2012996 (Refugee) - [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

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).
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
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
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.
[Ms A] and the applicant are the parents of one child who resides with [Ms A] in the State of Sabah in Malaysia.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department 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.
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
The applicant departed Kuala Lumpur International Airport on[date] March 2016 and arrived in Melbourne, Australia, on [date] March 2016, on a visitor visa. He travelled to [Country 1] to live and work in 2005, and visited [Country 2] in May 2010, July 2012 and December 2014 to January 2015 for holidays and to visit his wife’s family.[8]
[8] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43; Protection Visa Assessment, Tribunal file 161594.
The applicant applied for a protection visa on 29 April 2016, which was refused by the delegate on 19 September 2016.
Claims for protection (without correction) and supporting documentation
The applicant submitted his claims for protection when he lodged his protection visa application with the Department on 19 September 2016. The applicant’s claims are as follows:[9]
[9] [9] Part C – Application for protection visa, Department file [DELETED], folios 19 to 43.
Q89: Why did you leave that country(s)? Provide specific details
A: I was born in a Muslim family. My parents were Christians then, but were converted into Islam. When I was [age] years old my paternal grandfather took me to his place and lived there until I become a teenager. My grandfather was a devout Christian. When I was about [age] or [age] years old, my grandfather passed away. I decided to find my family. I lived with them about a week then I ran away because of differences in faith. I went to other town, got a [job]. In 2003, I decided to be baptized in Christian faith, with a new Christian name. Many people told me that what I did was a mortal sin in Islam. So, I went lie low. I went to the mountain and do a [job]. In 2005, I decided to go to [Country 1] to stay and work there. In 2015, I’ve tried to change my name into a Christian name I was baptized to. It was rejected by the registration dept. I was told that I need to go to Islamic Affairs office and was told that probably this would be a Shariah case. I was scared especially I have my own family now.
Q90: What do you think will happen to you if you return to that country(s)?
A: I will be forced to embrace Islam and be punished for what I have done (being baptized in Christian faith). It would be a deprivation of my life and my wife’s and son’s life.
Q91: Did you experience harm in that country(s)?
A: No.
Q92: Did you seek help within the country(s) after the harm?
A: N/A
Q93: Did you move, or try to move, to another part of that country(s) to seek safety?
A: No. I belong to a country where Islam is the official religion. They will eventually know and find me wherever I go. Moving to other places in my country is no help for me. I have a family now. I don’t want to constantly move from place to place. I want to have peaceful life.
Q94: Do you think you will be harmed or mistreated if you return to that country(s)?
A: Yes. I will be forced to embrace Islam and be punished for being baptized Christian. It would be an arbitrary deprivation of my life and my family’s life. I have a wife and son now. As a husband and father I want my family to live peacefully without threat. I want to profess our faith freely without fear.
Q95: Do you think the authorities of that country(s) can and will protect you if you go back?
A: No. Shariah court, a government body would be the one to decide my fate. I have zero chance to win to fight my faith in a court which comes from Islam itself.
Q96: Do you think you would be able to relocate within that country(s)?
A:No. I am a citizen of a country where Islam is the official religion. Any religious disputes in my country are bound in Shariah Court where other minor religions have no chance of succeeding or winning any disputes.
The applicant also provided to the Department the following:[10]
[10] Department file [DELETED], folios 44 to 93.
a.    A Certificate of Baptism from the Diocese of [Town 3], Sabah, dated 23 April 2010, stating that [Name 1] was baptised according to the Rites of the Catholic Church on 14 April 2003;
b.    A Certificate of Confirmation from the Diocese of [Town 3], dated 23 April 2010, stating that [Name 1] received confirmation according to the rites of the Catholic Church on 14 April 2003;
c.     Malaysian birth certificate for [Mr B] , born [date], giving the applicant’s name, [as] the father, and [Ms A] as the mother;
d.    A certificate of marriage stating that [applicant] and [Ms A] were married [date May] 2011;
e.    A course completion certificate for ‘[the applicant] ’ [from] [a school], [Country 1], dated from 12 August 2006 to 14 October 2006;
f.   A course completion certificate for [applicant] in [a] Program for [Occupation 1]s’ [dated] 25 April 2009;
g.    A certificate of participation for [applicant] in [a] Programme’ [dated] 22 and 23 April 2009;
h.    A certificate of participation for [applicant] [dated] from 21 May 2007 to 6 June 2007;
i.   An official transcript issued by the [Country 1] [Agency] for [applicant], for the [qualification], assessment date 11 November 2011, issued on 3 January 2012;
j.   A Certificate [for] [applicant], dated 14 November 2011 by the [Country 1] [Agency];
k.     A statement of attainment in [for] [applicant], issued 23 April 2009 by the [Country 1] [Agency];
l.   Article ‘Global Politics: Freedom of Religion Abuses in Malaysia’ (undated), Masaryk University;
m.   Internet article, untitled, June 2020, discussing religion in Malaysia; and
n.    A collection of articles from WikiIslam under the heading ‘Persecution of Ex-Muslims (Malaysia)’, dates ranging from 2001 to 2011.
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 Marriage
19. 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 Malaysia
25. 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 Muslim
28. 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 Name
30. 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 Australia
32. 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 Findings
35. 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 Malaysia
41. 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 protection
44. 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.
Relocation
45. 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.

The applicant also submitted the following documents to the Tribunal:[12]
[12] Tribunal file 1615941, Doc ID 3287011.
a.    Internet article, ‘Najib gave his word to drop apostasy case against S’wakian, says Adenan’ dated 2 May 2016;
b.    Internet article, ‘Dropping Rooney Rebit appeal only done for votes’ dated 5 May 2016;
c.     Internet article, undated and untitled, briefly discussing the Kuching High Court decision that ‘Rooney Rebik’ had the constitutional right to choose his faith;
d.    Internet article, ‘Converts from Islam in Malaysia Detained in Faith Purification Centres’, morningstarnews.org, dated 14 July 2016;
e.    Tamir Moustafa, ‘The Politics of Religious Freedom in Malaysia’, Maryland Journal of International Law, Volume 29, 2014;
f.   A collection of articles from WikiIslam under the heading ‘Persecution of Ex-Muslims (Malaysia)’, dates ranging from 2001 to 2011 (previously submitted to the Department);
g.    Internet article from Opendoors, ‘World Watch List 2016: Malaysia’, Internet article, ‘Court rejects appeal by trio who want to leave Islam’, Portalkini.net, dated 17 August 2016;
i.   Internet article, ‘Malaysia joins Indonesia, Brunei as worst regional freedom of thought offenders in 2016’, Malay Mail Online, dated 8 December 2016;
j.   UNHCR ‘2015 Report on International Religious Freedom - Malaysia’, sourced from Refworld, dated 10 August 2016; and
k.     Internet article, ‘A Christian in Malay gives us a window into the hidden persecution of Malay Christians - to be Malay is to be Muslim’, Crossmap.com, © 2014 Open Doors.
On 4 December, the applicant also submitted to the Tribunal the following documents:[13]
a. Copies of Malaysia Immigration Multiple Entry Visas for [Ms A], permitting the holder to enter and remain in Sabah and West Malaysia, one issued 19 May 2015 and valid until 19 May 2017, the other issued 7 June 2017 and valid until 6 June 2018;
b. Royal Malaysian Police Report dated 28 September 2017, with a NAATI certified translation, detailing a complaint by [Ms A] against the family of her ‘ex-husband ([applicant])’. It states that his family are trying to take her son as they claim the marriage was not valid.
