2009287 (Refugee) v Minister for Home Affairs - [2024] ARTA 703

2009287 (REFUGEE) [2024] ARTA 703 (20 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2009287

Tribunal:Senior Member A Murphy
Date:20 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Senior Member A. Murphy

Statement made on 20 November 2024 at 11:45AM
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – religion – reconversion to Christianity – particular social group – victim of loan sharks – apostasy – mental health issues – employment – mandatory Islamic counselling – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCA 2143
MIAC v MZYHS & Anor [2011] FCA 53
MIAC v SZQRB [2013] FCAFC 33
MZWZB v MIMA [2006] FMCA 4211

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
Statement of reasons
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Malaysia who applied for the visa on 14 April 2019. The delegate refused to grant the visa on the basis that the applicant did not come within the definition of a refugee and was not owed complementary protection by Australia.
The applicant first appeared before the Tribunal on 23 August 2024. The hearing was adjourned part heard on that occasion because of difficulties in the communication between the interpreter and the applicant. The matter resumed on 3 October 2024 with a different interpreter in the Mandarin and English languages. The Tribunal received oral evidence from the applicant’s cousins [Cousin A] and [Cousin B] as well as the applicant’s psychologist, [Psychologist A].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is 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.
For the following reasons, the Tribunal has concluded that the decision of the delegate should be affirmed.
Country of nationality
There is no dispute that the applicant is a citizen of Malaysia. The Tribunal finds accordingly and has assessed the applicant’s claims against Malaysia as his country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an age]-year-old male from Kuala Lumpur, Malaysia. He is of Chinese ethnicity and Christian religion. The applicant is the child of an interfaith marriage, his mother being a Christian while his stepfather was Buddhist. Both the applicant’s biological father and stepfather are deceased. The applicant was educated to [grade] level at a Chinese school and finished his education in [specified year], aged [age].
In the visa application the applicant stated that he was employed from [year] to December 2008 at [Employer 1] as a [sales person] and as [an occupation 1] at [Employer 2] between 2009 and April 2016. At hearing, however, he stated that he worked at many different jobs during that period, including the ones mentioned in the visa application. He said that most recently, before coming to Australia, he worked as [an occupation 1] in a local [business 1] and then as a sales person at [another business].
The applicant arrived in Australia [in] April 2016 as the holder of a visitor visa.
Medical evidence from a psychologist who assessed him in the context of this review application records that he meets the diagnostic criteria for post-traumatic stress disorder, depression and anxiety. In the psychologist’s report further discussed below, it is stated that the applicant currently works full time in [industry 1] and has been with the same employer for the past two years. It is also noted in that report that he has been in a stable and supportive relationship with an Australian permanent resident for the past two years.
The Tribunal accepts the above matters to be true.
Protection claims
In essence, the applicant claims to fear harm in Malaysia as a Chinese Malaysian of the Christian religion who converted to Islam in order to marry and now wishes to revert to his Christian faith. He also made new claims before the Tribunal that he will be harmed by loan sharks on return to Malaysia.
Claims in the protection visa application
In the visa application, the applicant states that he left Malaysia because he felt his life was threatened by Islam. He claims he was a Christian, but converted to Islam in order to marry his Muslim girlfriend. However, their relationship ended before the marriage took place, after which he wanted to revert from Islam back to Christianity. He was told he would have to go to the syariah courts, where he would be punished for apostasy. He was afraid of the syariah courts and the penalties he would face so he escaped to Australia.
He fears that if he returns to Malaysia, he will face trial in a syariah court and he will face penalties for renouncing Islam. As Malaysia is a Muslim country and syariah courts deal with Islamic matters, he will be unable to relocate in order to avoid the feared harm. He fears he will be jailed for apostasy and believes the police and courts cannot protect him because it is an issue governed by the syariah courts.
Claims before the Tribunal
At hearing the applicant elaborated on his claims that he faced serious harm in Malaysia because of his wish to revert back to his own Christian religion from Islam.
He also raised new claims to fear harm from a money lender from whom he had borrowed money to pay a dowry, and on the basis of his mental health.
Mental health
The Tribunal has been provided with a report and statutory declaration from [Psychologist A], who also gave oral evidence at hearing. [Psychologist A] has diagnosed the applicant with post traumatic stress disorder, depression and anxiety. She states that it is her professional opinion that the applicant requires continuing psychological counselling on a monthly basis.
In her statutory declaration dated 7 August 2024, [Psychologist A] stated that she had seen the applicant once. She recounts in some detail the applicant’s reported protection claims and her understanding of syariah laws in Malaysia and country information from the relevant DFAT report. In her oral evidence, [Psychologist A] told the Tribunal that she had initially seen the applicant for an extended three hour consultation and had since seen the applicant on two further occasions and that she would like to continue to see him for counselling. In response to questions posed by his representative, she gave evidence that she did not do a formal assessment of IQ but found that he had the capacity to participate in the assessment and articulate his concerns. She found that he was consistent and clear in the matters that were of strong concern to him, which were his religious conversion and debt collection matters.
