2212399 (Refugee) - [2023] AATA 3185

2212399 (Refugee) [2023] AATA 3185 (22 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2212399
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Paul Windsor
DATE:22 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 June 2023 at 4:27 pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Christian – unable to marry Muslim without becoming Muslim – sharia law – applicant did not attend hearing – power to dismiss an application for non-appearance at a further hearing in a remitted case – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 348, 362B, 414, 425, 426A, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
AAY22 v MICMA [2022] FedCFamC2G 628
CRE21 v MICMA [2023] FedCFamC2G 352
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 14 July 2017 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 24 February 2017.
In his Protection visa application the applicant stated he was born on [date] in Sibu in Sarawak state, Malaysia. He indicated he is a member of the Iban ethnic group and is a Christian. He stated he had never married or been in a de facto relationship. The applicant stated he departed Malaysia legally on [date] March 2015 and arrived in Australia on [date] March 2015, entering on a Visitor visa.[1]
[1] See the Departmental file.
In his application, the applicant stated that he left Malaysia because he could not marry the girl he loves because in Malaysia Muslim people have to marry people from the same religion. He commented that if they get married and stay in Malaysia the government will capture and imprison them.[2]
[2] Ibid.
The delegate refused to grant the visa, noting that the applicant had not named the person he claimed to want to marry or indicate that he is in a relationship with anyone, and therefore finding that he is not married to a Muslim woman. Citing relevant country information, the delegate accepted that non-Muslims wishing to marry a Muslim in Malaysia must convert to Islam for the marriage to be officially recognised but noted there was no information before her to support the applicant’s claim that his citizenship would not be recognised if he married a Muslim woman without converting to Islam.
The applicant sought review of this decision on 17 July 2017 (Tribunal case 1715441 - differently constituted - refers). He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See Tribunal file 1715441.
The previous Tribunal affirmed the delegate’s decision on 25 November 2021, finding that the applicant had provided ‘totally different claims’ at the hearing (held on 3 November 2021) to those put forward in his application, submitting that he had married a Muslim woman in Australia. Following the hearing, the Tribunal wrote to the applicant requesting, inter alia, that he provide evidence of the claimed marriage (as had been discussed at the hearing). In the decision record, the previous Tribunal stated the applicant provided no further evidence concerning his circumstances, but only submitted a copy of his Government of Malaysia Identification Card (the copy of the document submitted was actually the applicant’s Malaysian Driver’s Licence). In its decision record, the previous Tribunal accepted that country information indicates that a marriage between the applicant and a Muslim women would not be officially recognised in Malaysia unless the applicant willingly chose to convert to Islam, but found this claim to be ‘mere speculation’ based on the evidence before the Tribunal as the applicant did not appear to be in a relationship with anyone. The Tribunal file indicates, however, that on 12 November 2021 the applicant had submitted a copy of a marriage certificate, dated [in] October 2017.[4]
[4] Ibid.
The previous Tribunal decision was set aside by the Federal Circuit and Family Court of Australia (FCFCA) on 4 August 2022.[5]
[5] AAY22 v MICMA [2022] FedCFamC2G 628
The Court noted that:
The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error because the Second Respondent failed to consider information it sought and received pursuant to section 424 of the Migration Act 1958 (Cth), being the applicant’s marriage certificate, in breach of s 424(1) of the Act. The Second Respondent made a critical error of fact that this information had not been provided to the Second Respondent when, in fact, it had been provided. The First Respondent accepts that this error was material as, if the second respondent had considered the marriage certificate (as it was obliged to do), it would have accepted that the applicant had been married to a Muslim woman in the past and this could have resulted in a different finding as to whether the applicant had breached Sharia law and faced consequences on return to Malaysia (see: Tribunal decision at [56]).
In the circumstances, the Court made orders remitting the matter to the Tribunal for reconsideration (noting the details of the jurisdictional error on the part of the Tribunal).
