2012996 (Refugee)

Case [2022] AATA 5275

2012996 (Refugee) [2022] AATA 5275 (25 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Gerard John Gleeson (MARN: 1680728)

CASE NUMBER:  2012996

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Peter Haag

DATE:25 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958.

Statement made on 25 October 2022 at 12:53pm

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – race – Dusun ethnic group – religion – Catholic –converted from Sunni Islam to Catholicism – an apostate – married a non-Muslim – applicant’s elder brother attempted to kill him – applicant is a credible witness – effective protection measures are not available to the applicant – applicant has a well-founded fear of persecution– decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chen Shi Hai v MIMA (2000) 201 CLR 293

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 September 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 29 April 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy s 36(2) of the Act. That provision requires the applicant to be a non–citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person.

    Successful Federal Circuit Court of Australia appeal

  3. On 25 August 2018, the Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court on 11 August 2020. The Court matter was remitted to the Tribunal for reconsideration according to law. The Member of the Tribunal in this hearing is not the same Member who presided at first hearing.

    This review

  4. The applicant appeared before the Tribunal on 6 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s wife who is residing in Malaysia.

  5. [Ms A] and the applicant are the parents of one child who resides with [Ms A] in the State of Sabah in Malaysia.

  6. The applicant was represented in relation to the review.

    CRITERIA FOR A PROTECTION VISA

  7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant…

Continue reading 2012996 (Refugee)

Sign in free to access the full text

Details
AGLC
2012996 (Refugee) [2022] AATA 5275
Case
[2022] AATA 5275
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Malaysian national. The applicant, who is of Dusun ethnicity, claimed to have converted from Sunni Islam to Catholicism. He alleged that his conversion, his marriage to a Catholic woman, and his refusal to renounce Christianity had placed him in fear of persecution in Malaysia, particularly from religious authorities. The applicant contended that effective protection measures were not available to him in Malaysia and that he had a well-founded fear of persecution.

The central legal issue before the Tribunal was whether the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958. This required the Tribunal to assess the credibility of the applicant's claims and determine if he faced a well-founded fear of persecution based on his race, religion, or membership of a particular social group, and whether effective protection was available to him in Malaysia.

