2114777 (Refugee)

[2023] AATA 3112

2114777 (Refugee) [2023] AATA 3112 (22 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Anthony Nicholas Silva (MARN: 9901579)

CASE NUMBER:  2114777

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Christine Cody

DATE:22 June 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first and second applicants satisfy s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second applicants.

Statement made on 22 June 2023 at 1:21pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – Indian ethnicity – religion – Christianity – involved in missionary work – outreach to Orang Asli settlements – wife’s brother’s forced conversion to Islam – children bullied/harmed in school – credibility concerns – inconsistent evidence – delay in claiming protection – outreach/ proselytisation work in Australia – purpose and genuineness of these activities – Malaysian law prohibiting conversion of Muslims to other religions – ‘appropriate and adapted to achieving a legitimate object of the country’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), r 1.12; Schedule 2

CASES
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

Background

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

2. The 4 applicants are citizens of Malaysia. The first named applicant (“the applicant”, “the husband”) is the husband of the second named applicant (“the second applicant”, “the wife”). The 2 adult applicants were married [in] June 1999. They are the parents of the 2 child applicants.

3. The applicants’ migration history[1] is as follows:

   [1] Per delegate’s decision record provided to the first Tribunal (and thus the current Tribunal) by the applicants.

   ·     [Date] February 2011 – the applicants arrived in Australia holding an electronically issued visitor visa UD 976.

   ·     14 March 2011 – the wife applied for a Student (TU576) visa with the family as dependants.

   ·     17 June 2011 – the applicants were granted Student (TU576) visas.

   ·     15 March 2013 – the wife applied for a second Student (TU572) visa with the family as dependants.

   ·     22 May 2013 – the applicants were granted Student (TU572) visas.

   ·     21 February 2014 – the wife applied for a skilled visa (Subclass 485) with the family as dependants.

   ·     29 April 2014 – the applicants were refused the skilled visas (the Subclass 485 visas).

   ·     14 May 2014 - the applicants lodged an application for review to the Migration Review Tribunal (MRT case number 1408618).

   ·     18 July 2014 – the applicants attended a hearing before the MRT.

   ·     7 November 2014 – the MRT affirmed the Department’s decision to refuse to grant the applicants Subclass 485 visas.

   ·     25 November 2014 – the applicants signed protection visa application forms.

   ·     10 December 2014 – the applicants lodged their protection visa application forms.

   ·     10 June 2015 – the delegate refused to grant the protection visa applications.

   ·     1 July 2015 – the applicants lodged an application for review of the refusal to grant protection visa applications to the Tribunal (the first Tribunal), differently constituted, and a hearing occurred on 15 December 2016 (following a case management conference). The first Tribunal affirmed the decision under review.

4. The applicants lodged an application for judicial review of that decision. [In] September 2021 Judge Cameron of the Federal Circuit and Family Court of Australia quashed the Tribunal decision, directing the case to be redetermined according to law. It was noted that the applicants claimed to fear harm on return to Malaysia because of their Tamil ethnicity and Christian faith. They relevantly claimed that, were it not for Malaysian laws that prohibited it, they would proselytise to Muslims but, due to the laws, they would have to repress or change their behaviour to avoid religious persecution or harm. The first Tribunal accepted that the applicants practised Christianity in Malaysia and that they would continue to proselytise to non-Muslim persons of different faiths, but not to Muslims because to do so was against the law and they were law-abiding citizens. It accepted, based on Malaysian laws and social trends, that if they did proselytise to Muslims, they might face prosecution and/or targeted societal violence amounting to persecution or significant harm. The first Tribunal recognised the Malaysian laws were discriminatory in nature because they prevented persons proselytising to Muslims but did not prevent Muslims evangelising to Christians. However, the first Tribunal concluded that the laws were ‘appropriate and adapted to achieving a legitimate object of the country’ because they supported ‘peace and tolerance, the protection of general welfare in Malaysia, the prevention of civil strife there and the protection of the state religion enshrined in the Malaysian Constitution.’ The applicants contended, amongst other things, that the Tribunal erred in accepting the legitimacy of the object of the Malaysian laws, without also analysing and making findings on whether the laws were appropriate and adapted to achieving the object.

5. The court found that the first Tribunal erred in finding that the Malaysian law prohibiting conversion of Muslims to other religions was appropriate and adapted to achieve a legitimate object of that country, and while the first Tribunal identified relevant Malaysian national objectives, it had not first analysed why the law in question was ‘appropriate and adapted’ to the achievement of those objects. The court held that this failure amounted to a constructive failure to exercise jurisdiction.

6. The matter was then constituted to the current Tribunal. Further documents were provided to the Tribunal and the adult applicants appeared before the Tribunal on 3 March 2023 to give evidence and present arguments. The Tribunal was concerned that the children (now both young adults) had not attended to give evidence although they had been invited to do so; the Tribunal was informed that they did not wish to attend as it would be distressing for them. While acknowledging people can be nervous and sometimes distressed when attending Tribunal hearings, the Tribunal does not accept, on the evidence before it (noting a lack of medical evidence), that this is a reason for those applicants not attending the hearing. It also notes that it has not accepted the claims relating to the children below. The Tribunal considers that the children were provided with an opportunity to attend the hearing but did not do so.

7. The applicants were represented in relation to the review.

   Departmental file

8. The applicants provided protection visa application forms (indicating that it was only the applicant who was making claims, and the balance of the family did not have their own claims, but were instead claiming as members of the applicant’s family unit) and Form 80s, as well as a statutory declaration (“statement”) of the applicant dated 9 December 2014 (relied upon by all)[2] and supporting documents (certified copies of birth certificates, pages from their passports, marriage certificate). The agent’s cover letter dated 10 December 2014 stated that the applicant’s claims were based on religion and race.

   [2] DF63

9. The Tribunal accepts that although the forms completed indicate that the second applicant and child applicants were not making claims, they did in fact make claims, which have been considered by the Tribunal.

   Background information from the applicants’ application forms

10. The adult applicants were born in Taiping, Perak, Malaysia. Their ethnicity is “Indian” and religion is Christian. Their passports were issued [in] 2010. They lived in Kuantan, Pahang. They were married [in] June 1999.

11. The wife worked in Singapore between 1996 and 2004. She came home every fortnight and the husband made monthly tips to visit his wife (before and after their marriage). [The children] accompanied their mother to Singapore in 2002 and 2003.

12. The applicant has 1 brother ([Mr A]) in Australia, and the rest of his siblings ([number] sisters and [number] brothers) are in Malaysia. The second applicant’s parents, sister and [number] brothers are in Malaysia.

13. The adult applicants’ contacts in Australia include [Pastor B], from [Church 1].

14. The applicant was born in [year]. He speaks, reads and writes in English and Malay (medium level). He completed his education in Malaysia, and undertook a Diploma in [Discipline 1], Singapore, by distance learning, in 1984. He worked [in various roles]. His last role was as an [Occupation 1] which ceased in June 2010. He resided in Malaysia all of his life until he left Malaysia legally for Australia [in] February 2011.

15. In addition to his monthly trips to visit his wife in Singapore, he engaged in additional travel: from October 1995–January 1996 he went to [Country 1] for work, and in 2009 he travelled several times to [Country 2] for work.