On 15 March 2023 the Tribunal wrote to the applicant by email advising him that his case was now being prepared for allocation to a Tribunal member and that this may result in a hearing being scheduled. He was asked, inter alia, to indicate if he has any additional evidence that is relevant to his application and, if so, to send this information to the Tribunal as soon as possible. He also was requested to compete and submit a pre-hearing information form within 7 days. He was advised that the form would be used to collect information about his availability to attend a hearing, the likely number of attendees, and any other information which will help the Tribunal determine the most appropriate way to conduct his hearing if one is required. No response was received from the applicant.
On 14 April 2023, the presently constituted Tribunal invited the applicant to appear before the Tribunal at 9:30 am on 31 May 2023 to give evidence and present arguments relating to the issues arising in his case. He was asked to read and complete an attached ‘Response to Hearing invitation’ form within 7 days of receipt of the letter. The applicant did not respond to the hearing invitation. The applicant was also sent SMS reminder messages regarding the hearing 5 business days and 1 business day before the scheduled hearing, to the mobile phone contact number provided by the applicant.
The applicant did not attend the scheduled hearing on 31 May 2023. At 10:47 am, the hearing attendant attempted to contact the applicant on his mobile phone, but the call went straight through to voicemail.
In considering options for progressing this matter, the Tribunal was mindful of the decision of the FCFCA of 12 May 2023 in CRE21.[6] In that case the Court found the requisite jurisdictional fact under s 426A(1)(b) of the Act did not arise and the Tribunal’s power to dismiss the application under s 426(1A)(b) of the Act was not enlivened, as the notification letter sent to the applicant notifying him of the resumed hearing was not “an invitation” under s 425 of the Act. As a consequence, the Tribunal had no jurisdiction to confirm the invalid non-appearance decision. Within the context of s 425 of the Act, there is only ever one invitation to a hearing which is scheduled on a particular date and at a particular time. If an applicant fails to appear at that hearing, the Tribunal may dismiss the matter without consideration. However, this does not hold true for any subsequent or adjourned hearings.
[6] CRE21 v MICMA [2023] FedCFamC2G 352
While that decision was in the context of a matter where a hearing was adjourned and then the matter was dismissed by the Tribunal when the applicant failed to appear at a resumed hearing, internal Tribunal legal advice indicated the same principal would likely apply to a further hearing in a case remitted by the FCFCA.
While the Court was considering the power in s 426A(1A)(b) [s 362B(1A)(b)] to dismiss an application for non-appearance, the reasoning seems equally appliable to the express power to make a decision on the review without taking further action to allow or enable the applicant to appear before it in s 426A(1A)(a) [s 362B(1A(a)]. On that view, this power also wouldn’t arise from non-appearance at a resumed hearing. However, the Court in CRE21 proceeded on the basis the Tribunal could have either adjourned the matter (to allow a further invitation to a resumed hearing) or made a decision on the review. Accordingly, proceeding to make a decision on the review in these circumstances would be pursuant to the Tribunal’s general obligation to conduct a review (ss 348, 414) and the lack of a specific obligation in the Act to invite the applicant to another hearing.
The Tribunal subsequently sought to contact the applicant by telephone on 5 and 7 June 2023, with the assistance of an interpreter, with a view to allowing a further invitation to a second hearing. On both occasions the applicant’s mobile phone rang and then went through to an unidentified voicemail. The Tribunal officer left a message giving her name and where she was calling from and requested her call be returned on 03 9454 6100. The applicant did not respond to the Tribunal’s messages.[7]
[7] See the relevant case notes on the Tribunal file.
Further to this, on 8 June 2023 the Tribunal wrote to the applicant regarding his non-attendance at the hearing scheduled for 31 May 2023. The Tribunal asked the applicant to indicate whether he would like the Tribunal to schedule another hearing; or whether he does not wish to participate in another hearing and consents to the Tribunal making a decision on the papers, including the information from the previous Tribunal hearing held on 3 November 2021. The applicant was advised that, if he does not wish to attend another hearing, the Tribunal may write to him again seeking further information and/or comment on matters arising in his case. The applicant did not respond to this request.