[13] Tribunal file 1615941, Doc ID 3839010.
On 30 August 2022, the applicant submitted the following documents to the Tribunal:[14]
[14] Tribunal file 2012996, Doc ID 10166020.
a.    Statement from [Ms A], signed and dated 26 August 2022;
b.    Copy of Malaysian Identity Card for [applicant’s sister];
c.     Certified extract of Birth Certificate for the applicant’s sister, issued in the State of Sabah, 27 January 1989;
d.    Court book related to the Federal Circuit Court [Proceedings];
e.    Copy of Malaysian birth certificate for [Mr B] , born [date], registered 12 July 2011;
f.   Applicant’s statutory declaration, signed and dated 2 February 2017, previously submitted to the Tribunal 21 February 2017;
g.    Letter from [a named doctor], dated 1 April 2020, stating that the applicant has been circumcised since the age of [age];
h.    Court Order related to the Federal Circuit Court [Proceedings], 11 August, 2020;
i.   Statutory declaration by the applicant, signed and dated 14 August 2022, stating that he relies on his previous declarations made to the Department and the Tribunal in February 2017, reiterating his commitment to Christianity, his ongoing need for protection and updating his circumstances;
j.   Copy of a Malaysian passport for [Mr B] , expiry [2021];
k.     Copy of a birth certificate for [Ms A], born [date], issued 28 June 2002, [Country 2];
l.   Copy of a [Country 2] passport for [Ms A], expiry [2028];
m.   Copies of two Malaysian Immigration Multiple Entry Visa Pass (Temporary Employment) for [Ms A], to work as a ‘ [worker]’ (remaining details unclear); and
n.    A written submission from the applicant’s representative stating, inter alia:
[The applicant] (born with the name, [name]) is a Christian from Malaysia whose conversion from Islam renders him a target for religious persecution from the Government and authorities by way of the prosecution of apostasy laws, and from his family and the wider population in general to persecute him and his family. There have been attempts by [his] family to seek to take his son from his mother so that the child will be raised in the Muslim faith.
And also:
If the State insists that [he] is a Muslim then his marriage to [Ms A] is not legal and their son is not legitimate, a situation that is wholly destructive to his life and that of his son, it being a breach of at least three Articles of the United Nations Convention on the Rights of the Child.
Post-hearing submissions
After the hearing the applicant’s representative provided further written submissions to the Tribunal. In summary the submissions drew on country information reports from international sources relating to nationals of Malaysia seeking to convert from Islam to another religion, and specifically, Christianity. The reports demonstrate the existence of legal difficulties experienced by individuals who attempt to convert from Islam including compulsory attendance at religious rehabilitation centres. It has not been submitted that attendance at, and detention in a religious rehabilitation centre is regarded as illegal pursuant to either Federal or State law civil or criminal law.
The evidence established that the applicant and his wife are the biological parents of one child, and they reside in the state of Sabah in Malaysia.
Determinative issues in this review
If the applicant is removed to Malaysia now or in the reasonably foreseeable future, is the evidence sufficient to establish:
·The existence of a real chance the applicant would suffer serious harm;
·serious harm that involves systematic and discriminatory conduct;
·the real chance of serious harm applies to all areas of Malaysia;
·the applicant could not take reasonable steps to modify his behaviour to avoid the persecution without renouncing his genuine religious beliefs, altering, or concealing his true religious beliefs; and
·effective protection measures are not available to the applicant.
Consideration of the evidence that is both relevant and material to the various claims
The Tribunal has considered and assessed the applicant’s evidence that he would always be identified in Malaysia as a Muslim because his name is a Muslim name. No Syariah court has given him permission to abandon the Islamic religion. In contravention of Syariah law and the general expectation of Muslim society, and his devout Muslim family, the applicant converted out of Islam, and he is now a devout Roman Catholic.
According to the applicant’s evidence, in good faith he was Baptised in Malaysia by a Roman Catholic priest; he abandoned the Islamic religion and converted to the Roman Catholic form of Christianity.
According to the applicant’s evidence because of his conversion out of Islam, under Syariah law in Malaysia he is regarded as an apostate, and the general population of Muslims in Malaysia would regard his as an apostate. The applicant did not obtain pre-conversion permission or permission at all from a Syariah court to convert out of Islam.
Furthermore, contrary to Syariah law he married a non-Muslim. He claims in evidence that by converting out of Islam and marrying a non-Muslim woman, he would be regarded as a criminal according to Syariah law and severely punished. The applicant claims the range of criminal penalties include arrest, imprisonment, caning, detention in an Islamic Rehabilitating Centre and a substantial monetary penalty.
Having heard the applicant give evidence and considered his written claims and supporting statutory declaration dated 2 February 2017, his date of birth, [date], and the date he was baptised into the Catholic Church being 14 April 2003[15] - about [number] years after he was born - the Tribunal is satisfied the applicant’s evidence about being born into a Muslim family and later baptised into the Roman Catholic Church is plausible evidence. The Tribunal will return to this issue.
[15] Department file, Certificate of Baptism
The applicant said initially in his application for a protection visa that he was born into a Christian family that converted to Islam when he was [age] years of age. Subsequently, he informed the Tribunal in the first, but unsuccessful review of the decision to refuse to grant him protection in Australia, that he was uncertain whether his parents were Muslim before he was born, or they converted to Islam when he was too young to have an independent memory of the relevant facts.
The applicant places reliance on what he was told by his grandfather about when his parents converted from Christianity to Islam. He told the applicant that they converted to Islam after he was born. To the contrary, the applicant was told by other members of the family that his parents were members of the Muslim faith before he was born. The applicant accepted in evidence that he was unsure which account of events is correct but provided his grandfather’s story about his parents converting to Islam in the visa application form. The applicant was emotionally closer to his grandfather than his parents and siblings. The Tribunal will return to this issue.
The Tribunal is of the view that these inconsistencies are relatively immaterial when viewed in the context of the totality of evidence in this review. What is relevant and material to the determination of the issues in this review is whether the applicant is regarded in Malaysia as a Muslim.
The applicant has asserted in evidence that his father (recently deceased) and mother and siblings have been devout Muslims for as long as he is able to remember.
The Tribunal accepts that the applicant’s immediate family members, including his father, mother and siblings were devout Muslims, and recognised as such for all official government purposes in Malaysia, at the time the applicant left the family home and commenced living with his grandfather. The Tribunal also accepts the applicant’s parents gave him a Muslim name at birth, and that is his name on his Malaysian national identity card and Malaysian passport.
According to the applicant’s evidence, on an occasion when his grandfather was visiting his parents’ home from the distant village in which he lived, he found the applicant to be malnourished and neglected. He offered to take care of him. The applicant’s parents agreed to the applicant’s living with him, and that he would assume responsibility for raising the applicant in his home. The applicant thinks he was about [age] years of age at that time.
According to the applicant’s evidence which is accepted by the Tribunal, his grandfather was a devout Christian, and he raised the applicant as a Christian.
On an occasion when the applicant was about [age] years of age, he was visiting his parents’ home with his grandfather. On that occasion he was circumcised for religious reasons. This procedure took the applicant and his grandfather by surprise. The applicant’s grandfather was not given any say in the matter. The applicant believes he was about [age] years old at the time.