16. The wife was born in [year] in Perak. She speaks, reads and writes in English. She studied [Discipline 2] for 2 years in Singapore from 1996–1998. She would return home fortnightly. In Singapore she worked at [Employer 1] from 1998–2004. Her occupation is [Occupation 2]. She did not work outside the home between 2004–2011. Between February 2011–December 2013 she did various TAFE courses in Australia. She also commenced working as an [Occupation 2] in Australia in July 2011.

17. The wife has a married brother [Mr C]/[Alias C], and another [number] brothers and sister and her parents in Malaysia.

18. [The son] was born in [year] in Kuantan, Pahang, and is now an adult. He attended school for 4 years in Malaysia at [education provider], and since 2010 attended school in Australia. His language is English.

19. [The daughter] was born in [year] in Singapore and is now an adult. She attended school for 4 years in Malaysia, and since 2010 attended school in Australia.

    Claims

20. According to the applicant’s application form, the reason why the applicants left Malaysia was because “our life was in danger”. Several harmful incidents had previously occurred, and if they return their lives would be in danger from Muslim extremists who have the support of the police. The Muslim extremists hate Christians who do missionary work, deeply religious Christians, and those who can’t speak Malay or conform to Islam. The authorities support Muslim extremists and racists and thus will not protect them. Reference was also made to his statutory declaration (statement) where more details were provided.

21. The applicant’s statement provides as follows:

    (1) I am a citizen of Malaysia, however I do not want to return to Malaysia as my life and that: of my family members are in danger if we return.

    (2) Our fear is based on our religion and race. Being Christians of Indian origin involved in active religious work including missionary work we were persecuted.

    (3) We entered Australia on a visitor visa since that was the only visa available for us to escape from Malaysia that gave some certainty that we could get away from Malaysia.

    Reason why I left Malaysia

    (4) I came to Australia because my life and that of my family members was in danger. I don't want to go back to Malaysia because my family has suffered serious physical harm and verbal abuse due to our strong Christian faith and missionary work that we were involved in. My children were subject of harsh treatment by their teachers and peers at school due to their belief as the children did NOT conform to the Islamic religious view practiced at school.

    (5) Part of our ministry work was to hand out Malay Bibles and Christian voice tracks to the Orang Asli tribe (indigenous Tribe). In the Malay Bible, God is referred to as 'Allah'. According to the Muslims in Malaysia, the word Allah can exclusively be used by Muslims.

    (6) In Dec 2009, this matter was brought to the Malaysian High Court and the judge favoured the decision, allowing the Christians to continue using the word Allah in Christian Publications.

    (7) The outcome of this decision caused the Muslims to burn 8 churches in Malaysia.

    (8) Despite the protest, we (my wife, me and three other church members) continued to visit and distribute the Malay Bible to the Orang Asli (Indigenous People)

    (9) We were strongly warned and seriously harmed by some extreme Muslims who were trying to stop us handing over Malay Bible and doing missionary work.

    Daughter's suffering in school

    (10) Our [daughter] was the only Christian girl in her class and she was bullied and humiliated at school because she was not able to speak Malay well.

    (11) In September2010 in her school my daughter was asked to recite verses from Quran with the Muslim and non-Muslims (Hindu) students. She refused to do that and she was slapped by the teacher. She came home with tears running from her eyes.

    (12) We went and saw the female Principal. She said that it is the requirement of the school and all the students have to comply with that. Humiliated [our daughter] refused to go back to school for three weeks and the Principal then threatened to expel her from the school if she does not return. We had to force her to attend school to prevent her from being expelled.

    (13) The teachers started picking on her asking her to kneel in class for minor issues and hitting her on the head.

    (14) We heard that the teachers were angry with my daughter's non-compliance with reciting the Quran verses and they had then decided to take their anger out on my daughter by humiliating her in front of her class mates and hitting her. We could not then take this further by approaching the school Principal because she refused to give time for us to see her.

    (15) My daughter from then on did not mention being hit at school and on two occasions since then my wife found bumps on my daughter's head when washing her hair and my daughter then admitted the teacher gave knocks on her head as punishment

    Son's suffering In school

    (16) Our son was bullied and humiliated at school because he was not able to speak Malay well. He was teased, called "Keling", a derogatory slang word meaning "Dirty Indians".

    (17) The Maths teacher would call my son stupid. The class teacher would humiliate him in front of the students and make fun of his "western" name, telling him that he should go to "white people's country" because although he looks black like other Indians, he had "white people's name".

    (18) This behaviour provoked students on the odd occasion to throw books and stones at my son.

    (19) These issues made him to have serious sleeping problems at home and fear of going to school. He withdrew us from all and we were worried that he might go into depression. He suffered as he didn't have any friends in the class because of the harassment he was going through.

    My wife's brother

    (20) Any Christian person in Malaysia who dared to get involved in missionary work targeting the Muslims community, face definite persecution and discrimination.

    (21) [My wife]'s eldest brother [Mr C] was also a highly committed and fanatic Christian. He was targeted by Muslims extremists because he used to be very active in reaching out towards the Muslims and non-Muslims (Hindu) community. In 2009, [my wife]'s brother went missing for 2 months. Upon enquiries, we were informed that he was with a friend regarding some business matters. Only much later did we realize that he was actually kidnapped as a punishment and was brainwashed for two months to embrace Islam. He then changed his name to [Alias C]. He cut off ail contacts with the family members.

    Our missionary work In Malaysia

    (22) in Malaysia there are groups of people who live in the rural areas called the "Orang Asli". They are the indigenous people of Malaysia. They live in filthy poverty stricken conditions completely neglected by Malaysian society.

    (23) We visited them on a regular basis with church members and read to them from the Bible and encouraged them to become Christians. We gave them Malay Bible and we also took them groceries and supplies.

    (24) On three occasions we were threatened not to go to this region to do religious work and of those twice we had our vehicle stopped and were beaten by Muslim extremists.

    Involvement with Church in Malaysia

    (25) We were very active in the [Church 2], Kuantan and its Missionary work.

    (26) 1 was the coordinator for [a group], was part of the church choir and played guitar in the music ministry team.

    (27) My wife was the [office bearer] of the [church-affiliated organisation]. She was a Sunday School teacher and was actively involved in the Children's Ministry and as an Intercessor of Prayer.

    (28) Both my wife and I were involved with in Missionary work and were committed to it and were supported and encouraged by the person who was appointed as the President of the Church Committee and who took very active part in the missionary work with us.

    (29) Our children were both actively involved in the church, partaking in various ministries.

    (30) Every fourth Sunday of the alternative months starting in Dec 2009 a group of 5 people (my wife, me and3other Christians would drive up to the Orang Asli Settlements ([number] Km from the church) to give food, read story books to the young children and pray for the sick. As time went on Orang Asli people started to convert to Christianity. We gave many Malay Bibles to them.

    (31) Our ordeal started when on one Sunday evening (June 2010), we were on our way to the Orang Asli settlement, when we were stopped by 6 Malays, holding sticks and clubs in their hands. They warned us that we are not allowed to see the Orang Asli people anymore and in their words "stop converting them to Christians" They claimed that all the Orang Asli people in Malaysia are born Muslims and the consequences are terrible if we continue our Haram activities with them. These Muslims also said that they were watching our movements closely.

