2004488 (Refugee)
[2025] ARTA 1450
•14 April 2025
2004488 (REFUGEE) [2025] ARTA 1450 (14 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2004488
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2005411
Tribunal:General Member G Fitzgerald SC
Date:14 April 2025
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that each of the applicants meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 14 April 2025 at 11:44am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Jawa – a Dusun in Sabah – religion – Christian and Sunni Muslim – mixed-faith couples in Malaysia – subject of discrimination – applicant has a well-founded fear of persecution – effective state protection is not available – – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Act), ss 5, 36, 65, 499
Migration Regulations 1994(Act), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be nationals of Malaysia. They claim to have married in Australia in 2025, as set out further below. The applicant in case number 2004488 is the wife. The applicant in case number 2005411 is the husband. Their protection claims before the Department and before the Tribunal are based on their claimed fears of harms arising from their ‘mixed’ relationship and later marriage, as the wife claims to be a Christian and the husband claims to be a Muslim.
They applied separately to the Department for the protection visas on 6 September 2017. The delegate refused to grant the husband his visa on 9 October 2017 and a different delegate refused to grant the wife her visa on 8 February 2018.
The applicants sought review of the delegate’s refusals in the Administrative Appeals Tribunal (AAT).
The wife applied to the AAT for review of her decision. On 19 December 2017, the AAT decided that that it did not have jurisdiction to conduct this review because the application was out of time. She then applied to the Federal Circuit Court to review that decision. On 20 December 2019, by consent, her application for review was remitted by the Court to the AAT because it was affected by a jurisdictional error of the type identified in DFQ-17. [1]
[1]The Federal Circuit Court’s order notes that the ‘first respondent [the Minister] concedes that the decision of the second respondent [the AAT] is affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) at [41]–[65] per Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (BMY18) at [32]–[35] per Reeves, Perram and Charlesworth JJ. In circumstances where the letter notifying the applicant of the decision of the first respondent's delegate to refuse to grant the applicants a visa did not clearly state the time by which the application to the Tribunal was to be made as required by subparagraph 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the applicants were notified of the delegate's refusal decision in accordance with the statutory requirements (at [3]-[4]), that the review application was out of time, and that it had no jurisdiction to entertain the review application (at [4] and [6])’.
The husband applied to the AAT for review of his decision. On 6 December 2017, the AAT decided that that it did not have jurisdiction to conduct this review because the application was out of time. He then applied to the Federal Circuit Court to review that decision. On 24 January 2020, by consent, his application for review was also remitted by the Court to the AAT because it was also affected by a jurisdictional error of the type identified in DFQ-17. [2]
[2]The Federal Circuit Court’s order in his case contains a substantially similar note to his wife’s, as set out in the preceding footnote.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
After the remittals by the Federal Circuit Court, the applications for review were constituted to a different member of the Tribunal.
The applicants appeared before the Tribunal on 30 January 2025 and 21 February 2025 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Malay and English languages. The applicants were represented in relation to the review. The representative attended the Tribunal hearings by video.
The applicants and their representative consented to their reviews being heard in a combined hearing.[3] They also consented that evidence given by each applicant would stand as evidence in the other’s review and that a combined decision on their reviews be made.
[3]Section 363 of the Act.
In reaching its decision, the Tribunal has had regard to:
a.the oral evidence of the applicants given at the hearing;
b.all written material filed by or on behalf of the applicants; [4] and
c.other relevant documents on the Tribunal and Department files.
[4]Including their representative’s submissions dated 8 February 2025 and 7 March 2025.
Not all the evidence and material that is before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be to the determination of the issues in the case. [5]
[5]Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16, at [82] and [96].
For the reasons set out below, the Tribunal has concluded that the decisions under review should be set aside and remitted for reconsideration.
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.
Refugee criterion
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). 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.
Complementary protection criterion
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.
BACKGROUND
Nationality, country of reference and receiving country
The Department conducted identity checks on the applicants and was satisfied as to the passports which they produced. As there is no reason to doubt this, the Tribunal accepts that the applicants are Malaysian nationals. Accordingly, Malaysia is the country of reference and receiving country for their applications for protection visas.
Travel and immigration background of the applicants
The wife first arrived alone in Australia on [date] October 2016 on an Electronic Travel Authority System (ETAS) visitor visa (UD-601).
She departed from Australia on [date] December 2016 and returned to Malaysia.
Both applicants then arrived in Australia on [date] August 2017 on visitor visas (UD-601).
They applied for the protection visas on 6 September 2017. The Department refused their applications for protection visas as set out above.
The applicants have not travelled to any other country, apart from Australia.
The Tribunal noted at the first hearing that the husband’s Malaysian passport had expired on [date] 2022. He was asked if he had renewed or tried to renew this passport. He said he had not tried to renew it because friends had told him that the Malaysian embassy would not renew passports for protection visa applicants.
Personal background of the applicants
The husband and wife are in their [age].
The husband’s background in Malaysia
The husband was born and raised in Kota Kinabalu in the state of Sabah in eastern Malaysia. He lived with his family in a suburb of Kota Kinabalu from the time of his birth until he came to Australia in August 2017.
He still has family living in the same place as where he grew up. His mother and father live there, as well as his four adult siblings.
He said he has ‘seldom’ contact with his family in Malaysia. He was asked to explain this. He said that he had contact with them maybe once a year, but he could not recall when he last had any contact with a member of his family. Eventually, he said that he last had contact with any of them a few years after he arrived in Australia in 2017.
He completed his middle school certificate at a high school in Sabah in 2005. He then undertook a certificate course [at] [an] Institute [in] Sabah, which he completed in 2009.
In 2010 he worked as a subcontractor for a [company] in an office in Kota Kinabalu. He worked there for about seven months. He was then unemployed until February 2013.