According to the applicant’s understanding, circumcision was required for reasons of cleanliness, and to show everyone that he was a good Muslim and that he adhered to established Islamic practices.
Country information available to the Tribunal demonstrates circumcision is not prescribed by Islamic law but that it is an established practice in Islamic culture. The practice promotes cleanliness and may serve in Islamic communities to identify a circumcised individual and their family as being respectful of traditional Islamic practices, and indicate the individual is from a good Muslim family.[16]
[16] Reported Male Circumcision Practices in a Muslim-Majority Setting, BioMed Research International. Hindawi Publishing Corporation 2017: Abdul Wahid: Samad, Lubana; Baig-Ansari, Naila; Iftikhar, Sundus (January 2017).
Upon considering the applicant’s evidence at hearing, his written evidence, the supporting medical report that opines the applicant was circumcised when he was a child, the evidence is sufficient to establish to the satisfaction of the Tribunal that the applicant was circumcised in Malaysia. He was a child at that time, and it is reasonably likely the procedure was carried out in accordance with what was perceived by the applicant’s parents to be a requirement of established Islamic religious traditions.
Furthermore, the evidence, considered as a whole, is sufficient to satisfy the Tribunal that the applicant was raised by his grandfather from the age of about [age] until he was about [age] years of age. At that time the applicant’s grandfather passed away. Consequently, the applicant returned to his parents’ home in Sabah.
The applicant has [siblings]. He is not close to them because he was raised by his grandfather away from the family home. He did not visit his family often after he turned [age] years of age.
The applicant remained in the family home for about a fortnight after his forced return due to the death of his grandfather. During that time, it became apparent to his parents and siblings that he had rejected Islam. The applicant’s circumstances culminated in him telling his family members that the wanted to be Baptised.
The applicant refused to renounce his Christian faith. This made the applicant’s parents and siblings angry with him. According to the applicant’s evidence, his oldest brother, being a [role]in the Royal Malaysian Army, produced a firearm, cocked it, and told the applicant that the punishment for leaving Islam is death. The applicant took this as a threat to his life. The applicant’s mother intervened. As the applicant interpreted the circumstances, if his mother did not intervene his brother would have killed him.
This response by members of the applicant’s family, including his eldest brother, to the applicant’s abandonment of Islam and conversion to Christianity is consistent with the DFAT country information report dated 29 June 2021(DFAT country information report), which reports that in Sabah, the State in Malaysia in which the applicant was born; the State in which the family home is located, and the place to which the applicant returned after his grandfather died, apostasy is a crime punishable by penalties including a fine, imprisonment or caning and in other states, but not all states, it is punishable by death.
Whether such punishments are regularly carried out or not, the significance of the punishment for apostasy is that the State legislature, and, to the extent the laws of Sabah can be taken to reflect a significant degree of concurrence in the Muslim population of Sabah in the punishments prescribed for apostacy, there exists a real chance the applicant’s elder brother, being a devout Muslim, would regard the imposition of serious harm on the applicant to be just punishment for converting out of Islam, and that he was motivated and remains motivated to ensure the applicant is punished as an apostate. The Tribunal will return to this matter.
Relevantly, while the applicant shared a family name with his oldest brother and the other siblings but only for limited periods of time, he was not close to them. He was raised by his grandfather from a young age in his grandfather’s home, and away from the family environment. In that circumstance it is reasonable to apprehend that the emotional bonds between the applicant and his older brother and the other siblings may have been distant, and not as close as they otherwise may have been. According to the applicant’s evidence he was not close to his siblings. Thus, adding to the plausibility of the applicant’s evidence that his Muslim family was angry with him when he disclosed that he had converted to
Christianity, and that his elder brother cocked his firearm, and in substance, demonstrated to the applicant that Islam demanded he be killed, or otherwise seriously harmed for converting out of Islam.
Fearing his brother was likely to carry out his threat the applicant left the family home. He took labouring work and has been self-supporting and living independently since that time.
The Tribunal found the applicant gave his evidence in a forthright, and plausible manner. His evidence relevant to being circumcised in accordance with Islamic practices and being baptised into the Catholic church in Malaysia is supported by relevant documentary evidence, namely a medical report from a medical practitioner in Melbourne, and a baptismal certificate apparently issued by a Catholic priest in Malaysia. According to the applicant’s evidence, his Malaysian identity card states his name and that his name is readily identifiable as a Muslim name.
The documentary evidence – excepting the medical evidence of circumcision - alone is not conclusive. Nevertheless, when it is considered in combination with the applicant’s oral evidence at hearing, evidence that was tested by the Tribunal; the DFAT country information about the penalties in Sabah for apostasy; the Tribunal’s assessment that the applicant has given plausible evidence relevant to his conversion from the Islamic faith to Christianity; the Tribunal is satisfied of the following matters. The applicant’s grandfather inculcated Christian beliefs into the applicant from an early age; that as a matter of faith and conscience the applicant is a Christian, that the applicant chose freely to be baptised into the Catholic church in Malaysia, and that he is currently a genuine and practicing Christian.
The Tribunal is satisfied that whilst the applicant was living and working in [Country 1] on a working visa he travelled to [Country 2] where he established a relationship with [Ms A]. The applicant described the relationship as a ‘long distance relationship’ in which the applicant and [Ms A] communicated with each other regularly. During the relationship, whilst [Ms A] was visiting the applicant in both [Country 1] and Malaysia, she became pregnant.
The applicant and his partner wanted to marry in Malaysia. The difficulty with marrying in Malaysia was that the records of the state relating to the applicant, including his national identification card, disclosed that he has a Muslim name and would reveal to any official marriage celebrant, including a priest, that he is classified as Muslim. Consequently, it would be obvious that the applicant is subject to Syariah law and the jurisdiction of Syariah courts in his home state, namely Sabah and the other states where state legislatures have established Syariah law and a system of Syariah courts.
Relevantly, the DFAT country information report informs that the Federal Constitution of Malaysia establishes that Islam is the religion of the Federation of Malaysia, and that Syariah courts and the administration of Syariah law is the responsibility of each of the States of the Federation, not the Federal government.
The position of Syariah courts is respected by the constitution which gives those courts exclusive jurisdiction to decide matters that fall within the jurisdiction of Syariah Courts.[17]
[17] Dr S. S. S. Ahmad, ‘UPDATE: Introduction to the Malaysian Legal System and Sources of Law’, GlobaLex, April 2014; R. Dhlan & F. S. Faudzi, ‘Malaysia: The Syariah Court: Its Position Under The Malaysian Legal System’, Mondaq.com, 9 March 2016, available at And see Dr S .S. Faruqi, ‘Malaysian Legal System – An Introduction’, University of Malaya Law Review, 27 November 2017: and see
An interfaith marriage between a Muslim and a non-Muslim is not permitted under the civil law of Malaysia or Syariah law.[18] State governments do not recognise such marriages.[19]
[18] Dr M.S. Subramaniam, 'Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia', Centre for Asian Legal Exchange (Nagoya University), 1 March 2018, p.14 and p.15.
[19] Ibid.

Furthermore, a non-Muslim must first convert to Islam for the Syariah courts to recognise the marriage.[20] According to the evidence at hearing from the applicant and his wife the applicant’s wife is a member of the Catholic faith tradition and she has not converted to Islam. Consequently, the applicant defied both the civil law of Malaysia and Syariah law when he purported to marry [Ms A], a Roman Catholic at that time, and according to her evidence she is still a Roman Catholic. According to the applicant’s evidence they married in a civil ceremony procured by bribery.