    (32) As there were quite a number of orang asli settlements around that area, we started visiting the other settlements about [number] KM away and fellowshipping with them. We didn't stop our missionary works despite that threat. On August 15 in 2010, as we were on our way to an Orang Asli village, we were stopped by a group of Muslims men. They immediately started smashing the van windows and shouting abusive words at us. My male friend was the driver and I was sitting in front. Pieces of the shattered glass hit us and cause bruises on our hands. I was very concerned with the safety of my wife, who was with us at that time.

    (33) Although this incident shook us terribly, yet it did not stop us from visiting the Orang Asli village as we grew a friendship bond with them. On another incident in Nov 2010,4 of us male friends went out witnessing to the orang asli people. (I did not bring my wife on this trip as I feared her safety). After visiting the Orang Asli people, on our way back, we were chased by a group of Malay men on motorbikes. They force stopped our van and ordered all of us to come out of the van. The leader of the group mentioned that despite the many warnings, we did still come back. In his word "stupid Christians are asking for trouble". They started hitting us with their fist and kicking us. As they were hitting us they keep repeating, "don't come back or you'll die".

    (34) ln mid Dec 2010 we realised that our lives were in real danger when two teenage Malay boys shouted "Allahu Akbar”’ (means 'God is great") when we came out of our house to go for a dinner to one of our relative's place. Two days before Christmas in 2010 somebody threw a rock through our back window at our Christmas tree and thank God it did not hurt anyone. We knew that if the Malays who are upset comes marching to our house we have nowhere to escape. We knew that seeking protection from the Malaysian Police is useless as 95% of them are Muslims and they are extreme in their attitude. (35) We feared that if we go to the police, the police could charge us for doing conversion work trying to convert people to Christianity.

    Involvement with the Church/Community in Australia

    (36) From the beginning of our stay in Australia, we became actively involved in the church and especially in the local aboriginal community because in many ways they are like the Orang Asli people in Malaysia. Our heart is in helping the native communities who are marginalised.

    (37) Through the church we also met meet up with new immigrants who arrived in [City 1]. On many occasions, we realised that these people are lonely and we help connect them with other people of the same country.

    (38) My wife actively collaborates with the [City 1] Hindu Association as we brought together the Indian community by choreographing variety cultural dance by for the Diwali festival. My children took part in the dance and came to socialise with the Indian community well. My wife and children were given a certificate of appreciation for their hard work and contribution for the event. Through this event, it gave us opportunity to witness our faith to our Hindu friends and we did invite a few Hindu people to church and some of them visited the Church already.

    (39) My involvement in the local church is as worship leader and I play guitar in music ministry.

    (40) Our son is involved in the music ministry as the main drummer for the Choir and our daughter is in charge of the projection and records the sermons on a rostered basis.

    (41) My wife's is heavily involved in the church and having completed her Cert III in [Discipline 3] and Diploma in [Discipline 3] (TAFE accredited) she can use that to aid and strengthen her contributions to the Children's Ministry. My wife is also part of the committee who pioneered the start of the [Church 1] [specified] project.

    (42) Our church is actively involved with the Aboriginal community in [City 1]. On the first Saturday of each month, we would go to the local park, known as [named] Park and fellowship with them. We would normally have a BBQ, sing songs with them, do art and craft, play games and share the gospel with them. Due to this program, many youth from the aboriginal community started attending our youth service.

    (43) Our church's involvement with the aboriginal community has impacted them in a positive way, of which my family play an active role.

    Only safe wav to live in Malaysia

    (44) If we go back to Malaysia:

    (a) my wife and I would have to give up our missionary work;

    (b) If we continued our mission works, we would face serious danger from the Muslim community. The Muslims see Christians like us as threat to their religious supremacy and might force us to conform to Islam. Worse still, they could even kill us or maim us;

    (c) Our children would have to continue to be subjected to bullying/discrimination and suffer physical and mental abuse and be disadvantaged in not speaking Malay.

    Interview and supporting documents

1. The applicant was invited to attend an interview with the delegate. The applicants provided supporting documents relevant to their church activities and country information including:

   ·     Letter from [Reverend D], [Church 2] Kuala Lumpur Malaysia dated 21 April 2015. He states that he was their pastor during his tenure as pastor of the [Church 2] in Kuantan, Pahang (from the year 2000 until he was transferred to the [Church 2], Kuala Lumpur). The adult applicants were active in the church, and they undertook work among the native people of Malaysia, Orang Asli, in a village some [number] kilometres away from Kuantan. Once every 2 months a team goes to ‘minister with the villagers’: teaching English for the children and Bible songs and stories for the adults. This is a sensitive ministry as they are a Christian group and the Department of Aboriginal Affairs had other plans: part of the Department’s overall plan was to convert them to Islam and register them as Muslims. They had to be on their guard as their presence among these people put their lives at risk. He moved to Kuala Lumpur but the adult applicants continued to work in this village until late 2010, putting their own lives in danger.

   ·     Letter from [Pastor B], Australian [Church 1] (undated but estimated to have been written in about 2014/2015 as he refers to “the last 4 years”) outlining the applicant’s and his family’s missionary work in [City 1], New South Wales. He met them in February 2011 as they were looking for a place to worship and found his place on the internet. In the last 4 years they have become an integral part of the church family and the community at large. The whole family have engaged in church activities especially those ministries which go beyond the church walls and reach out to underprivileged and marginalised people. They have built a rapport with people inside and outside the church and they have been involved in cross‑cultural events which shows a desire to help people of all faiths, not just Christian. The husband is now worship team leader, he assists disengaged youth, he is often engaged with new immigrants regardless of race or religious background and has offered practical and moral support to them. The wife is the team leader for the preschool-age Sunday school class and helps organise a twice-yearly children’s service. She is involved in other children’s activities (kids club/proposed childcare program) and calls on people as a friend and confidante. [The son] is the number-one drummer on the worship team, he is a teacher’s helper in preschool-age Sunday school and attends weekly youth group. [The daughter] is a team member for song/video projections and recording of sermons. It is also stated that they have made a contribution and their desire to remain here has its foundation in the persecution they suffered due to their strong Christian faith and missionary activities in Malaysia. Further, the husband is employed in [Organisation 1], a not-for-profit organisation providing emergency housing in the [City 1] area.

   ·     Letters from 2 persons:

   o[Ms E] dated 23 March 2015. She stated that she is of Aboriginal background and that the adult applicants have contributed to the welfare of the indigenous youth in the local area. They are part of the outreach team of [Church 1] that visits youth once a month to help them become engaged and some have started to attend the church. The adult applicants volunteer their time and they have a special rapport with the Aboriginal children.

   o[Ms F] dated 30 March 2015.[3] They have been good friends since 2012 and they encouraged her when she was depressed. They often brought her to [Church 1] and told her to trust in God, and thus her belief increased. They have helped her and brought her to the church.

   ·     Word document entitled: ‘Sunday school [in Church 1]’. This contained photographs of various church/ministry activities including children’s activities, church lunches, activities for Aboriginal population.

