2218824 (Refugee) - [2025] ARTA 1227

2218824 (REFUGEE) [2025] ARTA 1227 (9 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2218824
Tribunal:General Member E Rutherford
Date:9 January 2025

Place:Adelaide
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the order that both applicants meet the following criteria:
·s 36(2)(a) of the Migration Act

General Member E. Rutherford

Statement made on 9 January 2025 at 3:14 PM

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – religion – Christianity – conversion to Islam – wife is Muslim – fears harm from the authorities and the Muslim community – an interfaith marriage – fears being prevented from being able to openly practice his religious faith – combined membership of a particular social group – an inter-faith couple – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65,499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from
this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic
information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 December 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Malaysia, applied for the visas on 20 September 2022. The delegate refused to grant the visas on the basis that the applicants did not face a real chance of persecution or a real risk of significant harm.
The applicants applied for a review of the delegate’s decision within the time limit provided by the Act. By operation of law, on 14 October 2024, the review application was taken to have been lodged with the Administrative Review Tribunal.[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
BACKGROUND
The primary applicant claims to be a [age]-year-old male from Malaysia. The secondary applicant claims to be a [age]-year-old female from Malaysia and claims to be married to the primary applicant.
Evidence before the Department
Protection visa application
Only the primary applicant raised claims for protection in the protection visa application, with the secondary applicant relying solely on being a member of the same family unit as the primary applicant.
The primary applicant wrote that his religion was Islam in his application. He stated that he:
·was having trouble with his company, his biological father, and the community in Malaysia
·had changed his religion and that people from the Christian faith no longer accepted him, and were making his life miserable with threats
·would have little to no employment opportunities due to being boycotted by the community
·feared being killed from the hatred of his religious members.
The applicants did not provide any supporting documents with their protection visa application.
Summary of the delegate’s decision
The delegate did not interview the applicants regarding their protection claims. The delegate considered country information regarding Malaysia, and from it, concluded that Malaysian law did not restrict the rights of non-Muslims to convert to another religion.
The delegate accepted that the primary applicant may face social stigma as a result of changing his religion, but found that this would not amount to persecution. Similarly, it would not amount to significant harm for the purpose of satisfying the ‘complementary protection’ ground for eligibility for a protection visa.
Evidence before the Tribunal
The applicants provided copies of their passports with their application for review to the Tribunal.
Pre-hearing submissions
In response to a pre-constitution outreach letter, the primary applicant made a written statement clarifying his claims. He stated that:
·his conversion to Islam had not been voluntary, and that he had done so solely for the purpose of marrying the secondary applicant
·he had felt regret at his conversion, and made attempts to revert back to Christianity
·in doing so, he faced legal action from the government including imprisonment
·the act of reverting to Christianity would invalidate his marriage to the secondary applicant under Islamic law
·he faced threats from community members.
In addition to the written statement, the applicants also provided a large number of documents which included the following:
·support letters from[a] multicultural network and training organisations
·letter from the former Minister for Immigration and Multicultural Affairs regarding the Multicultural Framework Review Report
·reference regarding the secondary applicant from [a service] provider
·tenant payment history
·registration certificate for a cat
·apprenticeship/traineeship contract
·letters from various employers
·various certificates for both applicants’ training in topics including [deleted]
·minutes of meeting for a community organisation of which the primary applicant is the treasurer.
The hearing
The applicants appeared before the Tribunal by videoconference on 8 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from three witnesses. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages, although both applicants were able to give the majority of their evidence in English. Evidence was taken from the applicants separately.
The primary applicant explained that the protection visa application submitted to the Department was prepared by a migration agent, and that the form had been submitted online without it being read back to him. It became apparent over the course of the hearing that while all of the factual information relating to the applicants’ family, educational and employment histories was largely correct, there had been some significant misunderstandings with respect to the nature of their protection claims.
The primary applicant gave the following evidence regarding his family, educational and employment history:
·his mother and father had divorced when he was around [age] or [age] years of age
·he had not been in contact with his biological father from then until aged around [age] or [age] years
·his biological father is Christian
·his mother had remarried a Muslim man
·he has two biological siblings and one step-brother
·he commenced a diploma [in] Malaysia but did not complete it
·he had worked in Malaysia for three separate [companies].