Given the lack of engagement of the applicant in this process, the Tribunal decided to proceed to make a decision on the basis of the available information, including the written submissions by the applicant to the Department and the Tribunal and the oral evidence provided at the hearing with the previous Tribunal on 3 November 2021.
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, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims
The applicant’s written claims, as set out in his Protection visa application, are summarised as follows:
·He left Malaysia and moved to Australia because he cannot get married with the girl he loves. This is because in Malaysia Muslim people need to be in the same religion if they want to marry. If he and the girl marry and stay in Malaysia, government will capture and imprison them.
·He won’t be recognised as a Malaysian citizen and the authorities will put him in jail for violating state law.
·He experienced harm in Malaysia. Citizens will (sic) criticise him with harsh words and they threatening to kill him.
·He did not seek help as he can’t get it in Malaysia because the authorities make the law that Muslim people must marry Muslim people. What he is doing now is a violation of state law. Syariah law applies in all states in Malaysia and police can’t protect individuals.
·He did not try to relocate because the authorities have a lot of connections and it should not be a problem for them to find him.
·He fears if he returns to Malaysia he will be harmed by citizens who believe what he is doing is wrong because it is a violation of Syariah law. They will beat him and hand him to the authorities who will then put him in jail.
Evidence from the hearing
At the hearing held on 3 November 2021 the applicant confirmed that he is from Sarawak state, Malaysia (located on the island of Borneo). He indicated he has his parents and five brothers in Sarawak. He indicated he and his family are Christians of the Catholic denomination.
The applicant indicated he completed his high school schooling and then worked at [Employer 1] (in his application he indicated that he worked as a [Occupation 1] for [Employer 1] from December 2011 until March 2015. He said he is working in Australia as an [Occupation 2].
When asked about his relationship, the applicant said it was with a women named [Ms A], who is [age] years of age. When asked, he indicated he met this woman in Australia in 2016. When asked if they were still in a relationship, the applicant replied, ‘no’. He indicated they separated 4 years ago. When asked, the applicant indicated they separated due to differences of opinion.
The applicant indicated that they married in in Melbourne, Australia [in] November 2017. He indicated he had a marriage certificate. The Tribunal requested that he submit a copy of the certificate. When asked if it was a religious or registry marriage, the applicant said it was a religious marriage, adding that the marriage also had been registered. When asked if it was a Christian or a Muslim marriage ceremony the applicant said it was a Muslim ceremony.
When asked if he converted to Islam before he married, the applicant indicated he did not. The Tribunal queried how this could be the case if he had a Muslim marriage ceremony. The applicant replied that it was a small ceremony at a house. When queried whether it was at a mosque or at a house, the applicant reiterated that the ceremony was at a house.
When asked how long he lived with his wife for, the applicant commented that it was ‘maybe’ two years. He indicated they had two children (daughters) who were both born in Australia.
The Tribunal asked if he had been through divorce proceedings. The applicant said he had, a couple of months ago. He indicated that took place in Sydney rather than Melbourne, and that his former wife is now living in Sydney. When asked if he is still in touch with his former wife, the applicant said he is, for the sake of his child. When asked if he sees the children, the applicant indicated he does not see them now due to the impact of COVID-19.
The applicant subsequently indicated that his second daughter [died], causing his former wife to suffer mental health problems which were ‘hard to handle’. He indicated this was why they separated and divorced. He commented that his former wife is in therapy and is getting better. He indicated that they still plan to get ‘attached’ again in the future for the sake of their surviving child.
The applicant also was asked to provide copies of his divorce papers and his child’s death certificate.
When asked why he is afraid to return to Malaysia, the applicant said that it is because he needs to be a Muslim if he wants to be in a relationship with a Muslim otherwise he cannot enter Malaysia.
When queried why, if he is divorced and no longer married, he thinks the Malaysian authorities would still seek to prosecute or imprison him, the applicant said it would be because of what he did before. He added that if he went back he would still have to pay the fine and ‘everything’. When queried regarding whether there is a fine, the applicant commented ‘yes the fine’ but added that he does not know what they will do to him.