The Tribunal found that the applicant was a credible witness and accepted his account of his conversion and the subsequent difficulties he faced in Malaysia. It noted that the applicant's attempts to legally change his religious status and register his marriage had been met with resistance and threats of legal action, including potential detention in a rehabilitation centre for apostasy. The Tribunal concluded that the applicant's fear of persecution was well-founded and that effective protection was not available to him in Malaysia. Consequently, the Tribunal remitted the decision under review to the Department for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 21 February 2017 the applicant submitted to the Tribunal a statutory declaration signed on 2 February 2017. In it, the applicant made the following claims:[11][11] Tribunal file 1615941, Doc ID 3287011.Background 5. I was born on [date] in [Town 1], an interior division of the state of Sabah Malaysia.6. I am a Catholic who converted from Sunni Islam. My ethnicity is Dusun.7. My father, [was] born about [year] but he died in 2005. His religion was Sunni Muslim. He worked for the [government] as a [Manager].8. My mother, [was] born about [year]. She is a devout Sunni Muslim and is Dusun by ethnicity. Her occupation was a housewife. She is currently living in Malaysia in [Town 1]. I have [brothers] and sisters but I am not sure of their names or ages because I only know them as 'little brother' or 'big sister' because I moved from home when I was [age] years old.9. Our family was devout Muslims and I was raised as a Muslim. When I was about[age] or [age] years old, my paternal grandfather took me to his place in [Town 2] and I lived with him until in my teenage years. When I was very young I was malnourished and small and not expected to live. However, my grandfather took pity on me and I went to live with him. This is the reason that I do not know my brothers and sisters well. I was living with my grandfather [far] away from my family. My late grandfather was a devout Christian from the Catholic Church. He used to share his faith with me and talk about it. I learnt a lot about his faith as a young child. I admired him a lot. He was a very kind man. I don't know how it cam eto be that my father was a different faith to my grandfather. My grandfather said the family was originally Christian but that my father had converted to Islam. However other people said that we were a Muslim family and my grandfather converted. I don't know which is the truth. All I know is that I was considered to be a Muslim.10. In my early years, my grandfather and I frequently visited my family but those visits were stopped when I was [age] years old due to my grandfather's health issues. He had [an illness] that made it hard to walk. I remember the last time I visited my family clearly because it was when I was circumcised in the Muslim faith, which was arranged by my parents. It was a sad day because my parents and my late grandfather were arguing with each other about the choice to circumcise me. According to Sharia law it was this ceremony that made be officially a Muslim recognised by Malaysian law.11. When I was [age] my grandfather passed away. I decided to return to live with my family. I lived with my parents and siblings but only for about a week or two. It was a nice feeling at first to spend time with my siblings. Although my siblings are all practicing Muslims, I felt proud of them. I was proud because I have learned that my elder brother had become a member of The Royal Malaysian Army. But our happy reunion did not last long when I told my family about my intention to get baptised in the Catholic Church. Although they did not harm me, they were so mad at me. My elder brother threatened me by cocking his gun. I was so scared. He threatened me by saying that, 'The punishment for leaving Islam is death.' l was so scared. I did not expect their reactions would be that violent so I decided to run away.12. I went to another town [Town 3] in the State of Sabah, Malaysia and I got a [job] .13. A year later, in 2003 I decided to get baptised in the Catholic Church, with a new Christian name, [Name 1]. I approached the parish priest at [a] Church who refused to baptise me because I was from a Muslim family. I told him everything about me. He eventually agreed to it with the condition that I keep it to myself. I should never ever tell anyone. He made me sign a declaration that the church is not responsible for my conversion and that I was not forced to embrace Christianity. His name was [name] and he baptised me and confirmed me on 14 April, 2003. At first he refused to issue me a baptismal certificate but eventually gave me one and my confirmation certificate on 23 April, 2010 while I was in [Country 1]. I have both certificates and will produce them to the Tribunal if requested.14. Since becoming a Christian I have been living a double life in Malaysia. I had to keep my Christianity secret of the fear that the authorities would discover that I converted from Islam and am therefore an apostate.15. On or about June 2003 a Muslim colleague found out about my conversion during lunch time at work. I have this habit in making the sign of the cross before meal. I made the sign of the cross before eating my lunch and my colleague accused me of being an apostate. Before I realised what I was saying, it slipped on my lips and I was telling him that "I am now a converted Christian". Other colleagues at work, Muslim and Christian alike, told me that what I did was a mortal sin in Islam. Muslims who know me called me an apostate. I was scared again; I was as scared as I was when I told my parents because someone would tell the religious authorities. So, I made the decision to leave that job and I fled to the mountains.My Decision to Live and Work in [Country 1]16. An acquaintance referred me to an employment agency which hires workers bound for [Country 1]. Out of fear that my family and religious authorities would find out that I have been baptised in Christianity, I decided to go to [Country 1]. I worked in [Country 1] from 21 October, 2005 to 2 March, 2016.17. At least in [Country 1] no one knew that I was a baptised Christian who had converted from being a Muslim. Notwithstanding the isolation and inconvenience I was able to practice my Christianity more freely in [Country 1] even if I was still afraid of being found out. My work colleagues did not know I attended mass every Sunday, and I did not talk