2007282 (Refugee) - [2024] ARTA 893

2007282 (Refugee) [2024] ARTA 893 (18 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Numbers: 2007282 and 2000765
Tribunal:General Member C Graydon
Date: 18 December 2024

Place:Melbourne
Decision:The Tribunal sets aside both decisions under review and remits the applications for protection visas for reconsideration, in accordance with the order that both applicants meet the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 18 December 2024 at 4:00pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – combined hearing and decision of separate applications made by married couple before they met – notification errors and Federal Circuit and Family Court remittal – religion and ethnicity – wife’s written claim as convert from Sunni to Shia Islam – application made by ex-boyfriend without wife’s knowledge, and claim conceded to be false – controlling and violent relationship now ceased – husband an Indian Malaysian Hindu – bullying and discrimination in education and employment – debt and bankruptcy proceedings – travel ban, new passport and immediate departure – wife’s new claim of conversion to Hinduism – country information – laws against converting from Islam and requiring non-Muslim to convert to marry Muslim, and societal attitudes – delays in notifying false claims and making new ones – language difficulties and time taken processing applications – explanations accepted and no adverse inferences drawn – detailed and consistent evidence and documentation – two Australian-born children not part of application – births not registered in home country – children eligible for citizenship but considered illegitimate – no consideration of bankruptcy or other general claims – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (3), (4), (5), 36(2)(a), (aa), (2A), 65, 423A(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
NBCY v Minister for Immigration [2004] FCA 922
Prasad v MIEA (1985) 6 FCR 155
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

These are applications for review of decisions made by delegates of the Minister for Home Affairs on 6 December 2018 to refuse to grant [the first applicant wife] a protection visa, and on 2 November 2017 to refuse to grant [the second applicant husband] a protection visa, both under s 65 of the Migration Act 1958 (Cth) (the Act).
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.
The applicants both claim to be citizens of Malaysia. An application for a protection visa was lodged in the first applicant’s name on 20 July 2018 and the second applicant applied for a protection visa on 3 October 2017.
Both applications have somewhat complex procedural histories. The first applicant received a previous ‘no jurisdiction’ decision on 21 February 2019 due to her application for review to the Tribunal being lodged out of time. However, on 6 April 2020 she was renotified of her Departmental decision and lodged a valid application for review to this Tribunal on 20 April 2020. The second applicant also received a ‘no jurisdiction’ decision on 4 January 2018 due to his application for review to the Tribunal being lodged out of time. He sought review of that decision in the Federal Circuit and Family Court of Australia (FCCA) on 23 July 2018 and his case was remitted to the Tribunal by consent on 10 January 2020, also on the basis of a notification error relating to the Department’s decision. That is how both applicants have come to have applications for review before this Tribunal.
The first and second applicants are married to each other. On 7 October 2024, the applicants requested a combined hearing and a combined decision. They appeared before the Tribunal on 20 November 2024 to give evidence and present arguments. The Tribunal hearing for the first applicant was conducted with the assistance of an interpreter in the Malay and English languages and was conducted directly in English with the second applicant.
CLAIMS AND EVIDENCE
Before the Department
Protection visa applications
The first applicant claims to be a [Age]-year-old Malaysian citizen who was born in a Sunni Muslim family in Ipoh, Perak State, Malaysia. In her protection visa application form she stated that she needed Australia’s protection as she had abandoned Sunni Muslim teachings and had become a Shia Muslim. Her application claimed that she had shared her changed religious beliefs with her friends and they did not accept this change, with some accusing her of blasphemy, being an infidel and threatening to harm and kill her. She also claimed she would face prosecution from the religious police and harassment and harm by her family and community. She claimed fear she would be forced to attend a religious rehabilitation centre to renounce her Shia faith and compelled to practicing Sunni Islam. She claimed that the police and authorities in Malaysia are ‘in cahoots’ with the Sunni Muslim communities and would not protect her from harm and that she would not be safe in any part of Malaysia as she would face the same risks of prosecution and community pressure wherever she went.
The second applicant claims to be a [Age]-year-old Malaysian citizen who is of Indian Malaysian ethnicity and a practicing Hindu, from Petalying Jaya, Selangor State, Malaysia. In his protection visa application, he claimed that he feared ongoing discrimination based on his ethnicity, including in relation to denial of educational, employment and other life opportunities, and that he would be unable to meet his family obligations to financially support his three aunties. He also claimed that his car was stolen, resulting in a debt to a bank in Malaysia and then triggering a bankruptcy application to be made against him, which he implicitly claimed would result in ongoing difficulties for him on his return to Malaysia.
Supporting documents
In addition to their protection visa applications, both applicants provided the Department with copies of their Malaysian passports. The second applicant also provided a copy of his Malaysian national identity card.
The second applicant provided the Department with a letter dated 14 August 2017 from a solicitor acting on behalf of [Bank] advising that their legal process servers were attempting to serve upon the applicant a Bankruptcy Notice and Request for Issue of Bankruptcy Notice dated [July] 2017, which had been filed against him in the Shah Alam High Court.
The Department did not invite either of the applicants to attend an interview.
Delegates’ decisions
The first applicant’s case was refused by the delegate on the basis that while she may face interference and difficulty practicing her new faith in Malaysia, she would be able to live free from discrimination and violence on a day-to-day basis and would not be at risk of treatment amounting to persecution for this reason.
The second applicant’s case was refused by the delegate on the basis that while Indian Malaysians may face low levels of discrimination in some areas of life in Malaysia, he would not be at risk of treatment amounting to persecution for this reason. The delegate accepted that the second applicant faced civil proceedings relating to bankruptcy in Malaysia but found that the inconvenience or harm caused to him as a result, did not amount to significant harm under complementary protection criteria.
Before the Tribunal
As noted above, on 20 April 2020 the first applicant applied for review of the delegate’s decision and provided the Tribunal with the delegate’s notification letter and decision record. On 10 January 2020 the second applicant’s case was remitted to the Tribunal by consent for de novo assessment.
Pre-hearing submissions and evidence
On 27 June 2024, the Tribunal invited the first applicant to a hearing scheduled for the 16 July 2024. On 15 July 2024 the first applicant requested a postponement of her hearing on health grounds associated with pregnancy complications. The Tribunal agreed to postpone the hearing until a reasonable period after the first applicant had her baby and invited her to a new hearing on 17 October 2024. On 7 October 2024 the first applicant requested a further postponement of her hearing as she was still recovering from medical conditions following the birth. She also requested that her case be combined with that of her husband, the second applicant, on grounds that the claims and outcome of both cases affected each other. She further asked that the hearing be conducted by videoconference rather than in-person due to difficulties for both applicants to attend the Tribunal in person with their children. She also mentioned that her two children born in Australia ‘are now stateless and do not hold any citizenship.’
On 14 October the second applicant requested a postponement of the combined hearing to allow him further time to prepare. His letter also set out the circumstances of how his relationship with the first applicant had commenced and developed, and the difficulties they faced due to them being in an inter-religious relationship.
The Tribunal agreed to further postpone the hearing until 21 November 2024. It also agreed to change the hearing format to videoconference and to conduct a combined hearing with the two applicants.
On 20 November the second applicant submitted to the Tribunal:
·Further evidence in support of his claim that his car was stolen in 2016 and that he faced bankruptcy proceedings as he was unable to repay the loan on the car.
·Screen shots of messages from a person he claims contacted him via [Social media] in 2022 asking him to consent to transferring the car into their name, as they had purchased the car from Malaysian custom authorities.
·Copy of a newspaper article dated [March] 2018 in Malaysian purportedly providing a public notice of a bankruptcy order made against the applicant.
·Photograph of the second applicant in hospital and a hospital record indicating his admission 11 February 2017 for acute tonsillitis. This evidence included an annotated message from the second applicant staying that the stress of the bankruptcy situation had caused him to become sick and require hospital care.
·Copy of an email in English addressed to the second applicant dated [May] 2018 from an officer from the Malaysian Insolvency Department advising him to complete various forms within 21 days and to take other steps to settle his debt and attached notice or order from the Malaysia High Court in Bankruptcy Matters dated [May] 2018 requiring the applicant to provide a statement of income and expenditure for the last six months.
·Screen shot of an Immigration Control Status Check showing a red result on the Malaysian Immigration Department website entering the applicant’s national identity card number.
