1931204 (Refugee) - [2025] ARTA 777

1931204 (Refugee) [2025] ARTA 777 (4 April 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1931204

Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1931205
Tribunal:General Member G Sammon
Date:4 April 2025

Place:Sydney
Decision (Application [1931204]: 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.

Decision (Application by [1931205]): 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)(b) of the Migration Act.

I, General Member G Sammon, certify that this is the Tribunal’s statement of decision and statement of reasons.
Statement made on 4 April 2025 at 9:13AM.
CATCHWORDS
REFUGEE – protection visa – Malaysia – joint hearing and decision of separate applications – in relationship when applications made, now married – religion – interfaith marriage – Malay Muslim woman and Chinese Malaysian Buddhist man – disapproval and opposition of families – new claim of fear of harm from wife’s ex-husband – in jail when application made – reasonable explanation and no adverse inference drawn – country information – Australian marriage not recognised – civil and syariah laws against interfaith marriage apply to wife but not to husband – pressure or stigma from family, friends and community – increasing societal conservative Islam – no effective protection measures and real chance of persecution relates to all areas – fear of harm from ex-husband not for refugee criteria reason – husband as member of family unit – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 5L, 5LA, 36(2)(a), (b), (2B)(b), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

These are applications for review of decisions made by a delegate of the Minister for Home Affairs[1] (the Delegate) in October 2019 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) ('the Migration Act' or 'the Act'). In this decision, where applicable, I will refer to the Applicants jointly, as 'the Applicants', or otherwise by their individual surnames.
[1] As was the then Minister’s then title.
As at the date of the Delegate’s[2] decisions, [the applicants] claimed to be in a close personal relationship. They have since married, in Australia, in November 2024.[3]
[2] The same delegate of the Minister made each decision.
[3] The Applicants produced a copy of their marriage certificate to the Tribunal at the hearing of this matter on 12 February 2025.
At the hearing of this matter before the Tribunal, on 12 February 2025, I made directions that:
(1)both matters be heard together; and
(2)the evidence given in the hearing of each matter be evidence in both matters.
Each Applicant agreed with that approach.
It is therefore both appropriate and efficient, that I issue a joint decision for both applications for review before the Tribunal.
The Applicants who claim to be nationals of Malaysia, applied for protection visas on the same day, 30 November 2018. The Delegate refused to grant the visas on the basis that the each Applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) as a ‘refugee’ as that term is defined in the Act[4] or eligible for ‘complementary protection' under s 36(2)(aa) of the Act.
[4] Section 5H.
In summary, the basis for each Applicant’s application for a protection visa, as stated in their applications made in 2018, was that they fear harm if they returned to Malaysia, because [the first applicant], as a Malaysian Muslim woman, wanted to marry [the second applicant] whom she had then known for seven years, who is a Malaysian Buddhist of Chinese ethnicity. She says that as a Muslim woman is not allowed to marry outside her own religion, the marriage would not be recognised and ‘would invite condemnation and physical threat for both of us’. [The second applicant] said the same thing in his application for protection visa.
The Applicants appeared before the Tribunal on 12 February 2025 to give evidence and present arguments. Each of the Applicants gave evidence and pursuant to the direction I have described above, the evidence of each Applicant is evidence in both applications to the Tribunal. The Tribunal hearing was conducted with the assistance of interpreters in the Malay and English languages.[5]
[5] The hearing occupied both a morning and afternoon session. Separate interpreters were engaged by the Tribunal for each session.
The Applicants made their applications to the then Administrative Appeals Tribunal (AAT) on the same day, 3 November 2019, under the provisions of the Migration Act and the Administrative Appeals Tribunal Act 1975 (Cth). The applications may continue to be heard by the new Administrative Review Tribunal under transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
BACKGROUND
The Delegate accepted that each Applicant is a citizen of Malaysia and that is verified by a passports issued to them by Malaysia and provided both to the Delegate and the Tribunal. On the available evidence, I agree with that aspect of the Delegate’s decisions. [The first applicant]’s passport was issued in [2016]. Her passport establishes that she was born in Malaysia in [Year]. [The second applicant]’s passport was issued in [2013] and establishes that he was born in Malaysia in [Year].
The applications for review filed with the AAT reveal that the Applicants share the same email address and then resided at the same residential address. The pre-hearing information forms provided to them separately by the AAT and completed separately by [the applicants] were dated the same day in April 2024. Those forms also gave the same address and email address for each of them.
At the hearing before the Tribunal, each Applicant separately said that they had prepared their application themselves, with the aid of Google Translator. [The second applicant] said that he had assistance from [the first applicant] in preparing his application for a protection visa. At the hearing, it was clear to me that each Applicant has some knowledge of English, but that they both needed the assistance of an interpreter English into Malay.
[The first applicant]’s grounds for applying for a protection visa
The basis for [the first applicant]’s application for a protection visa is contained in her application for the visa. She said that the reason for her seeking a protection visa was because she wanted to marry a man she had known for seven years. She explained that her [then] boyfriend was a practising Buddhist and so is his family. She said that '100% sure he does not want to convert [to Islam]'. She explained that she is a Muslim woman. She said she told her parents about their relationship and he told his.
She said that her parents refused to accept or see his family because he is a Buddhist. She said that her mother wanted her to come home to marry someone who her mother wanted [the first applicant] to marry. [The first applicant] did not want to do that. She said that her problem was that in Islam a Muslim woman cannot marry a non-Muslim man. She said that she strongly felt she would like a religious wedding blessed by her parents but no one in her family will agree with her decision. She said that a marriage to a non-Muslim man would not be recognised and 'invite condemnation and physical threat for both of us.’ She said that:
This is a hard part to face for both of us in our own country. This is really against law and I have decided to build up a new life with my boyfriend in this country.
In answer to a question on the application form for a protection visa asking whether she had experienced harm in Malaysia, she answered in the negative, and said:
Not yet but no one in my family like my BF.[6]
[6] In the context, I take the acronym 'BF' to mean the Applicant's boyfriend.
She also said that she did not seek help within Malaysia after any harm, but that answer is explained by her other response that she had not yet experienced harm in Malaysia. She was also asked a question on the form whether she tried to move to another part of Malaysia. She answered in the affirmative, but said that:
Everywhere I go in my country still the same.
She was also asked a question on the form whether she thought the authorities of Malaysia can and will protect her if she went back to Malaysia and answered that question in the negative but provided no further details.
[The second applicant]’s grounds for applying for a protection visa
[The second applicant]’s grounds for applying for a protection visa reflected the grounds described above in [the first applicant]’s application. He also said that his parents refused to meet or see [the first applicant]’s family just because she is a Muslim. He said that [the first applicant] is a practising Muslim and so is her family. He said that his mother wanted him to come home to marry someone who she wants 'just because I picked someone out’.
[The second applicant] also said that a Muslim girl or woman is not allowed to marry outside her religion. He used the expression contained in [the first applicant]’s application for a protection visa described above, that their marriage would not be recognised and 'invite condemnation and physical threat for both of us.’
[The second applicant]’s responses to the questions on the visa protection application form as described in the responses by [the first applicant] set out in paragraphs [15]-[16] above are exactly the same as the responses given by [the first applicant].
Delegate’s decision
The Delegate’s decisions on the Applicants’ applications for protection visa are very similar. In each case, they began by summarising the Applicant's claims for a protection visa. There is no reference in either decision to the Department which administers the Act inviting further information to be provided by the Applicant or that the Applicant was interviewed by the Department about their claims.