[20] 2021 Report on International Religious Freedom: Malaysia', USDOS, 2 June 2022, p.4.
According to the evidence the applicant’s marriage to [Ms A] was precured by bribery because the applicant did not want his unborn child to be born before he married his wife, even though the marriage would be regarded in Malaysia as invalid. It is invalid because the applicant was a Muslim at the time of marriage; he was an apostate because his conversion to Catholicism had not been granted prior approval by a Syaria court; the applicant married a non-Muslim when he was classified in Malaysia as Muslim.
According to the applicant’s evidence and in accordance with the country information cited at [64] – [66], the applicant would be regarded as an apostate; and, according to the applicant’s evidence, his conversion from the Islamic faith to Christianity was not permitted by prior order of a Syariah court.
Moreover, The Federal Constitution does not recognise parents who were not married in a recognised legal marriage at the time of birth of their biological child to be to be the lawful parents of the child. Subsequent marriage could not change the illegitimate status of the child.[21]
[21] C. J. Ying, ‘Citizenship to Illegitimate Child – Denied’, Halim Hong Quek Advocates and Solicitors, 24 August 2021.
According to the DFAT country information report religious police have a range of powers to enforce a State’s Syariah laws. The Federal Constitution does not prevent religious police from detaining and charging Muslims for a range of offences under Syariah law including apostacy in the states in which apostacy is a crime.
According to the DFAT country information report for Malaysia, there are significant variations in penalties allowed by the Syariah laws in each of the various Syariah law states. In Melaka, Pahang, Perak and Sabah, the latter being the applicant’s home state, apostasy is a crime punishable by fine, a jail sentence, or caning. In Kelantan and Terengganu, apostasy carries a death sentence, though federal law prohibits capital punishment, and no one has been executed for apostasy in those states.
In Sabah, s 55(2) of the Syariah Criminal Offences Enactment 1995, establishes the offence of Contempt of the Religion of Islam. According to that provision it is an offence for a Muslim to claim they are not Muslim. The punishment prescribed for the offence is RM 2,000 or imprisonment for a term not exceeding one year or both.
In Sabah, pursuant to s 63 of the Syariah Criminal Offences Enactment 1995, ‘Attempted apostasy’ meaning murtad, is a criminal offence punishable by a maximum penalty of 36 months detention in an Islamic Centre for rehabilitation and repentance.
Furthermore, as previously noted, according to the DFAT country information report Syariah law is enforced by religious police who have the power to arrest and detain suspects according to the statutory powers granted to them for the purpose of enforcing Syariah law.
If the applicant is returned to Malaysia, the evidence indicates the existence of a real chance he would be arrested by the religious police in his home State of Sabah, the State where [Ms A] is currently residing with their son, for the offences of ‘Attempted apostasy’ or apostasy, or Contempt of the Religion of Islam, and punished. According to the June 2021 DFAT report and country information cited by the Tribunal, the range of potential punishments includes a substantial monetary fine, imprisonment, caning, and detention in an Islamic Centre for the purpose of rehabilitation and repentance.
On balance, the Tribunal accepts as plausible the applicant’s evidence that he and [Ms A] and their son did not live as a family unit, because of the risk of attracting the adverse attention of the religious police in Sabah, and other States of Malaysia that are subject to Syariah law.
Upon the applicant’s return to Malaysia, the evidence indicates there is a real chance the applicant would be assessed by the authorities in his home state of Sabah, and the other Syariah law states that have criminalised apostasy, and his elder brother, to have offended against the precepts of Islam by his apostasy and his marriage to a non-Muslim.
Further, the Tribunal is satisfied the evidence considered in conjunction with the country information establishes that it is reasonably likely the applicant’s elder brother, being a devout Muslim and person of rank in the Royal Malaysian Army whose duty it is to protect the nation and institutions of Malaysia, it being a constitutional Islamic state, would be vitally concerned about the reputational damage done to himself and their family by his brother’s apostasy, and his marriage to a non-Muslim.
The applicant has given evidence that his brother cocked a firearm, and in substance told the applicant that in his opinion the Islamic faith demands that apostates be killed. The applicant took his brother’s threat seriously; feared his brother was about to kill him but was saved by his mother. Consequently, the applicant left the family home never to return. The Tribunal has considered this aspect of the applicant’s evidence in the context of the whole of the evidence and country information before the Tribunal and determined on balance that the evidence is credible.
Furthermore, the Tribunal, being satisfied the applicant is a credible witness, and having considered his evidence in the context of the country information cited in this decision, is sufficiently satisfied the applicant’s elder brother attempted to kill him; that he believes his religious duty requires him to punish the applicant because he converted out of Islam, and that he is an apostate. Accordingly, the Tribunal is satisfied of the existence of a real chance the applicant’s elder brother is motivated to subject the applicant to serious harm, and there is a real chance he would do so, either personally or through the agency of others, if the applicant is removed to Malaysia now or in the reasonably foreseeably future.
Relevant parts of the political system
According to the DFAT report Malaysia comprises 13 states and three federal territories. The Federal government directly administers the federal territories, namely Kuala Lumpur (KL), Putrajaya and Labuan. The common law of Malaysia is administered at the federal level; and Syariah based law is administered at the state level with some variation between the states. As the Tribunal understands the prevailing circumstances in Malaysia, the jurisdiction of Sharia courts and the lawful authority of state religious police, is limited by Federal law to the legislative power of the states to legislate on Islamic law.
Conversion out of Islam may be done upon successful application to a Syariah court for permission to convert out of Islam. The June 2021 DFAT country information report, country information cited in this decision, and country information provided by the applicant to the Tribunal, does not clearly demonstrate that the applicant would be precluded from applying to a Sharia court for a retrospective declaration that he is an apostate, and for permission to convert out of Islam.
The DFAT country information report discloses that DFAT is not aware of any cases in which a Muslim has been permitted to convert out of Islam. DFAT is only aware of cases in which Syariah courts have given permission to individuals to convert out of Islam upon finding the applicant was never Muslim: [3.69]-[3.71].
According to the evidence, the applicant has a name that would be recognised in Malaysia as a Muslim name: the country information available to the Tribunal does not provide a basis on which to reject this evidence.
The June 2021 DFAT report assesses at [3.71] that any Muslim who attempts to convert from Islam or to marry a non-Muslim faces a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert. DFAT states it is not able to comment on the likelihood in practice of punishment for apostasy in states in which apostasy is criminalised, such as the applicant’s home state of Sabah.
Laws of general application (LOGAs)
The applicant contends Syariah law in Malaysia which criminalises apostasy demonstrates the existence of a real chance of persecution arising from the implementation of these laws, which in turn invites consideration of whether those law are laws of general application.
According to the most recent DFAT report for Malaysia (June 2021), Malaysia’s constitution recognises Islam as the official religion of Malaysia. The Malaysian states have jurisdiction to create written laws (statutory laws) which define crimes and punishments for offences that fit within legislative power of the States. Malaysia’s Constitution formally protects citizens’ freedom to profess and practise their religion in peace and harmony in any part of the Federation. Federal law and the civil courts recognise the jurisdiction of religious (‘Syariah’) courts over Muslims who seek to convert out of Islam. In this regard it is vitally relevant to note that DFAT does not report that the jurisdiction of Syariah courts over conversion out of Islam is unsettled law; that the jurisdiction may be a matter that falls outside the legislative power of the states, and therefore, if challenged, may be struck down by the superior Federal civil courts as law that is beyond state legislative power and of no legal effect.
