2303255 (Refugee)

2303255 (Refugee) [2024] AATA 3555 (26 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2303255
CASE NUMBER:  2303262
REPRESENTATIVE:  Mr Emad Fuad Khraim
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Andrew Verduci
DATE:26 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matters for reconsideration with the following directions:
(i)that Applicant 1 (or the first-named applicant) satisfies s 36(2)(a) of the Migration Act; and
(ii)that Applicant 2 (or the second-named applicant) satisfies s 36(2)(a) of the Migration Ac.

Statement made on 26 July 2024 at 2:44pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – religion – particular social group – practicing Shia Muslim – relationships outside of marriage – de facto relationship with a married Sunni woman – children born outside of marriage – gender-based violence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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

Applicant 1 (the first named applicant) is a [age] year old male citizen of Malaysia. Applicant 2 (the second named applicant) is a [age] year old female citizen of Malaysia. They last arrived in Australia in December 2016. They applied for a Protection visa which a delegate of the Minister for Home Affairs refused to grant under s 65 of the Migration Act 1958 (Cth) (the Act).
This is a review in relation to those decisions.
Protection visa applications
The first and second named applicants (the applicants) applied for Protection visas together in March 2017. In summary, they claim to fear harm in Malaysia for the following reasons:
·The first-named applicant follows the Shia branch of Islam. He cannot freely practice his religion because it is banned in Malaysia. He has been mentally abused and threatened because he is a Shia.
·The second-named applicant is a Sunni Muslim. She is in a relationship with the first-named applicant and is pregnant with his child. The second-named applicant’s family are strict Sunni Muslims and do not approve of her relationship with the first-named applicant because he is Shia. Her father and brother have assaulted the first-named applicant.
·Authorities in Malaysia will be too slow to protect them and cannot guarantee their protection. They cannot relocate within Malaysia because Shia is banned throughout Malaysia and the second-name applicant’s family will find her and force to separate from the first-named applicant.
The delegate did not accept that the first-named applicant would face harm as a Shia or because he was in a relationship with the second-named applicant. The delegate did not accept that the second-named applicant would face harm from her family.
Applications for review to this Tribunal
The applicants lodged separate applications for review with this Tribunal. The first-named applicant was originally allocated the Tribunal case number 1714288 and the second-named applicant was allocated 1714278.
The applicants attended a hearing by video with the Tribunal, differently constituted.
The Tribunal (differently constituted) made a decision to affirm the decisions under review in November 2021. This decision was set aside by the order of the Federal Circuit Court of Australia and the matters are before the Tribunal again pursuant to an order of the Court. The first-named applicant was given the new Tribunal case number 2303255 and the second-named applicant was given the new case number 2303262.
Tribunal hearing and summary of evidence
I have listened to an audio recording of the first Tribunal hearings and reviewed the available material in the Tribunal’s case management system.
The applicants appeared before me in person on 22 July 2024 to give evidence and present arguments. With their prior consent, they appeared at a combined hearing. The hearing was conducted with the assistance of an interpreter in the Malayalam and English languages.
The applicants were represented in relation to the review and their representative who also attended the hearing before me.
I have also been assisted by the written evidence and submissions given to me prior to the hearing. They are succinct and well written and I commend the author on their work.
In summary, the following evidence has been given:
·The first-named applicant was born into a Sunni family but started to follow Shia teachings when he was around [age] years of age. He was arrested at Shia gatherings in 2013 and 2015. Each time he was arrested, taken to a police station and given a warning to stop following the Shia branch of Islam.
·He was married to a Sunni woman in Malaysia for about nine years and has two children from that relationship. He is now divorced. He maintains contact with his children but not his ex-wife.
·The second-named applicant was born into a strict Sunni family and she continues to follow the Sunni branch of Islam. She started a relationship when she was around [age] years of age and she became pregnant when she was [age]. She was not married at the time and feared harm from her family and society if she had a child out of wedlock. She travelled to [Country 1] with her then partner and they got married. They travelled to [Country 1] because it was easier and quicker to get married which meant that their child would not be born out of wedlock.
·After getting married, her husband coerced her to have an abortion. It was an emotionally and physically abusive relationship and she felt compelled to agree with what he wanted. The second-named applicant was living and studying in Sarawak and her family lived in Kedah. They did not know about her pregnancy, wedding or abortion.
·The first and second-named applicants met in 2016 and started a relationship. They travelled to [Country 1] together twice trying to arrange a divorce for the second-named applicant. They think that the Islamic Council sent a letter to the second-named applicant’s husband about consenting to a divorce but that he never agreed or replied.
