2001749 (Refugee)
[2025] ARTA 1096
•2 January 2025
2001749 (REFUGEE) [2025] ARTA 1096 (2 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2001749
Tribunal:General Member Rosa Gagliardi
Date:2 January 2025
Place:Australian Capital Territory
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s.36(2)(a) of the Migration Act.
Statement made on 02 January 2025 at 8:54am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – religion – Seventh Day Adventist – in a relationship with a female Muslim – threats of his partner’s family – imputed political and religious opinion – being anti-Islam for refusing to convert – there is a real chance that the applicant will suffer serious harm – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 January 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia (a matter the Tribunal accepts) applied for the visa on 24 April 2018.
The delegate refused to grant the visa on the basis that the Constitution in Malaysia forbids discrimination against citizens on the basis of religion and “while there are allegations that authorities have changed the religious status of poor and illiterate Dusan and Murut villagers in Sabah, there is nothing before me to indicate this is relevant to the applicant’s particular circumstances”.
The applicant appeared before the Tribunal on 29 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner in Malaysia. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The applicant claims as a non-Muslim (Seventh Day Adventist) to be in a relationship with a female Muslim. He has suffered harm from the girl’s family who want the applicant to alter his religious beliefs and to convert to Islam which he does not wish to do.
In addition, the applicant purchased a vehicle but was unable to pay the monthly instalments. It was in his name, but he gave it to a friend to use for their business, but the friend too ultimately could not keep paying the monthly instalments resulting in the applicant being blacklisted by the bank. The applicant filed for bankruptcy and lodged a police report regarding his friend who could not pay the instalments.
All these issues led the applicant to have low self-esteem, trauma, pressure, and stress.
Evidence before the Department
The applicant’s claims before the Department are as above. The applicant also submitted to the Department evidence of the service of the Bankruptcy Petition dated 31 July 2017, in the name of the applicant in the Malaysian High Court in Sabah and Sarawak.
The Tribunal notes that the Department referred to the applicant in its decision as being “Catholic” even though he has written he is a Seventh Day Adventist. The Tribunal takes the applicant to be a Seventh Day Adventist as claimed in his application and as reflected at hearing.
Evidence before the Tribunal
The hearing
The applicant was born in Sabah. He undertook tertiary [studies]. His parents were still living in Malaysia and had done farming in the village. He had six siblings, and all lived in Malaysia and worked in various positions in the private sector, and another was studying.
The applicant stated he came to Australia in around January 2018 on a Visitor visa. The applicant travelled with his aunty, in-laws and cousin and cousin’s children to Australia. The Tribunal asked why he and his relatives had come to Australia and he stated that one of his younger siblings was already here and invited him to come. His relatives were also invited by his younger sibling but now everyone had returned home, including his siblings. Asked why he did not return to his home country with his relatives, he stated that it was due to the threats of his partner’s family. The applicant stated that his partner was a Muslim, and he was not, and they would not agree to the union unless he converted but he refused to do so.
The applicant stated he had been with his partner for around 16 years. The Tribunal asked whether the applicant had to hide the relationship and he responded that some people did not know that they were still in contact with each other. The applicant confirmed that even though the applicant had been in Australia for almost 6 years now he and his partner had continued to be in a committed relationship. He said they would marry but could not do so in Malaysia.
The Tribunal asked the applicant why he did not wish to convert to Islam. The applicant stated he did not want to change his name and there were so many rules he would need to follow. He said he did not think he could compromise on his religion.
The Tribunal queried who had threatened the applicant in Malaysia and he stated his partner’s family, in particular an uncle and cousin. They threatened him before he fled to Australia in 2018, telling him they would beat him if he continued to associate with his partner, unless he converted to Islam. The Tribunal asked whether the applicant had reported the threats to the Malaysian police and the applicant stated that he dared not do so because he was afraid the problems would become more severe, and it could affect his family members as well. That is why he removed himself from Malaysia and fled to Australia.
At this point the Tribunal asked a series of questions to test the applicant’s claims that he was indeed a Christian and a Seventh Day Adventist in particular. The applicant gave an outline of his key beliefs. The applicant’s responses were comprehensive and confirmed to the Tribunal that he was indeed of the Seventh Day Adventist. The Tribunal asked whether the applicant had confided in anyone about his problems in being prevented from marrying his partner, and he said he had in Australia with his close friends.