   ·     Country information, much of which was just pasted into Word documents:

   o   ‘Islam’s Persecution of Christians in Malaysia’ dated 22 June 2011 from “Frontpage Interview”; Details of Muslim attacks on Christian churches in a number of countries (including Malaysia) from breakingIsraelnews.com and “Malaysia: Christians, tortured for their faith” from The Voice of the Martyrs dated 20 February 2012; and a reference to Asia News reporting a Christian cemetery was attacked and desecrated.

   o   ‘Hate-Indian attitude in Malaysian schools’, from “oneindia.com” dated 22 August 2008; ‘Suspend chair throwing teacher immediately’ by “P. Ramani” dated 10/09/13; ‘Dad says teacher used shoe to hit Year One boy’ by B. Nantha Kumar dated 27/03/1; ‘Penang teen gets immolation threat over “I love Israel” Facebook page’, Malaymailonline dated 12 August; ‘M’sian Teacher Wants To Burn A Boy Because He “Liked” A “I Love Israel” Facebook Page’ by “Patrick Lee” dated 12/08/14, “Shoe throwing teacher removed from school” from Malaysiakini.com.

   o   ‘Malaysians Indian killed in police custody’, by “weehingthong.wordpress.com”, “May 2013” and other such articles raising issues about treatment in custody (no reference to Christians, although some names appear to be of Indian origin).

   o   Word document from CBN [Christian Broadcasting Network] news. “Malay Christians face faith purification centres” stating that some Muslims who have converted to Christianity were taken to a faith purification facility, dated 31/01/11.

   [3] She also provided a further letter later.

2. The delegate interviewed the applicant on 31 March 2015, and did not find the applicant to be credible.

3. Some of his evidence at interview is as follows:

   ·     Most of my life as a Christian, I was always reaching out to people.

   ·     In 2005 he and his wife started doing outreach to the underprivileged Indian community, and 98% were Hindus. “Every month we used to go and see them and pray for them. And in that process … the Muslims were not too much of a concern”. They had no problems. He then said on one occasion the Hindus from the temple told them not to come back.

   ·     They did outreach to the indigenous Orang Asli community.

   ·     The applicant did not say that he had preached in the past to Muslims; he said at interview, (for the first time), that he wanted to preach to Muslims.[4]

   ·     At the interview with the delegate the husband was asked: Have you ever been harmed because of your Indian heritage? He said: No.

   The delegate’s decision record

   [4] The delegate stated in the decision record that “you claimed you had been proselytising to Muslims while you were in Malaysia”. This claim is not, however, made in the written materials provided to the delegate, and the Tribunal, having listened to the tape of the interview with the delegate, considers that he said he had been reaching out to Indians and Orang Asli, he did not claim that he had been reaching out to Muslims. He did however claim that he wanted to reach out to Muslims.”

4. The delegate’s decision record noted the following evidence from the applicant at interview.

5. The applicant’s family: The applicant stated he has [number] brothers and [number] sisters who still reside in Malaysia and that they live in many different areas. He stated that all his siblings are working or are supported by their spouses and work in a wide range of different jobs such as government jobs, and as business owners and salesmen.

6. Applicant’s missionary work: The applicant stated that he began his work with his church in 2005, offering donations and assistance in helping the poor in Malaysia. He stated that he began his missionary work in 2008 (the Hindu community in Malaysia).

7. He stated that he worked as a missionary to provide welfare relief to the underprivileged people in Malaysia and Australia and that his work included proselytising. He stated he believed his missionary work was vital to his belief in Christianity and that he would continue to proselytise if he were to return to Malaysia.

8. The delegate asked the applicant how he reached such a level of devotion and considered that the applicant was vague and brief and did not offer any insight or give any details to explain how or why he decided to become a dedicated missionary and put his family in danger.

9. It was put to the applicant that being a Christian did not require him to proselytise to the Muslim population exclusively and that he was able to continue his missionary work with non-Muslims in Malaysia, which is within Malaysian law. He stated that he had preached to many different communities in Malaysia and he did not wish to be restricted in the practice of his own beliefs.

10. Delay in applying for protection visa: The delegate discussed with the applicant his delay in applying for protection given that he arrived in Australia on [date]/02/2011 and did not apply for his protection visa until 10/12/2014. He said that he did not know that protection visas existed in Australia, and that when he asked friends about what visas to apply for, they suggested that he apply for a student visa, and he stated that he only discovered the existence of protection visas in 2013 when the issue was extensively covered by the media.

11. The delegate found that the applicant was not credible regarding his reasons for delaying lodging a protection visa application. This is because it was not credible that members of the Australian Christian community would not be aware of protection visas in Australia as the issue had received a high level of media and social attention from as early as 2010. The delegate found that it was not credible that the applicant did not mention any of his claims for protection to the Department or his community links before lodging a protection visa application in late 2014, instead applying for student visas (with his family) rather than a protection visa from 2011 to 2014.

12. Forced conversion to Islam of a family member: The applicant claimed that his brother-in-law was forced to convert to Islam and submitted a copy of his ID as evidence of this claim. The delegate found this claim was not credible as the ID did not prove the claim. Additionally, the delegate put to the applicant that there were no reports of forced conversions; the applicant stated that religious freedom was not upheld in Malaysia and, rather, this was a statement to keep the international community at peace.

13. Harassment of applicant’s children because of their ethnicity: The applicant claimed that his children would be harassed because of their Indian ethnicity. He stated that he did not pursue his complaint at school about teachers singling out his children because nothing would materialise. He stated that teachers, if punished or warned by the school, would be moved to other classes, and new teachers would harass their children. The delegate found this claim was based on assumptions and speculation.

14. The delegate stated:

    •     I do not accept that the applicant proselytised Muslims in Malaysia.

    •     I do not accept that the applicant will proselytise Muslims if he were to return to Malaysia.

    •     I do not accept that the applicant was beaten or targeted by any person or group for his community work with his church.

    •     I do not accept that the applicant departed Malaysia in a state of fear.

    •     I accept that the applicant is a Christian of Indian decent.

    The first Tribunal

15. The applicants submitted an application for review, a copy of the delegate’s decision record, articles collated from internet news sites (concern with a proposal to tighten sharia law, a claim that in Malaysia, Hindus had been wrongly documented as Muslims, difficulties in use of the word Allah, an article saying that ethnic Chinese people had been subject to racial slurs, concerns that Malaysia’s label as the best role model of a liberal and tolerant Islamic world is fading), and other documents (some previously submitted), including the following.

    ·     Submissions from the agent confirming the claims in the applicant’s statement.

    ·     Letter from [Pastor G], Australian [Church 1] dated 26 September 2016, confirming the family’s attendance at the church since 2011, they have been a key family for a number of years, the husband coordinates the worship/music ministry and the groups ministry and the wife coordinates the preschool program and outreach programs to children and schools. He had recommended that the husband be employed at [Organisation 1], a Christian not‑for‑profit [organisation], as the [Occupation 3]; the husband excelled at this role and moved to the centre with the family to take up the caretaker role, and he and his family are often involved with the [residents]. The pastor has grown close to the family. They actively share their faith with non-believers.

    ·     Letter from [Pastor H] dated 31 October 2016 stating that they had discussed their outreach work in Malaysia and that their lives were in danger because of the work they were doing, but they had not discussed their visa. He told the husband in late November 2014 that they could apply for a protection visa and the husband indicated that he had not known about this. The pastor said many people don’t know about protection visas.