In each case, the Delegate’s decision reviewed country information gathered by the Department which administers the Act and the Australian Department of Foreign Affairs and Trade (DFAT) on marriages between Muslim Malays and non-Muslim Malays. In the case of each Applicant, the review of the country information by the Delegate was very similar, and included the same matters.
Country information considered by the Delegate included that Malaysian law does not restrict the rights of people from different ethnic groups to marry. However, Malaysian law considers all ethnic Malays to be Muslim and non-Muslims wishing to marry a Muslim must convert to Islam for the marriage to be officially recognised.[7] Malaysian authorities do not recognise marriages between Muslims and non-Muslims and consider children born of such marriages to be illegitimate.[8]
[7] Country Information Report - Malaysia (Version 2), DFAT, 19 April 2018 (DFAT Report), section 5.32, p. 40.
[8] DFAT Report, section 3.104, p. 25.
On the other hand, the Delegate did not refer to there being any offence in Malaysian law, punishable by prison or otherwise, for a non-Muslim person to marry a Muslim person. The Delegate’s decision referred to country information that individuals in a mixed marriage sometimes face pressure or stigma from within their family, friends or community, while couples of different ethnicities might also encounter racism. The Delegate found no information to suggest that people in that category would typically face physical harm. DFAT reports that an interfaith couple whose families oppose their marriage may face family or social pressure or ostracism but are unlikely to face violence.[9]
[9] DFAT Report, section 3.110, p. 26.
[The first applicant]’s application for a protection visa refers to family pressure to marry someone chosen by her mother. The Delegate’s decision referred to country information that using force or threat to compel a woman to marry against her will or to prevent her from getting married is punishable with a fine or imprisonment.[10]
[10] 'Social Institutions and Gender Index 2014 - Malaysia', Organisation for Economic Cooperation and Development, 2014, p. 1.
The Delegate’s decision then turned to consider the effectiveness of the Royal Malaysian Police (RMP) in enforcing the law and protecting the Applicant from harm in Malaysia. The Delegate referred to country information that although there is a perception amongst Malaysians that corruption was a problem within the RMP, local and international sources indicate the RMP is a professional and effective police force.[11]
[11] DFAT Report, section 5.5, pp. 35-36.
The Delegate also considered Syariah[12]-based law which applies in Malaysia. The decision referred to State Islamic bodies enforcing Syariah law at State level through Islamic courts, and have jurisdiction over Muslims.[13] The enforcement of Syariah law sometimes affects non-Muslims, particularly on matters involving religious conversion and family.[14] Religious enforcement officers, known in Malaysia as religious police, have a range of powers that vary depending on the particular Syariah-based laws that apply in each State. In that regard, I note that the Delegate did not identify there being any criminal offence for a Muslim person to marry a non-Muslim person. Instead, the consequence is that the marriage is not recognised in law and any children of the marriage are considered illegitimate. State religious officers have no jurisdiction over non-Muslims.[15]
[12] Also known as ‘Sharia’ law.
[13] DFAT Report, sections 5.1 and 5.3, p. 35.
[14] DFAT Report, section 3.29, p. 14.
[15] DFAT Report, section 5.6, p. 36.
In applying the country information to the Applicants, in each case, the Delegate was satisfied the country information about couples facing pressure or stigma would also apply in their situation. On the other hand, the Delegate considered that there was no information to indicate that adults in Malaysia are forced to marry or that they are harmed by their family for refusing to participate in an arranged marriage.
In terms of threats against the couple or harm they fear, the Delegate considered that the country information indicates that the RMP has a willingness to enforce the law. The Delegate found that the Applicants would receive effective protection from the RMP in Malaysia against any threats or harm.
The Delegate was satisfied that there are 'effective protection measures' as described in s 5LA of the Migration Act available to the Applicants in Malaysia. Consequently, s 5J(2) of the Act applied meaning that the Applicants do not have a 'well-founded fear of persecution’ under that provision. The Delegate therefore found that each Applicant was not a 'refugee' as defined in s 5H of the Act and the criterion for protection in s 36(2)(a) of the Act was not satisfied.
In considering the application of the statutory criteria for 'complementary protection’ under s 36(2)(aa) of the Migration Act, the Delegate also took into account the country information described above and the personal circumstances of each Applicant, that their parents do not approve of their relationship.
The Delegate found that both Applicants could obtain, from an authority in Malaysia, protection such that there would not be a real risk that the Applicants would suffer 'significant harm' as defined in s 36(2B)(b) of the Act. Therefore the criteria contained in s 36(2)(aa) of the Migration Act did not apply and the Applicants were not entitled to complementary protection.
The Delegate therefore refused the grant of protection visas to the Applicants.
Evidence before the Tribunal
Pre-hearing information provided by [the first applicant]
[The first applicant] updated her position in her response to an AAT pre-hearing information form completed by her on 13 April 2024. She said that her mother had passed away, but still her family wanted to force her to marry someone else they knew. She also said that another reason she was afraid to go back [to Malaysia] is that her ex-husband will come and look for her again because she was being abused when they were still husband and wife. She said that she had trauma, depression and anxiety and was still afraid of her ex-husband. She said her ex-husband was in and out of jail, was 'drunk and used drug'. She said that she wanted to register her marriage soon in Australia.
Pre-hearing information provided by [the second applicant]
[The second applicant] provided information on an AAT pre-hearing information form also completed by him on 13 April 2024. He said that until that time, his family would not allow him to convert to Islam. He said it would be against the law if they married without him converting to Islam. Said that he and [the first applicant] afraid to go back to their home country. He said:
We separate from each other and cant be together for forever because my partner family is muslim and her family really firm about muslim religion same with me my mother and my family firm in my religion. while my partner in malaysia she was beaten by her late mom until have depression and anxiety.
[The second applicant] 's contention that his wife had been beaten by her late mother had not been raised by him in his application for a protection visa as considered by the Delegate. He also said that he and [the first applicant] would register the marriage in Australia.
Evidence at the hearing - [the first applicant]
Mixed faith marriage
After I issued the directions at the beginning of the hearing as described above, [the first applicant] gave her evidence first, in the absence of [the second applicant].
[The first applicant] confirmed that the Applicants were married in Australia in November 2024. She said in her evidence that there are no children of that marriage. I asked her if their situation would be any different in Malaysia, since they had married in Australia. She said that in Malaysia, for non-Muslims to marry a Muslim, the non-Muslim would need to convert, otherwise it would be ‘really difficult’ because her family would be against it. She said that Islamic law says that her husband would need to convert to Islam, or the law would not allow the marriage or maybe there would be opposition from her family.
She gave evidence that her husband is an ethnic Chinese Buddhist, and she is ethnic Malay Muslim. She repeated the contention made in her application for a protection visa that under Syariah law, anyone who wants to marry a Muslim person must convert to Islam. She said that her husband had not converted to Islam. She also said that it is not a crime for a Muslim to marry a Buddhist in Malaysia but being married to her husband meant he must convert to Islam for their marriage to be recognised in Malaysia, even though it is an Australian marriage.
The Applicant said that the consequences of their mixed-faith marriage under Syariah law are that if they were found guilty, they may be fined, flogged or sent to jail because their relationship is wrong in Malaysia under the Syariah law, and depending on the 'religious people' who in context, [the first applicant] must mean the religious bodies which enforce Syariah law at Malaysian State level, through Islamic courts, as referred to in the Delegate’s decision.
I referred to the apprehension expressed by [the first applicant] in her application for a protection visa, that their married relationship 'won't be recognised and invite condemnation and a physical threat for both of us'. I asked her whether by 'condemnation', she meant condemnation by her family? She said that she meant condemnation by her family. I asked if she also meant condemnation from her husband's Buddhist family? She said that her husband’s Buddhist family 'does not bless the relationship'. She said that her family do not want her to marry a non-Muslim man, because of her marriage history, by which she said she meant her previous marriage where her husband was a Muslim. She said that both families do not like the idea of their relationship and 'do not wish us good'.