In her annexed report, [Psychologist A] describes his background in a manner consistent with the applicant’s own claims. She records the applicant as quiet with low mood and without positive affect and that he was articulate in his account of his experiences relating to his protection claims. She records that the psychological impacts on his manner were low mood, anxious state and fear of others, while the impact on his communication and recollection of events was nil, noting that he was clear and articulate. She sets out the symptoms described by the applicant which led to her diagnoses of post-traumatic stress disorder (PTSD), depression and anxiety.
[Psychologist A] states that the applicant’s mental health conditions are due largely to the protracted nature of the immigration proceedings in Australia and the lack of options for him in a country that does not allow him to live as a Christian. She notes that even if psychological support were available to him in Malaysia, it would hold little value given the threats to his life in Malaysia. [Psychologist A] states that the related debt and threats by money lenders is a relatively very minor issue, as it is one that he can manage in terms of paying back that debt, although the threats from money lenders have contributed to his anxiety, depression and PTSD. She records that she commenced treatment with the applicant in June 2024, based on Cognitive Behavioural Therapy, Emotional Focussed Therapy and Behavioural Therapy.
[Psychologist A] states that the applicant has experienced suicidal ideation and there are concerns that he will make suicide attempts if returned to Malaysia, but records that he has not previously made any suicide attempts. The Tribunal notes this to be contrary to the evidence of the applicant and [Cousin B], who each report that the applicant attempted suicide before travelling to Australia and the Tribunal accepts the evidence of the applicant and [Cousin B] to this effect.
The Tribunal accepts that [Psychologist A] has diagnosed the applicant with PTSD, depression and anxiety and that the applicant would benefit from the treatment proposed by [Psychologist A], being ongoing therapy on a monthly basis based on Cognitive Behavioural Therapy, Emotional Focussed Therapy and Behavioural Therapy. [Psychologist A] and the applicant each confirmed that the applicant takes no medication for his mental health conditions.
[Psychologist A] states a number of times that the applicant is the victim of death threats and even if psychological support were available to him in Malaysia, it would hold little value given the threats to his life in Malaysia. While the Tribunal accepts that her report and statutory declaration were written in good faith, it is not bound by what a medical professional concludes as being the reason for an applicant’s symptoms.[1]
[1] MZWZB v MIMA [2006] FMCA 4211
In this case, the Tribunal’s own concerns about the credibility of parts of the applicant’s claims as set out below have caused the Tribunal to consider that to the extent that [Psychologist A’s] report tends to corroborate the applicant’s account of his claimed persecution, it is to be given little weight[2].
[2] MIAC v MZYHS & Anor [2011] FCA 53
Harm on the basis of religion
The Tribunal accepts that the applicant converted from Christianity to Islam in 2012 when he became engaged to his former partner. In making that assessment, the Tribunal records that the applicant has given his account of his intended marriage and its ending in a consistent and straightforward manner. His evidence about his conversion for the purposes of marriage is consistent with DFAT’s advice to the effect that Chinese Malaysians generally follow Buddhism, Christianity or Taoism, but that the government does not recognise marriages between Muslims and non-Muslims and in accordance with syariah law, a non-Muslim must convert to Islam before marrying a Malaysian Muslim.[3]
[3] DFAT Country Information Report: Malaysia June 2024 (DFAT Report) at 3.60, 3.64 (DFAT Report)
At hearing the applicant gave evidence that the conversion took place in March 2012 when his future father-in-law took him to a religious building where he was given something in writing that he needed to read out and sign. This is consistent with DFAT’s advice that conversion to Islam is relatively straightforward. The applicant’s conversion to Islam is corroborated by a certificate issued by [Agency 1], which records that he embraced Islam in March 2012. Corroborative evidence of the applicant’s conversion was also received from the applicant’s two cousins and witnesses, [Cousin A] and [Cousin B].
The Tribunal accepts that in preparation for his marriage, the applicant paid a dowry of [amount] ringgit to his former partner’s family before the relationship ended in about October 2015. The dowry was financed partly by the applicant’s savings and partly by a loan of [amount] ringgit which the applicant took out in 2015. The Tribunal accepts that the applicant’s family and friends were concerned and distressed about both his conversion to Islam and the debt taken out by the applicant to pay the dowry.
The Tribunal accepts that the applicant’s former partner ended their relationship in October 2015, shortly before their intended marriage. The applicant gave evidence that the end of the relationship was a great surprise to him. He asked for the return of the dowry, but gave evidence that the family made many excuses not to return his money leaving him with a debt of [amount] ringgit (approximately AU$[amount]). This debt is discussed further below.