    ·     Letter from [Ms I] dated 22 September 2016 who used to be a Catholic, went away from God, and then the wife’s discussions about God and her faith helped her to return to the church.

    ·     The wife’s statutory declaration dated 17 October 2016, stating that her husband always liked to share the gospel, he did so with 2 of her friends in Singapore and they accepted God, she saw that he had received cards and letters from people thanking him for sharing the gospel. They like to support people who have lost hope such as drug addicts and homeless people and Orang Asli. They have been engaged with the [Church 1] in Australia and they have been doing their ministry with people in [City 1] who have drug issues, domestic violence fears, teenagers who are struggling with depression, and more.

    ·     Articles about the applicants and their involvement in [Organisation 1]/information about the [centre].

    ·     Articles about Christians sourced from Christian organisations.

    ·     Letter from the wife’s sister-in-law dated 27 September 2016 stating that her husband was forced to convert after having shared the gospel to his Muslim friends. Her husband then left her and is now living with a Muslim lady; the applicants support her financially (bank transfer provided).

    ·     A 2-page petition to support that the applicants be granted a visa to stay in Australia (and stating that they are not commonly aware of visa types).

16. As noted above, the applicants were invited to a hearing with the first Tribunal. The current Tribunal has listened to a recording of that hearing. It notes that the first Tribunal permitted the adult applicants to give evidence together and the adult applicants interchangeably answered the first Tribunal’s questions and presented arguments. In this regard there was no testing of the evidence in the absence of each of the adult applicants. The Tribunal has considered their evidence before the first Tribunal.

    The current Tribunal

17. The applicants provided to the Tribunal a copy of their legal submissions to the court as well as updated submissions to the Tribunal (repeating mostly previous submissions but also providing additional country information about Malaysian Indians who died in police custody, assertions that Christian persecution will worsen in Asia in 2023, reference to religious conversion in Malaysia, and a Wikipedia printout), stating that:

    The applicants main claim is that evangelism was "so core to their beliefs that not being allowed to evangelise to Muslims in Malaysia and being punished for even appearing to do so amounted to persecution for reasons of religion".

18. Other evidence provided included:

    ·     The Malaysia 2021 International Religious Freedom Report, with certain passages highlighted including:

    Sources stated that there was selective persecution of non-Muslim faiths through legal and extralegal means; Reports continued of forced conversions, especially among indigenous populations; The Deputy Religious Affairs Minister said state governments were directed to take steps to ensure religions other than Islam would be further limited in propagating their beliefs to Muslims and announced his intent to introduce legislation to “control and restrict the development of non-Muslim religions.”; Individuals lodged more than 5,000 reports to the police against Islamic preacher Syakir Nasoha, who made disparaging remarks about non-Muslims in a viral video, but nongovernmental organizations (NGOs) said the police took no action; The federal constitution states, “every person has the right to profess and practice his religion,” but it gives federal and state governments the power to control or restrict proselytization aimed at converting Muslims to another faith; The law forbids proselytizing of Muslims by non-Muslims, with punishments varying from state to state, including imprisonment and caning. The law allows Muslims to proselytize without restriction; As in years past, local human rights organizations and religious leaders said society continued to become less tolerant of religious diversity.

    ·     A letter from [Mr J] who is a Malaysian Muslim and who stated that the applicant was instrumental in his gradual transformation to Christianity in Australia.

    ·     Articles about the missing Malay Pastors Koh and Hilmy dated 2022 noting they are still missing.

    ·     Letters from a girl sponsored by the applicant.

    The hearing

19. The Tribunal checked on numerous occasions that the applicants did not want to use an interpreter, telling them at the commencement that the most important thing is that they can communicate and understand and that their English ability does not matter, and it asked them if they wanted to proceed without an interpreter and they said yes. The Tribunal said that if they ever felt like they needed an interpreter they should tell the Tribunal and a telephone interpreter could be organised. There was no such request during the hearing.

20. The husband said that the third and fourth applicants were not attending; they were very small when they left Malaysia. The Tribunal noted that they were invited. The husband said that they wanted to come but they were stressed and would not be coming. As noted above, the Tribunal finds that the third and fourth applicants were informed that they were invited to the hearing, they were aware of the hearing, but they chose not to attend the hearing. In the circumstances, the Tribunal decided it was appropriate to proceed with the hearing with the 2 adult applicants.

21. The Tribunal had significant concerns about the credibility and claims of the adult applicants at hearing. It considered that the husband gave inconsistent and changing evidence, and the wife’s evidence was very unsatisfactory: it was generally inconsistent, evasive, vague and changing, and she was silent or did not answer, or she was mumbling. The Tribunal gave her numerous opportunities to respond and waited for her to respond, but she often did not. On one occasion she said that she was overwhelmed and needed some time, and the Tribunal offered a break.

22. The Tribunal has, as discussed below, accepted some core claims. This has led to the Tribunal finding that there is a small but not too remote chance that the adult applicants face a real chance of serious harm in Malaysia in the reasonably foreseeable future.

23. Further discussion of the evidence at hearings is set out below.

    CONSIDERATION OF CLAIMS

    Country of reference

24. The applicants produced passports issued by the Malaysian authorities. The Department accepted that they are citizens and nationals of Malaysia, and assessed their claims against Malaysia. The Tribunal accepts that the applicants are nationals of Malaysia, and that the appropriate country of reference for the assessment of their refugee claims and the receiving country for the purposes of their complementary protection claims is Malaysia.[5]

    [5] [The daughter]’s birth certificate confirms that she is not a citizen of Singapore, although she was born in Singapore.

1. The issue in this case is whether the applicants meet the definition of refugee or are entitled to complementary protection or whether they are members of the family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.

   Concerns as to the credibility of the applicants’ claims

   Relevant law about claims

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

3. Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

4. Although the concept of onus of proof is not appropriate to administrative enquiries and decision‑making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).

5. As Kirby J observed in Dranichnikov v MIMA:[6]

   The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[7]

   [6] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at 1100.

   [7] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].

6. At the hearings, the adult applicants were asked questions about their claims, and the applicant had also been given the opportunity to discuss his claims before the delegate. Concerns arose about the reliability of their evidence and claims, for reasons as follows.

7. Firstly, at the hearing before the current Tribunal, the husband made a new claim that he handed out Christian tracts for 19 years to Malay Muslims. This new claim was contrary to the wife’s evidence at the hearing before the current Tribunal, and to all previous evidence given:

   ·     [The husband’s statement][8]: The only reference to handing out Christian tracts in the husband’s statement was when he stated that part of their work was to hand out Malay Bibles and “Christian voice tracks” to the Orang Asli tribe. He claimed in his statement that “any Christian person in Malaysia who dared get involved in missionary work targeting the Muslim community faces definite persecution and discrimination, and he referred to the wife’s brother as an example of a “highly committed and fanatic Christian who was targeted”.

   ·     At the interview before the delegate, the husband did not claim that he handed out Christian tracts to Malay Muslims.