·Copies of the applicant’s two Malaysian passport biographical pages, the first with an issue place of [Location 1] and issue date of [2015] and an expiry date of [2020], and the second with an issue place of [Location 2] and issue date of [2017] and expiry date of [2023].
·Copies of the two birth certificates of the first and second applicants’ [children], [Child A] born on [Date] and [Child B] born on [Date], with [Child B]’s birth certificate noting the first and second applicants were married on [in] April 2023 in [Suburb 1].
The hearing
The applicants appeared at a combined hearing on 21 November 2024 to give evidence and present arguments. The first applicant gave evidence with the assistance of an interpreter in the Malay and English languages and the second applicant gave evidence in English based on his preference and after satisfying the Tribunal that he would not face any disadvantage by not using an interpreter.
Where relevant, the applicants’ oral evidence is discussed in the Tribunal’s findings and reasons below.
Evidence provided by the first applicant.
The first applicant gave evidence that she was born into a liberal Sunni Muslim family in Ipoh, Perak state. She has [siblings] and is the [birth order] child. She completed primary school and some of secondary school, leaving school at the age of 15 years old.
She commenced a relationship with her ex-boyfriend in [Year] when she was 14 years old. Her ex-boyfriend was 22 years old at the time and had become a friend to her parents after fixing her father’s motorbike. He also helped her parents by bringing them food and taking them to medical appointments and other things, as they had already retired and did not have much money. Her ex-boyfriend came from a ‘good family’ as his mother was [an occupation] and his father worked in the [employer]. For all these reasons, her parents encouraged her to continue a relationship with him despite her young age and the age gap between them. The applicant felt she was in love with him.
After she left school, at the age of 15, the first applicant commenced working in her ex-boyfriend’s [shop], a role she continued until her departure from Malaysia in November 2017. However, she did not get paid a salary for this work and he only provided her with food and sometimes small amounts of money.
The first applicant considered that her ex-boyfriend was initially ‘good’ to her, however when she was 16 years old, she became pregnant. She wanted her ex-boyfriend to marry her and to keep the baby but her ex-boyfriend forced her to go to an abortion clinic and have an abortion. She felt very traumatised by this. ‘I begged him to marry me but at that time he hit me and forced me to go to the clinic for an abortion. I genuinely loved him, and I wanted him to marry me. And he promised me many times that he would marry me.’
After she had been together with her ex-boyfriend for around five years, in [Year] it emerged that her ex-boyfriend had also been seeing her older sister for some years. It turned out that her parents had also been aware that he had been having relationships with two of their daughters and had not told either daughter of this.
The first applicant fought with her sister who demanded that the first applicant end her relationship with her ex-boyfriend, so that her sister could continue her relationship with him. However, the first applicant refused to end her relationship with him as he had repeatedly promised her that he planned to marry her. After the first applicant refused to break up with her ex-boyfriend, her sister fled from Malaysia to Australia. Her ex-boyfriend was very angry with the first applicant for causing her sister to leave Malaysia and used violence against her.
In 2012 the first applicant’s mother died and from this time on her ex-boyfriend became more violent towards her. He hit her more often and stopped her from doing things that she wanted to do. She continued working for him without payment. At one point she tried to break up with him but he beat and threatened her and so she remained with him.
In 2014 her ex-boyfriend asked her to start an online [business] for him. She did 100% of the work for the business, which became quite successful, but she never received a salary or payment for this work either, except for ad hoc small amounts of money for food or other expenses.
The first applicant’s father passed away in 2015. At the time of his death, [some] older siblings had already married and moved out of the family home, with her and [other] sisters remaining. One of her older sisters who was already married, had at an earlier time already assumed responsibility for paying the mortgage on her parents’ house as her parents were unable to maintain the payments. However, with both parents now gone, the older sister decided to sell the house and the applicant found herself with nowhere to live except at her ex-boyfriend’s house, along with his mother.
The first applicant lived with her ex-boyfriend and his mother until she came to Australia. Her ex-boyfriend’s mother was also abusive towards her, often making denigrating remarks and saying she was not good enough for her son, but she allowed the first applicant to remain in her house as she knew that her son needed the first applicant to run his businesses. The first applicant’s ex-boyfriend kept telling her that he would marry her but then made excuses not to. Then one day he proposed to her and a date was set for their wedding [in] June 2017. Her ex-boyfriend’s mother also agreed to the wedding.
However just before the wedding day, her ex-boyfriend and his mother told the applicant the wedding could not go ahead, as they now thought the applicant came from a bad family background and said that the applicant was not a ‘good’ woman. The applicant was devastated and became very depressed. She stopped running the [business] for around two or three months and her ex-boyfriend stopped giving her food or any money.
In the words of the first applicant, ‘I was hoping so much he would marry me. But he didn’t. When his mother had made arrangement for her son to marry me, I was so happy and looking forward to that. But then in the end they cheated me. At that time, I was lost and I did not know what to do as everyone knew I had been with him for so many years, I would not ever be able to find another husband...I also had no safe place to go. Since I was 14 years old I had not made any friends because my ex-boyfriend did not like me doing that and I just worked for him all the time.’ The first applicant was not close with any of her older siblings, and they did not care what happened to her.
She had no choice but to stay with her ex-boyfriend. He told her he wanted to go to Australia to search for the first applicant’s sister who he had previously had the relationship with. He organised everything and they came to Australia. While they were waiting to go through immigration and customs, the applicant had a friendly exchange with an Indian Malaysian man who had been on the same flight. They talked about places to go in Australia, and he gave her his telephone number. She did not attach any significance to this exchange at the time.
When they first arrived in Melbourne, they lived in a room rented through Airbnb in [Suburb 2] for a period of five months. While her ex-boyfriend had initially told her they were only staying for two weeks, not long after they arrived, he told her the plan had changed and that he was staying in Australia and wanted to marry her here. Both her and her ex-boyfriend started working in [Employer 1] [doing job task 1]. ‘But he still did the same thing. I worked and he got the money and he controlled me. He only gave me money for food, maybe five or ten dollars. I did not have the chance to meet any friends or make any connections with other people. He took my passport.’
The applicant knew from her ex-boyfriend that she was on a three-month visitor visa in Australia, but he told her that after that time, everything about her visa had been taken care of. Then sometime in late 2019 she was told she could not continue working for [Employer 1] as the company now required her visa details. As she could not work for her ex-boyfriend anymore, he became more violent and angry towards her again. Her situation became more desperate, and she asked her ex-boyfriend to provide her with her visa details so she could continue working, but her ex-boyfriend would not tell her anything.

She did not know anyone and she was feeling desperate. She recalled she had the telephone number of the Indian Malaysian man from when she had arrived at the airport and so in February 2020, she called the number. The man answered and while he remembered her, he was surprised she was calling him after such a long time. She asked him if he knew where she could get help about her visa because her [Employer 1] account had been blocked. He said he had a friend who might be able to advise her where to find help as he was involved in a union that helped migrants with visa and work issues. He gave her a name and telephone number.
The first applicant called the number and the second applicant answered. She told him that she was married to her ex-boyfriend but that she had a problem with her [Employer 1] account being blocked as she could not provide her visa details. He lived close by and so she met with him at his house where his three aunties were staying and he explained how she could find out her visa status and get copies of any documents. He helped her to do the check and get the documents. Through his help she found out that back in July 2018 her ex-boyfriend had applied for a protection visa on her behalf without her knowledge. She said he controlled all her documents and information, so it was easy for him to arrange.
She found out that her protection application had been made on the basis she had converted to Shia Islam and now feared returning to Malaysia for this reason. She had also found out that her case had already been refused by the Department and that she had missed her deadline to seek review of the decision at the AAT. Then later her decision was renotified and the second applicant helped her to lodge her application for review within the timeframe. The Tribunal read out to the first applicant the key claims put forward in her protection visa application and asked her if any of the claims written on the form were true. She said all the claims in the application form were false and that she had not converted to Shia Islam and she was not pursuing any of those claims flowing from this religious conversion claim.
The first applicant said that while her ex-boyfriend had initially seemed pleased when she told him that she was trying to solve the block on her [Employer 1] account - so she could continue to work for him - she did not tell him what she had found out. But he became suspicious when she was going out and he did not know where. So, he followed her to the second applicant’s house and while she was inside, he sent her an angry text message ordering her to come outside. She explained that she went outside the house and then her ex-boyfriend started yelling at her, accusing her of having an affair and threatening her. The second applicant then came outside to try to de-escalate the situation and her ex-boyfriend started telling him that the first applicant was a bad woman; that she and her sister were bad and dirty, and he also tried to show the second applicant messages from the first applicant to demonstrate to the second applicant that she was a bad person.