I asked [the first applicant] about the aspect of the contention made in her application for a protection visa that the Applicants being married would involve a ‘physical threat for both of us’. She said that was because of her ex-husband. I asked whether she apprehended a physical threat from her family? She said that her older brother used to tell her when her mother was alive, that if she was to marry again, he would make sure that it would not happen that she would be beaten by her husband. She said that her family is traumatised because her previous marriage was a failure due to her ex-husband beating her and they were afraid of it happening again.
I asked [the first applicant] if what her family was really afraid of, was her being beaten again? She said yes, and that her family is not aware of her new marriage.
[The first applicant] Is now over [Age] years of age, and I asked her whether she would no longer be under the control of her family at that age. She said that after she divorced her first husband, she was working outside of Malaysia, in [Country], and when she wanted her own life, she said that her family did not allow it. She also said that she had been together with her husband in Australia since coming here in 2018. Further, in her evidence, she said that she had met her husband in [Country] when working there, in 2012.
Her evidence was that she was not dependent on her family in Malaysia, and sends money back to her family in Malaysia. She sent money to her mother when she was sick, before she died. She said she still sends money back to her older sister with whom her children live. Those children, of her first marriage, are now aged [Ages]. She said that her older sister has been looking after her children since they were babies. [The first applicant] said that she has not told her children that she had married her husband in Australia.[16]
[16] In her application for a protection visa, [the first applicant] indicated that she was divorced. For the part of the application form which asks for particulars of other family members not included in Part B of the application, as persons included in the application for protection visa, she described her father and mother. She did not include the details of her children.
I asked [the first applicant] if she perceived a problem living in her hometown of [City 1], in Sarawak State, was there any reason why she could not live in her husband's home State of Melacca? She responded that in the whole of Malaysia, her husband must convert to Islam to be able to live together and that they would not be blessed in their marriage if that is not possible.
She said that her husband had never met her family. She has described her husband to her family and told her family that her now husband is very nice, but they could not accept the relationship. She told her family that her now husband is Buddhist. Similarly, she has not met her husband's family in Melacca. She has not spoken to her husband's family by telephone. She said that her husband had told his family about her, but they do not accept or bless the relationship. She said that there would be no change to the situation about family acceptance in Malaysia, now that the Applicants are married.
In response to a question I asked of [the first applicant] whether she feared any physical harm from her family, she said maybe not, but that her ex-husband would ‘not let me go anytime'. She said that her main concern is that she would be ostracised by her family in Malaysia. She said that they isolated her when she told them about the relationship with her now-husband. I asked [the first applicant] what was there to prevent her living in another place in Malaysia, apart from her hometown? She responded that it was her ex-husband. She repeated that he said that he would not let her go even if they were divorced.
Evidence at the hearing - [the first applicant]
Response to country information in Delegate’s decision
I asked [the first applicant] about the contents of the Delegate’s decision concerning country information about Malaysians in the position of the Applicants, being in a mixed-faith relationship. First, I asked her about the proposition in the Delegate’s decision that while couples of different ethnicities may face pressure or social stigma from their family or encounter racism, there was no country information to suggest that a mixed-marriage couple would typically face physical harm. She said that the non-Muslim family in that situation would usually accept the relationship, but the families of her and her husband would not accept it at all. She said that in Malaysia there are cases of mixed marriages where the mixed-faith relationship has contributed to divorce, or there can be family violence.
I then asked [the first applicant] about that aspect of the Delegate’s decision which states that an interfaith couple whose families opposed the marriage may face family or social pressure or ostracism, but unlikely to face violence. She responded that they tried to avoid being ostracised, and that was why they avoided their families.
I asked her about a part of the Delegate’s decision that said that there were no legal restrictions on a person marrying someone of a different ethnicity. She said that in Malaysia, there is no law saying that people from different religions may not be married, but the condition is that a non-Muslim person must convert to Islam.
[The first applicant] answered a further question by me on the Delegate’s decision referring to a Malaysian Act of Parliament that states that all marriages must be based on mutual consent and no restriction is placed on the rights of people from different ethnic groups or non-Muslims to marry, saying that there was no limitation on Muslims to be married to non-Muslims, but that to 'witness' a marriage, it must be agreed by both parties.
She agreed with that part of the Delegate’s decision that says that State Islamic bodies enforcing Syariah law at State level do not have jurisdiction over non-Muslims, such as her husband. However, she said that the Syariah law does have control if someone is insulting Islam. She said that in Malaysia, if she was married to a Buddhist, it is against Syariah law. If they returned to Malaysia, she said that if her family found out about the mixed-faith marriage, and informed the police that they are living together, they may be detained because Syariah law is part of the law.
At the hearing, [the first applicant] provided her current passport issued in 2022. It does not show any movements in the passport since the date of issue. I asked her whether she returned to Malaysia for her mother's funeral when [the first applicant]’s evidence was that her mother had died in 2021. She said that she did not, and further, her father had died in 2017. She said that she had not returned to Malaysia since coming to Australia in 2018.
Evidence at the hearing - [the first applicant]
Fear of ex-husband
I referred to the additional claim [the first applicant] had made in the Pre-hearing information form completed by her in April 2024, that another reason she was afraid to go back to Malaysia was that her ex-husband would come and look for her again. I have described the concerns [the first applicant] has about her ex-husband under the heading ‘Pre-hearing information provided by [the first applicant]’ above.
Threshold issue – the effect of s 367A of the Migration Act
I described to [the first applicant] the terms of s 367A of the Migration Act, that I was required to draw an inference unfavourable to the credibility of the new claim made by her about fear of harm from her ex-husband unless I was satisfied that she had a reasonable explanation why the claim was not made before the Delegate made a decision to refuse her application for a protection visa. I asked [the first applicant] if she had an explanation for why she did not raise the claim about her fears from her ex-husband before the decision was made to refuse her application for a protection visa.
In response, [the first applicant] said that she did not want to remember her ex-husband because it was a very long time ago. She said that he is a really bad person, even though their marriage was many decades ago. She said she wanted to forget. She said he used to use and sell drugs, and hit her every day. She said that it was hard to explain and 'it's a pain’.
I asked [the first applicant] why she did not explain that in her application for a protection visa? She said that he was in jail and she said that she did not think it was an issue She named her ex- husband at the hearing and said that she divorced him around 2013-2014 when the court granted the divorce. She said that the delay was because he was absent for five years.
[The first applicant] said that the last time she had heard from her ex-husband was in 2023-2024, when her older sister told her that he had been sent to jail again, when he attacked someone with a knife. [The first applicant] said that he would ask her children about her whereabouts and phone number. I asked [the first applicant] if he had attempted to contact her since she had been in Australia? She answered no, because she had changed her telephone number many times but he has tried to find out her phone number through her children when he sees them in her home village.
I asked [the first applicant] if she was to return to Malaysia, how would he know that she had even returned to Malaysia, if she told her children not to tell the ex-husband that she had done so, or where she lived? She responded that when she moved to [Country], he knew that. He travelled to [City 2], at the border between [Country] and Malaysia.
Towards the end of the hearing, after [the second applicant] had given his evidence, I returned to the question of what [the first applicant] feared from her ex-husband. I asked her if she could avoid that risk by living on the mainland of Malaysia, for example staying near her new husband’s hometown. She replied that it was very difficult to talk about her ex-husband, and that she was still traumatised by what happened to her with her ex-husband in Malaysia. She said she tried to forget that past, but could not. She said that she remains anxious and hearing someone knocking at the door made her anxious.
She said that she did not think that moving to another place in Malaysia would help avoid her ex-husband, because if she lived in other places, he would continue looking for her until he finds her. She said that before moving to Australia, she had lived in many different places and he had found her in [Country] and in [State].
[The first applicant] said that even if she did not tell her children about her whereabouts, eventually he would still be able to find out where she was, because he has many friends. She said that he had been frequently in and out of prison. She said that her ex-husband tells her children that they must tell him where she is. He has told them that if they do not tell him where she was, then 'he will destroy me'. She said that occurred when she was in [Country].[17]
[17] Which, on [the first applicant]’s other evidence, was where she lived between 2012 and 2018 when she moved to Australia with her now husband.
At the conclusion of the hearing, I gave each Applicant the opportunity to add anything else that they wished to say. [The first applicant] said that she would like to say some things that she had not even told to her current husband. She said that her ex-husband had threatened her before that if she did not go back to him, he would kill her. He told her that no other man could possess her. She reiterated that he told her that he would kill her. She said that is why she hated him a lot. I can make the observation that [the first applicant] was visibly distressed when providing this evidence.
Finding on threshold issue - application of s 367A
My conclusion on the effect of s 367A of the Migration Act is that [the first applicant] has a reasonable excuse for not raising her claim about her ex-husband before the Delegate made the decision on her application for a protection visa, because:
(1)she had already made a claim for protection based on her mixed-faith relationship which she still maintains;
(2)the marriage to her ex-husband had, I find, traumatised her and recalling matters concerning her ex-husband did cause her distress; and
(3)when [the first applicant] made her application for a protection visa, her ex-husband was in jail, and she thought that he would not be a problem, at least at that time.
However, my finding that she has a reasonable excuse for not including the ground concerning her ex-husband in her application for a protection visa simply means that the effect of that provision against 'deemed non-credibility' of the new ground does not apply. I must still weigh evidence given by [the first applicant] on this aspect as to its credibility generally, and the effect of that evidence on any return to Malaysia by [the first applicant] in the reasonably foreseeable future.
Both Applicants also provided new evidence at the hearing of this matter which was not provided to the Delegate when the Delegate made the decision in these matters to refuse to grant the Applicants protection visas. That new evidence consists of the Applicants being married, in November 2024, since the Delegate’s decision. I find that the Applicants have a reasonable excuse for not providing that evidence to the Delegate, which is simply that they were not married at the time.
Evidence at the hearing - [the second applicant]
Mixed faith marriage
[The second applicant]’s evidence before the Tribunal and his application for a protection visa confirmed the key elements of the evidence given by [the first applicant]. In particular, he said that:
·he and [the first applicant] first met in [Country] in 2012 when they were both working there;
·he is an ethnic Chinese, and his wife is ethnic Malay;
·he is Buddhist and his wife is Muslim. Neither of them plan to change their religions;
·they travelled to Australia together in 2018, on tourist visas, to visit some friends here;
·whilst in Australia on that visit, they discussed with their friends that their personal circumstances of a mixed-faith relationship meant that they may be eligible for a protection visa;
·both of the Applicants applied for a protection visa and gained a bridging visa allowing them to stay in Australia;
·each of them had told their family about their respective life partner, and both families disapproved of the relationship, because of the interfaith nature of the relationship;
·neither family had met the Applicants’ life partner;
·neither of the Applicants had told their families that they had married, in Australia.
In my view, s 367A of the Migration Act at least potentially applied to the ground contained in the Pre-hearing information form completed by [the second applicant], that his wife's mother had beaten his wife. That was not a ground raised by [the second applicant] for a protection visa by the time the Delegate came to make the decision on his application for a protection visa.
I summarised the effect of s 367A to [the second applicant] and asked if he wished to persist with that new claim. In view of the fact that his wife's mother is now deceased, he did not. I therefore exclude that basis as a ground raised by [the second applicant] for a protection visa.
[The second applicant] also confirmed [the first applicant]’s evidence that a marriage between a Muslim woman and a Buddhist man is invalid in Malaysia under the Sharia law. He also added that a marriage of that kind is not recognised by what he described as the 'common law' of Malaysia.
He gave evidence that their Australian marriage would not be recognised in Malaysia, unless he (a Buddhist) converted to Islam. He said his family would not agree for him to do so therefore, in Malaysia 'We have no choice and will not be able to live together in Malaysia'. He said that despite being married in Australia, the Australian marriage would not be accepted in Malaysia, but instead they would be treated as living together in Malaysia without being married. He said that 'they' would not allow he and his wife to stay together or live together.
I asked him who would stop he and his wife living together? He said first, both families would not accept that possibility, secondly the community would not accept it, third the 'religious office' will not accept it and fourth, if other people in the community would not accept them, they would report he and his wife, and ‘the religious authority’ would not allow them to stay together.[18]
[18] By ‘religious office' and 'the religious authority’, in the context, I infer, and find that [the second applicant] was referring to the State Islamic bodies that enforce Syariah law at State level, as described in the country information analysed in the Delegate’s decision.
Given [the second applicant]'s age ([Age] years), I asked him would the Applicants not separate just because his family wanted him to? He said ‘as a matter of law’, they would probably assert some sort of force on him, threaten him or ‘use ideology' to persuade him to change his mind. He said that his family will try make him ‘emotionally suppressed’.
He said that it is 'quite impossible to live together' in Malaysia with two religions. He said his family would say to the Applicants that either he or both of them must change religions. He said that the Applicants did not have that same problem in Australia. He said in Malaysia, he has his family members such as his mother. He said that in Malaysia, he is reminded by his mother to practise his religion. He said that in Australia, there was no one to remind him to pray. He said that the Applicants have more freedom in Australia.
I asked [the second applicant] what would prevent he and his wife living together in Malaysia? He said that mostly it is about religion. The 'religious' [authority] would oppose that to the greatest extent possible. He said his family would not accept them living together and the 'religious’[19] would not permit this. I asked [the second applicant] whether it is an offence for them to live together in an mixed-faith relationship. He said that this is a big issue in Malaysia. In that country, a Muslim lady is not allowed to visit him in his house under Syariah and ‘common law’. He said that the Islamic religious office has authority to 'check on us'.
[19] Which I also infer, and find, to be the State Islamic bodies that enforce Syariah law at State level.
I asked [the second applicant] about part of his application for a protection visa where he said that him marrying a Muslim woman would ‘invite condemnation'. I asked by condemnation, whether meant this meant by his family? He said that the Malaysian community will not accept a relationship between a Buddhist man and an Islamic woman, and they would blame him. As to condemnation from his Buddhist family, he said that he told his mother about the relationship with [the first applicant] before they were married, and he said that his mother tried to stop him. She told him he was the oldest son and it is his responsibility to carry out his father's family name. He said all of these issues affected him emotionally. He said that caused him 'pressure'.
When I asked [the second applicant] whether the condemnation of the relationship came more from his wife's family, he said no, and that he had never met his wife's family. He said his own family raised the issue of a mixed-faith relationship with him. He said his siblings had raised the issue with him and were against the mixed-faith relationship.
Again, referring to the grounds for application for a protection visa as stated on the application form, I asked him how he said their relationship was a physical threat for both of them? He said that Malaysia is not like Australia. Australia has more freedom. He said that the Malaysian community would not accept their marriage as an interfaith marriage. He said that people on the street will want to know about their relationship. He also said that his wife's ex-husband is also an issue. [The second applicant] said:
Definitely he will come to visit us. He beat [his ex-wife] and wanted her to return to him.