to other people about my faith.18. I had to wear a name tag for my job, and from that people could identify that I was born a Muslim. On one occasion, I remember another Malay Muslim, my colleague at work, saw me eating pork and told that it was 'haram'. This made me aware that people were watching me.My Marriage19. In May 2010 I went to [Country 2] with some colleagues at work for holidays. That's when I met my wife, [Ms A]. She was born on [date]. She is a Catholic Christian and an ethnic Bisaya. She is a citizen of [Country 2]. We began a long distance relationship on June 2010. I was in [Country 1] working while she was in [Country 2]. In October 2010 I invited her to visit me in Malaysia, and to come to [Country 1] as well. She visited Malaysia in October 2010 on a tourist visa and she became pregnant. I wanted her to stay in Malaysia, so, we wanted to get married in a civil ceremony so that she could legally stay in Malaysia with me and have our baby in Malaysia so he would be a citizen of Malaysia.20. The problem is that civil marriages in Malaysia are only for non-Muslims and I was still, legally, a Muslim.21. We approached different Christian people from the local registrar of marriages in the State of Sabah asking for help. In May 2011 someone called me, a middle-man from the local registrar, and he told me that the head of the registrar Mr. [C], a Christian, was willing to arrange and certify our marriage in exchange for an amount of money even though he knew about the fact that I was legally a Muslim. I knew it was extortion but we were desperate at that time and my wife was seven months pregnant. So, I accepted the offer. He asked RM3000 from me. We were finally married when we exchanged vows and Mr [C] issued a certificate on [date May] 2011. He warned us, however I should expect my marriage to declared null and void eventually because it was just a matter of time until someone filed a complaint, whether from my family, public or religious authorities because I was legally a Muslim. Regardless of what he told me, I was very happy that my wife coul legally stay in my home country, because I wanted our child to be born in Malaysia and become a citizen of Malaysia. It did not matter to me if they wanted to cancel my marriage to my wife.22. Due to the danger of being found out that I was a Christian who had converted from Islam, we had to keep a low profile. For the duration of our marriage, we did not live together. I barely had the chance to visit my wife because of my fear of the religious authorities. I was scared that my family would find out that I am with a Christian woman. A Muslim cannot be with a Christian, it is a criminal offence in Islamic law termed a Khalwat. I felt guilty about our situation because during her pregnancy I was not around. Every time she had her maternity check-up, she always asked her friend to accompany her.23. Prior to her due date, I asked my wife to go to Johor, Malaysia so that I could visit her frequently and our future child would be far away from the people who might know me. [Details about Johor is deleted].24. On [date], her due date, I took leave from work to be with my wife in Johor Malaysia. On [date] our son,[Mr B], was born.My Decision to Flee Malaysia25. I had to face the issue of my secret conversion to Christianity being found out by authorities again during the registration of the birth of my son. I wanted him to be classified as Christian in his religion. I called Mr. [C], who assisted with the marriage certificate, about my problem, hoping he could help me again. But I was doubtful if he could help me because my son was born in Johor, another state of Malaysia. I have to register the birth of my son in a different state where it is not Mr [C]'s jurisdiction. He advised me to just show the civil marriage certificate that he issued to us. Civil marriage certificate is for non-Muslims. He said that would make my son non-Muslim on his birth certificate. Our civil marriage had not been made void yet, according to him. Mr [C] told me that the officer at the birth registry wouldn't be able to access my personal information on their system.26. On 11 July 2011 as I was trying to register the birth of my child the officer who attended on me noticed that I was from a Muslim family because of my Muslim name even though I had handed to him the authenticated copy of our civil marriage certificate. When he questioned me about how I could get the certificate, I insisted, 'How could I get a civil marriage certificate if I am a Muslim? ' We had some arguments, and he told me to go back again tomorrow and he asked me to make a statutory declaration attesting that I was not a Muslim but a Christian.27. I went back the next day and I was attended by a different officer. At the counter the officer handed me a Quran and told me to swear on the Quran that I am not from a Muslim family. I was afraid but still put my hand on the Quran and swore that I am not from a Muslim background for my son's sake. If I was swearing on the Holy bible, I wouldn't have done so. The officer issued my son's birth certificate with a Christian name and religion on it. Surprisingly, my religion on my son's birth certificate as Christian. I was very happy at that time. I asked for a stamped authentication of my son's birth certificate on the same day but the officer refused my request saying 'that the registrar cannot issue an authenticated copy because my and my son's religious status is in dispute' . I was advised to wait until my son could apply for MyKad (national ID system) when he is [age] years old. I was worried that my religious status was still in dispute because my MyKad still lists me as Muslim28. In December 2011, I applied for and received a Malaysian passport for my son so my wife and my son could visit me in [Country 1] instead of me visiting them. It would be risky for me to have frequent travels to Malaysia to be with them.29. I always wanted my son to be baptised in the Christian faith. There was just one problem, he couldn't be baptised unless my wife and I got married in a Church. In this way the problem of my marriage started to come up again. In 2012 we talked to the parish priest in Johor about my situation. I showed him my baptismal certificate proving that I was a baptised Christian. I showed to him that on my son's birth certificate I am Christian. I showed to him our civil marriage certificate. The priest advised me to change my name on my MyKad (National ID system) to the name I was baptised