2006293 (Refugee) - [2024] ARTA 682

2006293 (REFUGEE) [2024] ARTA 682 (24 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2006293
Tribunal:General Member J Ermert
Date:24 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 24 November 2024 at 5:33pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – increasing community pressure to convert to Islam – visited at home and harassed at workplace – no physical harm – relocation from village to city – forthright and plausible claims and evidence – country information – increasing conservatism and Islamisation and forced conversions despite formal protections under constitution – not serious harm amounting to persecution – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 Home Affairs on 27 March 2020 to refuse to grant the applicant a Class XA Subclass 866 protection visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 4 January 2019. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal by video on 11 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
On 14 October 2024, the Administrative Appeals Tribunal (‘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.
BACKGROUND
The applicant is a [Age] year old woman of the Kadazan ethnicity from Malaysia. At the hearing, the applicant gave the following evidence with respect to her personal background.
·   The applicant was born in Kota Kinabalu in Sabah. She has [biological siblings], and 2 sets of [step siblings] from 2 different stepmothers. The applicant also has [adult children] aged [Ages] with whom she has frequent contact on WhatsApp.
·   The applicant separated from her husband when she was [Age] years old, although she has not divorced her husband as they married in a church and cannot divorce according to their Roman Catholic faith.
·   After completing her high school education, the applicant worked as [an occupation 1] at [Workplace 1] in Kota Kinabalu for 5 years. Her next job was as [an occupation 2], which she did until her departure from Malaysia.
·   Since arriving in Australia, the applicant has worked as [an occupation 3] at a [workplace 2] and as [an occupation 4] at a [business]. She is currently working as [an occupation 5] at a [workplace 3], where she has been since 2022.
·   The applicant is and has always been a practising Catholic. She currently attends [Catholic Parish] in [Suburb] at least every 2 weeks.
Movements and other records maintained by the Department of Home Affairs (‘the Department’) indicate the applicant arrived in Australia [in] November 2018 on a Class UD Subclass 601 Electronic Travel Authority, and she has remained in Australia since. After initially making a protection visa application which was found by the Department to be invalid, the applicant made a valid application for the grant of a protection visa on 4 January 2019. It is the refusal of that application which is the subject of this review.
The Tribunal accepts each of the above matters to be true in the absence of evidence to the contrary.
Evidence before the Department
The written claims included in the applicant’s protection visa application can be summarised as follows. She left Malaysia due to harassment from a handful of groups of people in her village who exerted pressure on her to convert to Islam which drove her crazy. Even though she complained to the village head and made police reports, nothing happened. She tried moving to the city to avoid the religious harassment, to no avail. She cannot return to Malaysia where she will again be harassed and pressured to convert to Islam, and she is particularly fearful that more extreme and possibly life-threatening methods will be deployed to force her to convert. She does not believe the authorities would offer her protection because the people who harassed her were sponsored by ‘high ups’, and relocation would be futile because the same thing would happen.
The delegate refused the applicant’s protection visa application without inviting the applicant to an interview. In summary, the delegate was not satisfied that the applicant’s claims for protection are supported by country information, which indicates that the Malaysian Constitution forbids discrimination on the basis of religion, and whilst there have been reported allegations of unilateral change in the religious status of poor and illiterate Dusun and Murut villagers in Sabah, the delegate did not find it relevant in the applicant’s particular circumstances. To the extent that the applicant might be at risk of harm on account of being forced to convert to Islam, the delegate found that there is effective state protection available to the applicant, such that there is not a real chance or real risk that she would suffer serious or significant harm if she returned to Malaysia.
Evidence before the Tribunal
Pre-hearing submissions
In her response to the pre-hearing information form sent by the AAT, the applicant expressed her gratitude to Australia for offering her protection over the last few years which has given her the ability to exercise her freedom of religion without fear of coercion. She claimed she continues to feel insecure and is worried that what she previously experienced would happen again if she had to return to Malaysia.
The applicant stated that in gratitude for the protection she has enjoyed in the last few years, she has worked hard to give back to Australia. In addition to working full time, she is undertaking [a] course, has volunteered as a [volunteer task], is a Red Cross blood donor, and is a responsible tenant. In support of her statement, the applicant included reference letters from her past and current employers and from a previous landlord, as well as a training plan for her [training].