As presently informed by the evidence, the 2021 DFAT country information report for Malaysia, and the specific country information relied on by the applicant,[22] including but not limited to the information concerning the internment of apostates in Islamic detention centres, the Tribunal proceeds on the basis that the state religious courts have jurisdiction over Muslims who wish to exercise their fundamental human right to choose their religion.
[22] See para 3.68 where DFAT adopts a report of the Us State Department which informs that individuals who have attempted to convert from Islam or have been accused of apostasy have been compelled to attend religious rehabilitation centres. The deprivation of individual liberty is that is regarded in Malaysia as a lawful deprivation of liberty and the right to freely choose one’s religion. Also see the Tribunal file for the applicant’s post hearing submissions dated 16 September2022:
There is significant variation between states concerning penalties allowed under these laws: in Melaka, Pahang, Perak and Sabah, apostasy is a crime punishable by fine, a jail sentence, or caning; in Kelantan and Terengganu, apostasy carries a death sentence, though nobody has been executed for apostasy. This punishment would be inconsistent with Federal law which prohibits capital punishment.
The 2021 DFAT report states that Muslims comprise approximately 60 percent of Malaysia’s population, with the remaining 40 percent adhering to Buddhism, Taoism, Christianity, animist or indigenous beliefs, or no religion at all. The DFAT report further notes that all ethnic Malay persons born in Malaysia are automatically classified as Muslim.
The concept of ‘laws of general application’ is sourced from case law arising from the court’s consideration of ‘persecution’ under the Refugee convention. The extent to which the LOGA concept applies to Protection visa applications made pursuant to the Migration Act 1958, on or after 16 December 2014[23] is subject to the codified definition of ‘refugee’ in the Act, is yet to be authoritatively determined. Nevertheless, the Act clearly reflects a legislative intention to codify the definition of ‘refugee.’ Integral to the concept of ‘refugee’ in the Act is the existence of a ‘well-founded fear of persecution’: see s 5H and 5J and the interrelationship of both concepts.
[23] The applicant applied for a Protection visa on 29 April 2016.
Given the inclusion to the concepts of ‘refugee’ and ‘persecution’ in the Act, and that the Act does not disclose an intention to exclude the application of the case law arising from the courts’ consideration of ‘refugee’ and ‘persuasion’ under the Refugee Convention, the Tribunal is of the view that the principle of LOGA is applicable to Protection visa applications made on or after 16 December 2014 which are subject to the codified definition of ‘refugee’ in the Act. There is some case law which implicitly supports this view (see for example AJZ17 v MHA [2019] FCA 1485 and EOC20 v MICMSMA [2021] FedCFamC2G 297), but the question has not been expressly considered and determined judicially.
Enforcement of a generally applicable law does not ordinarily constitute persecution, because enforcement of such a law does not ordinarily constitute discrimination: (‘discrimination’ being a necessary component of ‘persecution’ under s 5J(4)(c) for post-16 December 2014 cases): Applicant A v MIEA (1997) 190 CLR 225 at 258 (‘Applicant A’). This principle applies whether a particular law is oppressive or repugnant to the values of Australian society, that is, even if the impugned conduct is not criminalised (or, conversely, is considered acceptable) in Australia. LOGAs therefore typically are ordinary criminal laws, applicable to the whole population of a country, even where those laws are based on religious values.
According to settled legal principle, whether a law is properly characterised as a LOGA turns on identifying the members of a country’s population to which the law applies. As the High Court held in Chen Shi Hai v MIMA (2000) 201 CLR 293 (‘Chen Shi Hai’), ‘[l]aws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application’. It would appear also in the context of the codified provisions of the Act, which refer to a ‘receiving country’ as the country against which the protection visa application is to be assessed, that the assessment of persecution is framed by the country of reference as a whole, as opposed to its constituent states or regions.
If a law, in its terms, appears to be of general application, persecution may still follow if that law is selectively enforced (that is, if it’s implemented or enforced in a discriminatory way) or where, in limited circumstances, it adversely impacts on individuals possessing a Convention-based attribute. For reasons that will become apparent, it is unnecessary for the Tribunal to have regard to this consideration in this decision.
Even where a law does discriminate against a person for reasons of race, religion, nationality, membership of a particular social group or political opinion, persecution does not necessarily follow. If a law results in the discriminatory treatment of persons for one of those reasons, or a combination of those reasons, the question of whether the discriminatory treatment constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object’ of the country concerned, the pursuit of which is required to promote the general welfare of the State and its citizens ( for example, see Chen Shi Hai at [28]; Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [45]).
The question of whether the treatment of the relevant individuals is ‘appropriate and adapted to achieving some legitimate object’ invites consideration of the proportionality of the means used to achieve the ‘legitimate object’ in relation to the nature of the law and the manner of its implementation: Applicant S v MIMA (2004) 217 CLR 387 at [44], [48]; MZQAP v MIMIA [2005] FCAFC 35 at [20]. Relevant considerations in determining whether a law is ‘appropriate and adapted’ also include the laws and culture of the country itself, as well as international human rights standards: see Chen Shi Hai at [19]–[21], [72]; and also SZVYD v MIBP [2019] FCA 648 (‘SZVYD’) at [14], where the Court indicated fundamental breaches of human rights may fall beyond a state’s legitimate remit to make laws regulating social behaviour.
Are Malaysia’s state-based laws LOGAs and, if not, are they appropriate and adapted to a legitimate object?
Laws which apply to or target only a particular section of the population of the ‘country of reference’ as distinct from States within the ‘country of reference’ are not properly described as laws or policies of general application.
In the case of Malaysia, where Muslims constitute a bare majority of approximately 60 percent of the population, the Tribunal is of the view that laws applying only to Muslims are not laws of general application. A Muslim applicant from Sabah who seeks to change their religion faces the prospect of imprisonment, caning, a substantial fine, a lengthy period of detention in an Islamic Rehabilitation Centre for rehabilitation and repentance. Whereas their Buddhist or animist neighbour, seeking to do the same, would not. Indeed, a Muslim applicant living in another part of Malaysia (e.g., Kuala Lumpur, a federal territory not subject to Syariah courts’ authority) would also appear to avoid penalties for apostasy because they live in a federal territory that is outside the jurisdiction of the state based Syariah courts. As these laws only apply to a particular segment of the population, namely Muslims, residing in Syariah law states of Malaysia, the Tribunal is of the view that they do not fall within the concept of ‘laws of general application.’

100. As set out above, the next question to consider is whether these laws are appropriate and adapted to a legitimate object of the nation-state of Malaysia, as distinct from the various states of Malaysia. Relevant considerations here include whether the laws ‘involve such a significant departure from the standards of the civilized world as to constitute persecution’ (Chen Shi Hai) or otherwise ‘strik[e] at fundamental human rights’ (SZVYD). In this context, it’s well settled that the right to choose one’s religion (or lack thereof) is a core human right: Applicant NABD of 2002 v MIMIA [2005] HCA 29 at [108]-[132]. Therefore, Courts have cautioned that great care needs to be taken in characterising any law, let alone its alleged enforcement, as non-discriminatory when it is, in terms, aimed at some religions but not others. In NAVZ v MIMIA [2005] FCA 13, for example, the Tribunal accepted that Russia’s ‘Law on Religion’ discriminated against certain religious groups including Scientologists but was satisfied that it was appropriate and adapted to achieving the legitimate object of protecting the welfare of Russia’s citizens. The Federal Court held that the Tribunal had seriously misunderstood the nature of the relevant interest, namely a human right not to be subjected to seriously discriminatory harm in relation to certain matters vital to human dignity, which the Convention seeks to protect. The right to choose one’s religion is one such fundamental human right.