The primary applicant explained that he met his wife in around 2012 or 2013. In 2016, as a result of wanting to marry her, he had made the decision to convert to Islam. The process for changing his religion had required his attendance at a government office with two witnesses, where he was required to recite certain phrases and a declaration. The change or religion also necessitated a change to one of his given names. He did not change his own personal beliefs however, and soon after his conversion he deeply regretted the act and sought to revert to Christianity. Over the course of three years he said that he made regular attempts to speak to government officials, lawyers, and a person at the local mosque, in order to learn the process to revert. By doing so, he had caused himself and his wife to become the target of threats, warnings and abuse as it became known by neighbours and the Muslim community that he was attempting to change his religion. These threats arose, he said, from the negative perception that he was supposedly giving the Islamic faith. He was told that reversion was only possible after divorce, but that there was no way that he could remain married to his wife and become Christian.
Prior to converting, the primary applicant said that he had been very active in his protestant church including by playing music during worship sessions, teaching in Sunday school, and participating in outreach to orphanages and old age homes. He had stopped these activities upon converting however due to the risk to him and his family he would have faced by doing so. He said the church also could have been put at risk by allowing a Muslim to attend their services.
The primary applicant gave evidence that when he told his biological father that he had converted, he was very angry about it and threatened harm against him and his wife if he did not convert back. The applicant thought it remained possible that his father would harm them upon their return to Malaysia, but he has not been in contact with his father and does not know where he is.
The primary applicant said that he did not wish to remain a Muslim on official records in Malaysia, even if he were to practice Christianity privately. He said that by doing so, he would be unable to attend or serve at any Christian place of worship, and that he would have to outwardly follow Islamic observances such as fasting during the fasting month. The applicant said that he would not wish to be discreet about his beliefs, and he believes it important in his faith to be able to preach to others. The primary applicant said he does not wish to divorce his wife in order to convert.
The primary applicant fears harm from the authorities and the Muslim community. He fears being detained or fined for attending church or practicing his beliefs in public. From the community, he fears that he could be threatened, abused, physically harmed or murdered because of his religious beliefs. He also fears them taking his wife and harming her, as it is often the Islamic party to an interfaith marriage who is detained.
He stated that he and his wife wish to have children, but they are concerned about the consequences on any child if they return to Malaysia. The primary applicant said that his marriage could be annulled, and that any child would therefore be illegitimate. Any child born would be automatically registered as a Muslim, which he does not want.
If they were to return, the primary applicant considered it most likely they would return to Kuala Lumpur. He considers that there is nowhere within Malaysia where they could go to escape harm because the laws are the same across the country, and all of the community is predominantly Muslim.
While in Australia, the applicant said he has been attending church regularly. The applicant said that he has shared his faith with a close friend, who has also come to attend church with him as a result.
The primary applicant gave evidence that he has been working in Australia and has held three jobs since holding an appropriate visa. It is relevant that the primary applicant changed jobs approximately three months ago.
The secondary applicant also confirmed the details regarding her family contained within the protection visa application. She gave evidence that:
·she was born Muslim into a Muslim household
·she speaks to her family once or twice per week
·all but one of her three siblings remains in the family home
·she completed a diploma [in] Malaysia
·she worked at the same [company] as her husband.
The secondary applicant gave a consistent account of the development of their relationship and her husband’s conversion to Islam for the purpose of their marriage. She described him being isolated and withdrawn following the conversion, and his subsequent attempts to revert to Christianity. This, she said, was difficult for her because it drew attention to her also and she was similarly warned and threatened, and told that she was not taking care of her husband.
While the secondary applicant remains close to her family, she never told them about her husband’s attempts to revert to Christianity, nor the fact that he attends a church in Australia. She fears they would cause problems for her relationship because they are Muslim and Islam is important to them.
The secondary applicant fears harm from her father-in-law, who she says blames her for his son’s conversion to Islam. This harm could even include her being killed, because religion is Malaysia is so sensitive.
The secondary applicant also fears harm from the community if the couple were to return and live in an inter-faith relationship. In particular, she fears that any child they might have would be beaten and looked down upon as illegitimate. The secondary applicant wishes to raise her child/ren according to good values, and then allow them to choose their own religion.
In Australia however, the secondary applicant is very happy for her husband to embrace his own religious beliefs. She said that she herself has attended his church a few times, and while she still prays according to the Islamic faith and wears a hijab, she is open to learning more about Christianity. This, she said, would be impossible for her to do in Malaysia.
Evidence from witnesses
The applicants requested that the Tribunal take evidence from three witnesses.
First, evidence was taken from the primary applicant’s mother in Malaysia. She described her son being in a romantic relationship with his wife, and being forced to convert to Islam in order to marry. She said this had concerned her because she had also been through the conversion process in order to marry her second husband, and knew that he would not be permitted to practice or revert back to Christianity. The witness attested to her son’s involvement in two churches in Malaysia, and expressed fear that he would be questioned and punished for making any attempt to revert officially to Christianity in future. She said that her son was happy in Australia and that her daughter-in-law could also attend church.