to and get the extract copy of it stating that my religion is Christian not Muslim. I could not do it. It would be a disaster for me and my young family because I would have to tell the authorities that I was a convert from Islam. I succeeded in getting my civil marriage certificate through a bribe and was able to register my son's birth but dealing with the National Registration Department regarding my status would be fatal for me. They have all the information about my family background. All the effort that I have made trying to live a secret life would have gone to waste if I did what the priest told me to do. So, we put aside the plan of getting married in a Church and for my son to be baptised. I was helpless but I understood that the church feared retribution from the government. Honestly, it was against my conscience. Although my wife and I attended church regularly, we were not entitled to receive the Holy Communion because we are not married in church. Needless to say, our son is not eligible to receive baptism, sacraments that are holy in the Catholic Faith. I feel that we are incomplete Christians. We cannot help but cry when we talk about this. I didn't have much choice. I continued living and working in [Country 1] while my wife and son frequently visited me in [Country 1].My Attempt to Change My Muslim Name30. In April 2015, I decided to apply for a name change on my MyKad so people would not recognise me as a Muslim any more because of my name. I had read about Lina Joy's case, which was a case about a woman in Malaysia who fought the Government to have her name changed in her MyKad, (although not her religion). I didn't want to alert the authorities about the life I was living. I went to the National Registration Department to apply for a name change on my MyKad. I submitted my son's birth certificate which states my religion is Christian. To my surprise, the female officer who attended on me became angry at me. She was very rude. She verbally abused me. She checked my personal information and told me I was a Muslim by birth and I couldn't change to another religion or change my name. I was told to go the Sharia court and obtain approval from them to declare me an apostate. She told me that this is an apostasy case. I was so scared at that time, I hurriedly left the office while she continued to verbally abuse me.31. I told my wife about the commotion at the NRD office. We were so scared that we decided to go to her friend 's house for a night just in case the officer at the NRD office reported me to the religious authorities and came to my wife's rented place in Johor (I was using my wife's address on my MyKad). I decided to relocate my wife and son to a different place where no one knew them while I continued working in [Country 1]. On March 2016 I quit my job in [Country 1] and we decided to go back to Sabah, Malaysia. While we were in Sabah, we continued to live our lives in secret. We didn't talk to our neighbours, especially not to Muslims and I went to work [as] a [occupation]. There were people in the area who knew me and informed me that my family was looking for me because some religious authorities were looking for me at my mother's home. Fear started to kick in. I went back to my wife's place and told my wife about it. I immediately renewed my passport and decided to depart for Australia leaving my wife and my son again.My time in Australia32. I arrived at Tullamarine Airport in Melbourne Australia on [date] March, 2016, and submitted an application for protection on 29 April, 2016, personally at the Melbourne Department of Immigration and Border Protection office.33. Since I arrived in Australia, I have been attending Mass every Sunday at [a] Catholic [Parish]. I have felt more comfortable practicing my religion here in Australia. I have felt able to talk to other people about my faith and visiting other churches, such as the Pentecostal Church and Seventh Day Adventist Church, talking about myself. I feel relieved being able to finally do this freely, without anyone else telling me what to do or what to believe.34. Since making my application for a protection visa, I have been informed that my wife has had the renewal of her spousal visa refused by the Malaysian Department of Immigration. The Department is requiring that she get another sponsor or that I return to Malaysia to discuss the renewal. She is still in Malaysia because my son is Malaysian. I am concerned that if l return that they will declare my marriage void because I married a Catholic woman. I fear that the Malaysian Department of Immigration has refused my wife's visa so that I will be forced to return and that they will arrest me for converting and marrying as Christian. Responses to the Department's Findings35. At pages 16 and 17 of the Department's decision, the Delegate found that I do not have a wellfounded fear of persecution because 'despite having to face a potentially lengthy legal process, the applicant is able to convert to Christianity and whilst he may face discrimination, this discrimination does not amount to persecution.' l disagree with the Department's findings for the reasons set out below.36. The delegate claimed that although I was born Muslim, I was able to convert to Christianity. The delegate did not consider that although I was able to convert to Christianity, I have had to live in secrecy. I have to conceal my new faith because it is against the law. I cannot legally change my religion at the National Registration Department. I have to submit myself to Sharia court to officially denounce the Islamic faith which I have acquired by birth. I will be forcibly detained at a Rehabilitation Camp if I submit myself to Sharia court. I simply cannot practice my faith openly.37. In support of the conclusion that I would not face persecution, the Delegate quoted the case of a man's conversion from Islam to Christian reported in World Watch Monitor on 29 March, 2016, in which the delegate concluded that the event in Malaysia 'indicates that it may be easier to convert from Islam when the person was born Christian'. I have read that report. I believe that the Rooney Rebit case from Sarawak Malaysia is not comparable to me. Rooney Rebit was born Christian in the first place. When he was 8 years old his parents converted to Islam dragging along Rooney Rebit with them. His name was changed to a Muslim name called Azmi Mohamad Azam. Although I agreed to the statement that it may be easier to convert from Islam when you were born