101. Applying these authorities and considering the DFAT assessment about the official discrimination suffered by Malaysians who want to exercise their fundamental human right to choose their religion by converting out of Islam (see [100]), the Tribunal finds it difficult to characterise state Sharia law that, in its terms and in practise, remove from the individual the right to choose their own religion, as law that is appropriate and adapted to a legitimate object of the state.

102. The existence in the Syariah law States of a procedure by which Muslims may apply to a Syariah court for permission to convert out of Islam violates their fundamental human right to choose their religion. The Tribunal finds it difficult to characterise apostasy laws that only apply to Muslims; that criminalise Muslim apostates and expose them to various penalties including deprivation of liberty and corporal punishment, and intend to subject their fundamental human right to convert out of Islam to the jurisdiction of religious courts, as law that is appropriate and adapted to a legitimate object of the Federation of Malaysia and required to promote the general welfare of the State and its citizens.
103. The Malaysian state may justify these laws either as a measure to promote or protect harmony between different religions across the country, to uphold the sanctity of Islamic doctrine, and/or to determine ‘matters of Islamic law and Malay custom’ (see the DFAT report at [3.29]). Relevantly, DFAT reports that the Malaysia’s Constitution prescribes Islam as the religion of the Federation and stipulates other religions may be practised in peace and harmony in any part of the Federation at [3.21]. These constitutional rights apply to the practice of religion, but they do not expressly include a right to convert out of Islam.
104. There seems to be a legal distinction between the right to practice one’s religion in accordance with the constitutional right to do so and converting from out of Islam. That act being the abandonment of Islam as distinct from practising Islam. This tentative view of the scope of the constitutional right to freely practise non-Islamic religions, is consistent with the existence of State laws that prohibit apostasy and penalise Muslims who attempt apostasy or commit apostasy.
105. Relevantly, the evidence, the 2021 DFAT country information report, and the country information referred to in this decision, do not indicate that State based Syariah laws that criminalise apostasy have been treated by the superior Federal courts of Malaysia, as laws that exceed the legislative powers of the States; that they are inconsistent with the right afforded by the Federal Constitution to all Malaysians to freely practise all religions peacefully in Malaysia.
106. It is reasonable to apprehend that the apostasy related crimes that single out Muslims from the remaining 40 percent of the population, are unjustifiably discriminatory and disproportionate to the exercise of one’s fundamental human right to choose one’s own religion. Furthermore, it is reasonable to apprehend that the laws criminalising apostates and subjecting them to penalties that may attract deprivation of liberty, corporal punishment, detention in Islamic re-education centres, and substantial monetary penalties, are so disproportionate to choosing one’s religion, that they are not adapted to the object of achieving social cohesion or otherwise necessary to promote the general welfare of the State and its citizens.
107. Rather these laws appear to be adapted to the object of deterring Muslims from converting out of Islam through a system of State sponsored faith-based laws, religious adjudicators, and religious police, and ensuring the majority of the population remains Muslim. This mechanism aligns with the provision in the Federal Constitution that states that Islam is the religion of the Federation: see Article 3(1). Nevertheless, the apostasy laws seem to manifest an intention to manage the religious beliefs of the Muslim segment of the population - about 60 percent – to align with Article 3(1), and the object of Islam being the religion of the majority of the population.
108. Weight is given to this view to the 2021 DFAT country information report which informs that the government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim: [3.22]. In this regard it is also relevant to note that, according to the DFAT report the majority of Malaysian Christians live in Sabah. Nevertheless, the State of Sabah has criminalised attempted apostasy (attempted Murtad) and Contempt of the Religion of Islam with penalties ranging from detention in an Islamic Rehabilitation Centre for the purpose of rehabilitation and repentance, to a substantial fine or imprisonment for up to one year, or both: s 63 and s 55(2) of the Syariah Criminal Offences Enactment 1995.
109. It is reasonable to take the view that the criminalisation of apostasy and the associated punishment is adapted to supressing the fundamental human right to choose one’s religion, a right that is personal to all peoples including Muslims who happen to be born in Malaysia, by criminalising Malaysian Muslim apostates and exposing them to a real chance of detention in an Islamic Rehabilitation Centre, imprisonment, corporal punishment and a substantial monetary fine.
110. The evidence does not indicate that the applicant’s apostasy was motivated by an intention to challenge national security or destabilise Malaysian society. The evidence and country information before the Tribunal does not indicate a history of apostates in Malaysia being treated by the Federal government based on their religious beliefs, and acts of worship being politically motivated, or directed at destabilising or threatening national security. In this regard it is relevant to repeat that only a bare majority of about 60 percent of Malaysians profess to adhere to the Muslim religion; and that Muslims who live in the Federally administered territories in Malaysia are not subject to Syariah courts and the penalties for apostasy.
111. Furthermore, it is also relevant to note that the June 2021 DFAT report informs at [2.44] that ‘Malaysia’s overall security situation is generally stable.’ According to the DFAT report terrorism is a long-standing concern in Malaysia. The report indicates that Muslim extremists namely Da’esh (also known as the Islamic State in Iraq and the Levant or the Islamic State) is a primary concern of state security forces. Obviously Muslim apostates would not be welcomed by Muslim terrorists.
112. There is no evidence that the apostasy laws are intended to appease Muslim terrorists or extremists for national security reasons. It is not evident to the Tribunal that the criminalisation and punishments for apostasy in various states of Malaysia are required to promote national security and the welfare of the nation and its citizens.
113. Whether the laws that criminalise apostasy, discriminate against Muslims in their terms and application, and strike at the fundamental human right to choose one’s own religion, are laws ‘appropriate and adapted to achieving some legitimate object’ of Malaysia that is required to promote the general welfare of the State and its citizens, is a difficult matter to determine. Nevertheless, the issue has arisen for determination in this review.
114. The Tribunal has difficulty characterising the state Syariah laws that criminalise apostasy as law that is appropriate and adapted to a legitimate object of the Federation of Malaysia, as distinct from the various Syariah law states in Malaysia. These state laws are intended to classify as criminal and penalise Malaysian Muslims in Malaysia who exercise their fundamental human right to choose their own religion. In the view of the Tribunal, it is reasonable to regard the apostasy laws and penalties as grossly disproportionate to a Muslim in Malaysia simply choosing to act on their fundamental human right to choose to convert out of Islam.
115. The evidence and country information cited in this decision substantiate to a reasonable degree, a conclusion that the state-based apostasy laws are adapted to deter Muslims from converting out of Islam. They are not adapted to achieving some legitimate object of the nation state of Malaysia, because in their terms and application, the apostasy laws strike at the fundamental human right of Muslim’s in Malaysia to convert out of Islam, a precondition to choosing their own religion. In reaching the conclusion, the Tribunal has given significant weight to the June 2021 DFAT country information report that states at [3.71]:
DFAT assesses that Muslims who attempt to convert from Islam or marry a non-Muslim face a high risk of official discrimination under Malaysian law in the form of refusal of official permission to convert. DFAT is not able to comment on the likelihood, in practice, of punishment for apostasy in states in which apostasy is criminalised.