The Tribunal noted that on the basis of the Department of Foreign Affairs and Trade Report the police in Malaysia were reasonably competent and they might have helped him had he availed himself of their assistance[1]. The applicant responded he did not go to the police because he did not want to aggravate the situation.
[1] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 24 June 2024, DFAT country information report - Malaysia.
The Tribunal read to the applicant information from the Yusof Ishak Institute indicating that Sabah’s interfaith relations were “exemplary” and highlighted the peaceful co-existence between Muslims and Christians in the area.[2] The Tribunal noted that in Sabah interfaith marriage appeared to be a common practise. The Tribunal noted that this may lead it to doubt that a marriage between him and a Muslim would not be permitted in Malaysia. The applicant conceded that there were many cases where a party started off having different faiths but upon marriage they had to follow one religion not their individual religion – they could not practise their religion and could only follow one faith, being Islam.
[2] 2024/73 “Understanding Sabah’s Exemplary Interfaith Relations from a Grassroots Perspective” by Suraya Sintang, Yusof Ishak Institute, Perspective, 2024/73 "Understanding Sabah’s Exemplary Interfaith Relations From a Grassroots Perspective" by Suraya Sintang - ISEAS-Yusof Ishak Institute.
Asked if his partner would consider converting to Christianity, the applicant responded he was not sure of that because she was afraid that if she did her family members would also threaten her. Asked about if he had children what faith they would be raised in he stated that he was open about the faiths of any children, but as far as he was concerned, he would not convert. The applicant stated he and his partner had sacrificed a lot to remain together and he would continue to try to marry her, but he was not prepared to convert or change his religion.
In response to the country research conducted by the Tribunal the applicant stated there was interfaith marriage, but the non-Muslim would have to convert. The government in general would enforce that. The Tribunal asked whether there would be any consequences for his children and the applicant responded that there would be, they would not be able to register their birth or enrol in school. It would affect their opportunities and education and they would not be able to participate in society in general. If he and his children were to make an application to the government for any reason, it would be refused.
The applicant stated when asked that his wife was [age] or so and was therefore still of childbearing age. The Tribunal asked whether his partner’s family would permit their daughter to travel to Australia and he stated, “I don’t think so”. He stated that he told her she should come here to marry, but they had not told her parents about their plans.
Evidence from the applicant’s partner in Malaysia
The applicant’s partner confirmed that she and the applicant were in a relationship and had been so since 2009. The applicant’s partner confirmed they had discussed getting married but conceded there would be problems with carrying out this plan in Malaysia. She stated it was due to their religion that they had faced objections from her parents and family. The Tribunal asked the applicant’s partner what her parents had said about marrying the applicant. She responded that they said she was not permitted to marry him unless he converted to Islam. On this, their view had not changed. She confirmed that they had also threatened to physically injure and attack him if he continued to pursue her without converting.
She stated she would choose not to follow her parents if she could and would follow the applicant and together, they would each continue to follow their own religion although her preference would be for her children to follow her religion. She stated they could only marry in Australia because interfaith marriage could not happen in Malaysia. The Tribunal asked how the applicant would escape her country and she stated she would follow the necessary rules, but she would not even tell her parents that she was fleeing.
Asked what she thought would happen to the applicant if he returned to Malaysia the applicant’s partner stated she would be disowned and would have to leave the family to protect him. The Tribunal asked the applicant’s partner what serious harm in particular her Christian partner would face in pursuing her to marry. The applicant responded her parents would threaten his life and would probably have him sent to jail. They would physically injure him. Asked how they could send him to jail, the applicant’s partner responded that if he essentially kidnapped her from her family without permission that would not be permissible. It would be an offence.
Evidence from the applicant’s brother in Malaysia
The Tribunal asked the applicant’s brother why the applicant could not return to Malaysia. He responded that he had some problems as he sold a car with a loan over it to another party, but unfortunately that party did not continue to pay for the car loan. The applicant’s name had therefore been blacklisted. His brother tried to report this matter to the police because the car was damaged.