Following an invitation to the applicant to participate in a hearing with AAT, the applicant provided the same reference letters from her past and current employers, and copy of a training schedule for her [training]. She also provided a copy of a 2018 discussion paper which, in summary, examines the complex issues that arise when family disputes occur between a non-Muslim spouse and a converted Muslim spouse, such as the custody of children who have been unilaterally converted to Islam without the consent of the non-Muslim parent, in the context of Malaysia’s parallel civil and Syariah legal systems.[1]
Evidence at hearing
[1] Dr Morgana S Subramaniam, ‘Judicial Dilemma: Secular or Syariah for Inter-faith Family Disputes in Malaysia’, Centre for Asian Legal Exchange, Nagoya University, Discussion Paper No.15, March 2018, available >
At the hearing, the applicant gave evidence consistent with her written claims. She claimed there were people who introduced themselves as being from the JAKIM and other Muslim organisations who began visiting her house unannounced from around the end of 2015 to proselytise, and even though the applicant repeatedly stated she was a Catholic and that she was not interested in converting to Islam, they kept returning with inducement such as possible employment in the government sector and other benefits. The applicant claimed that as time went on, the initially gentle pressure to convert became increasingly insistent. Instead of coming to her house once every couple of months or so, it became as frequent as twice a week in the 1.5 years before she departed Malaysia and caused her to resort to shutting all her windows and pretending she was not home.
The applicant claimed many of her neighbours who converted to Islam under similar pressures encouraged her to just give in and convert as well, and some of them even joined in the harassment. For example, they would make lots of noises to make it impossible for prayer sessions she organised at home to proceed, or they would make comments as she walked to church (which was not far from her house) to the effect that her resistance was futile and that she would get into trouble if she continued to resist.
In addition to visiting and harassing her at home, the applicant claimed the same people visited and harassed her at her workplace at the [occupation 2] office as well, usually on quieter [days] to avoid arguments and scuffles breaking out with the (non-Muslim) [people], which might cause negative publicity and backlash if they were otherwise seen to be adopting overly aggressive tactics. The applicant claimed the same people repeatedly told her that she should not work as [an occupation 2] because gambling is haram, and if she quit her job they could help her get another job.
The Tribunal asked the applicant why the people from JAKIM and/or other Muslim organisations were so persistent in trying to convert her. The applicant was not sure either, and mused that it could be because she was perceived to be a soft target as a single mother without male protection, and because it was around election time when they wanted to secure as many votes as possible from the Muslim community. The applicant also believed the proselytisation (in favour of Islam) was officially sanctioned and that the people who harassed her were being incentivised with personal reward for successfully converting non-Muslims to Islam.
The applicant claimed she was made to feel uncomfortable and unsafe as a result of the frequent visits and harassment she endured. She was a woman being confronted with a group of people who were all men and who were pressuring her to do something she did not want to do. Although the men did not harm her physically, their occasional touching of her arms and body in a purportedly friendly and reassuring way made her feel anything but safe and reassured. Despite later moving from her village in Papar to Kota Kinabalu in late 2016/ early 2017, she continued to be harassed by others who the applicant believed must have been contacted by the people who harassed her in the village.
The applicant claimed she cannot return to Malaysia where she expects to be harassed to convert to Islam like she had been before. When the Tribunal asked the applicant what the experiences of her Catholic children have been, the applicant claimed they have not said anything to her but she believes that they have probably converted, or want to convert if they have not already done so, because life is difficult and converting to Islam might shore up job security and open up more employment and other opportunities.
The Tribunal and the applicant discussed the possibility of relocation to Sarawak which has an even bigger Christian population than Sabah, and whether she might get some relief in Sarawak from the harassment she experienced. Given the current Malaysian government relies on support from the GPS (also known as the Sarawak Parties Alliance) to maintain its coalition, the political pressure might therefore mean there is a greater reluctance to pursue an Islamisation agenda in Sarawak.
The applicant disagreed that Sarawak is a relocation option for her because Sarawak is not immune from Islamisation. There are still groups in Sarawak like those she encountered in Sabah that would try to convert her, even if the extent of the pressure to convert might be somewhat less because of the size and strength of the Christian population and because of Sarawak’s political clout.