   ·     The wife said at the first hearing that when they were both back in Malaysia, if one would meet a Muslim, even if the instinct is to share, by doing that, their lives would be in danger. The husband did not disagree. When the first Tribunal asked both whether they had ever tried to convert Muslims in Malaysia, the wife responded, saying that she has always been cautious (and only spoke to Muslim friends) because of what happened to her brother [in 2009]. She said that sometimes Muslims can come to you and they want you to share and they can trap you and they will report you and you will be in trouble. She said “we have seen so many cases in Malaysia” (however, the only example she had was her brother).

   ·     The husband did not disagree at the first Tribunal’s hearing with this evidence from the wife, and he did not claim that he had ever given Christian tracts to Muslims in Malaysia. The husband also said that if anyone did conversion work, they will not get any justice or protection.

   ·     Neither the husband nor wife made any claim at the first hearing that the husband had ever given Christian tracts to Muslims in Malaysia.

   ·     At the hearing before the current Tribunal, the husband made the claim for the first time that in Malaysia, from 1990 onwards, he would give out Christian tracts to Malay Muslims (for a period of about 19 years).

   [8] Adopted by all applicants in the Form B.

8. The wife’s evidence before the current Tribunal as to whether the husband had preached or given anything to Malay Muslims was vague, evasive, unclear, changing, non-responsive and contradictory. She was asked whether her husband ever preached or gave anything to Malay Muslims, and she finally said: He will answer that. When asked again she was silent and said she was not sure. She was asked again and her responses were unclear. She was asked for clarification and did not provide clarification.

9. The Tribunal asked if her husband had ever given Christian tracts to Malay Muslims, she was silent. She then said that she could not remember. The Tribunal asked if she knew what a tract was and she said it is a small paper with God’s Bible words, such as if you find Jesus, you find hope. The Tribunal again asked her if he gave any tracts to Malay Muslims and she said she was not sure. The Tribunal put to her that it is difficult to understand (given her evidence that they have been married for over 20 years and were proselytising/missionary Christians in Malaysia who wanted to convert people to Christianity) that she did not know. In response she mumbled, hesitated and did not answer the question. The Tribunal put to her that she could not even explain why she did not know if he had handed out Christian tracts to Muslim Malays. She indicated he had not done so. The Tribunal then put to her that it was his evidence to the current Tribunal that he had been handing out Christian tracts to Muslim Malays for close to 20 years, and the Tribunal would think that if they were missionaries together in Malaysia then she would have known if he had been handing out Christian tracts to Muslim Malays for about 20 years. The Tribunal gave her the opportunity for any final comment and she said she did not want to say anything more.

10. The Tribunal put to the husband that the wife said he had not given out tracts to Malay Muslims. He responded that he did not know why she said this, he has given out tracts during his Christian journey, not every week, but he has done so. The Tribunal put to him that he failed to mention this in his statement or in his interview with the delegate. He said that the question wasn’t asked. The Tribunal noted that he had the opportunity to make this claim in his statement. He responded that he was focusing more on the events of 2010 in his statement.

11. The new claim made by the husband was of concern because the husband’s statement, the evidence of both adult applicants at the first Tribunal’s hearing and the wife’s evidence at the hearing before the current Tribunal indicated that the husband did not engage in any proselytising in any form to Malay Muslims (including giving out Christian tracts) because this is so dangerous. The husband’s new claim made to the current Tribunal is inconsistent.

12. The Tribunal considers that if the husband did hand out Christian tracts for 19 years to Muslims in Malaysia, it is reasonable to expect that he would have mentioned this earlier. The Tribunal considers that the evidence indicates that he made up this significant claim to the current Tribunal which undermines his credibility.

13. Secondly, the adult applicants gave changing, inconsistent and/or not credible evidence and sometimes a lack of detail concerning the claimed events that had occurred in Malaysia that they claimed made them flee the country.

14. The first incident in June 2010 – differences regarding whether it occurred on the way to or back from Orang Asli settlement:

    ·     According to the husband’s statement, the “ordeal” started in June 2010 when they were on their way to the Orang Asli settlement and they were stopped by 6 Malays and given a warning.

    ·     In the interview with the delegate, the husband said that in June 2009, after visiting Orang Asli settlement, they we were stopped by a group of Muslims, they were asked what they were doing and they were warned not to visit them.

    ·     In the agent’s submissions to the first Tribunal of 7 December 2016 it was submitted that the event occurred on the way to the Orang Asli settlement.

    ·     In the wife’s evidence to the current Tribunal, she said that they were on their way back from visiting Orang Asli when a group of 6–7 people followed them, stopped them, asked what had they been doing, and her husband told the group that they had just been visiting the Orang Asli. The group gave them a warning.

15. It was difficult to understand how there could be such inconsistent evidence as to when this occurred, and when the Tribunal put this to the husband at the hearing before the current Tribunal, he said that it occurred on the way back from the Orang Asli settlement. He was not able to explain the inconsistency.

16. The second incident – August 2010 – differences regarding whether it occurred on the way to or back from Orang Asli settlement, and what was smashed:

    ·     In the husband’s statement signed 9 December 2014, the husband said that they were on their way to an Orang Asli village on 15 August 2010 when they were stopped by a group of Muslim men who immediately started smashing the van windows and shouting abusive words at them.

    ·     In the interview with the delegate on 31 March 2015, the husband said that in August 2010 they went to visit another settlement. When they were coming back from there, they were stopped again by Muslims … who were shouting at them saying ‘you people are stupid’ and they started hitting the side mirror of the van … There was a broken side mirror, which was a warning.

    ·     In the agent’s submissions to the first Tribunal of 7 December 2016, it was submitted that on 15 August 2010, they were on their way to an Orang Asli village when they were stopped by a group of Muslims men who immediately started smashing the van windows and shouting abusive words at them.

    ·     In the wife’s evidence to the current Tribunal on 3 March 2023, she said that they were on their way back home from the settlement when a group of guys came and stopped the van and smashed the windows and shouted and they were aggressive. When the Tribunal put to the wife that according to the husband’s statement, this occurred on the way to visiting the settlement, she said this occurred on the way back.

    ·     In the husband’s evidence to the current Tribunal, he said that it was just the mirror that was smashed.

    ·     The wife’s evidence to the current Tribunal was vague, changing and evasive concerning what was smashed on the vehicle; and she was silent for long periods when being asked about this. She finally confirmed her evidence was that the driver’s side window, the front passenger’s side window and the back passenger side window were all smashed.

    ·     The current Tribunal put to the wife that the husband’s evidence that day was that it was just the mirror that was smashed. She then changed her evidence and said that the side mirror was smashed.

17. The Tribunal also put to the husband that the wife said that the events occurred in June 2010 and August 2010 when they were on their way back from visiting Orang Asli settlements, whereas in his statement he had claimed it happened when they were on their way there. He responded that this was a grave error and that the incidents occurred when they were on the way back. The agent confirmed that the submissions stated that these incidents occurred when they were on the way to the Orang Asli settlements.

18. Although the Tribunal accepts that it is claimed that the events occurred some time ago, not all of the inconsistencies occurred recently. The Tribunal notes the applicants claim that these events, cumulatively, made them fear for their lives and decide to flee their home country. The Tribunal considers that there would be more consistencies in the evidence if these events had occurred.