Without prompting the applicant’s brother stated, however there were two reasons for the applicant seeking protection. Another reason was he could not marry a Muslim girl as he is Christian and was prevented from getting married. The Tribunal asked whether the applicant had been threatened by anyone due to his religion. The applicant stated he had conflicts with the girl’s family because he could not marry her. They had threatened his brother because the girl was persistent in wanting to marry the applicant. Asked if he thought his brother could be harmed in Malaysia, the applicant’s brother stated, yes, they threatened him until he was no longer safe to live in Malaysia.
The applicant’s brother stated that recently, few months ago, the girl’s family tried to look for his brother as the girl was intent on being with the applicant.
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 issue in this case is whether the applicant is owed protection as a refugee (s.36(2)(a)) or under the complementary protection provisions as set out above (s.36(2)(aa)).
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Does the applicant satisfy the refugee criterion for protection?
The Tribunal is in no doubt as to the applicant’s credibility about his religion being Seventh Day Adventist, that he is of Dusan background, and that he has been in a relationship with a Muslim girl for around 16 years without the possibility of realising a union in Malaysia because the applicant has been impeded from marrying a Muslim by the state, the applicant’s partner’s religious community, and the applicant’s partner’s family, without converting first. The applicant at hearing also spoke convincingly of the psychological harm he and his partner had experienced because they had been unable to progress their relationship to be able to marry and have children for 16 years.
The testimonies of both the applicant’s partner and brother were compelling, straightforward, and uncomplicated. The Tribunal sensed that both the applicant and his partner were mentally strained because of their circumstances. The applicant’s partner in Malaysia gave credible evidence about how her family members would beat and physically harm the applicant if he were to remove her from her family and faith and that to protect the applicant, she would need to relinquish their relationship. Her family’s goal was to ensure the parties never married unless the applicant converted. Currently, the relationship was being kept a secret from the applicant’s partner’s family, although they were probably aware according to the applicant.
The applicant at hearing has been clear about not wishing to change his name to an Islamic name and does not want to pursue rules which he considers go against his own beliefs and way of living as a Christian. He did not wish to change his identity.
The Tribunal also considers that the applicant’s partner’s family see the union as having dishonoured their daughter because she was having a long-term relationship with a non-Muslim without marrying him over a lengthy period. Research shows that “the honor culture in Islamic society is manifested in a “triangle”, consisting of the value of honor, shame and revenge. Honor is the most important value of the three, in some cases even more important than life itself. Once the honor is harmed, the ensuing shame may be erased only through revenge. It is evident that this violent process starts at the individual level and spreads to the community and national levels”.[3]
[3] ‘The concept of Honor in Jihadi Culture’, 4 February 2020, Multiple Authors, Reichman University, International Institute for Counter-Terrorism (ICT). The Concept of Honor in Jihadi Culture - ICT. The Tribunal does not suggest in any way that the applicant’s partner’s family are jihadists and have an extreme view of Islam – on the contrary the Tribunal uses the quote to illustrate the significance of the concept of honour as part of Islamic belief generally. Indeed the concepts of honour-shame also feature in the Christian Bible (see: Honor and Shame Societies: 9 Keys To Working With Muslims | Honor and Shame Societies: 9 Keys To Working With Muslims | Zwemer Center for Muslim Studies).
The essential and significant reason for the harm is the applicant’s religion and his imputed political opinion (anti-state/anti-Islamic). The Tribunal does not suggest that the applicant faces a real chance of harm on the basis of being Christian alone.
The Tribunal does not consider that any harm suffered by the applicant is contained within the space of the private and individual. The International Covenant on Civil and Political Rights (CCPR) states:
Article 23
· The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
· The right of men and women of marriageable age to marry and to found a family shall be recognized.
· No marriage shall be entered into without the free and full consent of the intending spouses.
…
Article 17(1)No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.[4]
[4] Right to respect for the family, Attorney-General’s Department, Australia, Right to respect for the family | Attorney-General's Department.
And Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) states that regardless of race, colour, or national or ethnic background, all peoples have the right to the enjoyment to among other things, (iv) to marriage and choice of spouse; and (vii) to freedom of thought, conscience and religion.[5]
[5] United Nations Human Rights, Office of the High Commissioner, International Convention on the Elimination of All Forms of Racial Discrimination | OHCHR.
This right extends to families in whichever way they may be formed and lived.
Malaysia has not according to the evidence before the Tribunal, ratified either of the above Treaties.[6]
[6] United Nations Human Rights Treaty Bodies, UN Treaty Database, tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=105&Lang=en.