The Tribunal accepts that following the end of his relationship, the applicant wished to revert to practising his former Christian religion. At hearing he gave evidence that he told the father of his former partner about his intention to revert to Christianity in about October 2015. He described his former partner’s father as being surprised and said he kept asking why. The applicant told him that as his daughter and the applicant could not be together anymore, he wanted his original identity back. He gave evidence that his former partner’s father was angry, telling him that if he left the Islamic religion he would be punished under Islamic law. The applicant gave evidence that he has had no further contact with his former partner or her father or family since that time.
The applicant claims that after advising his former partner’s father of his intention to revert to Christianity he started to experience harassment from Muslim persons. In his statutory declaration dated 14 August 2024 he stated that he received verbal threats, that insulting words were written outside his home and that Muslim persons contacted his employer with the result that he lost his job. However, at hearing the applicant gave evidence that he in fact quit his job at the factory because those people waited outside the factory and verbally abused him.
The applicant claims that as a result of the harassment he went to stay with his cousin [Cousin A] in Ipoh but that the Muslim persons located him in Ipoh and again subjected him to harassment by gathering outside his cousin’s house and chanting from the Q’uran, posting Islamic texts to the walls and banging on the door and walls of the house. He claims that after a month he returned to his apartment in Kuala Lumpur, where the harassment continued up until the time he travelled to Australia in 2016. He stated that he did not report any of the incidents of harassment to the police because he believed it would be useless as the police are themselves Muslim.
At hearing I discussed with the applicant that I was having difficulty accepting that Muslim persons who were not otherwise known to him were able to find him at home in Kuala Lumpur and then at each of his cousin’s homes in Kuala Lumpur and Ipoh. The applicant stated that he believed they were working for government agencies who had access to his identity documents. When I noted that his identity documents didn’t record him as a Muslim at that time, he said he had provided all of that information to the Islamic authorities in his application to convert to Islam. I do not accept that the applicant provided the Islamic authorities with the addresses of his cousins in his application to convert and as discussed in detail below, neither the applicant’s passport or National Identity Card (MyKad) recorded his religion as Islamic while he was in Malaysia.
I have considered the witness evidence as to the harassment that the applicant claims to have been subjected to by Muslims. [Cousin A] provided a statutory declaration and gave oral evidence at the hearing, stating that in or around early November 2015 the applicant came to stay with him in Ipoh where they faced harassment from unknown Malay individuals who knocked on the door in the middle of the night, recited scripture from the Quran and posted Islamic religious materials on the walls. [Cousin A] says he was initially confused as to why they were being targeted by Malay individuals but later came to understand that they were targeting those who disobey Islamic laws. [Cousin A’s] evidence was that they chose not to report the incidents to the police as the police force is predominantly Muslim and that the applicant decided to return to Kuala Lumpur in late November 2015. When asked at hearing if he felt safe while this was going on, [Cousin A] said that it was no issue when he needed to leave the house to go out or go to work and the persons outside didn’t break or smash anything. He said those incidents did not continue after the applicant left his home in late November 2015.

In her statutory declaration made 15 August 2024, [Cousin B] stated that following his application to renounce Islam, Muslim persons began to harass the applicant, threatening not only the applicant but his mother ([Cousin B’s] aunt), resulting in multiple hospitalisations. At hearing she gave evidence that she and her husband and mother lived with the applicant and his mother in Kuala Lumpur and that the Muslim persons came to their house during 2015 and 2016, with the result that the applicant’s mother was injured at their home when she was pushed by Muslim persons and twisted her ankle. She claimed the Muslim persons had continued to attend the home looking for the applicant until the end of 2016, some eight months after the applicant left Malaysia.
However, the Tribunal has concerns about the credibility of the witnesses’ evidence, noting that such events were not referred to in the protection visa application and there are significant inconsistencies in the evidence about where and with whom the applicant was living at the time:
·The applicant did not mention the harassment from Muslim persons that he now claims to have experienced or the assault on his mother in his protection visa application; rather his stated fear of harm in the visa application was that he would be exposed to prosecution by the syariah courts for apostasy on return to Malaysia. Contrary to his evidence before the Tribunal that he experienced harm from Muslims who targeted him at his home and workplace, he answered ‘no’ to a question in the visa application that asked if he had experienced harm in Malaysia;
·In the protection visa application, the applicant stated that he lived at the same address in Kuala Lumpur from 1999 until he travelled to Australia in April 2016. [Cousin B] described the harassment as taking place at a property she shared with the applicant and their respective mothers, giving evidence that she believed the Muslim persons harassing the applicant obtained the address of the property from details the applicant had provided to them during the conversion process. However, at hearing the applicant gave evidence that he lived alone in a rental property during the relevant period, not with his extended family as suggested by [Cousin B]. When I discussed this apparent inconsistency with the applicant after hearing [Cousin B’s] evidence, he said that he moved back to his mother’s place temporarily in order to avoid the harassment;
·Contrary to the evidence of [Cousin A’s] and the applicant to the effect that the applicant went to stay with [Cousin A] in Ipoh to escape the harassment he was experiencing in Kuala Lumpur, the applicant stated in the visa application that he did not try to move to another part of Malaysia to seek safety.