19. The wife’s lack of knowledge of how many times the husband did missionary work in the Orang Asli settlement after they discussed the dangers of this work (to the extent that he no longer wanted the wife to come on the visits):

    ·     The current Tribunal asked the wife whether, after the second incident [August 2010] she and the husband had a discussion about the future of doing missionary work. She said yes. When asked what that discussion was, she said he said he wants to keep doing it and she said okay, be careful.

    ·     However, when the Tribunal asked how many times thereafter he attended the missionary work, she was silent, and she mumbled, saying she did not know. The Tribunal put to her that her evidence was difficult to accept, given the dangerous situation, and they had already discussed the danger posed by doing missionary work (to the extent that she is no longer allowed to go), yet she can provide no information as to how many more times her husband went to the settlements. She was silent, she appeared to be calculating and then, again, she said she could not recall. The Tribunal did not consider this to be credible. It considered that if the work her husband had been doing was dangerous, and if the events claimed had already occurred, she would have had an idea of how many more times he went out on such dangerous missions.

20. Non-credible evidence concerning the November 2010 incident. By the time of this event, it is claimed that the husband was so fearful that he did not allow the wife to come to the visits to the settlements anymore. He stated at the current Tribunal’s hearing that he observed that there was an angry group of Muslims with weapons (sticks and clubs) who were on motorbikes telling them to get out of the van. He said that they did get out of the van. The Tribunal put to the husband that it did not make sense that they got out of the van as they were defenceless and vulnerable to serious attack. The Tribunal put to him that they could drive the van backwards, away, and do anything to escape. In response he said that they were shouting loud and he thought if they did not get out of the van they would smash the windows and get them out.

21. While the Tribunal accepts that people can take steps in the heat of the moment that may not be in their best interests, it is difficult to accept that if the husband, who considered that these people were so dangerous (they had already warned and threatened them twice and had already smashed windows/mirror on the van and he would no longer allow his wife to do this work), got out of the van to face angry, armed Malay Muslims. The Tribunal considers that, having regard to the other concerns, the husband’s evidence is not credible.

22. The Tribunal notes that it put this concern to the wife as well, but she was unable to explain why the husband would have willingly got out of the van.

23. The third and fourth incidents – December 2010: In the husband’s statement signed 9 December 2014, the third incident occurred when they were coming out of their house to go out to dinner in December 2010. The fourth incident occurred 2 days before Christmas 2010 but there was no mention in the statement as to what their plans were when this event occurred. However, contrary evidence was given about this:

    ·     In the interview with the delegate on 31 March 2015, the husband said: Two days before Christmas in 2010, when I was going to my friend’s house for dinner, we heard a big noise and when I saw, the mirror was shattered and broken. When I turned around, I saw a group of Muslims walking away. So, at that moment, I told my friend what was happening and that I was not coming over. This was when I decided that I needed to leave the country. Thus, concerning the fourth incident, it was his evidence that they were going out for dinner when this incident occurred and they then changed their plans. However, when the Tribunal asked the husband at the current hearing what their plans were on that occasion, he said that they were staying home that day with no plans to go out. The Tribunal put this different evidence to him, and he said that the rock was thrown and he can’t recall the details. This was not, however, his response when the Tribunal asked him initially.

    ·     The Tribunal also had concerns with the wife’s evidence: The wife was able to tell the current Tribunal details relevant to the third incident (which were in the husband’s statement) relating to what their immediate plans were at the time of the event, namely that they were planning to go out to a family friend’s house at the time of the event. However, when the Tribunal asked the wife what they were planning to do when the fourth incident occurred (23 December 2010), namely whether they were planning to go out or stay home), she gave changing, evasive and contradictory evidence, saying they were planning to “go home” then she said she couldn’t remember, then she said that they were planning to go out, then she said they were not planning to go out. The Tribunal put to her that it had concerns with what she can and can’t remember, and she was silent, then she mumbled and did not comment. The Tribunal put to her its concern that she was able to recall matters in the husband’s statement, which she may have learned, but she was not able to recall similar details about these events (which were not in the husband’s statement). She did not explain further.

24. The Tribunal’s concerns about the claimed events were heightened because it also appeared inconsistent with relevant country information that had already been discussed with the applicants by the first Tribunal, as follows:

    ·     In the first hearing, the first Tribunal member put to both adult applicants that when searching through the Methodist Church Malaysia website, from 2015 until the date of that hearing (15 December 2016), the website showed that, throughout the years, the Methodist Church has been conducting outreach and evangelism amongst the Orang Asli in Pahang, and this continues and the church is very proud of the outreach work done. Further, some Orang Asli youths have been sponsored to go to the Wesley Mission Methodist College in Kuala Lumpur[9] and the church seems to publicly and proudly promote its activities with Orang Asli. The first Tribunal member put to both adult applicants that over the years the church has been publishing its successes with Orang Asli in Pahang (their state), outreach continues there, and there is no suggestion from the website to show that this outreach was happening under constraining or threatening circumstances. In response they both said they didn’t know about this, but they knew what had happened to them (the incidents in 2010).

    ·     This article remains on the Methodist Church’s website as verified by the current Tribunal.

    ·     The current Tribunal also located a website for JEKOA, Jemaah Kristus Orang Asli, “the Orang Asli Christian Church”. It states that the JEKOA Church is an evangelical church working amongst the diverse tribes living in West Malaysia and that it has been operating since 1980. It states that it is part of the Malaysia Home & World Missionary Fellowship, it is an evangelical & inter-denominational work, and it is mainly supported by love offerings from Malaysian churches, individuals and others. It is stated that their greatest need is to support training and sending of JEKOA Orang Asli (OA) preachers to reach out, to teach, to pastor and to disciple.[10]

    [9] An article dated 1 February 2014, An Education For The Ones Left Behind, stated: [Finding a good education] is a particularly pressing issue for the Orang Asli communities in Malaysia, as they are already facing battles on several fronts such as cultural erosion, loss of land and indifference from their fellow Malaysians. The lack of access to good education is likely to harm them a lot more in the long run than most Malaysian communities.

    [10] JEKOA’s Homepage accessed 24 April 2023

While the government rarely intervenes in instances of religious persecution or criticism of non-Muslims, there are reports of the harassment of non-Muslims for commenting on any matter pertaining to Islam. According to SUARAM, in 2020, there were around 10 arrests or investigations of people who made comments or allegedly derogatory remarks about Islam. JAKIM reportedly has a team that monitors complaints of provocation towards Islam, and people can report complaints directly via WhatsApp. The current King, Sultan Abdullah, has reportedly warned Malaysians against making any ‘insinuating comments’ regarding Islam, and Malay-dominated parties, led by the United Malays National Organisation (UMNO, the dominant party in the previous BN coalition) have also warned the non-Muslim community in Malaysia not to meddle in the Islamic affairs of the country. Self-censorship by non-Muslims also occurs; during 2019 Chinese New Year, which marked the Year of the Pig, many businesses refused to display images of the pig due to perceived Islamic sensitivities …

There are comparatively few Malays who practise Christianity in proportion to the overall population. This is because it is very difficult to convert from Islam (the religion of most Malays – see Ethnic Malays) and illegal to proselytise to Malays (see Religious Conversion and Apostasy). Christians of a Malay background, in particular, may be forced to hide their faith from family, friends and colleagues. Christianity is portrayed by some Malay/Muslim political parties such as PAS as a threat to Islam.