In February 2013 he got a job at [a workplace], near Kota Kinabalu. He said he was a supervisor. He worked there until August 2017 (according to his Departmental application[6]) or May 2017 (according to his oral evidence). The name of this business was [name] (in English, [name]).
[6]The husband’s application for a protection visa lodged with the Department on 6 September 2017.
He described his ethnicity as Jawa (which means Javanese).
He said that he was a Sunni Muslim.
He was asked to describe how religious he was in Malaysia. He said that he prayed but that he did not do his five daily prayers. He was inconsistent and equivocal about how often he attended a mosque, but eventually said that he maybe went about two or three times a month.
He is also asked to describe how religious his family were in Malaysia. He said his parents were the most religious. He said they usually went often to the mosque, usually about five times a week. He said his sisters were less religious, but they prayed in their rooms at home. He said his brothers were not as religious as his sisters. He said they were ‘playful’ or ‘naughty’ about practising their religion.
The wife’s background in Malaysia
The wife was born and raised in a village about an hour from Kota Kinabalu in the state of Sabah in eastern Malaysia. She lived with her family there until she came to Australia in August 2017.
Her father, mother and six siblings still live in this village, apart from one brother who lives in the nearby state of Sarawak. She is not in touch with her family in Malaysia, apart from one sister with whom she communicates every month, ‘more or less’.
She has not had any other contact with her family or her extended family of uncles and aunts since coming to Australia in August 2017.
She completed her middle school certificate in Malaysia in 2006 or 2007.
When asked about her employment in Malaysia at the second hearing, she said that she worked at the same [Workplace 1] as her husband but she could not remember its name. She said she did this between 2014 and 2016.
She said apart from that job, she assisted her family with their business selling vegetables.
The Tribunal then reminded her about her Departmental application, [7] in which it was stated that her only employment in Malaysia was as a factory worker [from] March 2014 to July 2017. She was asked to explain the inconsistency about her employment between what she had told the Tribunal and what was set out in her Departmental application. She made a few responses to this. One was that she could not ‘be bothered’ listing all her jobs in her application. Another was that she forgot about her factory job when first giving oral evidence. Finally, she said that she did not work at the factory until sometime in 2017 (she could not be specific), after the [Workplace 1] job, so the dates for the factory job in the application were wrong.
[7]The wife’s application for a protection visa lodged with the Department on 6 September 2017.
She said her ethnicity was Dusun, which is a native Sabah ethnicity.
She and her family were Christian. She said she went to church every Sunday in Malaysia until she was about [age] or [age] years old.
The applicants’ background in Australia
The applicants have lived in and around [City 1] and north-west Victoria since arriving in Australia. They have lived at times in [a town] in Victoria, [Town 1] and [Town 2]. At the time of the hearing, they were living together in [City 1].
While in Australia they have worked in farm work most of the time, except for some time in factories. Much of their work has been seasonal.
They said they had no other family in Australia apart from each other.
The husband was asked about his religious practices in Australia. He said he usually went to a mosque in [City 1] once a week.
The wife was asked about her religious practices in Australia. She said she did not attend church or read the Bible but prayed occasionally to herself.
The Tribunal noted that neither applicant had made an oath at either of the hearings, but instead made affirmations. The wife was asked about this. She said that the applicants had decided not to make a religious oath because they felt ‘guilty swearing on religious books’. She was asked what she meant by this. She said that it would be wrong to do so, because of their marriage. She could not otherwise explain what she meant.
The applicants’ relationship in Malaysia
The history of their relationship in Malaysia is set out below under their protection claims.
The applicants’ relationship and marriage in Australia
Their relationship and marriage in Australia are set out below under their protection claims.
The applicants do not have any children.
THE APPLICANTS’ CLAIMS FOR PROTECTION
Claims to the Department
In their Departmental applications, the applicants claimed protection in substantially identical terms. Their grounds for protection were that because the husband is Muslim and the wife is Christian, ‘by Malaysian Muslim law’ they cannot be married; or they will have to ‘face the Malaysian Muslim Council’ which will take action against or ‘hold’ them (or the authorities will take action); or they cannot get or remain married unless the wife converts to Islam. [8]
[8]The Departmental applications: see husband’s, at pages 36 to 38 (questions 89 to 96); see wife’s, at pages 36 to 38 (questions 89 to 96).
They did not claim in their applications to have experienced any harm in the past in connection with this ground in Malaysia. [9]
[9]The Departmental applications: see husband’s, at page 37 (question 91); see wife’s, at page 37 (question 91).
Their claims were not further detailed or particularised – indeed, not even as to naming or identifying whom the other party to the proposed marriage was – and no documents were provided in support of them with the application.
The applicants both completed their own Departmental applications in English, with the assistance or ‘guidance’ of a named Malaysian man whom they each paid $200.
Claims made at the hearings
Background to the claims made at the hearing
The applicants did not provide any further information, evidence or details of their claims until their representative provided to the Tribunal over 75 pages of documents and witness statements by email sent at 3:47 PM on 29 January 2025 (just before the hearing on 30 January 2025 of the husband’s application for review) (the Documents).
The Documents included:
a.witness statement by the husband (husband’s statement);
b.witness statement by the wife (wife’s statement);
c.copy of an Australian certificate of marriage for the applicants certifying their marriage at [Suburb 1] in Victoria on 29 May 2018, with the service said to be conducted by a [name] (the 2018 Certificate); and
d.various discussion papers, internet articles and academic papers relating to discrimination against mixed-faith couples in Malaysia (four such documents) (the Articles).
The representative was asked at the first hearing why these documents had been late served on the Tribunal. He claimed that they were a duplicate set of documents which he had earlier attempted to upload to the Tribunal but which had failed. He was asked when that attempt been made. He said he would inform the Tribunal later. He did not do so.