The Tribunal has considered the applicant’s evidence that the person who assisted him to complete the visa application did not tell him he had to write down all of his claims. However, the Tribunal considers that if the applicant had in fact faced months of harassment and threats from Muslim persons as he now claims, those matters would have been mentioned in his statements in the protection visa application. Not only did this not occur, but the applicant answered questions in that visa application to the effect that he did not experience harm in Malaysia and he did not try to move to another part of Malaysia to seek safety. For these reasons, the Tribunal does not accept that the applicant was targeted for harm or harassment by Muslim persons in 2015 or 2016, either in Kuala Lumpur or Ipoh. Nor does the Tribunal accepts that Muslim persons continued to look for the applicant at his mother’s home after the applicant’s departure from Malaysia as suggested by [Cousin B].
Future risk of harm for reasons of religion
For the reasons set out above, the Tribunal has accepted that the applicant converted from Christianity to Islam in 2012 and that he wishes to revert to practising his Christian faith. DFAT reports that Malaysia has a two-track legal system comprising common law, which is administered at the federal level and Islamic law (syariah law), administered at the state level. Syariah law varies by jurisdiction and applies only to persons of Islamic faith, although it sometimes affects non-Muslims, especially in matters involving religious conversion.[4]
[4] DFAT Report at 3.40 – 3.45
DFAT advises that formally leaving or converting from Islam (apostasy) is extremely difficult, particularly for persons designated as Muslim from birth. Apostasy is a criminal offence punishable by a fine or prison term in the states of Perak, Melaka, Sabah, Pahang, Kelantan and Terengganu. In Kelantan and Terengganu, there exists in law the additional maximum penalty of death, but this has never been imposed. Rather, DFAT reports that it is unaware of any convictions for apostasy since 2000, when four people were sentenced to three years’ jail for the offence. DFAT further notes that there are two categories of Malaysians who may be able to convert from Islam, the first being persons recorded as Muslim ‘in error’ and the second being those who seek to convert to their original faith following a divorce, after converting to Islam for the purposes of marriage.[5]
[5] DFAT Report at 3.55 – 3.59
DFAT’s advice is generally consistent with other sources. In 2023 the US Department of State (US DOS) reported that Muslims who seek to convert to another religion must first obtain approval from a syariah court to declare themselves as apostates and syariah courts rarely grant such requests. Penalties for apostasy vary by state, with such conduct being criminalised in Perak, Melaka, Sabah, and Pahang, Kelantan and Terengganu. Kelantan and Terengganu’s syariah laws provide the maximum penalty for apostasy is death, but the courts have never imposed this penalty and its legality remains untested. US DOS reports that those who choose to convert out of Islam opt to do so privately without legal approval.[6]
[6] United States Department of State Religious Freedom Report 2023, Malaysia - United States Department of State
Country information contained in the delegate’s decision confirms the above and further reports that there has not been a case when a syariah court chief prosecutor has initiated criminal proceedings for apostasy or attempted apostasy against an individual seeking to officially change their religious status. It states that syariah courts occasionally grant permission to individuals who were not born Muslim but converted and later seek reversion, but successful applications are in the minority. It notes there were 863 such applications to syariah courts between 2000 and 2010 and 400 cases in 2017 but does not suggest that any of the persons bringing those applications faced charges or prosecutions under syariah laws.[7]
[7] Delegate’s decision dated 12 May 2020 at pages 2 - 3
The Tribunal has considered the submission to the effect that Malaysia has undergone a process of Islamisation and religious conservatism and the country information referred to in the various submissions made to the Tribunal. The Tribunal considers those submissions and country information to be broadly consistent with DFAT’s advice to the effect that local and international observers have noted the increasing influence of conservative Islamic ideas in Malaysian politics and society. I have noted the comments of the former Prime Minister labelling atheism and secularism as ‘deviant’ in May 2016 and his indication that the government would not tolerate ‘any demands or right to apostasy’. I also note that country information indicates a growing intolerance towards the LGBTIQ+ community, which is also consistent with DFAT’s current advice, although such issues do not arise on the facts in this matter.