The first applicant went inside the house while the second applicant kept talking to the ex-boyfriend. After a few minutes they both came inside the house and her ex-boyfriend asked her to leave with him. She refused. He then dragged her out of the house by her hair, pushed her to the ground and stamped on her stomach several times and then forced her into his car. She explained to the Tribunal that the second applicant did not intervene as at that time he thought they were married. But he did follow behind them in his car, as he was worried about what might happen to her.
The ex-boyfriend pulled over outside a McDonalds restaurant and started beating the first applicant while she was in the car. The second applicant then walked over to the car, opened the door, and said to the ex-boyfriend that he was wrong and he could not treat a woman like that. The ex-boyfriend grabbed the second applicant’s arm and pulled him away from the car, towards the McDonalds. The first applicant remained in the car. The second applicant returned to the car and told the first applicant that she was not safe and that he wanted to help her get to the police so they could find a safe place for her to stay. He said that if she did not come with him, he would report her ex- boyfriend for everything he had witnessed him to do to her earlier. The first applicant told him that she did not want to make a report to the police or cause any trouble for her ex-boyfriend. She said she would go home with him. So the second applicant left the scene and the first applicant went home in the car with her ex-boyfriend.
When they arrived home the first applicant was too afraid to go inside so she remained locked in the car until 4am. At that time, she decided to walk to a service station to seek help. She asked the cashier if she could use his phone as it was an emergency. She was able to look up her [Social media] account to get the second applicant’s telephone number and she called him. He answered and she told him she was very embarrassed but that she wanted his help as she did not feel safe with her ex-boyfriend. The second applicant came and picked her up and then took her to his house where his aunties cared for her.
After that night, she never returned to her accommodation with her ex-boyfriend. Her ex-boyfriend started sending her text messages saying she was a bad woman. She texted him in response saying that she still loved him and wanted him to take her back home. “‘If you really want to marry me, just come and take me’ but he did not come. I had no plan to go with another man. I just wanted him to take care of me and protect me. To just take me back home.”
She continued staying at the second applicant’s house and disclosed to him the abuse she had suffered from her ex-boyfriend and that she was not married to him. Over the next six weeks or so she became closer to the second applicant and then they formed a relationship which commenced on 16 March 2020 when they expressed their feelings for each other. She told the Tribunal ‘I never thought someone would ever love or respect me like my husband has been doing. After I lost my parents, I really did not know who would take care of me or where to go and where my place was. When I came together with my husband I was so happy and we both celebrate our same birthdays and I never thought my life would be like this.’
The Tribunal asked how long it has been since she had contact with her ex-boyfriend. She responded her last contact with him was in 2020 when he had sent messages to her asking her to come back to him and to work for him again. He also asked her to make a false accusation of rape against the second applicant so that he could extort money from him. She told her ex-boyfriend she would not do that as the second applicant was a good person. Her ex-boyfriend continued to argue with her, accusing her of going with another man and threatening he would come and get her. The second applicant saw the messages coming from the ex-boyfriend and told her he would have a ‘man to man’ talk with him to tell him to leave them alone or he would contact the police. She asked the second applicant not to report her ex-boyfriend to the police or make any trouble for him because she was ‘not angry any more. I just want to live and move ahead. I just wanted to have my new life without anything to do with him.’ She told the Tribunal that although it had been four years since she had contact with him, ‘I am still very scared of him. Because of the fear I have inside I do not have any peaceful mind each day and I still worry about him coming and destroying my new life in the future. I feel unsafe and I have lost confidence in myself.’
The first applicant told the Tribunal that her main problem now was due to her being in an inter-faith marriage, which cannot be recognised in Malaysia unless her husband converts to Islam. But her husband is a committed Hindu and he cannot do that. She stated ‘My husband would be forced to convert his religion to Islam and this is against his rights, as he has no knowledge and no intention to become a Muslim. This is not something that should be carried out against a person as all people should have freedom of religion. He was born a Hindu and he is a committed Hindu.’
She said she had willingly and happily adopted Hindu practices and taken her husband’s name and his faith. She shared they have agreed to raise their children as Hindus and then later they can choose their own faith when they are old enough to decide. She is fearful that living in Malaysia would put them in an impossible position as their marriage could not be recognised and they could not legally live together as a family due to laws prohibiting unrelated men and women cohabiting. She said it would be impossible for her to change her religion to Hindu in Malaysia as she was born a Malay Muslim and the law does not allow such a change. She said she could get into a lot of trouble for following Hindu traditions rather than Muslim traditions if she went back to Malaysia.
She also said their children would be considered to be illegitimate in Malaysia as they had their first child before they married and their second child after they married, but that marriage was not recognised in Malaysia. This would result in discrimination against their children. They would not be able to take their father’s name nor inherit from him and they would be looked down on as lower children born out of wedlock in a mixed-religion relationship. She added that ethnic Malays in Malaysia are very sensitive about Hindus and Malays being in relationships together and they want to differentiate and discriminate between these groups. She said that people would judge them and not accept them and would exclude them from community life. People in the Malay community would not allow their children to mingle and play with their children. Their children would also be very confused trying to understand why they were different from others and why they were not considered to be a good family.
The Tribunal asked the first applicant how her husband practices his faith and how her faith and religious practices have changed since she started a relationship with him. She responded that her husband has always been a practising Hindu, in Malaysia and in Australia. Her family are Muslims but never observed daily or other common Muslim practices or faith and she had never learned much about the Muslim faith from her family. But her husband has taught her what it means to have faith and she has learned about Hinduism and adopted his faith and traditions as part of her escape from her old life. They followed Hindu traditions for their wedding, which took place in a Hindu temple by a Hindu celebrant and also in ceremonies relating to her pregnancy, her name-change ceremony and ceremonies for her [children]. She said that Hindu traditions and ceremonies have already been a big part of her life and she likes it.
The Tribunal asked the applicant how she sees her religious identity now. The first applicant responded that she strongly associates Islam with her unhappy past and that being a Hindu has given her a new identity and a meaningful faith to help her overcome her trauma and problems in life. ‘I feel so much better following my husband and learning faith from him. When I was Muslim, I had so many problems and my family abandoned me.’ However, she does continue to draw some principles from Islam, particularly the idea that a woman must follow her husband, which is why she has chosen to follow her husband’s religion, out of love and respect for him.
In Australia she has taken steps to change her name to a Hindu name and now she is married, to take her husband’s name. She applied for her Hindu name a long time ago and then applied for a further change to her name after she got married but it was not finished yet due to her visa status. She directed the Tribunal to her second [child]’s birth certificate, which lists her ‘other’ given names as ‘[Names],’ her Hindu name and added that after she married the second applicant in 2023, she has also applied to change her family name to [Surname], the same name as her husband.
The Tribunal asked the first applicant if she was fearful her husband would leave her if he had to convert to Islam to keep the family together. She said her husband had not imposed any conditions on her when they decided to marry. He had said to her that if she decided to go back to Islam it would be fine with him, as faith is about a personal relationship with God. She said her husband could not convert as he would not be able to participate in his family ceremonies and events and that his family could not accept he was not a Hindu. She said the second applicant had been raised by his three aunties who had sacrificed a lot to raise him and they could not accept him changing his religion and so he would never agree as it would hurt them too much. She said that she did not have contact with any of her family as none of them had any concern for her and so she did not care what they thought about her adopting Hinduism.
The Tribunal asked the first applicant where she and the second applicant would live if they had to return to Malaysia. She said they had not really discussed this as it would be impossible for them to live anywhere in Malaysia if their marriage was not recognised. She said her husband’s parents were originally from Johor Bahru and still live there, but that he mainly grew up in Selangor with his three aunties, so that was more his home.
Evidence provided by the second applicant.
The second applicant gave evidence that him and his younger sister had been given to his maternal grandparents to be raised but that when they were around 6 and ten years old, his grandfather died and his aunties took over caring for them in Selangor.