The Documents also revealed the name and details of the Christian woman (which had not been set out in the earlier papers). She was the wife. She attended the first hearing at the husband’s request to give evidence in support of his application.
As a result of the late serving of the Documents, the late revelation of the identity of the wife and the failure of the representative to attend the hearing in person (a video link had to be arranged for him at late notice), it was necessary to have a second hearing to ensure both applications were before the Tribunal and to properly hear and examine both applicants on their claims.
At the commencement of the first hearing, the husband provided the Tribunal with the original of another Australian certificate of marriage, certifying that the applicants had married in [Suburb 2] in Victoria on 25 January 2025, with the service conducted by a [name] (the 2025 Marriage Certificate).
Before the second hearing on 21 February 2025 of both applications for review, the representative commenced acting for the wife in her review.
The claims made at the first hearing – the husband’s version
The husband was initially asked about when he first met and began a relationship with his wife in Malaysia. He said that he met her in 2014 at his work at the [Workplace 1]. He could not be more specific about when he met her in that year, even after being asked whether it was unusual to not remember when you first met someone who later became your wife.
He could not remember when they became a couple. He could not remember their first date as a couple. He was eventually asked if he could remember any date they had been on and he referred to a visit to a zoo [near] Kota Kinabalu in 2015.
He said that he had become aware of her religion as a Christian early on when he first met her. She told him that she was Christian and that she went to church every Sunday with her mother.
He referred to going to her family home on Christmas Day some time and being introduced as her friend. He later said he was invited to her house to celebrate Christmas ‘as a friend’ in 2014 to 2016.
According to him, his family became aware that they were in a relationship in about March 2016. He said that his family opposed the relationship. He said that this involved his mother telling him that she wanted them to separate or he would be ostracised from the family.
The only other harm or mistreatment which he suffered or witnessed as a result of his relationship with his wife while he was in Malaysia which he could recall was that:
a.some of his old schoolmates and work colleagues ‘bullied’ him for not following his religion. When asked to explain this, he said that they criticised him, and caused disturbances by hitting him on the back and pushing him about. He could not give further details about these incidents, including who, when and where;
b.family members from his maternal side would not speak to him; and
c.he witnessed his wife’s uncle threatening to kill her at her home. Initially he could not recall when this occurred, but later said that it happened in about February or March 2016. He said was present when this threat was made. [10]
[10]His wife said only her family were then present when she gave evidence about this. When this was raised with him at the second hearing, he said he was not in her home when it happened but he was parked in a car outside and that he overheard the threat.
He said that her family first became aware of their relationship in 2016. He could not be more specific about when.
According to him, his wife went to Australia in October 2016 because she was having problems with her family. They would not accept their relationship and she was stressed. She had a friend in Perth, whom she visited.
He said when she went to Australia then they remained in contact (every day on [social media]) but their relationship was ‘on hold’.
She then returned to Malaysia in December 2016. They then resumed their relationship.
His family were not informed that their relationship had resumed until after he came to Australia in August 2017. He said they were angry about this.
The claims made at the first hearing – the wife’s version
The wife was asked about how her relationship with the applicant came about in Malaysia and what had happened. She said she went to work at a [workplace] in [Sabah]. She said she was just an ordinary worker there, but that the husband was then a supervisor.
She said that their relationship started in about the middle of May 2014. She invited him to her family Christmas in 2015 ‘as a friend’ and the next day (26 December) she told her family that she was in a relationship with him.
She said that their relationship was suspended when she went to Australia in October 2016. At the second hearing, she said their relationship was ‘on and off’ until 2017.
She was asked what happened when her family became aware of the relationship. She referred to two incidents.
The first incident was, when she first told them he was her partner, they got ‘really very very angry’. She said that family members said to her: ‘Are you crazy? Who do you think you are?’. She was asked to explain if anything else had happened during these initial reactions: she said that they shouted at her, but nothing else happened.
The second incident was about her maternal family being opposed to the relationship. She said that sometime between 2015 and 2016, on one occasion at her home, her maternal uncle said that if she continued with this relationship, she would sacrifice her religion and she would have to convert her religion: in which case, her uncle said, ‘if you convert, I will make you die’. She said that her family were present at her home when he said this: but no one apart from her family was present.
Her uncle did not make any more threats against her: just on this one occasion. She saw him again before she left Malaysia for the second time in August 2017. She has not had any contact whatsoever with him since she arrived in Australia in August 2017.
She was asked at the end of the first hearing whether there were any other occasions where she suffered any harm or mistreatment (or threats of that) from anyone while she was in Malaysia because of her relationship with her husband. She said that she had not personally suffered any other harm or mistreatment while she was in Malaysia because of it.
Their marriage in Australia
They both claimed they had lived together in Australia as a couple since arriving in August 2017.
As noted above, they produced two marriage certificates to the Tribunal: namely, the 2018 Certificate and the 2025 Marriage Certificate. They were asked why they had provided two different marriage certificates. It was noted that these certified marriages between the applicants were at different dates (almost 7 years apart), in different places (in [Suburb 1] in Melbourne and in [Suburb 2] near [City 1]) and by different celebrants ([name] and [name]).
The husband found it difficult to explain why there were two such certificates, saying at one stage that the first one was ‘for paperwork purposes’. He explained this at the second hearing as meaning to show that they were married. He also said that no ceremony – religious or secular – had been performed on this first occasion. They had simply signed the certificate.
The wife recalled another marriage taking place earlier than 2025 but she could not recall when it took place. It was suggested that it was surprising she could not recall when her first wedding was. She then said, ‘maybe five years ago’.
She could not recall where it took place, except to say in Melbourne. She eventually recalled who the celebrant was, saying he was a religious teacher called [name]. She said that the witness was his son and a person introduced by a friend of hers. She said there was no religious or other ceremony involved; they just signed the wedding certificate.