However, in this case the applicant is from Kuala Lumpur, a federal territory not governed by syariah law and which has not criminalised apostasy. As discussed with the applicant at hearing, country information discussed in the delegate’s decision indicates that even in those states which have criminalised apostasy, no syariah court has ever prosecuted a person for leaving Islam or attempting to do so. DFAT states that it is unaware of any convictions for apostasy anywhere in Malaysia since 2000, when three people were sentenced to three years’ jail for the offence.[8]
[8] DFAT Report at 3.58
At hearing the applicant disagreed with that information, telling the Tribunal that he was aware of a case in the news in which a person went through court proceedings to withdraw from their Islamic religion, spent a lot of time and money and did not succeed. He said there was no way he could afford the legal proceedings. The applicant’s representative has referred the Tribunal to paragraph 3.58 of the current DFAT report, submitting that the applicant will be subject to faith rehabilitation by the syariah courts, mandating attendance at counselling sessions for up to three years, with the possibility that he will still be denied permission to leave Islam.
While DFAT reports that those who seek to revert to their original faith after converting for the purpose of marriage are in one of the two categories of persons who may be able to convert from Islam, the Tribunal accepts that even within this group not all applications for reversion are successful. In making that assessment the Tribunal has considered the DFAT report as well as the country information in the delegate’s decision and that submitted by the applicant. One article concerns a 2023 decision of Malaysia’s High Court which refused to hear a petition of a Christian woman seeking to overturn a decision from a syariah court which refused her permission to revert to her Christian faith. That article notes that the court asked her to undergo 12 counselling sessions with a Muslim cleric over the course of a year, and then to attend further counselling sessions for 60 days after her appeal was dismissed.[9] In another instance, a syariah court dismissed the renunciation application of a male convert seeking to leave Islam and return to Christianity, ordering him to undergo counselling. The High Court declined to review the decision of the syariah court, finding that it the syariah court’s decisions was non-justiciable.[10]
[9] Malaysian court rejects woman's bid to return to Christianity - UCA News
[10] Court denies Muslim convert’s bid to return to Christianity | FMT
In light of the country information the Tribunal accepts there to be a real chance that any renunciation application made by the applicant to the syariah authorities in Malaysia may not ultimately be successful, however this is not the same as being prosecuted for apostasy or other syariah crimes. Rather as noted above, Kuala Lumpur is a federal territory not governed by syariah law and country information referred to above indicates that even in states that have criminalised apostasy, DFAT is unaware of any convictions for apostasy anywhere in Malaysia since 2000.
For these reasons the Tribunal does not accept there to be a real chance the applicant will face prosecution for apostasy or other criminal charges based on syariah law if he returns to Malaysia and seeks to renounce Islam and resume his practice of his Christian faith. For the same reasons, the Tribunal does not accept there to be a real risk the applicant will face prosecution for apostasy or other criminal charges based on syariah law for the purposes of the complementary protection criteria.
In considering whether the applicant will face other kinds of harm from the Malaysian authorities if he seeks to renounce Islam and resume his practice of Christianity, DFAT indicates that some Muslims applying to the syariah authorities for permission to leave Islam may be subjected to mandatory counselling and that the courts have the power to order such individuals to undertake faith rehabilitation in rehabilitation camps. However none of the information available to the Tribunal indicates that the syariah courts make such orders in respect of persons seeking to leave Islam in order to revert to their original pre-marriage faith and the Tribunal does not accept there to be a real chance or a real risk that will occur to the applicant. Rather the country information available to the Tribunal indicates that such persons may be subjected to mandatory counselling from religious advisors.
In these circumstances, the Tribunal accepts there to be a real chance the applicant will be subjected to mandatory counselling if he returns to Malaysia and seeks the permission of the syariah authorities to official leave Islam and revert to Christianity. However as discussed with the applicant at hearing, not all instances of discrimination will reach the level of ‘serious harm’.
Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test, listing the following as instances of ‘serious harm’:
(a)      a threat to the person’s life or liberty;
(b)      significant physical harassment of the person;
(c)      significant physical ill-treatment of the person;
(d)      significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
The country information does not indicate that the applicant would be subjected to any of those forms of harm, noting that there is no indication in the DFAT report or the other country information submitted to the Tribunal suggesting that persons directed to undergo mandatory counselling otherwise face harm, harassment or punishment during that process. In these circumstances the Tribunal does not accept that mandatory counselling on its own rises to a level as would constitute serious harm.
In considering whether mandatory counselling can amount to ‘significant harm’ for the purposes of the complementary protection criteria, the Tribunal notes that term is exclusively defined in s.36(2A) as follows:
(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.
The Tribunal does not consider that an obligation to undergo mandatory counselling constitutes an act that intentionally inflicts severe pain and suffering, or pain and suffering that could reasonably be regarded as cruel or inhuman in nature. Nor does the Tribunal consider that mandatory faith counselling is an act intended to cause extreme humiliation. For these reasons the Tribunal does not accept that an obligation to attend mandatory counselling constitutes ‘significant harm’ for the purposes of s.36(2A).