The applicant does not believe state protection would be available to her because Islam is the official religion of Malaysia, and based on her past experience where nothing happened following police reports of the harassment. She has had to seek counselling in Australia including from the priest at her church to help her deal with her psychological issues, and she fears that facing the same religious harassment again in Malaysia would drive her crazy and she might self-harm if she is unable to control her emotions.
Post-hearing submissions
Following the hearing, the applicant submitted a reference letter from her Parish Priest at [Catholic Parish], a copy of her certificate of her first holy communion in [Year], and a copy of her certificate of confirmation from [Year], as evidence of her religion.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
As noted by the Tribunal in a previous decision Case Number 2002351, country information available from open-source online searches indicates that the issue of forced religious conversions is not new in Malaysia despite formal protections in the Constitution for freedom of religion. A non-Muslim is legally required to convert to Islam to marry a Muslim.[2] Under sharia law, the consent of only one parent is required to convert a child to Islam, and despite a 2018 Federal Court ruling that the consent of both parents is required to issue a certificate of religious conversion for a child, cases of unilateral conversion by one parent persist.[3] [4] [5] There are also credible reports that poor non-Malays, including indigenous people, have been forcibly or unilaterally converted to Islam without their informed consent or even knowledge, and sometimes with the promise of incentives such as money, food, housing and other benefits available to Malay Muslims.[6] [7] [8] [9]
[2] DFAT Country Information Report – Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, [3.61].
[3] Nurbaiti Hamdan, ‘M Indira Gandhi and 13 other plaintiffs file legal challenge against unilateral conversion’, The Star, 20 March 2023.
[4] Ida Lim, ‘Malaysian mum reunites with unilaterally converted kids whose religious freedom she won back’, Malay Mail, 27 March 2023.
[5] Kenneth Tee, ‘Hindu mother Loh Siew Hong set to face final challenge at Federal Court in unilateral Muslim conversion of three children’, Malay Mail, 14 May 2024.
[6] DFAT Country Information Report – Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, [3.53].
[7] ‘Malaysia’s indigenous people protest forced conversions’, UCA News, 10 July 2019.
[8] Steve Suwannarat, ‘Pahang: Forcibly converted to Islam, indigenous people want their identity back’, PIME Asia News, 30 March 2023.
[9] Syed Jaymal Zahiid, ‘SUHAKAM reports forced conversion of Sarawakian native children over MyKad blunder’, Malay Mail, 21 January 2021.
DFAT’s lates country information report on Malaysia dated 24 June 2024 also reports:
“In recent decades, local and international observers have noted the increasing influence of conservative Islamic ideas in Malaysian politics and society, a phenomenon described as ‘Islamisation’. The influence of conservative Islamic parties on Malaysia politics has been especially prominent since the defeat of the BN coalition in 2018 and the electoral success of the PAS.
From the 1990s onwards, PAS has established several thousand kindergartens and Islamic schools called tahfidz (Quran memorisation schools), which has increased grassroots support for PAS (though this is not the only factor). A 2022 Muslim Youth Survey by Merdeka Center, an opinion research firm, found that 82 per cent of Muslim youths aged 15-25 agreed that the Quran should replace Malaysia’s current Constitution, up from 72 per cent in 2010. The survey also found the proportion of Muslim youths attending religious schools had increased from 48 per cent in 2010 to 60 per cent in 2022.
Local media has reported rising conservatism amongst Malays, especially young people. There is also evidence of decreasing tolerance towards sexual and religious minorities on religious grounds. International media reported in 2022 that despite the progressive tendencies of the multi-ethnic coalition of the Anwar Government, it was under pressure to respond to the values of conservative Islamic voters and parties.
………
In-country sources reported that Islamic religious and political NGOs financed by JAKIM have paid staff to attempt to convert poor people to Islam, incentivising potential converts with money, food and government welfare available to Muslims. However, it is not clear how widespread this practice is. In 2018, in-country sources told DFAT that Christians from the southern Philippines and Indonesia had been approached to convert to Islam in return for residency in Sabah (red identification card), with a view to applying for citizenship (blue identification card, only available to Bumiputera). Also in 2018, in-country sources told DFAT that some university students conducted home stays with Orang Asli to teach them about Islam and encourage them to convert, incentivising them with financial benefits, the promise of housing, and welfare available to Muslims.