I asked [the second applicant] whether he was under the control of his family, given that he is now [Age] years old. He said his father died in 2009.[20] He said his family could not control him anymore, but he still needed to take care all of their feelings. He said he needed to respect filial piety. He also needed to love his wife but take care of the feelings of his family. He said that he sends money back to his mother in Malaysia because she is a disabled person. He said that his family in Malaysia had no information about his living arrangements in Australia, and so far, they do not know that he was married.
[20] Three years before he met [the first applicant], on his own evidence, in 2012, in [Country].
Noting that his wife’s hometown is in Sarawak State, I asked [the second applicant] whether there was any reason why the couple could not live in his hometown in the State of Melacca? He said that was not possible because his family home is in a Malay village and between 80-90% of the people in that village were Muslim. He said that he was not sure about the couple living in Kuala Lumpur, because he had never lived there. However, he said wherever he went in Malaysia there would be people who would reject their relationship because about 70% of the population in Malaysia is Muslim. Said he had told his family about his wife, before they came to Australia and before they were married. He said that became a' big issue'.
I asked [the second applicant] whether he feared physical harm if the couple where to live in Malaysia? He said that 'definitely it happens' and Malaysia is not suitable as a country for them to live together. He said his main concern was that the couple would be ostracised by their families in Malaysia. He said he was very worried and afraid that their families would split them up and would not support the relationship and that would eventually lead to the relationship breaking up.
Evidence at the hearing - [the second applicant]
Response to country information in Delegate’s decision
I also asked [the second applicant] about the content of the Delegate’s decision containing analysis of country information concerning a mixed-faith couple in Malaysia. He said that the law required him as a non-Buddhist, non-Muslim husband to convert to Islam for the marriage to be officially recognised. He said that he was Chinese Buddhist and his family would not allow him to convert to become a Muslim.
I asked [the second applicant] about the country information in the Delegate’s decision that said that while couples of different ethnicities may face pressure or social stigma from the family or encounter racism, there was no information to suggest that a mixed-marriage couple would typically face violence. I also asked him about that part of the Delegate’s decision that referred to DFAT saying that an interfaith couple whose families opposed the marriage may face family or social pressure or ostracism, but unlikely to face violence.
It was necessary for me to ask [the second applicant] several times before he would engage with the content of the questions about the DFAT information on whether an inter-faith family may encounter violence.
Finally, he said that violence does happen, and in his case, because he had brought [the first applicant] to a country without her family’s consent, her family would beat him. He said that he thought her brother would beat him. He said his own family members are grown-up and they would understand. However, he then said that his siblings would get hold of him and get him 'into trouble'. He said that the government would not support him because what they were doing was against the law.
I asked [the second applicant] about that part of the Delegate’s decision which refers to the State religious officers having no jurisdiction over non-Muslims, like him. He said he agreed that the Islamic officials do not have the power to impose any rules on him. However, he said in marriage this is different. He said he must first consent to become a Muslim.
Given that the Applicants’ marriage took place in Australia, I asked if it is the case that [the second applicant] was saying that was an offence under Malaysian law? He replied that the marriage would not be recognised.
I asked [the second applicant] whether the Malaysian religious authorities have no power to evict either of them from their own home? He agreed that was the case, but said that the Malaysian religious authorities would not allow he and his wife to be together. He said that they would want his wife to go to her family and for him to go to his. When I asked [the second applicant] how the religious authorities would enforce that, he said he had not experienced it before. However, he thought that the religious authorities would first inform the family from both sides. He responded rhetorically, that if the couple were to have children, 'what would we do?'.
[he second applicant]’s apprehension of the effect of their marriage in Malaysia under Malaysian law differed to that of [the first applicant] in one sense, in that he said that their mixed-faith marriage was not, in Malaysia, a criminal offence. However, he confirmed the evidence given by [the first applicant] that a mixed-faith marriage is not recognised in Malaysia under the 'common law' [using his term], or the Syariah law.
Evidence at the hearing – [the second applicant]
Fear of [the first applicant]’s ex-husband
I also asked [the first applicant] about the 'additional’ claim for a protection visa made by [the first applicant] that she feared violence from her husband if they returned to Malaysia. He said that the ex-husband would 'definitely come to find her'. He said he did not know what to do and that he did not want to go home [to Malaysia].
He said he did not know whether [the first applicant]’s ex-husband had tried to contact her since they had been in Australia. I asked him, if the Applicants were to return to Malaysia, how would the ex-husband even know that I had returned to Malaysia? He said that the ex-husband lived in the same village as where [the first applicant] lived when she lived in Malaysia, which I take to mean [the first applicant]’s family hometown.
I asked [the second applicant], if that problem could be solved by living in a village other than [the first applicant]’s hometown? He said that the chances were 50-50 in avoiding the ex-husband, because he would not know where they would be. However, he said that if the ex-husband was to find out where they lived, they would be in a 'difficult position'.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issues in this case are:
(a)what harm the Applicants may encounter in Malaysia because of their mixed-faith marriage; and
(b)what harm [the first applicant] may encounter in Malaysia because of her ex-husband.
For the following reasons, I have concluded that these matters should be set aside and remitted for reconsideration.
The status of the Applicants’ mixed-faith relationship in Malaysia