Christian that statement does not apply to me. I acquired my religion through my parents. I was born Muslim in the first place. When I was born in [year], my parents and siblings were already practicing Muslims. The delegate also had no whole picture about the Rooney Rebit case. The National Registration Department (NRD) has made an appeal regarding the Rooney Rebit case but it was politicised by the Government of Malaysia. The Malaysian Government had asked the NRD to drop the appeal suspiciously, and it is believed that this is because at that time there was going to be a state election.38. The Delegate noted that while I may face discrimination, this discrimination does not amount to persecution. I disagree. I can't be officially recognised as Christian. I can't openly practice my religion. Having not officially been recognised as Christian, the church which I attend refused to solemnise my marriage with my wife in a church. Having not been married in a church, my wife and I cannot receive the Holy Communion and our son is not eligible to be baptised in the church. Those are important rites in the Catholic faith. I am in the church as a mere observer, not a practicing member of the church. I would not be able to enjoy the normal rites of the Catholic faith. This is a serious limitation on my freedom to manifest my chosen religion. Cumulatively, the infringements of my freedom to manifest my chosen religion and the consequences of this are breaches of my human rights and amount to persecution.39. The Delegate claimed that I was able to live safely as a Christian in Malaysia since my baptism in 2003. In my application for protection visa on Part C question 89, I wrote that I ran away from home. I have to move from place to place. After my baptism in the Christian faith, I kept a low profile. I did not mention the state of fear I was in, because I was expecting that I will be interviewed by the delegate and was always wanted to tell my story fully in person. I believed the interview would be recorded. So I reserved most of my statements and was hopeful that I would have the chance to divulge it in person. On 3 September 2016, I sent an email to the Immigration and Border Protection (see attached) about the status of my application and enquire what else was needed, hoping that they would ask me for an interview or ask me to make a complete story of my case. In my protection application also Part C question 84, the delegate did not notice that from 2005 to 2016 I was living and working in [Country 1] not in Malaysia. Almost half of my life was spent living in [Country 1]. During my time in [Country 1], I was able to practice my Christianity more freely, but I was still afraid of being found out. I attended mass every Sunday, but I did not talk to other people about my faith.40. The Delegate claimed that I was able to marry a Catholic woman. Legally, I am not allowed to marry a non-Muslim. I was able to temporarily register my marriage to my wife by illegal means. My marriage may have been declared null and void. Now my marital status is unknown. This puts me at risk of prosecution for religious offences such as Khalwat, illicit sexual intercourse and preparatory to sexual intercourse. I am at risk of losing custody of my son if it is found that I have a son with a Christian woman. My son will be declared Muslim and sent to Islamic school. I believe that having a child removed due to a parent's religious belief may constitute "serious harm". I will suffer alienation and hostility from society to a marked degree. My wife and I are not living together since my "marriage" to her. I cannot even enjoy my wife's company in public. We have basically lived "in hiding". This is a serious infringement of the right to marry. I have my own family now. I don't want to live constantly in fear. I want my son to live normally. I want to be with my wife and my son just like normal families do, without fear that they will be taken away from me or I may be taken away from them. I want my family to be good practicing Christians without having to conceal our beliefs, free to exercise our Christian duties without boundaries. I always believed in the Australian way of life. And that is the life I always wanted for my family, especially for my son.My Fears of Returning to Malaysia41. If I am forced to return to Malaysia I am scared that I will be arrested by the Malaysian religious police for the crimes of apostasy and marrying a Christian woman when I am from a Muslim family. I am afraid that I will be sent to an Islamic Rehabilitation Centre, which is effectively a prison. I have been hiding the fact of my baptism and my conversion to Christianity and have managed to avoid detection by the Malaysian religious police because of this and because I have been spending half my time in [Country 1]. I am however aware that many people are arrested for these crimes and sent away to Islamic Rehabilitation Centres. I have also had a number of close calls when dealing with government officials and agencies who have detected irregularities in my marriage and my son's birth certificate. They have been asking questions and I am afraid that they have figured out that I have converted to Christianity.42. I am afraid that the authorities will remove my son from me and my wife because it is not permissible for a Christian woman to bring up a Muslim child. I know my son, [Mr B]'s birth certificate says he is a Christian but the registrar said that his religious status is still in dispute. This is what I fear when he turns 12 and we are forced to apply for a MyKad card for him.43. If I return to Malaysia I cannot be expected to live any longer in secret as a Christian. I would want to live openly as a Catholic Christian and raise a Christian family as is my right as a human being.Effective protection44. No authority in Malaysia is able to protect me as it is the Malaysian religious police who are persecuting me and wanting to arrest me. I have spent a lot of time and effort trying to hide from their attention.Relocation45. I am unable to relocate within Malaysia as it is the Malaysian religious police who are persecuting me and wanting to arrest me. There is no part of the country where I would not be at risk of being exposed as a Christian convert and that I am married to a Christian woman. I do not have the right to enter and stay in another country.46. For the reasons I have explained, I respectfully ask that the Tribunal remits my matter to the Department for reconsideration.