Local media reported in June 2019 that the Kelantan Islamic Religious and Malay Customs Council (Maik) stated it intended to convert all Orang Asli within its state borders to Islam by 2049. In July 2019, local media reported that the Temiar Orang Asli in Gerik, Perak, had ‘Islam’ added to their MyKad identity cards without their consent, and that the villagers had never actually converted to Islam.”[10]
[10] DFAT Country Information Report – Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, [3.49]-[3.51] and [3.53]-[3.54].
REASONS AND FINDINGS

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because she is either a refugee or a person who satisfies the criterion for complementary protection.
The Tribunal has considered the claims and evidence advanced by the applicant and concluded that the decision under review should be affirmed. The Tribunal’s reasons for reaching this conclusion are discussed below.
Identity and country of nationality
The applicant has claimed to be from Malaysia. She has provided a certified copy of the biodata page of a Malaysian passport bearing her claimed full name and date of birth, as well as a photograph of a Malaysian national ID card also bearing her claimed full name, to the Department in connection with her protection visa application. In the absence of evidence that the passport and the ID card copies of which were provided are bogus documents as defined in s 5(1) of the Act, and given checks of relevant departmental systems did not raise concerns that the applicant has provided a false identity, the delegate has accepted the applicant’s claimed identity and citizenship of Malaysia.
The Tribunal has considered the aforementioned identity information on the applicant’s departmental file. In the absence of evidence that the applicant is not the person she claims to be, the Tribunal also accepts the applicant’s claimed identity and citizenship of Malaysia.
The Tribunal finds the applicant’s country of nationality and receiving country for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act is Malaysia.
Credibility and findings of fact
The first step in determining whether the applicant is a person in respect of whom Australia has protection obligations is to assess the credibility of her claims and evidence. In assessing the credibility of the applicant’s evidence, the Tribunal is conscious of the need to take a reasonable approach, noting the cautionary comment made by Foster J in Guo v MIEA (1996) 64 FCR 151 at [94]:
“…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”
The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 2019) states at paragraph [196] that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” However, the Handbook also states at paragraph [203] that:
“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”
The Tribunal is also aware that if it makes an adverse finding in relation to a material claim but is unable to make a finding with confidence, that it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. The Tribunal is also not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal finds the applicant to be a truthful witness who appeared to the Tribunal to have presented her evidence forthrightly. Her account of the experiences she had in Malaysia was coherent and plausible and did not run counter to generally known information about the discriminatory treatments of non-Muslims in Malaysia in the country information reports and articles the Tribunal referenced and also examined in the discussion paper she provided, despite the ostensible religious freedoms and protections provided for in the Malaysian Constitution. The applicant’s claims of being a Christian are also credibly corroborated by the copy of her Malaysian national ID card on her departmental file which, unlike the ID cards of Muslim Malaysians, does not have her religion specified. Her claims to be a Christian were also subsequently confirmed by the documentary evidence she provided post-hearing.
Accordingly, the Tribunal finds and accepts that:
·     The applicant was a practising Catholic at all relevant times in Malaysia, and she is still a practising Catholic.
·     The applicant experienced pressures to convert to Islam from people claiming to be from JAKIM and other Muslim organisations, which included harassment at her home as well her workplace.
·     The people who harassed her did not harm her physically, however as a group of men the applicant found their presence and the tactics they used to harass her intimidating.
·     The applicant tried to avoid the harassment by moving from her village in Papar to Kota Kinabalu. However, the harassment to convert to Islam continued, albeit from different people.
Assessment of refugee status
To be eligible for the grant of a protection visa on the basis of meeting the refugee criterion in s 36(2)(a) of the Act, the applicant must have a well-founded fear of persecution in Malaysia, and owning to that fear, is unable or unwilling to avail herself of the protection of Malaysia. This requires the Tribunal to be satisfied that there is a real chance the applicant would suffer serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group or political opinion, if she returned to Malaysia.
The Act does not define ‘serious harm’ but provides at s 5J(5) a non-exhaustive list of the types of harm that would be considered to be ‘serious harm’, namely:
(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.