100. I accept that:
(a)[the second applicant] is an ethnic Chinese Buddhist, and his wife is ethnic Malay Muslim;
(b)it is against Syariah law for the Applicants to live together as man and wife in Malaysia given that their marriage is not recognised under Malaysian law because it is a mixed-faith marriage. That is so, even though their marriage was lawful under Australian law;
(c)Malaysian law (even outside the Malaysian State-based Syariah law) does not recognise the Australian marriage because the relationship is a mixed-faith relationship where [the first applicant] is an ethnic Malay who is Muslim, and her husband is Buddhist and has not converted to Islam.

101. This is established, both on the Applicants’ evidence, and also the country information referred to in the Delegate’s decision.
Application of Malaysian legislation and country information to the Applicants since they have married
102. Because the Applicants have married since the Delegate’s decision, I have considered the effect of that marriage in Malaysia. I have reviewed, as a sample Malaysian law on inter-faith marriage, the Islamic Family Law (Federal Territories) Act 1984. That is a national law that applies to the individual territories administered by the national Malaysian government, rather than law applicable to any of the separate States of Malaysia, although I accept the country information set out in the Delegate’s decision that the law is relevantly similar in the Malaysian States.
103. Section 4 of that Act states that save as is otherwise provided, that Act applies to all Muslims living in the Federal Territory. In other words, the Act applies to Muslims, but not non- Muslims, such as [the second applicant]. Section 10(2) states that 'No woman shall marry a non-Muslim'. That provision does not create an offence for failure to comply, but the consequence is described in s 11, which states that:
A marriage shall be void unless all conditions necessary, according to Hukum Syarak,[21] for the validity thereof are satisfied.
[21] The term ‘Hukum Syarak’ is defined in s 2 of the Act to mean Hukum Syarak according to the Mazhab Shafie, or according to one of the Mazhab Maliki, Hanafi or Hanbali. The national Malaysian Interpretation Acts 1947 and 1968 (Consolidated and Revised 1989) defines the term ‘Hukum Syarak’ to mean ‘the body of law known in English as Islamic Law’.