Second, the Tribunal called an elder from the church which the primary applicant says that he attends regularly. The witness stated that the primary applicant had been attending every Sunday for the past two months. The witness had limited information about the primary applicant’s history, but said that he had relayed coming from a Christian family, and that he had a solid knowledge of scripture. The witness expressed a belief that the primary applicant’s faith is genuinely held.
Third, evidence was taken from a colleague of the primary applicant, who he said he had shared his faith with, and invited him to church. The witness expressed deeply held beliefs in the genuineness of the primary applicant’s faith and character, and said that he had helped him greatly through a difficult time in his life. As a result of the primary applicant sharing his beliefs, the witness had started attending church. When he is unable to attend, he said that the primary applicant will come to his house and share with him the teachings from that day.
At the conclusion of the hearing some minor discrepancies in the witness’ testimonies were discussed with the primary applicant. In particular, the applicant explained that it was his recent change of job that has allowed him to attend church regularly, whereas he previously was only able to attend sporadically. The primary applicant clarified that he had previously attended the local Baptist church, but had changed to the Church of Christ at the time that he commenced his regular attendance. The primary applicant informed me that he had not told his mother about the threats from his biological father, which explained her lack of knowledge about this subject.
Post-hearing submissions
Following the hearing, the applicants provided copies of their national identity cards (MyKad) as requested. Both cards showed the applicants to be recorded as holding the Islamic faith.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
REASONS AND FINDINGS
The issue in this case is whether the applicants are refugees, or otherwise whether there is a real risk that they will suffer significant harm as a consequence of being removed from Australia to Malaysia. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of reference

The applicants claimed to be citizens of Malaysia, and provided documentary evidence in support of their nationality. I am satisfied that the applicants are citizens of Malaysia as claimed.
There is no evidence before me that either of the applicants hold nationality of any other country, nor that they have a right to enter and/or reside in any third country. Based on the information before me, I am satisfied that s 36(3) of the Act does not apply to the applicants. I am satisfied that Malaysia is their receiving country, and I have assessed their claims against that country.
Personal background
I accept that the evidence given by both applicants regarding their identities and personal histories as outlined above is true. I accept that they are married to one another.
Claims for protection
I acknowledge the discrepancy between the claims as put forward in the protection visa application and those presented to the Tribunal, however I consider this has been reasonably explained by the primary applicant due to the involvement of a migration agent for lodgement of the visa. I accept that the migration agent did not relay the information regarding the primary applicant’s claims to him prior to submission of the application, which caused there to be a misunderstanding. However I also consider that the premise of the claim, being the conversion of the primary applicant through marriage to have been essentially the same throughout the process, and to have been consistently claimed.
I found both applicants to be credible when relating their claims for protection. Their evidence was given freely and with details consistent with their lived experience. They did not embellish their evidence, and when minor inconsistencies were identified, they were able to provide acceptable explanations.
I make the following findings of fact relevant to the claims made by the primary applicant:
·he was born into a Christian household and raised according to that faith
·he converted to Islam for the purpose of being married to the secondary applicant
·his conversion had a negative impact on his emotional wellbeing
·he sought advice through multiple sources on reverting his religion to Christianity
·those attempts brought unfavourable attention and treatment from community members
·he was warned by the authorities not to pursue such action
·he retains a deeply held faith in Christianity
·part of his faith includes a desire to share it with other people, and a wish to attend public gatherings of other Christians
·his father was angry at his conversion and made threats to him including against his wife
·does not fear harm from his company or the Christian community, being elements to his claim mistakenly included in the protection visa application.
I make the following findings of fact relevant to the claims made by the secondary applicant:
·she was born into a Muslim household and raised according to that faith
·she became a target of verbal abuse as a result of her husband’s attempts to revert to Christianity
·she is open to learning more about Christianity and attending limited church activities with her husband.
Country information
Christianity
According to the Christian advocacy organisation, Open Doors:
As no Malay is allowed to leave Islam, every discussion about faith is fraught with the risk of being perceived as proselytizing. It is also possible that Christians – or atheists – are accused of ‘insulting Islam’ because of such a topic. While Article 11 of the Federal Constitution of Malaysia states that every individual has the right to profess, practice and preach his religion or belief, Article 11(4) of the Federal Constitution also states that the propagation of non-Islamic religions among Muslims is forbidden. Therefore, sharing faith with a Muslim is considered illegal and punishable by law. For coverts, discussions about faith come naturally with a much higher risk, as they can lead to one’s conversion being discovered.[2]
[2] Open Doors, Malaysia: Full Country Dossier, (report, January 2024) Malaysia: Full Country Dossier p 35.