The Department of Foreign Affairs and Trade Country Information Report (DFAT) for Malaysia relevantly states:
3.35 According to the US State Department, 63.5 percent of the Malaysian population practices Islam; 18.7 per cent Buddhism; 9.1 per cent Christianity; 6.1 per cent Hinduism; and 9 per cent other religions, including animism, Confucianism, Taoism, Sikhism and Jehovah’s Witnesses. Rural areas, especially on the east coast of peninsular Malaysia, are predominantly Muslim, while Sabah and Sarawak are predominantly non-Muslim. Approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak, around 65 per cent of whom are indigenous.
….
3.37 Despite formal protections in the constitution for freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. Article 3(1) of Malaysia’s Constitution states ‘Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation’. Article 11(1) states every person has the right to profess and practise his religion and, subject to clause (4), to propagate it. Clause 4 states: ‘State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.’ In practice, this clause severely restricts the capacity of religions other than Islam to proselytise.
3.38 Laws such as Selangor state’s Non-Islamic Religions (Control of Propagation amongst Muslims) Enactment (1988) control and restrict the propagation of other religions, including non-Sunni versions of Islam. According to local media reports, most states in Malaysia have made state laws or enactments under Article 11(4) to prohibit non-Muslims from using between 20 to 40 ‘Islamic words’, most prominently ‘Allah’. The Federal Court unanimously upheld these laws in 2015. In May 2023, the Sidang Injil Borneo Church discontinued its appeal against this decision.
3.39 The religious status of Muslims is recorded on their birth certificates and on their MyKad, reportedly to assist with the application of syariah religious laws. For example, authorities inspecting restaurants for compliance with Ramadan will check patrons’ identification cards. National identification cards do not distinguish between Sunni and Shi’a Muslims. Other religious affiliations are not reflected visibly on the card, although they are encrypted on a smart chip in the card. Married Muslims must carry photo identification of themselves with their spouses as proof of marriage. According to in-country sources, this requirement was enforced in practice, with couples asked by authorities such as the People’s Volunteer Corps (‘RELA’), and sometimes hotel staff, to prove their marriage.[7][7] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 24 June 2024, DFAT country information report - Malaysia.
The laws that apply to Muslims would not apply to the applicant as he is not a Muslim. However, they do apply to his partner which has consequences for their being able to marry and establish a family unless the applicant converts. Asking the applicant’s partner to convert to Christianity is particularly problematic as his partner is subject to Sharia, Islamic religious law, which governs Muslims’ religious and personal lives:
3.40 Malaysia has a two-track legal system: common law, administered at the federal level; and Islamic religious law, known as syariah (also spelled sharia), which is administered at the state level and varies by jurisdiction. In June 2019, the office of the Islamic Affairs Minister announced the National Council for Islamic Affairs had agreed on a proposal to standardise syariah criminal laws in all states. It is envisaged that a uniform set of syariah criminal laws would be made through amendments to the existing provisions, as well as adding new provisions to the Syariah Criminal Offences (Federal Territories) Act (1997). As at the time of publication, no legislative change had occurred. See also Legal System.
3.41 Family and personal laws governing Muslims, as well as laws relating to religious offences, are promulgated at the state level (see Family Law). Parliament can only pass legislation on such matters for the Federal Territories. Customary unwritten laws (adat) that are found in a particular place where no rules have ever been enacted by the legislative authority can also apply in Malaysia.
3.42 Matters considered by states under syariah relate to succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and the determination of matters of Islamic law and Malay customs. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Development (JAKIM) and the National Fatwa Council (NFC). The NFC in Kuala Lumpur operates under the authority of the King and the Conference of Rulers. There is no Grand Mufti in Malaysia, and the NFC consists of state muftis representing the fourteen states of Malaysia, inclusive of the Federal Territory of Kuala Lumpur and Labuan. The main functions of the NFC are to standardise the various fatwas (rulings on points of Islamic religious law issued by a recognised authority) issued by the state muftis and respond to issues of national concern as and when they arise.