Both applicants nevertheless believed that the 2018 Certificate meant that they were married according to Australian law – because it stated on its face that their marriage had been ‘duly solemnised marriage in accordance with the provisions of [the Australian Marriage Act 1961]’. When they engaged their representative in late 2024, he advised them that it was not a legal marriage.
According to the applicants, on his advice, they had then properly married on 25 January 2025, only a few days before the first hearing, in [City 1]. This 2025 marriage ceremony involved the exchange of vows and rings, with the celebrant presiding and witnesses present.
The Tribunal asked them to provide proper proof by an extract of the registration of the marriage in 2025, in the light of the 2018 Certificate which they had earlier put forward but now acknowledged was, at the very least, false (if not fraudulent).
They were directed to provide that proof by 7 March 2025. This was done, as they then provided a certified marriage certificate of the registered particulars of the marriage in the Register, certifying that the marriage had taken place as set out in the 2025 Marriage Certificate. This was registered on 28 February 2025 under the Births, Deaths and Marriages Registration Act 1996 (Vic).
Their fears of harm or mistreatment if they return to Malaysia
The husband said he fears three types of harm or mistreatment in the foreseeable future if he returns to Malaysia because of his marriage or relationship with his wife.
First, he fears that the Islamic religious authorities in Malaysia such as JAWI [11] will take action against him and his wife, by punishing them and possibly whipping them. He said they might also end their relationship. He could not explain why or how these things might happen. Secondly, he was concerned about their ‘social life’. By this, he meant that their families and other people might not ‘accept’ their relationship. Thirdly, he was apprehensive that their life in Malaysia might be ‘uncertain’. When asked to explain this, he said if they have children in Malaysia, that could be a ‘problem’.
[11]Jabatan Agama Islam Wilayah Persekutuan (JAWI), Malaysian Federal Territory Islamic Religious Department, based in Kuala Lumpur.
The wife said her main reason for fearing harm or mistreatment in the foreseeable future if she returns to Malaysia is that their marriage would be automatically annulled; but if they insisted on still living together, they would be whipped or separated, because their marriage is not legal. She said that a non-Muslim could not marry a Muslim, unless they convert to Islam: if not, the marriage would not be legal.
No other claims
The applicants confirmed that they had no other protection claims, apart from the matters set out above.
The Tribunal’s own review of the material before it does not disclose any other claim open to the applicants which clearly emerges from or on the material before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility principles
When assessing claims, the Tribunal must make findings of fact. In doing so, it has had regard to the difficulties faced by refugee applicants. On the other hand, the Tribunal is not required to make out the applicant’s case. It is the responsibility of the applicant to provide enough evidence to establish the claim to be a person in respect of whom Australia has protection obligations. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. [12] Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. [13]
[12]Section 5AAA of the Act.
[13]MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The applicants’ credibility and findings
The Tribunal found the applicants generally vague, unable to provide cogent detail and unconvincing in their evidence about their past relationship in Malaysia and the claimed harms they had suffered there because of this.
100.It also was not persuaded by their evidence that either applicant, but particularly the wife, was committed to their respective religions; but accepts that their family religions are as claimed.
101.The Tribunal harboured doubts whether they are or have been in a genuine relationship, rather than claiming to be in one for the purpose of obtaining protection.
102.On the other hand, the Tribunal accepts the evidence that they entered into the purported marriage set out in the 2018 Certificate as claimed and the proof they have now provided of their legal marriage as set out in the 2025 Marriage Certificate in Australia. It is a fact that they are now legally married in Australia.
103.It also accepts – though not without some reservations, based on its views as to their credibility – that they were in some sort of romantic relationship in Malaysia until about 2017, though it was on and off; and that they genuinely have continued with that relationship in Australia since arriving together in August 2017 (as reflected by the 2018 Certificate and the 2025 Marriage Certificate). The Tribunal is prepared to accept, particularly based on the 2018 Certificate, that they have continued as a couple while in Australia.
104.The Tribunal must consider whether s 5J(6) of the Act applies, which provides that in determining whether a person has a well‑founded fear of persecution, 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. With the above caveats, the Tribunal accepts the applicants have entered into a genuine relationship and not solely for the purposes of strengthening claims to be refugees from Malaysia.
105.Accordingly, the Tribunal accepts and finds that:
a.the husband is a Malay Muslim from Sabah;
b.the wife is an ethnic Dusun (Malay) Christian from Sabah;
c.they were in some sort of intermittent romantic relationship in Malaysia between about 2014 and 2017;
d.that their respective families were not supportive of or are hostile to their relationships while they were in Malaysia;
e.they were in a de facto relationship as a couple in Australia until their marriage;
f.they married in Australia on 25 January 2025;
g.they do not have children;
h.they almost completely lost contact with their families in Malaysia since coming to Australia; and
i.the applicants fear persecution in the foreseeable future from Islamic authorities if they return to Malaysia because of their marriage or relationship as a couple of different religions, with the husband a Muslim and the wife a Christian.
106.As to the claimed harms by the husband and the wife in Malaysia, the Tribunal:
a.does not accept that some of the husband’s old schoolmates and work colleagues criticised and hit him for not following his religion: his evidence was too vague about this;
b.accepts that some unnamed family members from his maternal side would not speak to him because of his relationship then;
c.does not accept that he witnessed the claimed threat by his wife’s uncle to kill her: he was not present, although he initially said he was; and his timing of when this occurred as February or March 2016 differed from when the wife said it occurred: ‘sometime between 2015 and 2016’;
d.accepts the first incident as claimed by the wife, when her family members became angry when she first told them about their relationship;
e.does not accept the second incident as claimed by the wife, when she claimed her uncle said, ‘if you convert, I will make you die’: this was implausible to the Tribunal, given that there had been no earlier or later threats of harm by anyone against the wife because of the relationship – it sprang from nowhere and then vanished. Moreover, the purported corroboration by the husband also undermined its credibility. The Tribunal thought that this claimed incident was concocted for the purpose of seeking protection; and
f.finds that the applicants suffered no other harm while in Malaysia because of their relationship.