The Department of Foreign Affairs and Trade’s Country Report on Malaysia concurs with this assessment, concluding that ‘Christians who proselytise or promote Christianity to Muslims face a moderate risk of harassment by state authorities, potentially including violence or abduction.’[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report: Malaysia (Report, 24 June 2024) (DFAT Report), [3.79].
With respect to attending a church, Open Doors also states that:
Christians from a Muslim background cannot attend any public church activities (except in East Malaysia, although even there it is not without risk. A rule of thumb is: The more rural the village, the higher the risk). If they do, they risk being caught by the authorities and the church attended will face serious consequences for welcoming them. Therefore, converts gather secretly in homes for all their Christian activities, away from the prying eyes of government, community and the registered churches. Even attending online meetings is not without risk.[4]
Conversion from Islam
[4] Open Doors, Malaysia: Full Country Dossier, (report, January 2024) Malaysia: Full Country Dossier p 35.
The Department of Foreign Affairs and Trade’s Country Report on Malaysia states:
Individuals who have attempted to leave the Islamic faith have faced long and expensive legal battles, involving both the federal civil courts and state syariah courts, often without success. An individual wishing to covert from Islam must first obtain permission from a state syariah court and be declared Murtad (‘infidel’). In-country sources reported that courts can order such individuals to be subject to three years of faith rehabilitation in a rehabilitation camp. In-country sources told DFAT about a case of an individual who undertook three years of ‘rehabilitation’ but was still denied permission to leave Islam. DFAT is unaware of any Malay Muslims being successful with an application for apostasy. DFAT is also unaware of any convictions for apostasy since 2000, when four people were sentenced to three years’ jail for the offence.[5]
There are two categories of Malaysians who may be able to convert from Islam. The first category includes those applying to renounce the faith because they were recorded as Muslim ‘in error’ (because of non-Malay origin, such as being from Sabah); according to local media reports in 2017, approximately one in four such applications were successful between 2000 and 2010. The second category includes those who seek to revert to their original faith following a divorce, following conversion to Islam for marriage (legally required when a non-Muslim marries a Muslim). The right to revert from Islam was confirmed by the High Court in 2016.[6]
[5] Department of Foreign Affairs and Trade, DFAT Country Information Report: Malaysia (Report, 24 June 2024) (DFAT Report), [3.58].
[6] Ibid, [3.59].
This process however, ‘requires judicial review, and may be refused’.[7] An example of such a refusal was reported in the United States Commission on International Religious Freedom’s (USCIRF) Annual Report which involved a woman wishing to revert to Christianity after her divorce from her Muslim husband.[8]
[7] Ibid, [3.64].
[8] United States Commission on International Religious Freedom (USCIRF), United States Commission on International Religious Freedom 2024 Annual Report, (Report, 1 May 2024), p 64. See also ‘Court rejects woman’s appeal in bid to renounce Islam’ New Straits Times, (online, 28 August 2023) Court rejects woman's appeal in bid to renounce Islam.
The difficulties outlined in the DFAT report are similarly referred to in the United States Department of State’s (USDOS) International Religious Freedom Report for 2023:
Muslims who seek to convert to another religion must first obtain approval from a sharia court to declare themselves “apostates.” Sharia courts seldom grant such requests, especially for those born Muslim and ethnic Malays, and those who have converted to Islam.[9]
[9] United States Department of State, 2023 Report on International Religious Freedom: Malaysia, (Report, 26 June 2024), p 5.
According to Minority Rights Group International:
Conversion for a Muslim, for example, is a major problem in Malaysia. If a Muslim wants to renounce Islam, he or she has to go through a long and painful legal process. Different courts have adopted procedures including sending people to months of rehabilitation before allowing them to do so. There have also been cases where individuals have been charged with apostasy and face criminal charges.
Increasingly now the courts are referring cases to Islamic, Sharia courts, which have a strict religious interpretation of the law as compared to the secular interpretation in national level courts.[10]
[10] Minority Rights Group International, ‘Ethnic and religious discrimination big challenge for Malaysia’s minorities’ (online, 25 May 2011) Ethnic and religious discrimination big challenge for Malaysia's minorities - Minority Rights Group.