He told the Tribunal he had always faced discrimination in Malaysia from Malay people because of his ethnicity, especially at school and in higher education, which then limited his employment opportunities and income. He described being bullied at school by Malay students from first grade and said that this was a normal experience for Indian Malaysian students. He said he was regularly beaten and insulted by Malay students who called him ‘Keling’ which is a racially derogatory term for Malaysians of Tamil or Indian background. They also threw sand in his food and hit him with rocks. Out of around one hundred houses on the street, his family’s house was the only Indian Malaysian family, and most others were Chinese Malaysian. Chinese Malaysian people did not discriminate against them but left them alone. He said it was mainly Malay ‘Bumi’ people who treated them badly.
He studied at school until 10^th grade and then he wanted to go to university to study [subjects 1 and 2]. Despite him having the grades to be accepted into these courses, due to preferential treatment of Bumiputera people and discrimination against Indian and Chinese Malaysians, he was refused entry to his preferred course. He appealed the decision and was eventually offered ‘only’ a TAFE foundation course in [subject 3].
He finished his course but because of this low-level qualification, he was never able to secure a better paying job, with all his positions paying only a maximum of 1500 RM per month. His aunties had made sure that him and his sister had health insurance, however they did not have health insurance themselves and so he felt a lot of pressure to get a better paid job so that he could look after them, including ensuring their access to decent health care. In 2003 he fell in love with an Indian Malaysian woman and they were in a relationship together for around 13 years until she broke up with him after he went through hard times being pursued for debt.
He was hardworking and ambitious and he believes that through his force of character he started to get opportunities to win contracts for projects in the [Employer 2] [doing job task 2]. There were a lot of Malay people who resented him getting this business and so he had a lot of business rivals. He was the only Indian contractor and due to preferential treatment for Bumiputera people in Government contracts, they made him bring a Bumiputera person into his business and even then, they still wanted to force him out. He believes that those who stole his car and initiated the bankruptcy case against him were Malays business rivals who held a racially motivated grudge against him and had deliberately sought to sabotage his business and ruin his life.
The second applicant had borrowed money to buy a car in Penang. One day he took the car to work and it was ‘stolen’ from the secure work car park despite it being protected by security guards. He reported the theft to the police but they did nothing to find his car. He believes it was a ‘set up’ against him, as it was wrong of the bank to pursue him for bankruptcy for a debt of only 36,000 RM when the minimum amount for filing for bankruptcy against someone is 50,000 RM. Then with his financial ruin, his girlfriend also left him and he became very sick and depressed to the point where he needed to be admitted to hospital.
His view that this case against him was a ‘set up’ was further confirmed when in 2022 when he was in Australia he received a message from a person who claimed to have bought his stolen car from a customs office auction and the person was asking if the second applicant could transfer the car into the new owner’s name. The second applicant explained that he could not as his car had been stolen and then he had been ruined with a bankruptcy claim.
When the bankruptcy proceedings against him started in 2018, he knew that he was being pursued for corruption reasons and that he would be facing a very difficult time in Malaysia. When he heard that the claim against him was filed, he decided to quickly leave Malaysia. But when he checked his passport status, he found out that there was a block on his passport. He quickly travelled to Johor Bahru and asked for a renewed passport. Someone had told him the travel ban on his passport would take a day or two to be registered on the computer system in other states and that he may be able to get a new passport inter-state if he acted quickly. He was able to get the new passport issued in Johor Bahru during this short window of time and then he immediately left Malaysia for Australia.
The Tribunal asked the second applicant how he had met the first applicant. He gave evidence that his cousin had called him saying that he had just received a strange phone call from a woman he had fleetingly met a long time ago at the airport, who seemed to be in some sort of trouble with her work and visa. He agreed that his cousin could give her his number. The first applicant called him and said she lived in [Suburb 2] and he lived in [the next suburb]. She said she could not work due to visa problems and asked him to help her find out how to solve the problem as she had no idea what was going on with her visa. He assisted her finding out her status by helping her to open an ImmiAccount and then helping her to do a VEVO check. It showed that she had previously applied for a protection visa but that it had already been refused. He then helped her to apply to get copies of her documents, including the application that had been lodged on her behalf saying that she needed protection because she had converted to Shia Islam. She told the second applicant that none of the claims in her application were true as someone else had made them up without her knowing.
He noticed that she came to his house several times as though she was running away from something. One day she messaged him and said she really needed to come over. He said that was ok as his aunties were at the house. While she was at his house, she received a message from her ‘husband’ who was outside insisting she had to come out and go home with him. “They had a big fight and he said terrible things about her and then started saying things to me like ‘if you want to take her away then you must pay the price.’ He was speaking very nastily and rudely to her and to me.” The second applicant thought it best to try to calm down the ‘husband’, so he asked the first applicant to go inside the house while he talked to him.

The ‘husband’ seemed to calm down and so they went back into the house together but then he demanded that she leave with him and she refused and he suddenly became very violent towards her. In front of him and his aunties, he dragged her out and drove her away in his car. The second applicant followed them as he was worried about what he might do to her. They pulled over and he saw him hitting her in the car and so he went over to the ‘husband’ and told him to stop. The ‘husband’ was angry and took him inside to the McDonalds close by, and then he went and spoke to the first applicant who was still in the car and told her that she was not safe and that he planned to call the police. She told him not to call the police and left with the ‘husband’. But then later that night or early in the morning she called him again asking for help and so he went and picked her up and brought her back to his house. ‘She started to tell me more about what was going on. She was a very nice person and had been through a very difficult life with this man for more than 13 years. I felt sorry for her as I had also been in love with someone for 13 years who left me.’
His family had always warned him not to get involved with a Muslim girl as that would cause big problems in the family. But he did not think of her as a Muslim girl as she did not wear hijab and did not have strong Muslim pracitces. After some weeks they got together in a relationship. His family had been very accepting of her because she adjusted to his family’s ways and to their religion. ‘They all like her a lot and did not put pressure on me not to be with her, which was surprising to me. My family seemed to accept her, but I only told them that I was serious about her when she became pregnant…. While my family were ok about it my Malay Muslims friends were not and said I was doing the wrong thing. I valued my friendship and told my friends that good friends do not talk about religion and that she is part of me and that is all there is to it.’
The Tribunal asked if his family had been very religious when he was growing up. The second applicant responded that they were ‘very religious, a 100% practising Hindu family’ but he also added that his family was also opened minded about other religious. At the age of around eight his family had allowed him to study in a Sathya Sai Baba program which had exposed him to comparative religion studies and so he got to learn more about other religions too. This education had led to him and the first applicant agreeing that while their children would be raised as Hindus, when they were older it was up to them to decide what religion they wanted to be, as it was a personal decision for them to make.
The Tribunal asked the second applicant to describe some of the most important religious ceremonies and occasions. He responded that his parents (Malaysian nationals) are of Indian ethnicity coming from families from Kerala. His mother’s side celebrate all the key Hindu ceremonies and life events and so he has continued with these traditions and the first applicant has adopted them too. They had a Hindu wedding, the children had Hindu ceremonies after they were born.
The Tribunal asked the second applicant if he was willing to convert to Islam to enable their marriage to be recognised in Malaysia. The second applicant said that if converting was just a formality and for bureaucratic reasons, then he would be willing to do this despite the opposition of his family. However, it was not just a formality like that and if he did convert, he would then be forced to change not only his religious ‘status’ in the bureaucracy but he would also be expected to adopt Muslim practices and beliefs, which he did not have. The worst part for him is that he would be prevented from continuing to engage in his own religious ceremonies and events, and these are what his family life revolves around with his own extended family.
He has seen this occur with his cousin, the youngest son of his uncle, who converted to Islam in order to legally marry. ‘He is the only son and when both of his parents passed away, the Islamic Department was standing there supervising him to make sure that he did not participate in any Hindu religious rites. It was so cruel.’ He provided another example regarding another Hindu friend [Mr C] who was forced to convert, who later committed suicide and was then buried under a Muslim name in a Muslim cemetery, with his real identity ‘wiped away.’
He told the Tribunal ‘They treat us non-Muslims as inferior. They make us invisible. If I converted to Islam I would be orphaned and my entire family could not accept me. And the name given to me by my father, I could not pass on to my [children]. And if my [children] did not have my name, I would die of shame. I would convert to Islam but only if I could be who I am but the problem is I would have to change myself for her and I cannot do that. To have religion is to have family. I want to practice my faith as I do. In my heart and soul I have my faith and that cannot be changed.'