A separate issue arises as to whether the applicant will be able to remove the reference to Islam from his official identity documents. The applicant claims that the Islamic religious authorities will have notified the Malaysian authorities about his conversion to Islam and that his passport and MyKad will reflect this if he returns to Malaysia and renews those documents.
The Tribunal does not accept that the applicant’s passport will identify him as a Muslim once renewed. In making that assessment, the Tribunal notes that the applicant’s Malaysian passport was issued in May 2015 and does not record him to be of the Muslim religion. The applicant said he had been told this was because it took a bit of time for the Malaysian government records to register his change of religion, but the Tribunal notes the issue of that passport was more than three years after his conversion to Islam. At hearing, the Tribunal also discussed with the applicant that it was unable to locate any country information indicating that Malaysia’s passports record the holder’s religion and no contrary information was provided to the Tribunal after the hearing. In these circumstances, the Tribunal does not accept that the applicant’s passport, when next renewed, will record him as being of the Muslim religion.
The situation is different for Malaysia’s National Identity Cards (MyKad). DFAT reports that a person’s MyKad “shows an individual’s name, address, biometric data (including photograph and fingerprints) and their status as a Muslim (by omission it signals an individual’s status as a non-Muslim)”. Citizens receive a MyKad at 12 years of age and it must be updated when an individual is between 18 and 25 years of age, and thereafter whenever details change.[11]
[11] DFAT Report at 5.38 – 5.39
The Tribunal was provided, after the hearing, with a copy of the applicant’s MyKad, which does not record him to be Muslim, despite his conversion four years prior to his departure from Malaysia. However, given DFAT’s advice that a person converting to Islam for the purposes of marriage will have their conversion reflected on their MyKad, the Tribunal accepts that when the applicant’s MyKad is next renewed it may identify him as Muslim.
DFAT records that there are two categories of Malaysians who may be able to convert from Islam, being those who were recorded in error and those who seek to revert to their original faith following a divorce. The applicant falls into the latter category. While the right to revert from Islam was confirmed by the High Court in 2016, DFAT notes that persons who have attempted to leave the Islamic faith have faced long and expensive legal battles, often without success and that is also reflected in the other country information submitted by the applicant and referred to above. [12]
[12] DFAT Report at 3.59
The US DOS similarly reports that it remains difficult for Muslims attempting to convert to change the religious designation on their identification cards.[13] The Tribunal has also had regard to the further instances referred to in submissions lodged with the Tribunal where persons seeking to renounce Islam and revert to their original faith had their applications denied by syariah courts and were then denied a review by Malaysia’s civil courts. The applicant’s evidence at hearing was that it would be impossible for him to afford such legal action.
[13] United States Department of State Religious Freedom Report 2023, Malaysia - United States Department of State
In light of the applicant’s evidence and the country information referred to above, the Tribunal accepts that it may not be possible for the applicant to legally renounce Islam or to have the designation ‘Islam’ removed from his MyKad. The Tribunal accepts the applicant’s evidence that he likes to eat pork and that he also has a permanent tattoo. At hearing he gave evidence that the tattoo was a representation of his name and that he would face harm in Malaysia for this reason because Muslim people cannot have any kind of tattoo. As discussed with the applicant at hearing, available country information does not suggest that people are at risk of harm in Malaysia because they have a tattoo, whether or not they are Muslim, unless it is a tattoo affiliated with a criminal gang.[14]
[14] Individuals with secret society tattoo, symbol can be arrested 24 February 2019, BERNAMA - Individuals with secret society tattoo, symbol can be arrested
In considering the risk of harm to the applicant if he returns to Kuala Lumpur and commences practising his Christian faith despite being identified as a Muslim on his MyKad, the Tribunal notes DFAT’s advice that many urban Muslims in Malaysia are non-observant or secular and that some eat during the day during Ramadan, drink alcohol and do not attend mosque. While people who are identified as Muslim on their MyKad but discreetly practise their own faith do so without adverse attention, they sometimes face considerable family and social pressure to observe Islam. DFAT notes that enforcement of Islamic laws has relaxed in recent years, but remains stricter in Kelantan and other Eastern states and takes the form of checking identity cards, and that Malaysians who ‘do not look Malay’ are less likely to be harassed by authorities. [15]
[15] DFAT Report at 3.56 – 3.57

In this case the applicant is ethnic Chinese and this is reflected in his appearance, the language that he speaks and his name. The Tribunal has not accepted that the applicant was targeted or harassed by the religious authorities or members of the Muslim community in 2015 and 2016 as claimed. For all of these reasons, and in light of the country information cited above, the Tribunal does not accept there to be a real chance the applicant will face serious harm from the state or religious authorities in Malaysia, or the Muslim community more broadly, if he returns to Kuala Lumpur and seeks to leave Islam and resumes practising his Christian faith notwithstanding any religious designation on his MyKad.