104. Applied to the Applicants, this would indeed mean, as described in the country information and in the Applicants' evidence, that their interfaith marriage would not be valid in Malaysia. Even though the Applicants were married in Australia, that Australian marriage would not be recognised as valid in Malaysia and not capable of registration in Malaysia. Section 31 of the above Act requires a person married in a foreign country according to Hukum Syarak to register the marriage in the Federal Territory concerned, but that does not apply to a marriage not in accordance with those rites, if one of the parties to the marriage is a Muslim, because of overall application of the Act.
105. In the DFAT report on Malaysia from 2021 more recent than that in existence when the Delegate made the decisions in these matters, DFAT assessed that Muslims who marry a non-Muslim face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert to a religion other than Islam. I find that this form of official discrimination will not apply to [the first applicant], because she has no intention of changing her religion. The report also noted that Muslims wishing to marry non-Muslims may move to large urban centres to avoid attention.[22]
[22] DFAT Country Information Report Malaysia', 29 June 2021, pp. 32, 62.
106. I could find little information about the practical consequences of interfaith marriages between Muslims and non-Muslims in Malaysia. In 2013, the Director-General of 'JAKIM’[23] said action can be taken by the State Islamic religious authorities in respect of such couples but did not elaborate further in regard to what type of action would be taken.
[23] An acronym described in the DFAT 2021 ‘Country Information Report Malaysia’ (referred to by the Delegate), to mean the ‘National Department of Islamic Development' as the body through which the federal government delivers national rulings and provides guidance to state religious departments.
107. For reasons which I describe below, I find that if the Applicants were to return to Malaysia now, or in the foreseeable future, they would not go to [the first applicant]’s hometown, or even her State of Sarawak or the neighbouring State of Sabah, for fear of [the first applicant]’s ex-husband finding her there. I find that it is more likely that the Applicants would go to [the second applicant]'s home State of Malacca or to Kuala Lumpur, which is a federal territory under the legislative control of the Malaysian national legislature. As the largest city in Malaysia, that is where they are more likely to be unrecognised, as an interfaith couple, and more difficult for [the first applicant]’s ex-husband to locate.
108. For that reason, I will consider, as an example, the Syariah religious laws for the Malaysian federal territories, which is the Syariah Criminal Offences (Federal Territories) Act 1997 (the Syariah Act). Section 2(b) of that Act states that the Act only applies to a person professing the religion of Islam. Applied to the Applicants, this means that the Act will apply to [the first applicant], but not to [the second applicant].
109. There are relevant offences, all contained in Part IV of the Syariah Act, potentially applicable to [the first applicant] as follows:
Sexual intercourse out of wedlock
23. (1) Any man who performs sexual intercourse with a woman who is not his lawful wife shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.
(2) Any woman who performs sexual intercourse with a man who is not her lawful husband shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.
(3) The fact that a woman is pregnant out of wedlock as a result of sexual intercourse performed with her consent shall be prima facie evidence of the commission of an offence under subsection (2) by that woman.
(4) For the purpose of subsection (3), any woman who gives birth to a fully developed child within a period of six qamariah months from the date of her marriage shall be deemed to have been pregnant out of wedlock.
An act preparatory to sexual intercourse out of wedlock
24. Any person who does an act preparatory to sexual intercourse out of wedlock shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.

110. The offence in s 23(1) will not be applicable to [the second applicant], since he is not a Muslim. However, the offence in s 23(2) is applicable to [the first applicant]. A consequence of their Australian marriage, although lawfully made in Australia, but not capable of recognition in Malaysia, is that in terms of application of s 23(2), [the second applicant] is not her ‘lawful husband’.
111. Of course, in order for the prosecution of the offence in s 23(2) to succeed, it would be necessary for the prosecuting authority to prove that sexual intercourse between [the second applicant] and [the first applicant] had occurred in Kuala Lumpur. That would likely have to be done by the prosecuting authority doing so through the use of admissions by the Applicants to that effect. They may not make any such admissions to the authorities if they realise how that exposes [the first applicant] to liability for the offence in s 23(2).
112. However, the scope of liability of [the first applicant] does not end with liability under s 23(2). At the hearing, the Applicants spoke of having a baby, in the context of the child not being recognised as legitimate in Malaysia because their Australian marriage not being valid. If [the first applicant] was to have a baby in Kuala Lumpur, the effect of s 23(3) is that her pregnancy would be prima facie evidence of the offence in s 23(2), without the need for the prosecuting authority to have admissions from the Applicants about sexual intercourse having occurred between them.
113. Further, even if [the first applicant] did not become pregnant, the offence in s 24 appears to me to have application to her, in terms of liability. The fact that the Applicants shared accommodation if they moved to Kuala Lumpur appears to me to be evidence that the prosecuting authority would be able to rely upon, as ‘an act preparatory to sexual intercourse out of wedlock’ for the purposes of application of s 24.
114. A further provision of the Syariah Act which may have application to [the first applicant] is s 26 which is as follows:
Khalwat
27. Any—
(a) man who is found together with one or more women, not being his wife or mahram; or
(b) woman who is found together with one or more men, not being her husband or mahram,
in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts shall be guilty of an offence and shall on conviction be liable to a fine not exceeding three thousand ringgit or to imprisonment for a term not exceeding two years or to both.

115. The key expression 'immoral acts' is not defined in the Act, or in the Interpretation Acts. There is nothing in the latter Acts that states that an expression in a Malaysian national law which is otherwise undefined has the meaning that it does in Islam or Hukum Syarak.
116. However, the courts which have jurisdiction to hear a charge of an offence under the Syariah Act are defined in s 2(1) of that Act as follows:
"Court" means the Syariah Subordinate Court, the Syariah High Court, or the Syariah Appeal Court, as the case may be, constituted under section 40 of the Administration Act.[24]
[24] The 'Administration Act' is defined in s 2(1) of the Syariah Act to mean the Administration of Islamic Law (Federal Territories) Act 1993.

117. The Syariah courts are constituted under Part IV of the Administration Act. Each of those courts have jurisdiction conferred on them under Part IV of that Act to:
in its criminal jurisdiction, try any offence committed by a Muslim and punishable under the Enactment or the Islamic Family Law (Federal Territories) Act 1984 [Act 303], or under any other written law prescribing offences against precepts of the religion of Islam.

118. Since that is the case, it is likely that those Syariah courts would apply the meaning of ‘immoral’ as having the meaning under Hukum Syarak, and that an ‘immoral act’ may extend to sexual intercourse even between a consenting male and female adult.
119. If [the first applicant] was convicted of one of the offences described above contained in Part IV of the Syariah Act, the following provision has potential application to her, in terms of what the convicting court might order (in addition to the penalties referred to in the provisions themselves):
Power of Court to commit female offender to an approved home
56. Where the Court has convicted any female person of an offence under Part IV, such Court may, in lieu of or in addition to any punishment specified for such offence, order any such person to be committed to an approved home for such period not exceeding six months as may be specified in such order; but where any sentence of imprisonment is imposed together with such committal the period thereof shall not in the aggregate exceed three years.

120. The law, and the potential punishments for inter-faith marriages where one party to the marriage is Muslim is clear enough. I find that if [the first applicant] was successfully prosecuted for one of the offences in the Syariah Act described above, and she received a penalty (including the availability to a court of committing her to an approved home), other than a fine, then that would amount to 'serious harm'[25] for the purposes of s 5J(5) of the Act, or ‘significant harm’[26] for the purposes of complementary protection under s 36(2A) of the Act.
[25] In the sense of a threat to her liberty, in the case of imprisonment or being committed to an approved home, or significant physical ill-treatment, in the sense of a caning.
[26] In the sense of being subject to cruel or inhuman treatment or punishment, under paragraph (d) or being subject to degrading treatment or punishment, under paragraph (e), of s 36(2A) of the Act, in being either imprisoned, committed to an approved home, or subject to a caning.
121. Section 58 of the Syariah Act, contained in Part V makes provision for appointment of a Chief Syariah Prosecutor who shall have:
power exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence before a Syariah Court.