The second applicant said that his family are a Hindu family and that his [children] have Hindu names, and his wife also now has a Hindu name. They participate in Hindu religious ceremonies to mark their life events and they also have Hindu ceremonies and occasions at their home. He added that his wife’s change of name was delayed as her passport had expired and she could not make up the 100 points of identification needed while her status remains unresolved.
The Tribunal asked the second applicant what kind of religious upbringing he wants for his children and if him and his wife have agreed on these issues. The second applicant said that he will pass on to his children what his parents and his grandparents have taught him about the Hindu faith. At the same time, he is happy for his wife to talk to the children about Islam if she wants to, but they have decided that they will be raised as Hindus and then when they are old enough, the children can decide for themselves what religion they would like to be.
He said that if they were in Malaysia none of this would be possible as they would either be forced to live apart and break up the family or he would be forced to convert to Islam and the family would be forced to be Muslim including the children who would not be able to exercise a choice about their faith. He also added that the children’s births have not been registered with the Malaysian Consulate as they could not be unless he converted to Islam allowing their marriage to be registered as a Muslim marriage. He said the Consulate had contacted him to tell him to come and pay regarding his bankruptcy debt and that he tried to renew his passport at the Consulate and could not. He added that the Consulate General is aware of his situation (being married to a Muslim) and has told him that he needs to convert to Islam.
The Tribunal asked the second applicant what he thought would happen if him and his family returned to Malaysia. He said that he loves Malaysia but that their circumstances would make life there impossible. He said that his children would be called the insulting name ‘mamak’ and constantly teased and degraded. His wife would face many problems if he does not convert to Islam as she would be offending against religious laws against having children outside of marriage and living in an unrecognised marriage. She could be charged with an offence and taken to a rehabilitation centre for ‘fallen’ Muslims or worse. For himself, he would be at high risk of being beaten or harmed by Muslim Malay community members who disapproved of his relationship with a Muslim woman and he could also be taken by the religious authorities or the police and forcibly taken to be converted by the religious department known as JAIS. He is aware of many people who have been taken straight away to do a conversion. In addition, his wife’s family will never accept him unless he converts.
The Tribunal asked what relationship he currently had with his wife’s family. He responded that he has only ever spoken to his wife’s [sister] [Ms D] and perhaps some time ago also with her younger sister. He tried to reach out to her other siblings but they did not respond, and he does not try anymore as they did not even congratulate them when they had their children, just his [sister] who is a working woman and does not have such a traditional mentality. He said that his wife does not have contact with any of her siblings and is very traumatised about their lack of care for her. Her experiences have made it very hard for her to be friends with anyone and she was effectively orphaned and abandoned by her family who have not help her despite all the difficult years she had.
The Tribunal asked the second applicant who was ‘[Mr E]’ who had been listed as a potential witness in a hearing form provided by him. The second applicant said that he calls him his ‘cousin’ but he is actually his family friend, through his father and used to stay in a Hindu religious prayer house in Malaysia. He is the one who met the first applicant at the airport and then later gave the second applicant’s details to her.
The Tribunal asked the second applicant how he came to be known as a person who could help others with visa or work problems. He said that from 2018 he was a union member with the [Union]. When he was working on a [workplace] in [City], he complained to the union and also in relation to other workplaces in Perth and [Town] due to nonpayment of wages, bad living conditions and overcharging for these. Through this he became a kind of informal advocate for exploited [workplace] workers. The union started to listen to him and took a video of him talking about worker exploitation. That is how he has come to know more about visas, workers, and exploitation of workers. He always tells people who contact him that they need qualified advice. He added that most Malaysians he knows do not know very much about the visa system, or how to use ImmiAccount and VEVO and that farmers exploit their lack of knowledge and their lack of English language skills.
Post-hearing submissions and evidence
On 29 November 2024 the second applicant provided the following further documents to the Tribunal.
·Photographs of both applicants pictured with their child with all wearing Hindu religious attire at Hindu temple occasions.
·Photographs of the first applicant marrying in Hindu religious attire for Thali ceremony.
·Photographs of both applicants and their child wearing yellow Hindu religious attire pictured at a Hindu temple.
·Other photographs with the first applicant wearing Hindu religious attire at a Hindu temple or standing in a house with Hindu pictures and statues in the surrounds.
·Screen shots of text messages between [the first applicant] to someone called ‘[F]’ in English, on 13 March 2020 and further screen shots of the same date from ‘[FF]’ in Bahas Malay.
·Screen shot of application for ‘Registration of change of name’ and ‘Legal Certificate for change of name’ both dated [May] 2020 to the website of Births Deaths and Marriages Victoria in the name of first applicant, applying to change her name to [Names].
·Screen shot of application for change of name dated [February] 2023 from the website of Births Deaths and Marriages Victoria for ‘Legal Certificate for Change of Name’ to ‘[Names, Surname]’.
CRITERIA FOR A 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). 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–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No. 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decisions under consideration.
The current DFAT report is the DFAT Country Information Report Malaysia dated 24 June 2024 (DFAT Report) and its relevant sections are referred to and discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether either or both applicants have a well-founded fear of being persecuted in Malaysia for one or more of the five reasons set out in s 5J of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of either or both being removed from Australia to Malaysia, there is a real risk that either or both will suffer significant harm.
For the following reasons, the Tribunal has concluded that both decisions should be set aside and remitted for reconsideration.
Country of nationality
The applicants have both provided copies of their Malaysian passports and the second applicant also provided his Malaysian national identity card. Both applicants have consistently claimed to be from Malaysia and there are no apparent concerns with either of the applicants’ identities. The Tribunal is satisfied that the applicants are citizens of Malaysia. There is nothing before the Tribunal to suggest that either applicant has citizenship of any other country, or that either has any right to enter and/or reside in any third country.
Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Malaysia is the receiving country for both applicants and has assessed their claims against that country.
Credibility assessment
In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well founded’ or that it is for the reason claimed. A fear of persecution is not ‘well founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicants themselves, in as much detail as is necessary to enable the examiner to establish the relevant facts. A

decision-maker is not required to make out the applicants’ case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need, and importance, of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J, Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal notes that the first applicant’s claims for protection have changed significantly throughout the process. The Tribunal also notes that it is obliged to draw an inference unfavourable to the credibility of an applicant’s new claims raised after the primary decision has been made, in the absence of a ‘reasonable explanation,’ pursuant to s 423A(2) of the Act.
In her original application form lodged in July 2018, the basis of the first applicant’s protection claim was that she had converted to Shia Islam and she feared persecution on that basis from her family, community, and authorities in Malaysia. At her hearing before the Tribunal in November 2024 she disclosed a completely different set of claims. In essence, these were that she had been subjected to a long term violent and controlling relationship and that it was only in February 2020 after her case had been rejected by the Department, that she became aware that her abusive partner had lodged a protection visa application on her behalf without her knowledge, containing a series of false claims. From March 2020, when she formed a relationship with the second applicant, she also developed a new sur place claim, and now fears persecution in Malaysia due to her being in an inter-religious marriage.
The Tribunal notes that the first applicant was not offered an interview by the Department and therefore was not afforded an opportunity to explain at an early stage that her written claims were not true as she had no knowledge the protection visa application had been lodged on her behalf by a controlling, violent partner. The Tribunal also notes that the first applicant’s case was refused by the delegate in December 2018, long before she became aware that a protection visa application had been made on her behalf without her knowledge and also long before she met the second applicant, giving rise to her inter-religious relationship. It was therefore impossible for her to have disavowed the false claims or raised the new sur place claim at that stage of the process.

However, on the first applicant’s evidence she did become aware from sometime in 2020 that her written application contained false claims and she likely also became aware around the same time that she may have new claims arising from her inter-religious relationship. Yet she only disavowed the false original claims and disclosed her new claims for the first time at the Tribunal hearing, more than four years later.
The Tribunal notes that the first applicant had contact with the Tribunal at several points throughout her review application during 2020, 2022 and especially in 2024 in the process leading up to her hearing but at no point disclosed that her earlier claims were not true nor directly put that she had new claims to make. In particular, in July 2024 she contacted the Tribunal seeking an adjournment of her hearing on pregnancy-related medical grounds. However, she did not mention her changed claims for protection due to her changed personal circumstances, namely her inter-religious relationship. Following the rescheduling of her hearing, in October 2024 the first applicant sought a further adjournment on medical grounds and while she alluded to changed personal circumstances, stating she was now married to another Tribunal applicant and requesting their cases be heard together, she did not inform the Tribunal that she had new claims as a result of this change, although she did express a concern that her children were stateless.