3.43 State religious authorities issue fatwas to resolve problems when there is doubt over whether a practice is permissible or forbidden in Islam. Fatwas have been issued on a range of topics, from ‘vaping’ to business dealings with non-Muslims. Syariah applies only to ‘persons professing the religion of Islam’. However, the enforcement of syariah sometimes affects non-Muslims, particularly on matters involving religious conversion and family. For example, Muslims may be favoured over non-Muslim relatives in matters of inheritance.
3.44 Although the government rarely intervenes in instances of religious persecution or criticism of non-Muslims, there are reports of non-Muslims being harassed for commenting on matters pertaining to Islam. According to SUARAM, there were multiple arrests or investigations of people who made comments or allegedly derogatory remarks about Islam in 2022. JAKIM reportedly has a team that monitors complaints of provocation towards Islam, and people can report complaints directly via WhatsApp. Local media reported in 2021 that JAKIM considers insults to the nation’s nine monarchs as entailing an insult to Islam.3.45 Islamic groups and leaders have criticised, and in some cases harassed (chiefly online) commentators and community groups for expressing concern over a perceived increase in the Islamisation of the government and shrinking space and freedom for non-Muslims to practise their faith. The former King, Sultan Abdullah, has reportedly warned Malaysians against making any ‘insinuating comments’ regarding Islam. Malay-dominated parties, led by UMNO, have also warned the non-Muslim community in Malaysia not to meddle in the Islamic affairs of the country.[8]
[8] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 24 June 2024, DFAT country information report - Malaysia.
Were the applicant’s partner to convert to Christianity the country information shows she would be considered an apostate and that it would prove “extremely difficult”,[9] leaving the applicant unable to realise his aspiration to found a family:
[9] Ibid.
3.55 Ethnic Malays are defined in the Malaysian constitution as Muslims from birth and are identified as Muslim on their ID cards. Formally leaving or converting from Islam (apostasy) is extremely difficult. Despite the guarantee of freedom of religion under Article 11 of the Constitution, civil courts have ruled they have no power to intervene in apostasy cases under the jurisdiction of Malaysia’s syariah courts (see Legal System). Apostasy is a criminal offense punishable by a fine or prison term in the states of Perak, Melaka, Sabah, Pahang, Kelantan and Terengganu, with the additional maximum penalty in Kelantan and Terengganu of death (this has never been imposed).
…
3.58 Individuals who have attempted to leave the Islamic faith have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts, often without success. An individual wishing to convert from Islam must first obtain permission from a state syariah court and be declared Murtad (‘infidel’). In-country sources reported that courts can order such individuals to be subject to three years of faith rehabilitation in a rehabilitation camp. In-country sources told DFAT about a case of an individual who undertook three years of ‘rehabilitation’ but was still denied permission to leave Islam. DFAT is unaware of any Malay Muslims being successful with an application for apostasy. DFAT is also unaware of any convictions for apostasy since 2000, when four people were sentenced to three years’ jail for the offence.3.59 There are two categories of Malaysians who may be able to convert from Islam. The first category includes those applying to renounce the faith because they were recorded as Muslim ‘in error’ (because of non-Malay origin, such as being from Sabah); according to local media reports in 2017, approximately one in four such applications were successful between 2000 and 2010. The second category includes those who seek to revert to their original faith following a divorce, following conversion to Islam for marriage (legally required when a non-Muslim marries a Muslim). The right to revert from Islam was confirmed by the High Court in 2016.
The applicant’s partner also wishes to hold on to her own religious and cultural identity and does not wish to convert to Christianity. Had she wanted to, however, this would present significant challenges:
3.56 Some Islamic leaders in Malaysia have referred to apostasy as a ‘virus’ which threatens the nation. While formal apostasy (and conversion) is very difficult, many urban Muslims in Malaysia are non-observant. In-country sources told DFAT that ‘a Malay can be a secular Muslim, but they will always be a Muslim, it’s cultural.’ In-country sources reported that there were some Malaysian Muslims who eat during the day during Ramadan, drink alcohol and do not attend mosque. While people who are identified as Muslim on their MyKad card but discreetly practice another faith often do so without adverse attention, they sometimes face considerable family and social pressure to observe Islam. If they join another faith community such as a church, that community can face risk of legal action from the authorities for proselytising.[10]
[10] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report, Malaysia, 24 June 2024, DFAT country information report - Malaysia. See also Member Joseph Lindsay, Decision 1716249.
