaysia. The Tribunal does not accept that the applicant is a practising Shi’a or otherwise observes the Shi’a faith in Australia.
It follows that the Tribunal does not accept there to be a real chance the applicant will be harmed by any person or group for reason of the applicant’s claimed Shi’a religion if she returns to Malaysia now or in the reasonably foreseeable future. For the same reasons the Tribunal does not accept there to be substantial grounds for believing that there is a real risk the applicant will suffer significant harm from any person or group for reasons of the applicant’s claimed religion as a necessary and foreseeable consequence of being removed to Malaysia from Australia.
Other Matters – The applicant’s mental health
At hearing the Tribunal referred to the applicant’s claims of suffering depression. During her evidence the applicant claimed she would self-harm and her mental health would deteriorate if she returned.
The Tribunal indicated that there was no country information that would suggest that persons with mental health conditions are systematically and discriminatorily denied services by the Malay authorities or members of the Malay community. Country information indicated that Malaysia has a well-established universal healthcare system which is accessible to most of the population.[7]
[7] DFAT Ibid. at [2.11] and [2.14]
The Tribunal also explained that the Australian courts have held that complementary protection obligations are concerned with intentional acts or omissions by third persons;GLD18 v MHA [2020] FCAFC 2. There must be evidence of the government or some service provider intentionally withholding a service. On the applicant’s evidence it did not appear that the applicant met the refugee convention grounds or complementary protection criteria.
The applicant was asked if she wished to comment. The applicant stated that she did not rely upon it as part of her protection claims and that her only claim was that she was a Shi’a Muslim convert. She however claimed that when in Malaysia she was stressed.
The applicant asserted that she has experienced symptoms of depression. No medical evidence has been presented to the Department or the Tribunal at any time during these proceedings to support these assertions. As noted above, the Tribunal has not accepted the applicant’s claim of being a Shi’a Muslim and claims of harm from her family who she claimed caused her stress. However, the Tribunal accepts that the long-term uncertainty regarding her visa status has caused her some distress.
The Australian courts have held that an applicant’s mental illness will not on its own satisfy the requirements of ss 36(2)(a) or (aa) of the Act, because both ‘serious harm’ and ‘significant harm’ refer to acts perpetrated by others which cause the non-citizen to suffer harm.[8]
[8] EZC18 v MHA [2019] FCA 2143 per Besanko J; CSV15 v MIBP [2018] FCA 699 per Collier J
There is no evidence to support that the applicant would be intentionally denied treatment for any reason. The Tribunal does not accept that any deterioration in the applicant’s mental health, or any self-inflicted harm that results from her mental health condition, would be a result of an act or omission perpetrated by a third party in Malaysia.
For these reasons, the Tribunal does not accept there to be a real chance the applicant will suffer serious harm, or a real risk the applicant will be subjected to significant harm, for reason of her mental health.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 27 March 2025
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.
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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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