The point remains that despite these multiple engagements with the Tribunal, she did not disclose that her previous protection claims were false and that she now had new protection claims based on an inter-religious relationship with the second applicant. At the hearing, the Tribunal asked the first applicant why she had not put forward her new claims at an earlier point. The first applicant said that she had not known how to start explaining her whole story in writing as there was so much to tell, she couldn’t say it in English and that it was also very difficult for her to explain these painful things. She had thought it best she just explain everything when she had her hearing as an interpreter would be provided to her. She also said she had not realised the importance of her telling her true and whole story at the earliest possible time, but had thought the main thing was that she told the Tribunal her true story at some point. She added that her Tribunal hearing was the only time she had ever disclosed everything about her difficult life history to anyone, aside from her husband, and that she had felt such pain and relief to explain to the Tribunal her whole story.
The Tribunal accepts that the first applicant’s explanation for her late disclosure of new claims is reasonable given the context and circumstances of the history of the first applicant’s protection visa application. The Tribunal accepts that the original application was made on her behalf and without her knowledge. She was not afforded an interview at the primary stage, which could have provided an opportunity for her vulnerability to be identified and the problems with her application to be exposed at a much earlier point. The Tribunal also acknowledges that the first applicant’s limited English, and her lack of legal representation combined with her experiences of protracted trauma, have created barriers to her making earlier disclosures of the falsity of the written claims made on her behalf and her new claims.
The Tribunal also accepts the applicant’s explanation that she was not aware of the importance of the timing regarding disclosing her new claims and her explanation that it would have been difficult for her to put ‘it all’ in writing given her limited English language abilities, her lack of representation and the fact that the Tribunal requires applicants to submit all written materials in English. The Tribunal therefore also accepts the reasonableness of her reasoning for why she decided to wait until the hearing to explain the false written claims and to put forward her new claims, which despite the six-year process she had already been through, was, in effect, the first practicable and accessible opportunity for her to readily express herself and tell her story.

100. In reaching these views, the Tribunal accepts the overall credibility of the first applicant’s evidence as presented at hearing. The hearing was long and difficult, taking place over a period of more than six hours (with multiple breaks), due to the first applicant regularly breaking down as she recounted her experiences, while also expressing a strong wish to continue providing her evidence. The Tribunal observed that the first applicant presented in a way that appeared to be consistent with the spectrum of possible responses and presentations of someone who had been through highly traumatic events. She clearly experienced great difficulty talking about the events she related yet also appeared very determined to continue telling her full story despite that difficulty. She ultimately expressed what appeared to the Tribunal to be considerable cathartic emotion and relief that she had been able to complete her story. The Tribunal accepts the credibility of the first applicant’s revised claims and the reasons for why she did not make earlier disclosure of those claims.
101. Regarding the second applicant’s evidence, the Tribunal notes that some aspects of the general outline of his protection claim have remained consistent from his original protection visa application, namely, his claim to have been the victim of ethnic or racial discrimination in relation to educational and economic opportunities and difficulties arising out of his car being stolen resulting in a bankruptcy case being brought against him. However his claims have also changed significantly from their first iteration, with the allegation that he was the victim of a framed car theft to then being ‘set up’ in an improperly brought bankruptcy case, motivated by Malay Malaysian business competitors who wanted to force him out of Government contracts, as the only Indian Malaysian provider. Like the first applicant, he also has sur place claims arising from his inter-religious relationship.
102. The second applicant has strong English language skills and a reasonably high level of knowledge of the Australian protection visa application process and system. One might expect that he would have an understanding of the importance of providing his claims and evidence to the Tribunal in a timely and comprehensive way, especially after he had the experience of initially missing his deadline for applying for review of the Department’s decision. His first disclosure of his inter-religious marriage claims was in writing on 14 October 2024 when he asked for more time to prepare for his hearing. Despite the Tribunal providing the further time requested, he still waited until the evening before his hearing to submit to the Tribunal a series of lengthy documents setting out his evidence of the underlying motivation to the bankruptcy case brought against him and providing documentation relating to his marriage and children, information that was very central to his new claim of fearing persecution due to his inter-religious relationship.
103. Weighing up the reasonableness of the second applicant’s reasons for not disclosing his new claims earlier, again, the Tribunal notes that the Department did not afford him the opportunity to attend an interview prior to refusing his case on the papers in November 2017. The Tribunal also notes that some evidence relating to the applicant’s expanded bankruptcy claims only arose in 2022, long after the Department’s primary decision. Similarly, his new claim regarding his inter-religious marriage only arose in 2020, again long after the primary decision had already been made. Therefore, the Tribunal does not draw any adverse inference from the applicant for not raising these claims and evidence at the Department stage.
104. However, his case was remitted to the Tribunal from the Court [in] January 2020 and so he had several years when he could have provided his new claims and evidence to the Tribunal. When the Tribunal asked the second applicant why he had not put his further claims and evidence before the Tribunal at an earlier point, he indicated that the Tribunal process was very slow and he had not been aware of the relevance of putting forward all of his information at the earliest possible time. He had thought the main thing was that when the Tribunal got around to looking at his case, that it had all the information before it made its decision. On balance, the Tribunal is willing to accept that the second applicant held a genuine belief to the effect that he did not know that the timing of submitting his claims and information could be considered relevant to assessing their truthfulness. The Tribunal acknowledges the applicant’s observation regarding the time taken for the Tribunal to actively consider his case and that this may have created an impression that timing issues were not in issue. The Tribunal also acknowledges that while it does communicate to applicants at various stages the need to submit any claims or documents as soon as possible, it does not explain that adverse inferences may be considered or drawn if information is not provided to the Tribunal as soon as it could have been.
105.   In any event the Tribunal has formed a view that the second applicant is a credible witness, based on the substance of the documentation he has submitted, which, whatever the timing of its submission, does independently corroborate some of the most important factual matters for the Tribunal to determine. In addition, the second applicant’s testimony at the hearing was detailed, specific, internally consistent and also highly consistent with the evidence provided by the first applicant, especially regarding the history of how the applicants came to know each other and form a relationship as well as their descriptions of their practice of Hindu religious ceremonies and beliefs and plans for the religious instruction of their children.
106. Thus, despite the difficulties in the history of claims made by both applicants, the Tribunal is satisfied that both applicants have provided truthful testimony at the hearing regarding their claims.
Findings of fact
107. Based on the discussion above, the Tribunal has placed the greatest weight on the applicants’ testimony at the hearing, along with the documentation they have submitted, and makes the following findings of fact regarding the applicants’ claims:
·     The first applicant was born a Malay Sunni Muslim and is regarded by the Malaysian state to be a Sunni Muslim.
·     The first and second applicants are in a genuine spousal relationship and are legally married in Australia.
·     Their marriage cannot be legally registered and recognised in Malaysia unless the second applicant converts to Islam.
·     The first and second applicants have two [children] born in Australia who have the family name of their father and given names in the Indian/Hindu tradition.
·     For the past four and a half years, the first applicant has adopted Hindu practices and way of life. She has:
a.Participated in all key Hindu religious ceremonies to mark important life events including regarding her marriage, pregnancies and rituals marking the births of her children.
b.Adopted cultural aspects of the Hindu religion including by formally and through usage, changing her name to an Indian/Hindu name and also adopting Hindu dress for ceremonial occasions.
c.Is accepted and recognised by other members of the Hindu faith and by the second applicant’s family, to have adopted Hindu practices and culture.
d.Has agreed to raise her children in the Hindu faith and culture until they become old enough to decide their religion for themselves.

·     The first applicant has a traumatic history caused by having been trapped in a protracted violent and controlling intimate relationship for 14 years. In addition to physical violence and coercive control, she was also systematically economically exploited for 14 years by her former partner and seemingly trafficked by him to Australia.
·     The first applicant continues to suffer from the ongoing effects of trauma from this experience, including living in a constant state of fear, wrestling with self-doubt and self-confidence issues. She likely suffers from other ongoing effects of trauma.
·     The first applicant has found love and safety in her relationship with the second applicant. Her adoption of the Hindu faith and culture, has become a central aspect of her identity and also her healing in dealing with trauma and moving into a new phase of life with her husband, her [children] and her husband’s family.