REASONS AND ASSESSMENT OF THE CLAIMS FOR PROTECTION
Issues
107.The issues in this review are whether:
a.there is a real chance that, if the applicants return to Malaysia, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act; and, if not,
b.there are substantial grounds for believing that, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
108.As the Tribunal accepts they are married, they are clearly members of the same family unit under s 36(2)(b) or (c). As their claims relate to that marriage and they make substantially the same claims, if they are found to come within the refugee criterion or the complementary protection criterion, both of them will be entitled to protection in their own right and there will be no scope for consideration of their dependent protection as members of the same family unit.
109.For the following reasons, the Tribunal has concluded that the decisions under review should be remitted for reconsideration.
Assessment of refugee criterion
Principles
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). This is referred to as the refugee reason or nexus.
111.Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b) and (c).
112.The persecution must involve ‘serious harm’ to the person: s 5J(4)(b). For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
113.The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Subjective fear of persecution
114.Based on its findings, the Tribunal accepts that the applicants do fear persecution in the foreseeable future if they return to Malaysia because of their claims.
Refugee reasons/nexus
115.Based on its findings, the Tribunal accepts that any harm directed at the applicants because of these claims would be for a refugee reason, as required by s 5J(1)(a): namely, because of their religions, or because of their membership of a particular social group within s 5L of the Act (namely, Muslims in a relationship with non-Muslims).
Relevant country information on mixed marriages in Malaysia
The legal position of mixed marriages in Malaysia
116.Malaysia is an Islamic country. Other religions may be practised, but Islam is the religion of the country. [14]
[14]DFAT Country Information Report Malaysia dated 24 June 2024 (DFAT Report), [3.37].
117.The relevant country information as to the legal position of marriages in Malaysia between Muslims and non-Muslims (often referred to as ‘mixed [faith] marriages’) in the DFAT Report is that: [15]
[15]The references in square brackets are to the relevant paragraph of the DFAT Report.
a.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 [3.40];
b.marriage in Malaysia is complicated, because the Federal government has power over the Federal territories but otherwise it is left to the individual states to make laws relating to marriage of Muslims under syariah law [3.40 – 3.42, 3.60 – 3.64];
c.family and personal laws governing Muslims, as well as laws relating to religious offences, are promulgated at the state level. Parliament can only pass legislation on such matters for the Federal Territories [3.41];
d.a non-Muslim (male or female) must convert to Islam before marrying a Malaysian Muslim. The process differs from state to state and is determined by the relevant religious authorities [3.64];
e.matters considered by states under syariah law relevantly include marriage and divorce. 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) [3.42];
f.Islamic laws are typically enforced by the People’s Volunteer Corps (referred to as ‘RELA’) or police, as Islamic authorities tend to lack manpower. In-country sources told DFAT enforcement had relaxed in recent years, but remained stricter in Kelantan and other Eastern peninsula states. Enforcement takes the form of authorities checking identity cards (e.g., of restaurant, bar or hotel patrons) to see if individuals are identified as Muslim. RELA officers reportedly have no power to compel production of identity cards, but police do [3.57];
g.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 RELA and sometimes hotel staff, to prove their marriage [3.39];
h.the right of those who seek to revert to their original faith following a divorce, after conversion to Islam for marriage (legally required when a non-Muslim marries a Muslim) was confirmed by the Malaysian High Court in 2016 [3.59] but it requires judicial review, and may be refused [3.64].
118.The Islamic Family Law (Federal Territory) Act 1984 applies to Muslims living or resident in the Malaysian Federal Territories including Kuala Lumpur. Marriages in Sabah are governed by the substantially similar Islamic Family Law Enactment 2004, which states that it applies to Muslims living or resident in Sabah and prohibits marriages between Muslims and non-Muslims.
119.A non-Muslim person wishing to marry a Muslim must convert to Islam for the sharia court to officially recognise the marriage.[16] Marriages between Muslims and non-Muslims performed abroad are not recognised under Malaysia’s dual legal system and therefore cannot be registered in Malaysia.[17]
[16]2022 Report on International Religious Freedom: Malaysia, US Department of State.
[17]‘When a Malaysian Muslim enters interfaith marriage overseas’, Free Malaysia Today, 9 June 2023.
120.Islam in Malaysia places a high cultural value on the institution of marriage. An unmarried Muslim in a close relationship with a non-Muslim could be in breach of various sharia law provisions. Religious and sharia matters are under the control of each individual state. Khalwat (illicit proximity) and zina (unlawful sexual intercourse) are sharia law violations that are punishable with a fine or imprisonment, or both and sometimes with caning. Penalties for immoral offences vary between Malaysian states in accordance with each state’s sharia laws. For example, under the Sharia Criminal Code (Federal Territories) Act 1997 both khalwat and zina are offences but in a practical sense, offenders are commonly prosecuted for khalwat.[18]
[18]Nurul Huda Mohd. Fazif, ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Journal of Women of the Middle East and the Islamic World, Vol. 18, Issue 2-3, Brill, October 2020 (Fazif), pp.335-336.
121.Individuals found guilty of khalwat have reportedly been subjected to public caning in Terengganu.[19] A December 2017 news article stated that an Islamic Affairs officer in Selangor was caught for khalwat by the Selangor Islamic Religious Department and sentenced to 14 days in jail and received a fine of 2,900 Malaysian ringgit.[20]
[19]‘Malaysian man to be publicly caned at mosque for Islamic crime of close proximity’, Reuters, 21 November 2024; ‘Single mother is first woman to be whipped for khalwat in Terengganu’, The Strait Times, 17 April 2024.