116. Whilst DAFT does not comment on the likelihood of punishment for apostasy, if in fact there is only a remote possibility that those laws would be enforced in any given case, that factor would weigh against the laws of apostasy being taken to be laws ‘appropriate and adapted to achieving some legitimate object’.
117. It is reasonable to expect that laws that are appropriate and adapted to achieving some legitimate object, to be laws that are enforced and adjudicated upon in accordance with the purpose for which Syariah courts were established. DFAT does not report, and there is no evidence or country information before the Tribunal that indicates the apostasy laws are regarded by Malaysians generally, or members of the Muslims faith to be ‘dead letter law’: law that may be safely ignored without fear of punishment.
118. Indicative of the enforcement of apostasy law is the report of the US State Department that informs it is aware of cases of individuals who attempted to convert from Islam, or were otherwise accused of apostasy, who have been compelled to attend religious rehabilitation centres: see June 2021 DFAT country information report, Malaysia at [3.68].
119. The Tribunal is satisfied that the evidence and country information considered as a whole, is sufficient to establish to the satisfaction of the Tribunal, that the apostasy laws in Sabah and the other states of Malaysian that criminalise apostasy, are not laws of general application in the Federation of Malaysia. They are state-based laws, systematically policed by religious police and adjudicated upon by Syariah courts. Various states also provide prisons and Islamic Rehabilitation Centres for the purpose of detaining, punishing, rehabilitating, and the repentance of apostates. The Tribunal is satisfied the treatment of Muslims who attempt to convert or convert out of Islam is discriminatory and systematic conduct.
120. Having considered the totality of the evidence, the Tribunal is satisfied that:
·the applicant is a credible witness
·the applicant, whilst living in Malaysia, exercised his fundamental human right to choose his own religion;
·in Malaysia the applicant converted out of Islam and he is now a practising member of the Roman Catholic faith tradition;
·the applicant fears that he would be arrested by the religious police and severely punished in his home state of Sabah and the other Syariah law states because he is an apostate and he married a non-Muslim;
·the criminalisation of apostasy is not law of general application that is appropriate and adapted to achieving some legitimate object of the Federation of Malaysia;
·there is the existence of a real chance that the applicant would experience significant physical harassment and significant physical ill treatment by agents of the Syariah law states of Malaysia, if he is returned to Malaysia; and
·the real chance of serious harm for apostasy related offences, as the Tribunal finds it to be, would involve systematic and discriminatory conduct against Muslims who attempt to convert or convert out of Islam in the various states that criminalised apostasy related behaviour.

121. In giving regard to the Tribunal’s previous considerations concerning the applicant’s elder brother, in particular the discussion at [77]-[80], and the applicant’s evidence considered in the context of the country information before the Tribunal, the Tribunal is satisfied the evidence is sufficient to establish the applicant’s brother, as a member of the Royal Malaysian Army, has access to firearms.
122. The evidence is also sufficient to establish to the satisfaction of the Tribunal that the applicant’s elder brother is a devout Muslim and his close family members are devout Muslims. The Tribunal is satisfied that upon learning of the applicant’s intention to be baptised and convert out of Islam, there was a real chance his elder brother believed at that time and continues to believe, the precepts of Islam mean the doing of serious harm (as defined) to his brother to be just punishment for his apostasy; and that it is his duty to see to it that his brother is punished as an apostate. The Tribunal is satisfied the applicant’s brother cocked his firearm when the applicant announced to his family in the presence of his elder brother, that he is a Christian and he intends to be Baptised. The applicant was saved only when his mother intervened. Soon afterward the applicant left the family home never to return because he believed and continues to believe his brother is fixed in his intention to cause him serious harm.
123. On balance, the Tribunal is satisfied that the evidence is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant’s brother is still a devout Muslim; a member of the Royal Malaysian Army; that he believes the applicant is an apostate, married to a non-Muslim; and that he would act to kill or otherwise seriously harm the applicant for these offences to the precepts of Islam. The Tribunal is also satisfied that religion is the reason the applicant fears persecution, and that religion is the essential and significant reason for the persecution.
124. These findings raise for determination whether the real chance of harm arising from the applicant’s apostasy applies to all areas of Malaysia.
Does the real chance of serious harm apply to all areas of Malaysia?
125. According to the June 2021 DFAT report the Syariah courts are state institutions. The three Federal territories including KL, are subject to Federal law and they are not subject to a Syariah legal system (also see [81] above). Accordingly, the real chance of systematic persecution for apostasy in the states that criminalised apostasy does not apply to the three Federal territories of Malaysia, including KL.
126. According to the applicant, he regards himself as being married to [Ms A]. He wants to live openly with her as husband and wife, and to raise their son together without the risk of being harmed because he converted out of Islam and married a non-Muslim.
127. The applicant also wants to practice his religion openly and to raise and educate his son to be Christian, in the same Christian faith-based tradition he shares with [Ms A].
128. DFAT reports (2021) that some apostates relocate to large cities to live out of the sight of religious police and the jurisdiction of the Syariah courts.
129. There is no evidence of the existence of any significant impediment to the applicant relocating to one of the three Federal territories such as KL, if he is returned to Malaysia now, or in the reasonably foreseeable future.
130. If the applicant is relocated to KL, he would place himself outside the jurisdiction of the State based religious police, and the Syariah legal system.
131. The Tribunal is of the view that the applicant would not suffer significant economic hardship if he were to relocate to a federally administered jurisdiction such as KL. The documentary evidence, and the applicant’s evidence at hearing establishes he is a highly trained and experienced [operator]. In [Country 1] and Australia, the applicant obtained specialised training and qualifications in the [specified area], and occupational experience in that field of employment.
132. Currently the applicant is a [occupation] employed by [a company]. Shortly, he will complete in-house management training provided by his employer.
133. The evidence is insufficient to establish to the satisfaction of the Tribunal that individual Muslims in KL unrelated to the applicant and unconnected to his elder brother, including potential employers and employees in the [sector], or other occupations in KL that are reasonably likely to be open to the applicant, would be positively hostile towards the applicant because he converted out of Islam, and discriminate against him to the degree that there is a real chance he would suffer significant economic hardship, denial of access to basic services, or be denied capacity to earn a livelihood, that would threaten his capacity to subsist in KL.
134. The evidence and country information is sufficient to satisfy the Tribunal that it is likely the applicant would find employment in KL in the transport sector, or in some other area of employment that would enable him to subsist, whether or not it was apparent that he converted out of Islam, or that he is a Christian and an apostate.
Real chance of serious harm in territories administered by the Federal government
135. In this regard the Tribunal is satisfied the applicant’s siblings, but more relevantly his elder brother would be likely to learn of the applicant’s return to Malaysia, if not immediately upon his return, in the reasonably foreseeable future.
136. This is likely to occur whilst the applicant is pursuing his faith-based purpose of openly practising his religion, baptising his son into the Catholic religion, and obtaining for him a national identity card known as MyKad.