·     The second applicant is of Indian/Tamil ethnicity and has been a practising Hindu since birth and remains a practising and devout Hindu. He has a deep and genuine Hindu faith which anchors his identity. The practice of Hindu traditions is central to his and the second applicant’s participation in family life with his natal family.
·     The second applicant is strongly opposed to converting to Islam and does not have Muslim beliefs. He does not want to renounce his Hindu faith or be prevented from engaging in Hindu religious ceremonies significant to him and with his family.
·     The second applicant has been legally bankrupted in Malaysia and has continuing legal obligations under bankruptcy law in Malaysia.
·     The second applicant has been the victim of state-based racial discrimination in Malaysia relating to his educational and employment opportunities and has experienced bullying by Malay students in his school community, including physical abuse and demeaning insults.
·     The second applicant was the victim of a ‘set up’ through the theft of his car and the bringing of bankruptcy proceedings against him, due to racially motivated business competitors. The Tribunal is unable to form a view regarding whether state corruption was also involved in the later re-sale of his car and the bankruptcy proceedings.
Are the applicants refugees?
Assessment of risks arising from inter-religious relationship
108. In essence, the applicants’ claims for protection on grounds of their inter-religious marriage, are as follows:
·The applicants claim that their inter-religious marriage cannot be legally recognised in Malaysia unless the second applicant converts to Islam, as the first applicant is unable to convert to the Hindu faith under Malaysian law.
·The second applicant does not want to convert to Islam as he is a devout practising Hindu. Both applicants claim that forcing the second applicant to convert to Islam would be contrary to his basic human right to freedom of religion. The Tribunal accepts that the second applicant will not convert to Islam.
·The second applicant’s forced conversion to Islam would not be limited to a bureaucratic status change, but religious authorities and the overtly Islamic environment in Malaysia would prevent him from continuing to participate in Hindu religious and cultural events that are central to his identity and participation in family life.
·The applicants’ claim that if they returned to Malaysia without being in a legally recognised marriage, and if they tried to live together as a family, the first applicant would be unable to exercise her right to freedom of religion to convert to the Hindu faith. She would also be at risk of prosecution for breaking Sharia law and could be subjected to harsh penalties as well as compulsory rehabilitation for ‘fallen’ Muslims.
·The second applicant fears that he could be forcibly taken by JAIS authorities and converted to Islam. He also fears being subjected to ongoing monitoring by religious authorities and Malay community members to ensure that he is not continuing to practice as a Hindu or participate in Hindu ceremonies to mark family life events.
·Both applicants fear that they would face strong community harassment and pressure from Malay Malaysians, which could take both verbal and physical forms.
·Both applicants also fear that their children would be subjected to official discrimination and societal stigma as they would be considered to have been born outside of wedlock, even if the applicants were to later ‘regularise’ their marriage through the second applicant converting to Islam.
·It would cause harm to both applicants (in addition to their children) that the second applicant could not be the recognised father of his children and nor could his children retain his name nor partake in his inheritance.
·Both applicants also fear their children would suffer societal discrimination by being ‘looked down’ upon because of their parents’ inter-religious relationship. This ongoing prejudice against the applicants’ children would also harm the applicants, as they struggled to mitigate these harmful effects upon their children and wider societal stigma they would face as a family.

Assessment of claims
109. The Tribunal is required to undertake a forward-looking assessment of the risks the applicants may face now and into the foreseeable future, should they be compelled to return to Malaysia. The Tribunal accepts that the applicants are members of the same family unit, meaning that that their claims should be considered together and that relevant thresholds of ‘serious harm’ should also be considered cumulatively. The other significance of them being members of the same family unit is the legal consequence that if one of them is found to meet the criteria for protection, the other will benefit from a similar status. The applicants’ children are not part of this application however issues impacting them have also been considered in so far as they impact on the first and second applicants.
110. The Tribunal has considered the situation regarding the first applicant’s claim that in Malaysia she would be unable to convert from Islam to become a recognised Hindu, and therefore would be unable to achieve a recognised marriage with her husband under civil law on that basis.
111. The first applicant is of Malay ethnicity, meaning she was legally born a Muslim, a status which is publicly recorded on her national identification and which she is unable to legally change as per country information below:
Ethnic Malays are defined in the Malaysian constitution as Muslims from birth and are identified as Muslim on their ID cards. Formally leaving or converting from Islam (apostasy) is extremely difficult. Despite the guarantee of freedom of religion under Article 11 of the Constitution, civil courts have ruled they have no power to intervene in apostasy cases under the jurisdiction of Malaysia’s syariah courts … Apostasy is a criminal offense punishable by a fine or prison term in the states of Perak, Melaka, Sabah, Pahang, Kelantan and Terengganu, with the additional maximum penalty in Kelantan and Terengganu of death (this has never been imposed).[1] Some Islamic leaders in Malaysia have referred to apostasy as a ‘virus’ which threatens the nation.[2] [Emphasis added]
[1] DFAT Country Information Report Malaysia, 24 June 2024, [3.55].
[2] Ibid, [3.56].
Individuals who have attempted to leave the Islamic faith have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts, often without success. An individual wishing to convert from Islam must first obtain permission from a state syariah court and be declared Murtad (‘infidel’). In-country sources reported that courts can order such individuals to be subject to three years of faith rehabilitation in a rehabilitation camp. In-country sources told DFAT about a case of an individual who undertook three years of ‘rehabilitation’ but was still denied permission to leave Islam. DFAT is unaware of any Malay Muslims being successful with an application for apostasy.[3] [Emphasis added]

[24] ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nurul Huda Mohd. Razif, Hawwa - Journal of Women of the Middle East and the Islamic World, Brill, Vol. 18, Issue 2–3, 28 October 2020, p.325.
132. Given the first and second applicants are not married in the eyes of Malaysian law, and nor are they able to marry unless the second applicant were to convert to Islam (an option he has expressly rejected), the Tribunal is satisfied that the first applicant is at a real chance of being punished for having had two children out of wedlock and therefore for having sex outside of marriage (zina), and for being in close proximity to the second applicant who is not her husband (khalwat). The Tribunal further finds that having had two children out of wedlock and remaining in a relationship with a man who is not her husband, this will cause the first applicant’s breach of zina and khalwat to be considered particularly serious, making it more likely she would face a penalty on the heavier end of the spectrum, especially if she is prosecuted for numerous offences over a period of time. Given the variation in available sentences and the seriousness her transgressions would likely be viewed, the Tribunal accepts that the first applicant may be jailed for a significant period for her offences, and she may possibly be caned. At minimum she would likely face compulsory religious rehabilitation for a significant period. Consequently, the Tribunal is satisfied that the harm would involve serious harm for the purposes of s 5J(4)(b) as described in s 5J(5) of the Act, as it will involve deprivation of liberty, or significant physical harm and harassment in the form of caning.
133. This continuous legal threat of repeated investigation and prosecution facing the first applicant would also create a stressful situation for the second applicant and their children, causing them to also suffer significant emotional harm and social stigma, especially if the first applicant was to be prosecuted – which the Tribunal has found there is a real chance may occur. In addition, the second applicant may himself face a risk of forced conversion to Islam.
134. Aside from this risk and the risk to the first applicant of state sanctions for crimes of khalwat and zina, both applicants would also likely face discrimination, harassment, and ostracism by members of the wider Malaysian community expressing their disapproval of the applicants’ inter-faith relationship continuing in breach of syariah law. The Tribunal accepts that there is a real chance that both applicants may face discrimination and harassment amounting to ‘systematic and discriminatory’ conduct in accordance with s 5J(4)(c) from members of the Islamic community in Malaysia emboldened within an increasing Islamised and politicised environment. There is a real chance that these harms would together also amount to serious harm.
What may happen if the applicants are forced to live separately?
135. Given these risks, the Tribunal finds that the applicants would likely find it untenable to continue living together as a family for any lengthy period and it is more likely they would be forced to live apart. As discussed earlier, the Tribunal has already found that being forced to live apart would breach both applicants’ fundamental right to protection of their family unit, and that this would constitute serious harm. Even beyond this specific serious harm, the Tribunal also finds that other negative consequences would flow for both applicants and their children if they were forced to live apart.