Evidence

Evidence Before The Court

The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Applicant’s evidence The applicant claims to be a citizen of Malaysian, born [date], in [Town 1], Sabah, Malaysia. He claimed he was baptised in a Roman Catholic (Catholic) baptism ceremony as [Name 1] in April 2003. He stated that he belongs to the Dusun ethnic group and that he is Catholic. He can read, write and speak in English and Malay.[1][1] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43. He claims his baptism was unlawful according to Syariah law; and that his baptism would be regarded by Muslims generally in Malaysia as proof that he renounced Islam, the religion of his birth, the national religion of Malaysia, and that he is an apostate. He stated that he married on [date May] 2011 in Sabah. At the time of application, his wife, son and mother resided in Malaysia. His father is deceased.[2][2] Part B and C – Application for protection visa, Department file [DELETED], folios 6 and 7, 19 to 43. From 1989 to October 2005 the applicant lived in [Town 2] and [Town 3], Sabah. From 2005 until 2016 he lived in [Country 1]. He returned to [Sabah], before arriving in Australia in March 2016.[3][3] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43. From September 2003 to October 2005, he was employed [for] a [business] in Sabah. From October 2005 to February 2006, he worked as a [occupation], from February 2006 to June 2007 as a [operator] and from June 2007 to March 2016 as a ‘[Occupation 1]’ in [Country 1].[4][4] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43. He attended primary school from 1992 to 1998 in [Town 2], Sabah, and [a] High School in [Town 3], Sabah, from 1999 to 2002. In [Country 1], he undertook [various courses and trainings]. In April 2009 he completed a [course] and in November 2011 a[qualification].[5][5] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43. In October 2015 he was found guilty of riding a motorcycle in [Country 1] with his Malaysian driving licence. He was fined $1400 and had his [Country 1] driving licence suspended but not cancelled.[6][6] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43.Applicant’s identity The applicant provided the Department with a certified copy of his passport, a certified extract of his birth certificate, Malaysian Identity Card and Malaysian driver’s licence.[7] [7] Department file [DELETED], folios 94 to 98. The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen of Malaysia, and as such his protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.Migration history

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT report June 2021) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Section 5AAA of the Migration Act 1958 The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Applicant’s evidence The applicant claims to be a citizen of Malaysian, born [date], in [Town 1], Sabah, Malaysia. He claimed he was baptised in a Roman Catholic (Catholic) baptism ceremony as [Name 1] in April 2003. He stated that he belongs to the Dusun ethnic group and that he is Catholic. He can read, write and speak in English and Malay.[1][1] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43. He claims his baptism was unlawful according to Syariah law; and that his baptism would be regarded by Muslims generally in Malaysia as proof that he renounced Islam, the religion of his birth, the national religion of Malaysia, and that he is an apostate. He stated that he married on [date May] 2011 in Sabah. At the time of application, his wife, son and mother resided in Malaysia. His father is deceased.[2][2] Part B and C – Application for protection visa, Department file [DELETED], folios 6 and 7, 19 to 43. From 1989 to October 2005 the applicant lived in [Town 2] and [Town 3], Sabah. From 2005 until 2016 he lived in [Country 1]. He returned to [Sabah], before arriving in Australia in March 2016.[3][3] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43. From September 2003 to October 2005, he was employed [for] a [business] in Sabah. From October 2005 to February 2006, he worked as a [occupation], from February 2006 to June 2007 as a [operator] and from June 2007 to March 2016 as a ‘[Occupation 1]’ in [Country 1].[4][4] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43. He attended primary school from 1992 to 1998 in [Town 2], Sabah, and [a] High School in [Town 3], Sabah, from 1999 to 2002. In [Country 1], he undertook [various courses and trainings]. In April 2009 he completed a [course] and in November 2011 a[qualification].[5][5] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43.