The Tribunal asked the applicant what his family thought about him marrying a Muslim woman. The applicant commented that they did not really accept it at first but he just went ahead. When asked what his former wife’s family thought, the applicant said they were the ‘same too’.
After the hearing (on 3 November 2021) an email was sent to the applicant stating that, as discussed at the hearing, the Member requests copies of the following documents are provided to the Tribunal:
·Marriage certificate
·Divorce certificate and/or evidence of your divorce application issued in the Australian courts
·Birth certificates of your daughters
·Death certificate of your daughter
·Your wife's Malaysian ID card
·Your Malaysian ID card

The applicant was requested to provide copies of these documents within 7 days, or by 10 November 2021.
On 12 November 2021 the applicant provided a copy of his marriage certificate, under cover of a copy of his Malaysian Driver’s Licence. He did not provide copies of any of the other requested documents.
The applicant’s marriage certificate indicates that he was married to [Ms A], born [date]. The marriage was solemnised in accordance with the Marriage Act 1961 (Cth) at a ceremony conducted [in] October 2017 at [Mosque 1], by [Mr B], in accordance with the rites of Islam - Australian Federation of Islamic Councils, in the presence of witnesses [Mr C] and [Mr D]. The marriage was registered in Victoria on [date] November 2017 under the Births, Deaths and Marriages Registration Act 1996 (Registration [Number]).
Assessment
Identity
On the basis of the copy of his passport submitted to the Department,[8] the Tribunal accepts that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[8] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
Assessment of claims
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 an 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. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal accepts that the applicant was part of a Christian family of Catholic denomination in Sarawak state, Malaysia. The Tribunal accepts that he identified as a Christian when he came to Australia in March 2015.
The Tribunal finds that the applicant’s oral evidence at the hearing indicates that, contrary to his written statement of claims, he did not leave Malaysia and move to Australia because he could not get married with the woman he loved in Malaysia. At the hearing the applicant indicated that he met a Muslim woman who came to Australia after he arrived in Australia and subsequently married her. The marriage certificate indicates that [Ms A] was born in Kedah state Malaysia on [date].
Based on copy of his marriage certificate submitted to the Tribunal, the Tribunal finds that the applicant married [Ms A] in an Islamic religious ceremony held [in] October 2017 and their marriage was registered in the state of Victoria on [date] November 2017.
While the applicant failed to provide supporting evidence in relation to his claims that he and [Ms A] subsequently had two children, the second of whom [died], the Tribunal accepts the applicant’s oral evidence that this is the case.
While the applicant also has not provided any evidence that he and [Ms A] separated after about two years together and subsequently divorced, the Tribunal accepts the applicant’s oral evidence that this is the case.
Relevant to this matter, the DFAT Country Information Report indicates that a non-Muslim (male or female) must convert before marrying a Malaysian Muslim. The process of conversion differs from state to state as determined by the relevant religious authorities. The Federal Territories require an individual to ‘utter in reasonably intelligible Arabic’ the two clauses of the ‘Affirmation of Faith’, after which the individual is adjudged to have become a Muslim. The Islamic authority in the convert’s place of residence conducts the conversion. Some NGOs also conduct religious conversions in Malaysia. The government does not recognise marriages between Muslims and non-Muslims and considers children born of such marriages illegitimate. In these circumstances the child will follow will their mother’s citizenship.[9]
[9] DFAT Country Information Report, Malaysia, 29 June 2021, sections 3.77, 3.81 and 3.152.
The following information regarding Muslims and syariah law is also relevant.[10] Article 3(1) of Malaysia’s Constitution states ‘Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation’. Article 11(1) states every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.
[10] DFAT Country Information Report, Malaysia, 29 June 2021, sections 3.21-3.22, 3.27-3.30.
The government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim. Some indigenous persons have adopted Islam, but many choose to practise traditional spirituality or Christianity.