136. While the applicants’ two children are not included as applicants in this review, the Tribunal must still take into account the impact upon the first and second applicants of their children being subjected to harm such as discrimination, stigma and family breakdown due to the difficulties discussed regarding the applicants’ inter-faith relationship and due to the children being born out of wedlock in the eyes of the Malaysian state. In this regard, the Federal Court has held that harm to a member of an applicant’s family can amount to persecution of the applicant. In particular, in NBCY v Minister for Immigration,[25] the Federal Court held that:
[25] [2004] 922 (Tamberlin J).
Both in principle and on authority “persecution,” in the sense of serious detriment or harm to a person, can arise from a threat to their family and those to whom that person is strongly attached by bonds of kinship, love, friendship or commitment. In El-Merhabi v Minister for Immigration and Multicultural Affairs [2000] 96 FCR 375 at [16]-[17], for the reasons there stated by Burchett J, severe harm to a member of an applicant’s family can amount to persecution of an applicant and is clearly relevant to the question of whether an applicant can be said to be in danger of persecution. Threats and harm to family members, as a matter of common sense, may cause considerable injury and harm to close members of that family.

137. The first applicant expressed concern that her children may be stateless. According to country information, the Malaysian authorities take the view that as the children were born outside of a marriage capable of registration in Malaysia, they have been born out of wedlock. Therefore, the nationality of the children must follow the mother and not the father. However, as the children’s mother (the first applicant) is a Malaysian national, the applicants’ children are also entitled to Malaysian nationality[26] and the Tribunal finds they are therefore not at risk of statelessness.
[26]Ramalo, M, ‘Special Feature 1: Regressive Citizenship Amendment’, in Suaram, Malaysia Human Rights Report 2023.
138. However, holding Malaysian nationality will not protect the applicants’ children from the legal and social discrimination and stigma they may face due to them having been born out of wedlock, which carries significant legal consequences. In particular, the applicants have claimed that due to their children’s status as being born out of wedlock, the second applicant will not be the legally recognised father of the children and they will be unable to bear his name. The second applicant gave evidence regarding how this would also harm him: ‘And the name given to me by my father, I could not pass on to my [children]. And if my [children] did not have my name, I would die of shame.’ The applicants also claimed that their children’s civil documentation records would reflect a generic name in lieu of their father’s name, which will act as a permanent marker in the Malaysian education system and throughout their children’s lives, that they were born out of wedlock, enabling them to be singled out for stigmatising and discriminatory treatment. The applicants claimed their children would be considered to be from a ‘bad’ family and considered of lower status than children born to parents in a recognised marriage.
139. Country information indicates that the applicants’ fears in this regard are well founded. Children born outside of a legally recognised marriage in Malaysia in circumstances such as the applicants,’ cannot have a legally recognised father, only a legally recognised mother.[27]
[27] Juhi Todi, ‘”Pre-marital” children in Malaysia – addressing the issue’, EMIR Research (17 January 2023) < Malaysia, the definition of illegitimate children (anak tak sah taraf) is found in the Islamic Family Law of Kelantan State No. 6 of 2002. It states that "Not valid in terms of a child means born out of wedlock and not the child of lawful intercourse." This implies that the understanding of children born out of wedlock in Malaysian Islamic Family Law is consistent and in line with the views of Islamic jurists found in old and new fiqh books. In this context, all laws applicable in the Malaysian states stipulate that children born out of wedlock cannot be attributed to their fathers (Sugiarto & Wildan, 2023). Therefore, inheritance, sustenance, and guardianship responsibilities do not fall under the father but only establish civil relations with the mother and her family.[28] [Emphasis added]
[28] Ilham Tohari,I. Waseso, A.Herawati, E ‘Legal Protection of the Rights Children Born Out of Wedlock: A Comparative Study in Indonesia and Malaysia’, p 2145, International Journal of Current Science Research and Review ISSN: 2581-8341 Volume 07 Issue 04 April 2024.

140. Given the above, the Tribunal finds that in effect this ‘illegitimate’ status attributed to the applicants’ children severs the legal link between the second applicant and his children, including regarding their names, parental responsibility and decision making, custody and inheritance. The effect of this would be to exclude the second applicant from his roles as a father, causing him significant anguish. The second applicant would not be able to live with his children or be part of their day-to-day lives. He would have no legal ‘say’ in making big decisions in their lives, including regarding their education, meaning he would be unable to educate them in the Hindu tradition as both applicants have decided to do. He would be unable to pass onto his children his name or inheritance. These are acutely painful and significant incursions on his rights to family that would constitute serious harm to him, which would be a foreseeable consequence of the family returning to Malaysia. These harms rest on top of the other serious harms the Tribunal has already found the second applicant would suffer if he was forced to convert to Islam or if he refused to, the guilt and mental anguish he would experience bearing witness to any harmful consequences flowing on to the first applicant for breaching syariah law, including lengthy deprivation of liberty in prison or a religious rehabilitation camp and/or possible cruel and degrading corporal punishment. The Tribunal is satisfied that cumulatively, the above factors would amount to the second applicant also facing a real chance of serious harm under s 5J of the Act.
141. The legal consequence of the children’s ‘illegitimate’ status would also harm the first applicant, casting her as a single mother to carry full responsibility for the parental load alone and without support from her natal family, with whom she has no ongoing relations. As a single mother, she would likely face social and economic marginalisation, as per the findings of a study on single mothers in Malaysia.[29]
[29] See Md Nor, Z. ‘Precarious Employment amongst Low Income Single Mothers in Malaysia: The Implications on Family Wellbeing’ E3S Web of Conferences 339, 06009 (2022).
Single motherhood and poverty is an association that has been well documented in literature. Single mothers have been consistently shown to experience financial vulnerability in comparison to the general population. Therefore, the incidence of poverty is more pronounced among female headed households in comparison to other types of households. Financial hardship faced by single mothers could be mainly the results of their employment status.

142. The first applicant is more likely to face financial hardship than if the family were permitted to live together and pool resources, especially given her lack of natal family support and the difficulty for her juggling work and childcare arrangements, assuming that she was able to find work. While she would likely be eligible for single parent benefits, which as of 2022 was 500RM per month and she may receive a low-income family payment of 1500RM per month (if her total income were below 2500RM per month),[30] it would still be very difficult for her to ‘make ends meet’. The second applicant would likely continue to face racial discrimination in employment as he has in the past, which will likely limit him to lower paid jobs, and limiting his capacity to support himself and the additional expense of trying to maintain two households. While it is not an issue to be decided in this case, this forced family breakdown and sole parentage status would clearly have ongoing negative impacts on the applicants’ children throughout their lives into adulthood and would not serve their ’best interests’.
[30] Khazanah Research Institute, ‘Cash Transfers: International Insights and the Malaysian Experience’, p43, Kri and Hasanah Discussion Paper 01/24/29 Feb.
143. In conclusion, based on each of the foreseeable scenarios if the applicants were forced to return to Malaysia and whatever difficult decisions the applicants were to take, they both face breaches of their fundamental human rights and a real chance of serious harm. The Tribunal further finds that the essential and significant reason for the harm faced by both applicants is due to their differing religions within the framework of Malaysian law. It is also due to their imputed political opinion as their inter-religious relationship goes against state prohibited inter-religious marriages involving Sunni Muslims where the other party does not convert, which is a dominant political, legal, and cultural doctrine strongly upheld by the Malaysian state.
144. The laws denying legal recognition to inter-faith marriages between Muslims and non-Muslims apply across the whole of the country, as do versions of syariah laws criminalising zina and khalwat. Cultural and political dominant norms that underpin these laws also create conditions for vigilantism, social discrimination and harassment of inter-religious couples across most of the country, therefore options of relocation will not mitigate the harms faced by both applicants. The Tribunal finds that the applicants’ fears of persecution apply across the whole of Malaysia.
145. The Tribunal is satisfied that the applicants’ fears of persecution in Malaysia are well founded and that both applicants meet the definition of a refugee as defined by s 5H(1)(a) of the Act.
146. As the Tribunal has found that the second applicant’s claims regarding his inter-religious marriage have been made out, it is not necessary for the Tribunal to assess his other claims, relating to the bankruptcy case made against him or the more general claims he made regarding ethnic discrimination in education, employment and constraints on other life opportunities.
147. For the reasons given above, the Tribunal is satisfied that both applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
148. The Tribunal sets aside and remits both applications for protection visas for reconsideration, in accordance with the order that both applicants satisfy s 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…