[20]‘8 ironic times Malaysian enforcement officers committed crimes they were supposed to prevent’, Cilisos, 26 December 2017, 20231026144039.
122.Both sex outside of marriage and pregnancy outside of marriage are deemed offences for Muslims under sharia law.[21] Malaysia’s Malay Muslim majority recognises marriage as the only means of securing access to lawful sexual intimacy. Islam, Malay customs, and the Malaysian state impose strict sanctions on pre- and extra-marital intimacy in its sharia criminal laws. [22]
[21]‘The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia’, Women’s Aid Organisation and the Joint Action Group for Gender Equality, 29 January 2019, p.169.
[22]Fazif, p.325.
123.Under Islamic law, a child is considered legitimate if the parents are legally married to each other when the child was conceived and born. Legitimacy is an important issue for Muslims as it involves the issue of nasab (lineage) which is pertinent to legitimacy matters. If a child is legitimate, his nasab is of his father and if illegitimate, of his/her mother only. An illegitimate child has no relationship whatsoever with his/her biological father. The Islamic view is that a child is legitimate if it is born 6 months after solemnisation of marriage or 2 or 4 years after the husband’s death or divorce. [23]
[23]M. D. R. Gopal, ‘Does Illegitimacy Status of Children Matter? A Review on Malaysian Perspectives’, International Journal of Applied Psychology, 2015, 5(4), 109-114, p.110, at Tribunal notes that the applicant also provided country information regarding the legal position with mixed marriages in Malaysia. This was in the form of the Articles, to which the Tribunal has had regard. [24] The information so provided is consistent with the matters set out above.
[24]The representative’s written submissions dated 8 February 2025 (the pre-hearing submissions); attached the Articles. These were: (i) the discussion paper prepared by Nagoya University titled ‘Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia’; (ii) an article published on 16 Jul 2023 in South China Morning Post on Malaysian mixed faith marriages; (iii) an article ‘Discrimination in the Registration of Marriages of Different Religions: Regulation and Practice in Southeast Asia’; and (iv) an article in Free Malaysia Today titled ‘When a Malaysian Muslim Enters an Interfaith Marriage Overseas’. Also see the representative’s written submissions dated 7 March 2025 (the post-hearing submissions).
The societal implications of mixed marriages in Malaysia and in Sabah
125.The applicants are both from Sabah.
126.The earlier DFAT Report dated 29 June 2021 noted that it was relatively common for individuals to convert to Islam in order to marry a Muslim (according to one report, 9 per cent of all marriages in 2019 were inter-ethnic and about half of those involved a Muslim spouse and thus mandatory conversion): [3.66]. This report also noted that the states of Sabah and Sarawak had relatively higher numbers of non-Muslims with estimates that approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak: [3.23].
127.Christians account for approximately 10 per cent of the Malaysian population. Most live in Sabah and Sarawak: DFAT Report [3.75].
128.Sources indicate that inter-faith and inter-ethnic marriages have been on the rise in Malaysia. [25] According to the Department of Statistics Malaysia, almost 11% of total marriages in 2019 (22,134 out of 203,821 marriages) involved brides and grooms of different ethnic groups, an increase from 9% in 2018 (18,620). [26] Commenting on the rising trend in inter-racial marriages, a local academic said Malaysians have now become more receptive towards marrying outside of their own race. [27]
[25]Dr M. S. Subramaniam, 'Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia', Center for Asian Legal Exchange (Nagoya University), 1 March 2018, p.14; S. L. Wei, ‘Marriage of cultures can spawn unity’, Bernama (Malaysian National News Agency), 18 August 2020, available at Loh, ‘Malaysia Day 2021: Interracial Malaysian Couples On Cross-Cultural Love’, Tatler Asia (Hong Kong), 15 September 2021, available at interracial-couple-mixed-marriage-malaysia-love-stories.
[27]S. L. Wei, ‘Marriage of cultures can spawn unity’, Bernama (Malaysian National News Agency), 18 August 2020.
129.The state of Sabah, which is very ethnically diverse, reportedly has a high number of mixed marriages and consequently a high number of Muslim converts. [28] Moreover, commentators have praised that state’s ‘tolerant culture and the peaceful coexistence of religious communities’ and ‘its extensive practice of interfaith marriage’, describing interfaith marriage there as a ‘common practice’; [29] or referred to the ‘social landscape of Sabah culture [exemplifying] the social virtues of easily socializing and mixing with others to form positive relationships with multiple dimensions, such as intermarriage’. [30]
[28]S. Sintan, K. Hambali, A. Baharuddin, M. Ahmad, M. R. M. Nor & Kadir, “Conversion to Islam and interfaith marriage in ‘Sabah’, Malaysia”, Ahfad Journal, 1 June 2014, available at a.-a0414006448; Dr S. Sintang, ‘Peaceful Co-Existence in Religious Diversity in Sabah, Malaysia’, Global Journal Administrative Appeals Tribunal / MRD / Malaysia: Religious Conversion, Mixed Marriages, and the Status of Children / 2022 28
[29]S. Sintan, “Understanding Sabah’s exemplary interfaith relations from a grassroots perspective”, ISEAS Yusof Ishak Institute’, Issue 2024, No. 73, 23 September 2024. Suraya Sintang is the Associate Professor at the Universiti Malaysia Sabah.