Malaysia has a two-track legal system: common law, administered at the federal level; and syariah-based law, administered at the state level, which varies by jurisdiction. In June 2019, however, the office of the Islamic Affairs Minister announced the National Council for Islamic Affairs had agreed on a proposal to standardise syariah criminal laws in all states.
Family and personal laws governing Muslims, as well as laws relating to religious offences, are promulgated at the state level. Parliament can only pass legislation on such matters when it comes to the Federal Territories. Matters considered by states under syariah-based law relate to succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and the ‘determination of matters of Islamic law and Malay customs’.
Syariah-based law applies only to ‘persons professing the religion of Islam’. However, the enforcement of syariah sometimes affects non-Muslims, particularly on matters involving religious conversion and family.
The Tribunal finds that the relevant country information does not indicate that, either under Malaysian civil or syariah law, a non-Muslim would lose their Malaysian citizenship as a consequence of marrying a Muslim person. The Tribunal also notes that syariah law only applies to Muslims.
While the applicant indicated at the hearing on 3 November 2021 that he remains in contact with [Ms A], he has not provided any evidence from [Ms A] in support of his claims. She did not provide a written statement to this or the previous Tribunal or appear as a witness at his hearing. While the applicant commented at the hearing that they still hoped to ‘get attached’ again, he has provided no evidence subsequently to indicate or suggest that they have reconciled or that he has ongoing contact with his daughter.
At the hearing the applicant stated that he did not convert to Islam before marrying [Ms A]. When queried about this, and that he had an Islamic marriage ceremony, the applicant acknowledged that was the case but stated it was a small ceremony at a house. The available evidence indicates this was not the case, however, as the marriage certificate he provided to the Tribunal indicates the marriage was solemnised in accordance with the Marriage Act 1961 (Cth) at a ceremony conducted [in] October 2017 at [Mosque 1], by [Mr B], in accordance with the rites of Islam - Australian Federation of Islamic Councils, in the presence of witnesses [Mr C] and [Mr D].
The Tribunal does not accept that non-Muslim who had not converted to Islam would be permitted to have their marriage solemnised at a ceremony conducted in accordance with the rites of Islam. Accordingly, the Tribunal finds that the applicant converted to Islam and was a Muslim at the time of his marriage to [Ms A]. The Tribunal considers this is also consistent with ensuring that the children of their union were not considered illegitimate. The Tribunal finds there is no evidence to indicate or suggest that the applicant is no longer a Muslim.
Accordingly, the Tribunal finds that the applicant would not be questioned, prosecuted, fined, imprisoned or otherwise harmed by Malaysian authorities for marrying a Muslim when he himself was not a Muslim. The Tribunal finds there is no risk that the applicant would lose his Malaysian citizenship.
The Tribunal accepts the applicant’s oral evidence that neither his family nor his former wife’s family were supportive of their relationship initially. He has not submitted, however, that either his family members or his former wife’s family members ever threatened to harm him, or that he has concerns that they would harm him in the future. In any event, as he is divorced from [Ms A] and there is no evidence from the applicant indicating they have reconciled, the prospect that they would return to Malaysia together is remote.
As the applicant is not in an inter-religious relationship with a Muslim woman, the Tribunal also does not accept that citizens will consider what he is doing is wrong and a violation of syariah law, will criticise him with harsh words or threaten to kill him or beat him and hand him to the authorities. The Tribunal does not accept he faces a real chance of suffering treatment amounting to persecution involving serious harm from members of either the Islamic or Christian communities on the basis that he is in an inter-faith relationship.
Does the applicant have a well-founded fear of persecution if he returned to Malaysia?
Having carefully considered the available evidence, the Tribunal does not accept that there is a real chance the applicant will suffer persecution involving serious harm from the Malaysian authorities, including religious authorities; his family members or the family members of his former wife; and/or from members of the Islamic or Christian communities; or any other authority, organisation, person or group, for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to Malaysia, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[11]
[11] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Significant harm 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.
Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
Considering all the available evidence, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from the Malaysian authorities, including religious authorities; his family members or the family members of his former wife; and/or from members of the Islamic or Christian communities; or any other authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).]
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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