122. The same provision allows the Majlis to appoint, from members of the general public service of the Malaysian Federation, a Chief Religious Enforcement Officer and Religious Enforcement Officers to carry out the investigation of offences under the Act or under any other written law prescribing offences against precepts of the religion of Islam. There is therefore an official investigation and enforcement body, the members of which may investigate and enforce the offences described above.
123. The real issue boils down to one of whether there is a real chance or real risk of [the first applicant] being subject to investigation and prosecution for any of those offences. I have carried out research on country information about investigation and prosecution of the offences identified above, in the case of a mixed-faith marriage involving a Muslim, in Malaysia, more recent than that analysed in the Delegate’s decision.
124. I have mentioned above, the statement in 2013, of the Director-General of JAKIM that action can be taken by the State Islamic religious authorities in respect of such couples but that he did not elaborate further in regard to what type of action would be taken.
125. Otherwise, a 2023 Report on International Religious Freedom: Malaysia prepared by the United States Department of State, reports that local human rights organisations and religious leaders continued to express concern about the increasing 'Islamisation’ of politics, citing sophisticated social media campaigns used by conservative Islamic organisations to encourage youths to embrace a more conservative interpretation of Islam.[27]
[27] Executive Summary. The DFAT Country Information Report dated 24 June 2024 identifies the same trend, at paragraph 3.49.
126. The same report stated that the Malaysian Government continued its policy of not recognising marriages between Muslims and non-Muslims, and it considered children born of such unions to be illegitimate.[28] The report continued that in 2023, JAKIM conducted several Sharia enforcement-related activities. In February 2023, 70 officers from JAKIM and religious authorities in Negeri Sembilan State conducted a 'Valentine's Day Crime Prevention Operation’ to prevent 'immoral activities' by Muslims and detained several couples for further investigation. The report does not describe what the 'immoral activities' were.
[28] Section II, under the heading 'Abuses Involving Discrimination or Unequal Treatment'.
127. In July 2023, JAKIM held a National Convention on Sharia Law Enforcement and Prosecution where speakers from government agencies presented on ways of strengthening Sunni Islam and preventing the proselytisation of Muslims.
128. As a general comment reflected in the DFAT Country Information Report on Malaysia for 2024 and the United States report referred to above, those reports identify alleged proselytisation, blasphemy against Islam,[29] and actions of a Muslim seeking to leave or convert from Islam (apostasy) as being the subject of particular attention and enforcement of the Syariah law. There is no specific mention of enforcement action being taken against a Muslim party to a mixed-faith marriage. On the other hand, there is no reference that I have been able to find to any firm statement that it is not the policy of the Islamic authorities to investigate or prosecute a Muslim person for the offences described in the Syariah Act potentially applicable to someone like [the first applicant] who is a Muslim married to a non-Muslim under a foreign marriage.
[29] The United States report said that the authorities continued to arrest individuals for blasphemy – see section I of the report under the heading ‘Abuses Limiting Religious Belief and Expression’.
129. However, it is certainly the case that the relevant authorities in Malaysia, including Kuala Lumpur, do have the authority to investigate and prosecute [the first applicant] for the offences described above in the Syariah Act. With a rising tide of conservative Islamization of Malaysian society, the possibility of [the first applicant] being the subject of a report to the religious authorities, or even an inquiry instigated by them, and her being investigated and prosecuted cannot be ruled out.
130. One means by which this may happen is the obligation of her as a married Muslim to carry an identity card indicating that she is married, including special photographic identification of the married Muslim and their spouse as proof of marriage.[30] However, since the Applicants’ Australian marriage is not recognised in Malaysia, it would not be possible for her to have such a card. In the event of her being seen in public with her husband by an officer of the religious authority and asked to produce her marriage identity card, that could be the trigger to an investigation and prosecution.
[30] The United States report, section II under the heading ‘Legal Framework’.
131. Overall then, I find that there is a real chance of [the first applicant] being investigated and subject to a prosecution for one of the offences in the Syariah Act I have referred to above. If she is investigated and prosecuted to the point of a conviction for one of the Syariah offences described above, there is a real chance of a sentence being imposed to imprison her, or that she be detained in an ‘approved house’, in each case, being a threat to her liberty. For the offence of sexual intercourse out of wedlock under s 23 of the Syariah Act, one possible penalty could be six strokes of the cane, which in my view, amounts to ‘significant physical ill-treatment’ of her for the purposes of paragraph (c) of the instances of 'serious harm' contained in s 5J(5) of the Act.
132. I also accept that both the Applicants’ families oppose the relationship between the Applicants, and both families would oppose the Applicants being married, on religious grounds, in that each family want the respective Applicant family member to marry within their own faith. I accept the evidence by both Applicants that they have not told either family that they have been married in Australia. I find that the reason why they have not told their respective families, is because of the fear of condemnation of the family due to the inter- faith relationship.
133. In my view, it follows that neither Applicant could expect support from either family for the Applicants being married. I do not think that there is a real chance or a real risk of either family informing the religious authorities of the mixed-faith marriage, if their families were to find out that the Applicants were married. However, at the same time, I find that the Applicants could not expect support from either family for them being married, which does expose them to a further degree of risk from being investigated by the religious authorities because of their mixed-faith marriage.
134. On the other hand, I find that there is not a real chance that the Applicants would be exposed to violence either from the general community or from [the first applicant]’s family as       [the second applicant] described in his evidence. On the question of violence from the general community in which the Applicants lived if they were to return to Malaysia now or in the reasonably foreseeable future, I accept the country information that there is not a real chance or a real risk that they would be exposed to violence because of their mixed-faith marriage.
135. As to violence from [the first applicant]’s family, I find that opposition to the relationship from her family would not rise to the level of serious harm or significant harm. Opposition from her family would certainly amount to emotional pressure on the Applicants, but that can happen anywhere in the world, where someone's family does not agree with a family member's choice of spouse.
136. [The second applicant]’s evidence was that he feared his wife's brother would beat him, such was the level of family opposition to the relationship. However, I find that there is not a real chance or real risk of this occurring, because of [the first applicant]’s fear of being located by her ex-husband is such that the Applicants would not go to her hometown, or even to the eastern States of Sarawak or Sabah. Nor would the Applicants tell [the first applicant]’s family where they were living, or even that they were married.
137. There is some evidence that mixed-faith marriages are well tolerated, common, and even traditional in the eastern State of Sabah,[31] although the religious legislation which requires a non-Muslim partner to convert to Islam, in a marriage involving a Muslim and a non-Muslim couple.[32] However, the fear of [the first applicant] being located by her ex-husband would, in my view, prevent them from being prepared to live in Sabah, being the neighbouring State to Sarawak, on the island of Borneo.
[31] Suraya Sintang, 'Understanding Sabah’s Exemplary Interfaith Relations from a Grassroots Perspective’, Perspective, ISEAS Yusof Ishak Institute, issue 73 of 2024.
[32] Sintang, p.6.
Problem with [the first applicant]’s ex-husband
138. A further problem with the Applicants returning to Malaysia to live, would be with               [the first applicant]’s ex-husband. I accept the evidence of each of them[33] that her ex-husband would come looking for the Applicants in Malaysia if he knew where they were. I accept the evidence given by [the first applicant] that she had been beaten by him in the past, and that he had threatened to kill her if she was to form a life relationship with another man.
[33] Although [the second applicant]’s evidence about the ex-husband is based totally on what [the first applicant] has told [the second applicant] about her ex-husband. He did not describe having any independent knowledge about the ex-husband, let alone that he had ever met him.
139. However, I find that the risk of harm being inflicted on either Applicant by [the first applicant]’s ex- husband is not a fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, within the definition of ‘well-founded fear of persecution’, contained in s 5J(1)(a) of the Migration Act. Accordingly, if it was necessary to do so, I would consider the risk of harm from [the first applicant]’s ex-husband for the purposes of complementary protection under s 36(A) of the Act where the test is whether there is a 'real risk' that the Applicants and in particular, [the first applicant] will suffer 'significant harm' if the Applicants were to return to Malaysia now, or in the reasonably foreseeable future.
140. I find that there is a real risk that if the ex-husband was to find the Applicants in Malaysia, he would cause them ‘significant harm' as described in s 36(2A) of the Act. That ‘significant harm' would at least, be two of the instances of ‘significant harm’ contained in that provision of ‘cruel or inhuman treatment or punishment' of the Applicants, and also 'degrading treatment or punishment' of the Applicants.
141. I find that given [the first applicant]’s evidence of threats made by her ex-husband in the past, that this risk would be significantly heightened if the ex-husband was to find out that she had remarried. Given that [the first applicant] has not told her family, including her children, that she has remarried, I find that the ex-husband would not know that information.
142. I find that the ex-husband’s conduit to finding out information about [the first applicant] is through her children, currently aged [Ages], with whom [the first applicant] has had no face-to-face contact, since 2012. [The first applicant] is aware that her ex-husband is in contact with her children, and uses them as a source of information for her whereabouts. [The first applicant] is in contact with her older sister who has brought up [the first applicant]’s children since they were very young. When he is not in jail, the ex-husband lives in [the first applicant]’s home village. I find that this information, about which [the first applicant] gave evidence, came to her knowledge through her older sister. Not even her older sister knows that [the first applicant] has remarried.
143. Given her ex-husband’s history of offending behaviour in Malaysia, I find that he has no contacts within the Malaysian Police Force that would enable him to find out whether the Applicants had returned to Malaysia, and if so, where they were living. Although [the first applicant]’s evidence was that her ex-husband had many friends, she gave no evidence that he had contacts within the Malaysian Police Force and in my view, there is not a real chance or real risk that he has any such connections to enable him to find out the Applicants’ location should they return to Malaysia.
144. If [the first applicant]’s ex-husband was to find out whether the Applicants had returned to Malaysia, and where they were living I find that this would occur through information that [the first applicant] would give to her older sister or alternatively, her children. I find that [the first applicant] is aware of that risk, and would therefore not tell either her older sister or children that she had returned to Malaysia, and certainly not tell them where she would be living.
145. Similarly, I find that the Applicants would not return to [the first applicant]’s home village if they returned to Malaysia now or in the reasonably foreseeable future. The risk is that either   [The first applicant]’s ex-husband would find that she was there either himself or through others in the village passing that information on the ex-husband.
Do the Applicants satisfy the refugee criterion for protection?
146. I have found that there is a real chance that [the first applicant] would be the subject of a 'real chance' of serious harm if the Applicants were to return to Malaysia now, or in the reasonably foreseeable future, because of the penalties that she would be exposed to if investigated and prosecuted to the point of conviction by the religious authorities in Malaysia of one of the offences I have analysed above in the Syariah Act.
147. [The second applicant] would not be exposed to that real chance of serious harm because the Syariah Act does not apply to him. However, he is a member of the same family unit as [the first applicant] under Australian law, for the purposes of s 36(2)(b) of the Act for which I arrive at a conclusion below.
148. It is then necessary for me to analyse application to [the first applicant] of the remaining integers of the meaning of 'well-founded fear of persecution’, defined in s 5J(1) of the Act, a copy of which is attached to these reasons.
149. The first additional requirement under s 5J(1)(a) is whether [the first applicant] fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
150. I find that the real chance of serious harm would apply to her for reasons of her Muslim religion. Simply, if she was not a Muslim, the Syariah Act would not apply to her. I also find that she is a member of a 'particular social group' in Malaysia, as being a person who is in a mixed-faith marriage, as described in s 5L of the Act.
151. I find that the requirements of s 5J(4) of the Act apply to [the first applicant]. The essential and significant reason that persecution of her would occur is because of her characteristics of religion and being a member of a particular social group under s 5J(1)(a) of the Act. I also find that the persecution against her would be systematic and discriminatory conduct. It would be systematic, because the persecution would occur under the law itself. It would also be discriminatory, in that it would only apply to [the first applicant] because of her Islamic religion and that she is in a mixed-faith marriage.
152. The integer of the real chance of persecution of her relating to all areas of Malaysia, under   s 5J(1)(c) would also apply to her. The Syariah law, with the offences I have described above, applies to all areas of Malaysia. I have referred to mixed-faith marriages involving a Muslim spouse being tolerated, and even common and accepted in the State of Sabah. However, I have found that it would be unreasonable for the Applicants to locate there, given the proximity to the State of Sarawak where [the first applicant]’s ex-husband is located when he is not in jail, and indeed [the first applicant]’s family more generally.