[30]Paper entitled “The government’s role in interfaith marriage rights protection: a case study of adjustment and social integration” by Zaidah Nur Rosidah and others, published in the Journal of Human Rights, Cultural and Legal System, July 2023, Volume 3, No. 2, pages 265-287
130.However, some segments of society still resist such unions. Some couples claim they have faced general social disapproval, including from family and friends and from the community: such as negative remarks, staring and ‘dirty looks’ and concerns from family members about compatibility and the potential to have to convert to Islam for those marrying a Malay. [31] One recent academic article noted that the biggest obstacle faced by the inter-cultural community is societal negative attitudes. [32] A local media article also noted that, more often than not, it is the children of such couples who face the brunt of social bigotry. [33]
[31]A. Dorall, ‘Have interracial relationships in Malaysia become more acceptable over the years?’, The Rakyat Post (Malaysia), 16 October 2019, available at ttps:// B. G. Penn, ‘6 Interracial couples share the struggles that they face & how they make things work’, DiscoverKL.com (Malaysia), 28 June 2017, available at C. Lau, ‘Interracial love - how two couples overcame race and religion’, Malaysiakini (Malaysia), 17 September 2016, available at C. Lau, ‘A M’sian union - interracial couples share their stories’, Malaysiakini, 16 September 2016, available at S. Tan, ‘Gen Y Speaks: Why do I still get stared at in Malaysia for dating a white man?’, Today (Singapore), 30 August 2019, available at M. Sultana, 'Inter-cultural marital relationships: recruiting participants from Bangladesh community', International Journal of Politics, Public Policy and Social Work, 15 June 2021, p.14, available at Dava, 'Ethno mix-match couples are able to fit seamlessly into society', The Sun Daily (Malaysia), 14 September 2021, commentators have also referred to an increasing trend towards Islamic religious conservatism (or Islamisation) in Malaysia. [34]
[34]DFAT Report, [3.29]-[3.51].
Consideration of whether there is a real chance of serious harm
132.It is most significant that the applicants have legally married in Australia and that their relationship is genuine and long-lasting.
133.The country information above clearly shows that Muslims and non-Muslims may not legally marry in Malaysia or have their overseas marriage recognised, unless the non-Muslim converts. Children born of an illegitimate union will not be recognised.
134.Moreover, sharia laws make it an offence for couples to cohabit or have a relationship unless they are married, with punishments including imprisonment, fines and even caning. The country information does not suggest that such punishments are commonplace, but they do occur.
135.Moreover, there are societal aspects to this. The country information is ambivalent as to whether there is increasing intermarriage and tolerance of interfaith marriages, or whether there is still widespread societal disapproval. Nevertheless, the increasing religious conservatism in Malaysia must favour the latter; but this must be tempered by the praised tolerance and commonality of interfaith marriages in Sabah, the applicants’ home state.
136.The applicants did not suffer any serious harm in the past in Malaysia, based on the Tribunal’s findings. They are virtually estranged from their families. It is difficult to see how they would be a real chance they would suffer serious harm from them in the foreseeable future if they returned to Malaysia, if they resumed contact with them and now as a couple legally married in Australia, based on their past experiences as found.
137.Nevertheless, if they did return, the applicants would face four options. The first option is to seek to marry legally in Malaysia or have their Australian marriage recognised there. That would involve the wife converting to Islam. The second option is that they live openly as a de facto couple and the wife does not convert. They then risk opprobrium or punishment. The third option is that they continue as a couple and the wife does not convert but they conceal their relationship. This also risks opprobrium or punishment, but less so. The fourth option is that they separate. Based on its findings and the evidence, the fourth option is possible but not likely. They have been together, on and off, for about ten years.
138.There is a risk that they would be the subject of discrimination, adverse interest and treatment if they pursued the second or third options, which are the most likely to be pursued in the Tribunal’s view. The first option does not strike the Tribunal as likely, given the wife’s refusal so far to convert and her family’s past attitude.
139.Moreover, what might be characterised as a forced conversion in order to obtain a legally recognised marriage is itself arguably persecutory; although it is not free from doubt that such laws are themselves persecutory and not simply laws of general application in a country different from Australia in its culture and values. [35]
[35]Refugees are protected ‘from persecution, not discrimination’: MIMA V Haji Ibrahim (2000) 204 CLR 1, at [55] per McHugh J. On one view, the offences of khalwat and zina apply to all persons in Malaysia, as they do not distinguish or discriminate between different classes of persons and they could apply to persons of different races or religions. The offences are directed towards sexual conduct outside marriage. Moreover, the laws prohibiting marriage between Muslims and non-Muslims apply equally to both – in other words, to all Malaysians. These laws could be viewed as laws of general application which apply generally to Malaysians, in a country which follows Islamic laws and social values, by enforcing social and religious norms in an Islamic nation seeking to proscribe sexual conduct and close relationships prior to and outside of marriage. In Applicant A v Minister for Immigration and Ethnic Affairs, (1997) 190 CLR 225, McHugh J at 258 stated: ‘Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group.’ See also Lama v Minister for Immigration & Multicultural Affairs [1999] FCA 918, at [29]. In “Z" v Minister for Immigration & Multicultural Affairs [1998] FCA 1578, the Court dealt with the issue of harsh punishments for sexual conduct outside marriage in an Islamic nation and found that if the law were of general application, it would not amount to persecution if punishment were imposed for breach of such a law, even if such punishment might be repugnant, harsh and contrary to Australian values and values of the international community. It could be said that it is inappropriate to impose Australian or other subjectively preferred international values upon a sovereign nation which follows Islamic laws.
140.The question is whether this risk to the applicants – of possible harm from their families, the community or Sharia authorities – viewed cumulatively and over time amounts to a real chance of serious harm in the foreseeable future, based on their circumstances as found and the country information.
141.This risk is also to be assessed in the light of the future complication that they might have a child of a mixed (potentially) illegitimate union and the added consideration of the wife’s native ethnicity as a Dusun in Sabah. [36]
[36]See the representative’s submissions dated 7 March 2025, at pages 2 and 4.