The applicant gave evidence that he has had no contact with his former girlfriend or her father in the eight years since his relationship ended and he informed his former girlfriend’s father that he intended to revert to his Christian faith. In these circumstances, the Tribunal does not accept there to be a real chance that his former girlfriend’s father or any other member of her family would seek to harm or harass the applicant if he returns to Kuala Lumpur and seeks to renounce Islam and resume practising his Christian religion.
In considering whether the applicant will face harm from his own family or Christian community, the Tribunal notes that he comes from a family who practise the Christian and Buddhist faiths and who were distressed by his decision to convert to Islam. The Tribunal considers that if he were to return to Kuala Lumpur and renounce Islam and openly practise his Christian faith, he would not come under pressure or face harassment from his own family or faith community even if his religion is shown as Muslim on his MyKad.
For all of the above reasons, the Tribunal does not accept there to be a real chance the applicant will face harm from the Malaysian authorities, the Muslim community or members of his own family or faith community for reasons of his religion, or on the basis of his membership of the particular social group of ‘Christian Chinese Malaysians who were not born into the Islamic faith but converted for marriage and now wish to convert to Christianity’ or any other particular social group formulated on the basis of his ethnicity, his conversion to Islam for the purposes of marriage and his wish to revert to his Christian faith.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[16] For the same reasons I do not accept there to be a real risk the applicant will be subjected to significant harm by any person or group if he returns to Malaysia and resumes practising his Christian faith.
[16] MIAC v SZQRB [2013] FCAFC 33
Harm from loan sharks
For the reasons set out above, I have accepted that the applicant borrowed money in February 2015 for a dowry for his upcoming wedding.
Before the Tribunal, the applicant claimed to fear harm from a finance company/money lenders from whom he borrowed money in 2015 in order to pay the dowry for his upcoming wedding. He did not mention these matters in the visa application and these claims were not before the delegate at the time the primary decision was made.
Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. At hearing, the applicant explained this by saying that the person who helped him to submit the application didn’t tell him he had to mention it. He knew nothing about legal procedures and just had a consultation with a lawyer or agent and told them the official reasons he needed to apply for the visa, without telling all the information fully or completely.
The applicant claims that he borrowed [amount] ringgit in February 2015 from a finance company with the intention of repaying the loan within three years. At hearing he was unable to say who had lent him the money, or how much was now owing but said that the agreement had been that he would pay back [amount] ringgit within three years of the loan. He said that the loan was documented but the contract was in Malaysia and he is paying the loan back by sending money to his sister who is making repayments on his behalf. He guessed that he still owed more than [amount] ringgit.
Documents produced to the Tribunal after the hearing include a Debt Agreement Letter dated [in] February 2015 recording a loan of [amount] ringgit from [Mr A] to the applicant at an interest rate of 22%. That document includes a repayment schedule ending in December 2017 with a final repayment of [amount] ringgit.
Also attached was a letter dated 1 September 2021 from [Ms A], wife of [Mr A], who states that after discussion with [Cousin B], she is willing to cancel the terms of the letter of Debt Agreement signed by the applicant and her late husband and find that the principal of RM [amount] is owing, payable by monthly instalments of at least RM [amount] (approximately $[amount]) commencing on 15 September 2021 until the entire remaining principal has been repaid. A handwritten record of repayments commencing 15 September 2021 shows payments each month of varying amounts of between [amount range] ringgit since September 2021. That document does not show any interest being paid; rather it reduces the balance owing each month by the amount of the payment made that month. It records that as of 15 September 2024, [amount] ringgit (approximately $[amount]) remains owing.
The Tribunal notes that the debt documents produced to the Tribunal indicate that the applicant repaid part of the debt prior to leaving Malaysia in 2016. The letter from [Ms A] records the principal owing in 2021 as [amount], some [amount] ringgit less than the amount borrowed in 2015. The applicant gave evidence that after arriving in Australia, he did not commence making repayments after until 2021 when he obtained work rights and commenced sending money back to his sister, indicating that [amount] rinngit was repaid prior to the applicant’s departure from Malaysia in 2016.
While the Tribunal accepts the applicant borrowed money to finance the dowry, it does not accept that he faced harm or harassment for that reason prior to his departure from Malaysia in April 2016. In making that assessment the Tribunal notes the applicant’s failure to mention such harm in the protection visa application, as well as his ability to repay [amount] ringgit prior to his departure from Malaysia. Further the Tribunal considers his evidence to the Tribunal on this issue to be vague and inconsistent. For example in his statutory declaration dated 14 August 2024 he stated that after he became jobless, he was unable to repay the loan on time and the finance company began sending debt collectors after him. However, in his oral evidence he stated that the debt collectors waited for him outside his workplace and harassed him for money. As noted above, the applicant’s evidence at hearing about his employment history was quite different from that presented in the visa application.