153. I find that there are not effective protection measures available to [the first applicant] in Malaysia from the real chance of persecution for her being in a mixed-faith marriage. The persecution that I find is a real chance of occurring would be at the hands of the Malaysian government authorities themselves, and available under the law. She could therefore not expect that the authorities of the Malaysian government would protect her from the persecution.
154. The application of s 5J(3) of the Act, that [the first applicant] does not have a well-founded fear of persecution if she could take reasonable steps to modify her behaviour so as to avoid a real chance of persecution, does not apply to her. The real chance of serious harm would occur to her because of her religious Muslim faith, which is an exception[34] to the concept of reasonable steps that an applicant for a protection visa is assessed against under that provision.
[34] Under s 5J(3)(a) and paragraph (c)(i).
155. I therefore find that [the first applicant] falls within the meaning of a 'refugee' as defined in s 5H and s 5J of the Act, and therefore satisfies the criteria to hold a protection visa under s 36(2)(a) of the Act.
156. Although [the second applicant] does not fall within the meaning of a refugee, under s 36(2)(b) he is a member of the same family unit as [the first applicant], and therefore under that provision also meets the criteria for a protection visa.
157. I have considered application of s 36(3) of the Act that provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in any country apart from Australia. The key focus of that provision is on whether there is a right to enter and reside in any other country apart from Australia, not whether an applicant may apply to enter and reside in another country.[35]
[35] Apart from Malaysia, in the context of this case, because of the effect of s 36(4)(b) of the Act.
158. The evidence is that neither Applicant has a right to enter and reside in a country other than Australia or Malaysia. In their applications for protection visas, each Applicant was asked whether they were citizens or nationals of another country, or have the right to enter or reside in another country. They each answered in the negative to those questions. Each Applicant gave evidence of having met in [Country]. However, that was in 2012, and appears to be because they had some form of visa to work there then, but without any ongoing right to enter that country which is still applicable.
Application of the complementary protection criterion for protection
159. Having concluded that [the first applicant] meets the refugee criterion in s 36(2)(a), and in s 36(2)(b) in the case of [the second applicant], it is not necessary for me to consider the alternative criterion for ‘complementary protection’ in s 36(2)(aa).
CONCLUSION
160. For the reasons given above, I am satisfied that each Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) in the case of [the first applicant], and s36(2)(b) in the case of [the second applicant].
DECISION
161. The Tribunal sets aside and remits the application for a protection visa of [the first applicant] for reconsideration, in accordance with the order that she satisfies s 36(2)(a) of the Migration Act.
162. The Tribunal sets aside and remits the application for protection visa of [the second applicant] for reconsideration, in accordance with the order that he satisfies s 36(2)(b) of the Migration Act.
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.
…