The Tribunal has had the benefit of a decision by a former colleague who in dealing with similar issues in Decision 1716249, refers to a September 2015 Law Library of Congress report on interfaith marriage in countries with Islamic law systems, stating that sharia law in Malaysia prohibits marriage between a Muslim and non-Muslim, except in the instance of marriage with a Kitabiyah [11]:
[11] Member Joseph Lindsay, Decision 1716249 referring to the source ‘Prohibition of Interfaith Marriage’, The Law Library of Congress, September 2015, pp.13-14. Prohibition of interfaith marriage | Library of Congress.
The marriage laws that govern Muslims in Malaysia largely prohibit Muslim-non-Muslim marriages. For example, section 10 of the Islamic Family Law (Federal Territories) Act 1984 states: “(1) [n]o man shall marry a non-Muslim except a Kitabiyah. (2) No woman shall marry a non-Muslim.” Kitabiyah essentially refers to a “person of the book.” In practice, the marriage of Muslim men to non-Muslim women is also highly restricted due to the definition of who constitutes a Kitabiyah in the legislation: “Kitabiyah” means – (a) a woman whose ancestors were from the Bani Ya’qub; or (b) a Christian woman whose ancestors were Christians before the prophethood of the Prophet Muhammad; or (c) a Jewess whose ancestors were Jews before the prophethood of the Prophet Isa. Most state Islamic family laws contain the same or similar wording regarding Muslim-non Muslim marriages as the federal statute. In addition, Malaysian state laws on apostasy make it an offense to convert out of the Muslim faith, and such conversion must be authorized or confirmed by a Syariah (Shari’a) Court, so conversion in order to marry a non-Muslim partner is generally not an option.
….
Muslims in Malaysia also cannot marry under the civil marriage law. Section 3 of Law Reform (Marriage and Divorce) Act 1976 clearly excludes marriages involving a Muslim party, stating that “[t]his Act shall not apply to a Muslim or to any person who is married under Muslim law and no marriage of one of the parties which professes the religion of Islam shall be solemnised or registered under this Act …” It appears that interfaith marriages, where they do not involve a Muslim party, are permitted under the 1976 Act. Marriages under the Act may be solemnized in the office of a registrar or “in a church or temple or at any place of marriage in accordance with section 24 at any such time as may be permitted by the religion, custom or usage which the parties to the marriage or either of them profess or practice.” Section 24 allows religious officiants to be appointed as assistant registrars and to solemnize marriages “if the parties to the marriage or either of them profess the religion to which the church or temple belong, in accordance with the rites and ceremonies of that religion.” The Malaysian courts have found, for example, that where there is no religious impediment to a marriage there can be a valid contract of betrothal and marriage.[12][12] Ibid.
The applicant’s Christianity is a fundamental part of who he is and as he emphasised at hearing, he did not want to change his name to be able to marry the woman he had been in a relationship with for sixteen years. In other words, he did not wish to change his identity, cultural, religious, and otherwise to be able to assert his human right to marry who he wishes. A conflict with a characteristic that is fundamental to the person’s identity or conscience or where there is a requirement to alter religious beliefs, to renounce a religious conversion, or cease to be involved in the practice one’s faith amounts to a well-founded persecution under the Migration Acts.5J(3) – which is what society is asking of the applicant to do to be able to marry and have a family in Malaysia.
In terms of the children the couple might have in Malaysia, even if they were to overcome the religious obstacles and given the applicant’s partner’s family’s desire to seriously harm the applicant until he succumbs to conversion, such children’s rights would also be affected. Research has shown that interfaith marriages where a partner is not a Muslim will:
…in the long term, have a social and psychological impact on children born to those
couples. In contrast, in terms of legal aspects, they certainly have legal consequences for children born to couples of different religions…The study results indicate that the legal consequences of interfaith marriages are invalid marriages… According to Islamic law, Interfaith marriages have legal implications for children who are born; namely, children are considered as children born out of wedlock. Children born out of wedlock only have a kinship relationship with their mother and their mother’s family.[13][13] ‘Interfaith Marriage and Its Legal Consequences for Children Born According to Islamic Law’, Indira Hastuti, Edy Sanjaya, Budi Trasetyo, International Journal of Educational Research & Social Sciences, Faculty of Law, Indonesia, Interfaith-Marriage-And-Its-Legal-Consequences-For-Children-Born-According-To-Islamic-Law.pdf.