142.The applicants’ representative submitted in summary that: [37]
[37]See the representative’s submissions dated 7 March 2025, at page 8.
‘interfaith marriages between Muslim Jawa men and Christian Dusun women face significant legal barriers, social pressures, cultural adjustments, and religious transformations’
143.Based on the material before it, the Tribunal considers there is such a possibility of harm from their families, the community or Sharia authorities – which even if it is a small chance, the Tribunal cannot confidently discount as being a remote, insubstantial or far-fetched chance – that could lead to the applicants being reported and having the prohibited nature of their relationship revealed, or being the subject of adverse and hostile interest from these actors. In turn, this could expose them to the risk of prosecution and punishment for khalwat and/or zina, including the possibility of imprisonment, fines and caning, or substantial harm or harassment from their families or the community. The Tribunal regards the risk of Shara punishment as serious harm, due to the nature of such punishment being disproportionately harsh to the offence and involving a threat to their liberty and significant physical ill-treatment or interference.
144.The Tribunal has considered whether the real chance of serious harm is reduced by the fact that their home state of Sabah has a history of interfaith marriages and is known for its ethnic and religious diversity and a higher tolerance for interfaith relationships. The examples of Sharia punishments referred to above are not from Sabah, but rather from peninsular Malaysia (specifically, Terengganu and Selangor).
145.In circumstances where the sharia law applies to all Muslims and that the legal prohibition against marriage between Muslims and non-Muslims applies across Malaysia, the Tribunal is unable to find with confidence that the applicants would not face a real chance of serious harm in the reasonably foreseeable future, even if the Tribunal accepts that the environment in Sabah is more tolerant compared to peninsular Malaysia.
146.When this is considered in combination with the reported increase in Islamisation of Malaysian politics and society, the Tribunal finds – just, on balance – that the applicants’ real chance of serious harm remains and is not reduced to a less than real chance of serious harm by returning to Sabah, rather than somewhere else in Malaysia.
Other refugee matters
147.This real chance of serious harm applies to all areas of Malaysia (through the various Sharia state laws prohibiting marriage between Muslims and non-Muslims and the various state-based Islamic authorities).
148.The agents of harm include the state-based Islamic authorities, and the community generally. Further, the essential and significant reason for such harm is the different religions of the applicants, and the Tribunal will accept in this case that such persecution involves systematic and discriminatory conduct, as required by s 5J(4).
149.The applicants would not have a well-founded fear of persecution if they could avoid the real chance of serious harm by relocation, have access to effective state protection, or by modifying their behaviour.
150.The Tribunal accepts it is not possible for the applicants to avoid the real chance of serious harm by relocation to another part of Malaysia. The prohibition against Muslims marrying non-Muslims and the sharia laws prohibiting khalwat and zina which practically prevent them from maintaining their relationship apply across Malaysia.
151.The Tribunal does not consider that effective protection measures are available to the applicant in Malaysia under ss 5J(2) and 5LA. The relevant State authorities are the state-based Islamic authorities. They are themselves agents of the potential harm. They are unlikely to protect the applicants from other harm by the community generally. Further, the police are unlikely to assist the applicants from harm by state-based Islamic authorities or the community. The Tribunal accepts that the applicant would not be able to obtain effective state protection, as their interfaith relationship is prohibited and punishable as an offence by state authorities.
152.The Tribunal accepts it is not reasonable and contrary to s 5J(3) of the Act to expect the applicants to modify their behaviour by concealing or ending their relationship (which has been legitimised in Australia in 2025 as a lawful marriage). This relationship has been serious. It has lasted at least since they arrived in Australia in August 2017. It is fundamental to their identity and conscience, and reflects their freedom of association. Requiring them to conceal or end the relationship would conflict with this.
153.For the reasons given above, the Tribunal is satisfied the applicants have a well-founded fear of persecution in Malaysia because of their interfaith marriage and relationship.
154.Accordingly, they are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Conclusion on refugee criterion
155.For the above reasons, the Tribunal finds that:
a.each of the applicants has a well-founded fear of persecution based on their mixed marriage and relationship;
b.there is a real chance they would be persecuted for that reason;
c.the real chance of persecution relates to all areas of Malaysia; and
d.effective protection measures are not available to the applicants.
156.The Tribunal is therefore satisfied, on the material before it, that the applicants have a well-founded fear of persecution because of their mixed marriage and relationship claim.
157.Accordingly, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection criterion
Having concluded that the applicants meet the refugee criterion in s 36(2)(a), it is unnecessary for the Tribunal to consider the alternative complementary protection criterion in s 36(2)(aa) of the Act.
Assessment of family member
159.As discussed above, in the light of the Tribunal’s conclusion that each applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act, the issue of whether they are entitled to dependent protection as a member of the same family unit under s 36(2)(b) or (c) does not arise in this case.
Protection in another country
160.There is no evidence before the Tribunal to indicate that either applicant presently has any right to enter and reside in any other country, apart from their country of nationality, Malaysia. Accordingly, s 36(3) of the Act does not apply in this case.
Conclusion
161.For the above reasons, the Tribunal is satisfied that Australia has protection obligations in respect of the applicants pursuant to s 36(2)(a) of the Act.
162.Accordingly, the Tribunal has concluded that the decision under review should be remitted for reconsideration on this basis.
DECISION
163.The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the order that each of the applicants meets the following criteria:
·s 36(2)(a) of the Migration Act.
Dates of hearings: 30 January 2025 and 21 February 2025
Representative for the applicants : Mr Abu Siddque
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
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
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.
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.
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.
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.
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.
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
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.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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Protection visas – criteria provided for by this Act
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A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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