Since 2021 the applicant has paid a further portion of the loan by instalments and the lender has accepted repayment of the principal without further interest. The applicant gave evidence that he thought he could repay the debt over time and this is consistent with [Psychologist A’s] assessment that the debt is a relatively minor issue for the applicant, as it is one that he can manage in terms of paying back that debt.
I consider that if the applicant returns to Malaysia, he will be able to find employment and continue to make repayments against his debt. I do not accept the submission that his mental health precludes him from finding employment in Malaysia, noting that he currently works full time in [industry 1] in Australia and that he has only commenced treatment (in the form of monthly psychological counselling) in recent months. For these reasons, I do not accept there to be a real chance that the applicant will face harm from money lenders if he returns to Malaysia, now or in the reasonably foreseeable future. For the same reasons I do not accept there to be a real risk that he will be subjected to significant harm from money lenders as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
Mental health
For the reasons set out above, I have accepted that the applicant has been diagnosed with PTSD, depression and anxiety and that it is the professional opinion of his psychologist that he requires continuing psychological counselling on a monthly basis based on Cognitive Behavioural Therapy, Emotional Focussed Therapy and Behavioural Therapy. I have accepted [Psychologist A’s] evidence that the applicant has experienced suicidal ideation and there are concerns that he may attempt suicide if returned to Malaysia.
I accept DFAT’s advice to the effect that mental health services are ‘a notable gap in Malaysia’s otherwise strong healthcare system’ and that they are hard to access, expensive and ‘only for the privileged’ and that there is significant stigma attached to mental health issues in Malaysia.[17] For these reasons I accept that the applicant may not be able to access the continuing psychological counselling he requires if he returns to Malaysia and that his mental health may deteriorate as a result.
[17] DFAT Report at 2.14
The Australian courts have held that an applicant’s mental illness will not on its own satisfy the requirements of ss 36(2)(a) or (aa) of the Act, because both ‘serious harm’ and ‘significant harm’ refer to acts perpetrated by others which cause the non-citizen to suffer harm[18].
[18] EZC18 v MHA [2019] FCA 2143 per Besanko J; CSV15 v MIBP [2018] FCA 699 per Collier J
For the reasons set out above, I have not accepted the applicant’s claims that he will be harmed by any person or group for reasons of his religion, or because he converted to Islam for the purposes of a marriage that did not go ahead and now wishes to revert to his Christian faith. Nor have I accepted that he faces harm from money lenders in relation to money he borrowed in anticipation of his marriage.
As such, I do not accept that any deterioration in the applicant’s mental health, or any self-inflicted harm that results from his mental health condition, would be a result of an act or omission perpetrated by any person or group in Malaysia for the purposes of s 36(2)(a).
For the same reasons I do not accept that any deterioration in the applicant’s mental health, or any self-inflicted harm that results from his mental health condition would be the result of an act or omission of any person as required by the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. In considering whether the applicant will be ‘arbitrarily deprived of life’ for the purposes of s 36(2A)(a), I note the Federal Court has held that this requires the deliberate action of a third party and does not include suicide or potentially self-actioned or self-directed harm by an applicant[19]. For the reasons set out above, the Tribunal has not accepted that the death penalty will be carried out on the applicant for any reason if he is returned to Malaysia.
[19] Ibid
For these reasons, the Tribunal does not accept there to be a real chance the applicant will suffer serious harm, or a real risk the applicant will be subjected to significant harm, for the reason of his mental health conditions.
Ministerial referral
It is submitted that the Tribunal should refer the matter to the Minister, who may wish to intervene on the basis of compelling and compassionate grounds (in circumstances where the applicant was affected by extensive delays in the processing of his protection visa application, where such delays were appropriate in order to give him time to seek support from medical practitioners, social workers and to obtain migration and legal advice). It is also submitted that the Minister may wish to intervene in the interest of public policy, given the applicant has been residing in Australia for approximately eight years and has now become accustomed to Australia and has led a liberal, safe and protected life and is committed to contributing to the economy and supporting Australian lifestyle values.
The Tribunal has decided against referring this matter to the Minister, noting this does not prevent the applicant from seeking the Minister’s intervention directly and providing further information if he wishes to do so. The Minister’s guidelines provide that the Department will assess all requests against those guidelines, regardless of whether they were referred by the Tribunal or not.[20]
[20] Policy – Migration Act – Ministerial powers – Minister’s guidelines on ministerial powers (ss 351, 417 and 501J) at [8] – [10]
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:  23 August and 3 October 2024
Representative for the Applicant:       Mrs Joey Bich Chau Tam
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.
…