137. According to the applicant’s evidence his son must obtain a national identification card, namely a MyKad card, when he turns 12 years of age. The applicant’s evidence is consistent with information about MyKad cards in the 2021 DFAT country information report: see [5.42] - [5.44] and the report generally.
138. According to the DFAT report all MyKad cards specify the holders name and date of birth, address, biometric data including the card holder’s photograph and fingerprints, and indicate their status as a Muslim. An individuals’ MyKad card must be always carried and failure to do so exposes an individual to the risk of a substantial fine and a jail term of up to three years. A card holder is also required to keep their card details up to date.
139. Relevantly, the MyKad, in addition to being a document used for identification and to establish an individual’s current address, is used as an ATM card, to pay road tolls and to pay taxes. The State of Sabah, the applicant’s home state, and the state in which his wife and son are residents, use MyKad as part of the State’s own immigration control system in addition to the Federal immigration controls: 2021 DFAT report.
140. An up-to-date MyKad is a prerequisite to going about daily life in Malaysia: walking the streets without risk of penalty, paying road tolls and therefore driving a vehicle including commercial passenger vehicles – the applicant’s most likely occupation if he returns to Malaysia - paying tax, and identification of oneself. The Tribunal infers from the DFAT country information report relevant to the MyKad system, that it would be difficult to gain legitimate employment in Malaysia without first obtaining an up-to-date MyKad.
141. According to the evidence, the applicant does not have an up-to-date MyKad and his son will require one when he turns twelve years of age.
142. The Tribunal is of the view that it is reasonable to apprehend that the applicant would come to the attention of the authorities as an apostate in the course of his endeavours to obtain for himself an up-to-date MyKad. In that circumstances the matter of the applicant’s background, the origin of his Muslim name, his religion and that of his family, are matters likely to be scrutinized by both the Federal and any relevant State authority.

143. These likely inquiries into the applicant’s religious background for MyKad purposes, and whether the applicant is Muslim, mean that it is reasonably likely to bring the applicant’s presence in KL to the attention of his elder brother and other close family members. The elder brother being the obvious source of information capable of verifying the applicant’s personal and religious details and history: that in the opinion is a matter of common sense. In this regard it is relevant to note that the applicant’s elder brother may be regarded as the head of the family since the recent death of their father, and that he is a member of the Royal Malaysian Army.[24]
[24] The applicant provided photographs to the Tribunal of his brother including a photograph of him in military uniform.
144. The Tribunal accepts it is reasonably likely the applicant’s elder brother is a devout Muslim. In accordance with views previously expressed in this decision, the Tribunal is of the view that it is reasonably likely the applicant’s elder brother would be hostile to the applicant upon his return to Malaysia for these reasons: his decision to be baptised; his expressed abandonment of Islam; his conversion out of Islam; that he committed the crime of apostasy; and that he married a non-Muslim. The Tribunal is also of the view that there is a real chance the applicant’s elder brother cocked his firearm, and in effect told the applicant his offence against the precepts of Islam meant that he should kill the applicant.
145. The Tribunal is of the view that in the likely event of the applicant’s brother learning of the applicant’s return to Malaysia, even if the applicant relocated to a federally administered region such as KL: there is a real chance of the applicant’s older brother doing serious harm to the applicant, either personally or through the agency of others, as punishment for the applicant’s apostasy and marrying a non-Muslim.
Behaviour modification and effective protection in the Syariah law states
146. The Tribunal is satisfied the applicant would continue to practise his chosen faith as a member of the Catholic church if he is removed to Malaysia now or in the reasonably foreseeable future.
147. The Tribunal is satisfied any modification to his religious beliefs and practice including, baptising his son into the Catholic church in Malaysia, are matters fundamental to the applicant’s identity and conscience. Modification of his faith-based practices to avoid the risk of serious harm in the Syariah law states of Malaysia, and from his elder brother in Malaysia generally, would conflict with the applicant’s identity and conscience.
148. Effective protection from the authorities in the Syariah law states is unlikely to be available to the applicant. The DFAT country information report indicates that a Muslim who converts out of Islam would be highly unlikely to obtain approval from a Syariah court to convert out of Islam: [3.69]-[3.71]. It is therefore unlikely the applicant would be able to effectively protect himself from the real chance of harm as the Tribunal has found it to be, by successfully obtaining permission from a Syariah court for permission to convert out of Islam.
149. Furthermore, the Tribunal is not satisfied that effective, consistent, and ongoing protection would be available to the applicant from either Federal or state government authorities that would protect the applicant from the real chance of being seriously harmed by his elder brother. The DFAT reports informs that corruption in Malaysia appears to be increasing. The Royal Malaysian Police (RMP) is widely regarded by Malaysians as the most corrupt institution in the country: [2.17], that being the institution to which it is reasonable to expect the applicant to turn to for protection if he relocated to KL or another territory administered by the Federal government.
150. Civil society and human rights groups have regularly reported instances of police intimidation and legal harassment under successive Malaysian governments. DFAT also reports that a survey found that more than a third of Malaysians regard Members of Parliament as corrupt. DFAT also reports that bribes and irregular payments are sometimes paid to procure favourable court decisions. According to the 2021 DFAT report, in 2020 Transparency International’s Corruption Barometer found that 72 percent of Malaysians consider corruption in government to be big problem.
151. DFAT reports that the Malaysian Anti-corruption Commission has commenced prosecutions against hundreds of public officials for corruption. The activities of the commissions appear not to have deterred the well-publicised monumental fraud involving the government investment fund, 1 Malaysian Development Berhad (1MDB) that was perpetrated by public officials on the citizens of Malaysia. The Prime Minister of Malaysia at the relevant time, and chairman of the fund, was convicted of seven charges and sentenced to 12 years imprisonment. In 2021 he appealed these convictions. He is not the only public official facing charges arising from this massive fraud.
152. Giving regard to the apparent susceptibility of public officials including the RMP to being corruptly influenced in the performance of their duty, the country information before the Tribunal is insufficient to satisfy the Tribunal that effective protection measures would be available to the applicant in KL or Sabah, or elsewhere in Malaysia, to effectively protect him from the real chance of serious harm posed by his elder brother.
153. The Tribunal is satisfied the real chance of serious harm posed by the applicant’s elder brother would exist in KL and the other Federally administered territories, being places where the applicant’s brother is reasonably likely to appreciate the applicant may avoid the reach of the religious police, Syariah courts and punishment according to Syariah law.
154. The Tribunal is satisfied the real chance of harm posed by the applicant’s elder brother correlates to and is informed by his religious beliefs and upholding his perception of just punishment according to Syariah law relating to apostates, and that it is reasonable therefore, to view the chance of persecution posed by the applicant’s brother as being discriminatory and systematic in nature.
155. Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in combination with the cited country information, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his religion, that being a reason that meets the provisions of s 5J(1)(a) of the Act, if he is removed to Malaysia now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
156. The Tribunal is also satisfied religious persecution is the essential and significant reason for the real chance of persecution faced by the applicant, and that the persecution would involve systematic and discriminatory conduct by operation of Syariah law in the various Malaysian states that criminalised apostasy, and by the likely conduct of the applicant’s elder brother.
157. Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act and that the applicant meets the definition of refugee as set out is s 5H of the Act.
158. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
159. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s36(2)(a) of the Migration Act.
Peter Haag
Member

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.
…

‘Structure of The Syariah Court and its Jurisdiction’, Education and Research Association for Consumers, Malaysia, 21 January 2020 available at