It is clear from the non-exhaustive list in s 5J(5) that for a particular conduct to be ‘serious harm’, the conduct in question must have the requisite quality of being sufficiently severe that it threatens the applicant’s very existence by harming her physical being or subsistence. Pestering or harassment which irritates and distresses, but which does not rise to the requisite level of severity, would not be ‘serious harm’.
Based on the country information which the Tribunal referenced earlier, particularly with respect to Malaysia’s trend towards Islamisation (manifesting in examples such as the common unilateral conversion of a child by a Muslim parent without the consent of the non-Muslim parent despite court ruling that the consent of both parents are required, or the offering of inducements to Orang Asli to encourage them to convert to Islam), the Tribunal accepts there is a real chance – in the sense that it is not remote or insubstantial or a far-fetched possibility[11] – that the applicant would again be subjected to pressures to abandon her Christian faith and convert to Islam in the reasonably foreseeable future, if she returned to Malaysia.
[11] Chan Yee Kin v MIEA (1989) 169 CLR 379
However, the Tribunal does not accept that the pressures that the applicant has a real chance of facing are such that they would involve serious harm amounting to persecution. As exasperating and at times intimidating as the harassments she experienced in Malaysia were, none of the things that the applicant described involved threats to her life or liberty, significant physical harassment or significant physical ill-treatment of her person, or conduct or omissions of such severity that they threatened her capacity to subsist. In circumstances where the applicant has simply practised her own religion without proselytising or seeking to proselytise to Muslims which would be much more likely to draw adverse attention and consequences, there is nothing in the applicant’s evidence or in the available country information that causes the Tribunal to believe that the pressures and harassments she would face if she returned to Malaysia would in the reasonably foreseeable future escalate significantly in severity beyond what she previously experienced.
Therefore, whilst the Tribunal acknowledges that the harassments and the pressures to convert to Islam the applicant experienced in Malaysia had caused her distress, and the Tribunal has deep sympathy for her desire to remain in Australia where she could freely practise her religion without any interference from others, the Tribunal is not satisfied she has a well-founded fear of persecution in Malaysia because of her religion as a Christian. It follows that she does not meet the refugee criterion in s 36(2)(a) of the Act.
Complementary protection assessment
Having found that the applicant does not meet s 36(2)(a) of the Act, the Tribunal must proceed to consider whether the applicant meets s 36(2)(aa) in the alternative because there are substantial grounds for the Tribunal to believe that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of her removal from Australia to Malaysia.
‘Significant harm’ is exhaustively defined in s 36(2A) of the Act, with ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ further defined in s 5(1).
As discussed earlier, the Tribunal accepts that there is a real chance – which means there is a real risk[12] – that the applicant would again experience some form of harassment to pressure her to convert to Islam if she returned to Malaysia. However, just as the Tribunal does not consider that the harassment she experienced in the past was serious harm and the Tribunal has no rational basis to believe that her anticipated harassment would escalate in severity in the reasonably foreseeable future to the level of serious harm, the Tribunal also has no basis for believing that her anticipated harassment would involve ‘significant harm’ either.
[12] In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
Putting aside arbitrary deprivation of life, the carrying out of the death penalty and torture which the Tribunal finds are not applicable, the Tribunal does not believe the harassment that the applicant has a real risk of suffering from would involve cruel or inhuman treatment or punishment, or degrading treatment or punishment. The Tribunal does not dispute that being regularly harassed to convert to Islam by cajoling and/or coercion was, and would in the future be, distressing for the applicant. Nevertheless, there is nothing to suggest that the harassment would be done with the intention of inflicting severe physical or mental pain or suffering on the applicant, or that they would cause, or would be done with the intention to cause, extreme humiliation which is unreasonable.
Therefore, the Tribunal is not satisfied that the applicant satisfies s 36(2)(aa) of the Act, since there are no substantial grounds for the Tribunal to believe there is a real risk she would suffer significant harm as a necessary and foreseeable consequence of her removal from Australia to Malaysia.
As the applicant neither satisfies s 36(2)(a) nor s 36(2)(aa), she is not a person in respect of whom Australia has protection obligations.
Other criteria – member of the same family unit
Finally, as the applicant has not claimed to be a member of the same family unit as another person in respect of whom Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant, and as there is no evidence before the Tribunal to suggest the contrary, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or s 36(2)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 11 October 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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