In having remained in a relationship with a Muslim woman without converting to Islam to marry her the Tribunal finds that there is a real chance that on return to Malaysia the applicant will face serious harm, including physical harm by the family of the applicant’s partner and society in general as any marriage will not be recognised by the Malaysian authorities and the consequences for the children mean that the family unit will be systematically discriminated against to enforce the religious laws regarding interfaith marriage.
The applicant also has an imputed political and religious opinion as being anti-Islam for refusing to convert, and for involving a Muslim in an outlawed relationship such that the Muslim partner has remained unmarried (she is [age] years of age) and continues to be so due to her relationship with a non-Muslim man. The applicant’s aversion to conversion is in itself enough the Tribunal finds, to attract serious harm from society and the authorities were the applicant to return to Malaysia now or in the reasonably foreseeable future and satisfies therefore he satisfies s.5J(1)(a) and (b) of the Act.
The Tribunal has also considered whether the applicant could take measures to relocate to avoid the harm. Given the country information and the pervasiveness of Islamic law in Malaysia the Tribunal finds that any steps to relocate within their country would mean the applicant, would not have protection from the authorities for any harm he might encounter due to his relationship or eventual marriage to a Muslim woman.
In terms of the applicant being able to access the protection of the authorities in Malaysia, the Tribunal accepts the applicant’s contention that he is unable to do so because the authorities are the enforcers of the laws which prevent him from marrying his partner.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfies the criterion set out in s.36(2)(a) of the Act.
Bankruptcy claims
The Tribunal accepts that the applicant took out a car loan he could no longer repay and that the loan was transferred with the car to a friend who then defaulted on the loan. He has provided an order of the High Court making orders the applicant was subject to the Bankruptcy Act. The Tribunal has no reason to believe this document is not a genuine document. As put to the applicant at hearing, however, some country information indicates that, “Clearing bankruptcy involves settling all debts or obtaining a court order. After 3-5 years, with debts settled you can be discharged from bankruptcy”.[14]
[14] ‘Bankruptcy in Malaysia – What you need to know’, RecoverDebt.my, Bankruptcy in Malaysia - What you need to know | RecoverDebt.my.
The Tribunal accepts that the applicant has proven adaptable in finding work in Australia and that he is youthful and would over time be able to repay any debt still outstanding in Malaysia on return. This is particularly so as the Malaysian economy has undergone a profound economic transformation, transitioning from a predominantly agricultural and commodity-based economy to a robust manufacturing and service sector.[15] The Tribunal does not accept, therefore, that the applicant on being declared a bankrupt in Malaysia has a well-founded fear of persecution and does not accept that he will face serious harm now or in the reasonably foreseeable future for any reason of s.5J due to his bankruptcy, and does not accept he will face serious economic hardship that threatens his capacity to subsist. There is no evidence that the economy or the state or anyone else would prevent the applicant from obtaining work on the basis of his social and economic status as a bankrupt.
[15] ‘The World Bank in Malaysia’, last updated 22 October 2024, Overview: Development news, research, data | World Bank.
The Tribunal is not impugning the applicant’s credibility, however, the information referred to by the Tribunal does indicate bankruptcy in Malaysia comes with serious consequences and that once declared bankrupt, individuals face restrictions on travel.[16] This leaves the Tribunal querying how the applicant was able to leave Malaysia given he owed money. The Tribunal does not have enough information to determine whether travel restrictions were ever placed on the applicant, however, this matter is somewhat immaterial given the Tribunal has accepted the applicant was declared a bankrupt but there is not a real chance of the applicant facing serious harm on return to Malaysia on account of his economic and social status.
[16] ‘Bankruptcy in Malaysia – What you need to know’, RecoverDebt.my, Bankruptcy in Malaysia - What you need to know | RecoverDebt.my.
Given the Tribunal has accepted that the applicant has a well-founded fear of persecution on return to Malaysia, now or in the reasonably foreseeable future on the basis of his religion and imputed political opinion, that in not accepting the bankruptcy claims, this matter is fatal to the application.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s.36(2)(a) of the Migration Act.
Date of hearing: 29 November 2024
Representative for the applicant: N/AATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
0
6
0