Open Doors states that:
Officials refuse to recognize an individual’s right to covert, especially when it is stated in the documents that they are Muslim, be they Malay or non-Malay. Muslims desiring to renounce Islam have to go through a long and painful legal process, and are often charged with apostasy.[11]
Inter-faith marriages
[11] Open Doors, Malaysia: Full Country Dossier, (report, January 2024) Malaysia: Full Country Dossier p 39.
DFAT states that ‘the government does not recognise marriages between Muslims and non-Muslims and considers children born of such marriages illegitimate’.[12]
[12] DFAT Report, [3.60].
There is a delineation between the jurisdiction of the civil courts over the marriage between non-Muslims, and syariah law over the marriages between Muslims.[13]
[13] Dr Mogana S Subramaniam, ‘Judicial Dilemma: Secular or Syariah for Inter-Faith Family Disputes in Malaysia’ Centre for Asian Legal Exchange (Discussion Paper No. 15, 31 March 2018) JUDICIAL DILEMMA: SECULAR OR SYARIAH FOR INTER-FAITH FAMILY DISPUTES IN MALAYSIA│Center for Asian Legal Exchange (CALE), Nagoya University, 1.
According to the Christian organisation Open Doors, ‘Christians with a Muslim background can also be forced to divorce (if married)’[14], however it is not clear whether this would apply equally to people who were originally Christian and had converted to Islam.
[14] Open Doors, Malaysia: Full Country Dossier, (report, January 2024) Malaysia: Full Country Dossier, p 37.
Article 46 of the Islamic Family Law Act states the following with respect to the change of religion of a party to an existing marriage:
Change of religion
(1) The renunciation of Islam by either party to a marriage or his or her conversion to a faith other than Islam shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court.
(2) The conversion to Islam by either party to a non-Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court.[15]
[15] Islamic Family Law (Federal Territories) Act 1984 (Malaysia) art 46.
Civil marriage laws specifically exclude Muslims from being permitted to marry outside of Sharia law.[16]
[16] Law Library of Congress, Prohibition of Interfaith Marriage, (report, September 2015), p 14.
Do the applicants satisfy the refugee criterion for protection?
I accept that both applicants have a subjective fear of harm upon their return to Malaysia. The forms of harm feared by them include being imprisoned by the authorities, being physically harassed, verbally abused, discriminated against by the Muslim community, and being killed or physically harmed by the primary applicant’s father. The primary applicant also fears being prevented from being able to openly practice his religious faith. I accept that these are all serious forms of harm as set out in s 5J(5).
I accept that the fears held by the applicants amount to a well-founded fear of persecution. I find, based on the country information outlined above, that there is a real chance of harm faced by both applicants, if they were returned to Malaysia. Each form of harm raised by them is possible in the reasonably foreseeable future, should they return to Malaysia. Specifically, I find that a real chance of harm exists in Kuala Lumpur, where they are most likely to return to. I consider the likelihood of them being harmed by the primary applicant’s father is low, but not so remote as to fall outside the scope of being a real chance; but in any event I consider the likelihood of harm from the authorities or the broader community sufficiently high to warrant a finding overall that there is a real chance of harm.
I do not consider it necessary to make findings on whether the applicants will suffer harm relating to their possible future children, or what might occur in the future with respect to the secondary applicant’s attendance at church, given the positive findings I have been able to make on the other fears raised.
The harm would be directed at the applicants for the reason of the primary applicant’s religion, and also for their combined membership of a particular social group, namely an inter-faith couple. These are the essential and significant reasons for the persecution, as required by s 5J(4)(a) of the Act.
The harm is systematic and discriminatory, being based on laws and community values arising from the interpretation of Islam held by the government and majority of the population. For the same reasons, the harm relates to all areas of Malaysia.
I do not consider that the applicants could access any protection measures from the police or other authorities of the country. I consider that the police would share the same values as the authorities and community members, and thus would not be willing to offer effective protection. Similarly, I consider that any legal matters which could arise following the applicants’ return to Malaysia would fall within the jurisdiction of the syariah courts, which would uphold its own interpretation of Islam over the preferences or rights of the applicants.
The applicant cannot be expected to take any steps to modify his behaviour so as to avoid persecution. To expect him to do so would be contrary to s 5J(3)(c)(i) by requiring him to alter his religious beliefs and/or conceal his true religious beliefs, or cease to be involved in the practice of his faith. The primary applicant has been unwilling to act in such a way in the past, and I accept that it is antithetical to his personal beliefs to do so in future.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the order that both applicants satisfy s 36(2)(a) of the Migration Act.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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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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