3.55 Although Christians claim to have used the word ‘Allah’ (Arabic for God) for centuries in their religious practice in Malaysia, official impediments are in place on their use of the word. The Home Affairs Ministry banned the Catholic newspaper, The Herald, from using the word ’Allah‘ under the Printing Presses and Publications Act (1984) in 2008. The Malaysian Court of Appeals and Federal Court upheld the ban at the time. Religious tensions escalated in 2017-18 including attacks on churches, following an October 2017 decision by the High Court of Kuala Lumpur to reject a Sabah church’s request for a judicial review of the ban on Christians’ use of the word ‘Allah’. However, in March 2021, the Court ruled that Christians could use ‘Allah’ with the judge calling the ban ‘unconstitutional’. The Government announced it would appeal the decision.

3.56 Four Christian pastors suspected of proselytising disappeared between 2016 and 2017, with probable state involvement (see Enforced or Involuntary Disappearances). Church leaders have called on the government to take steps to clarify and separate the jurisdictions of the religious authorities and the RMP.

DFAT assesses that Christians generally live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. Those proselytising or promoting Christianity to Muslims face a moderate risk of harassment by state authorities that, in some cases, has included violence or abduction …

Religious Conversion and Apostasy

3.65 Formally leaving or converting from Islam – apostasy – is extremely difficult. Despite the guarantee of freedom of religion under Article 11 of the Constitution, the civil courts have ruled that they have no power to intervene in apostasy cases that fall under the jurisdiction of Malaysia’s syariah courts …

3.69 Only 168 of 863 Muslims who attempted to convert between 2000 and 2010 reportedly received permission to do so. DFAT has no more recent data on such conversion. In these cases, the syariah courts determined that all 168 applicants had not been Muslim to begin with, which thereby prevented any legal precedent supporting conversion from Islam.

122.   The above country information supports a finding that the applicants, whom the Tribunal accepts will continue, no matter the price, to do outreach to people including Muslims, and will attempt to convert them to Christianity despite the difficulty involved for Muslims who may decide to convert to Christianity, may face a moderate risk of harassment by state authorities and that, in some cases, this has amounted to violence or abduction by the state authorities. This has not occurred on a large scale, but the Tribunal is unable to confidently say that this is a remote chance for these adult applicants.

123.   The Tribunal notes that the applicants are of Indian nationality. It has found that they have not experienced harm for this reason in the past. DFAT notes that:

Many Indian Malaysians remain poor and unemployment in the Indian Malaysian community is comparatively high … Indian Malaysians claim employment opportunities in the private sector are given to Chinese Malaysians, and opportunities in the public services are given to Bumiputera. Indian Malaysians also reportedly suffer discrimination in obtaining rental accommodation.

DFAT assesses Indian Malaysians face low levels of official discrimination, including being disadvantaged by quotas, when attempting to gain entry into the state tertiary system or the civil service.

124.   The Tribunal is prepared to accept that the applicants’ ethnicity will not assist them if they come to the attention of the authorities, although the Tribunal considers this to be of minimal adverse effect. However, the Tribunal does accept that there is a small but not remote chance of violence or abduction at the hands of the authorities for the adult applicants. The Tribunal accepts that this amounts to serious harm, and that they face a real chance of serious harm in the reasonably foreseeable future in Malaysia because of their religious activities (proselytising outreach work). There is nothing to suggest that this harm is pursuant to any law.

1. On all the evidence before it, and considering the matters referred to above on a cumulative basis, the Tribunal is satisfied that there is a real chance of the two adult applicants being subjected to serious harm, including abduction and violence in the reasonably foreseeable future in Malaysia. The Tribunal finds that the harm the applicants would be subjected to involves ‘serious harm’ as required by s 91R(1)(b) of the Act, in force at the relevant time. The Tribunal is satisfied that the applicant’s religion is the essential and significant reason for his fear of persecution as required by s 91R(1)(a) of the Act. The Tribunal finds that the persecution which the applicants fear involves systematic and discriminatory conduct, as required by s 91R(1)(c), in that it is deliberate or intentional and involves selective harassment for a Convention reason.

126.   The Tribunal is not satisfied that they would be able to obtain state protection, noting the reference in the DFAT Report that the government rarely intervenes in instances of religious persecution or criticism of non-Muslims. The Tribunal is satisfied that the applicants do not have adequate and effective state protection available to them as the harm is from state actors.

127. It also notes that while the adult applicants could seek to relocate to another part of the country, such as Sabah and Sarawak (where there is a higher percentage of Christians), the DFAT Report notes issues with this,[18] and further, in the case of these adult applicants, they do not desire to preach to Christians. The Tribunal does not accept that internal relocation will afford them protection.

[18] Sabah and Sarawak have autonomy over their own immigration. Non-Sabah or Sarawak residents, whether Malaysian citizens or foreigners, must present national identity cards (or passports for foreigners) to gain entry and can visit for a maximum period of three months.

128.   Therefore the Tribunal is satisfied that the adult applicants’ fear of persecution is well-founded.

129. For the reasons given above, the Tribunal is satisfied that when the adult applicants’ circumstances are considered, they face a real chance of serious harm in the reasonably foreseeable future in Malaysia for reason of their religion. Therefore the Tribunal is satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the adult applicants satisfy the criterion set out in s 36(2)(a).

The 2 remaining child applicants

130.   These applicants chose not to attend the hearing, and their parents gave contradictory evidence as to whether they face harm, and changing and not credible evidence as to past harm faced. The Tribunal is not satisfied that any of the evidence supports a finding that the children face a real chance of serious harm or a real risk of significant harm in Malaysia.

131.   The Tribunal notes that they are now over the age of 18 years ([age] and [age] years) and are being supported by their parents while studying. The Tribunal accepts that they are dependent on their father and their mother. The Tribunal accepts that they are members of the same family unit of the parents, because they are children who are over 18 and dependent on their parents because they are wholly and substantially reliant on them for financial support while they study.

Conclusion

132. For the reasons given above, the Tribunal is satisfied that the first and second applicants are persons in respect of whom Australia has protection obligations. Therefore the first and second applicant satisfies the criterion set out in s 36(2)(a).

1. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are the young adult children of the adult applicants and are members of the same family unit as the first and second applicants for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first and second applicant’s application. It follows that the other applicant[s] will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

134.   The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first and second applicants satisfy s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second applicant.

Christine Cody
Member

ANNEXURE A - RELEVANT LAW

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, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are 4 key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

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 a protection 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 the applicant 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’).

‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Member of the same family unit

Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include children over the age of 18 years.

The Methodist Council of Education recognises this need, which is why in 2013, Zulfahadila and sisters Norizaiful and Nor Arima from the Sengoi community in Kampung Lanchang Rancangan Pembangunan Semula Pos Betau, Pahang were sent to Methodist College Kuala Lumpur (MCKL), fully sponsored, to receive higher education. However, before they could begin their Diploma in [programme], they first had to contend with the language barrier that is so often faced by the Orang Asli. To assist them, MCKL’s English faculty designed an English Language course specifically for their needs, to help bridge the gap between their proficiency in the language with the requirements of tertiary education. accessed by the current tribunal member on 24 April 2023