·The first-named applicant approached the second-named applicant’s father seeking permission to see his daughter. Her father and eldest brother objected to the second-named applicant having a relationship with a divorced Shia and were physically abusive towards him. The applicants were told that they must cease their relationship.
·The applicants left Malaysia together a short time later. They did not tell the second-named applicant’s family that they were leaving Malaysia. The second-named applicant’s husband discovered that she was in Australia with the first-named applicant. He contacted her family and exposed her pregnancy, marriage and abortion. He also gave them naked photographs and/or video of her.
·The applicants have been in a defacto relationship since 2016. They are unable to get married because the second-named applicant is still legally married to her husband and he does not agree to getting a divorce. The applicants have four children born in Australia out of wedlock.
·The first-named applicant fears harm in Malaysia because of his Shia faith, his defacto relationship with the second-named applicant and because he will no parental recognition or rights over his children born out of wedlock.
·The second-named applicant fears harm in Malaysia from her husband, from her family because she is in a defacto relationship with a Shia and because her four children will be discriminated against because they were all born out of wedlock.
I also have the benefit of detailed written submissions, copies of the applicants’ children’s’ birth certificates, a [Country 1] marriage certificate for the second-named applicant with English translation and a third-party statutory declaration in support of the applicants.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent country information report prepared by DFAT is dated 24 June 2024.[1]
[1] DFAT Country Information Report: Malaysia (24 June 2024) (DFAT Report) ( INFORMATION
Religion in Malaysia
Article 8(2) of the Malaysian Constitution forbids discrimination against citizens based on religion or race. According to the US State Department, 63.5 percent of the Malaysian population practices Islam.[2]
[2] DFAT report, [3.2] and [3.35].
The government automatically classes individuals born in Malaysia of Malay ethnicity as Muslim. Despite formal protections in the constitution for freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. 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. Clause 4 states: ‘State law and in respect of the Federal Territories of Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.’ In practice, this clause severely restricts the capacity of religions other than Islam to proselytise.[3]
[3] DFAT Report, [3.36] and [3.37].
The religious status of Muslims is recorded on their birth certificates and on their MyKad, reportedly to assist with the application of syariah religious laws. For example, authorities inspecting restaurants for compliance with Ramadan will check patrons’ identification cards. National identification cards do not distinguish between Sunni and Shi’a Muslims. Other religious affiliations are not reflected visibly on the card, although they are encrypted on a smart chip in the card. Married Muslims must carry photo identification of themselves with their spouses as proof of marriage. According to in-country sources, this requirement was enforced in practice, with couples asked by authorities such as the People’s Volunteer Corps (‘RELA’), and sometimes hotel staff, to prove their marriage.[4]
[4] DFAT Report, [3.39].
Malaysia has a two-track legal system: common law, administered at the federal level; and Islamic religious law, known as syariah (also spelled sharia), which is administered at the state level and varies by jurisdiction. Matters considered by states under syariah 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. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Development (JAKIM) and the National Fatwa Council (NFC).[5]
[5] DFAT Report, [3.40] and [3.42].
In recent decades, local and international observers have noted the increasing influence of conservative Islamic ideas in Malaysian politics and society, a phenomenon described as ‘Islamisation’. The influence of conservative Islamic parties on Malaysia politics has been especially prominent since the defeat of the BN coalition in 2018 and the electoral success of the PAS.[6]
[6] DFAT Report, [3.49].
Islamic groups and leaders have criticised, and in some cases harassed (chiefly online) commentators and community groups for expressing concern over a perceived increase in the Islamisation of the government and shrinking space and freedom for non-Muslims to practise their faith. The former King, Sultan Abdullah, has reportedly warned Malaysians against making any ‘insinuating comments’ regarding Islam. Malay-dominated parties, led by UMNO, have also warned the non-Muslim community in Malaysia not to meddle in the Islamic affairs of the country. Malaysia restricts the rights of followers of any branches of Islam other than Sunni, with those following Shi’a or other branches subject to arrest for deviancy. Shi’a Islam, Ahmadiyyah and other non-Sunni sects are considered illegal in Malaysia.[7]
[7] DFAT Report, [3.45] and [3.52].
State religious departments take an active role to expand and preserve the official Islamic identity of individuals and society. The role of religious departments in advancing the official Islamic identity can negatively affect the rights of ethnic and religious minorities.[8]
[8] United States Commission on International Religious Freedom, 2024 Annual Report, p.65 (accessed 23 July 2024).
An estimated 250,000 Shi’a Muslims live in Malaysia, making up a small proportion of the country’s total Muslim population. Most originate from Iran. Shi’a and Sunni Muslims live side by side, some intermarry, and some have family members that practise either the Shi’a or Sunni Muslim faith. National ID cards mark individuals as Muslims, but do not distinguish what branch of the religion they follow. There are no restrictions on movement within Malaysia specific to Shi’a Muslims.[9]
[9] DFAT Report, [3.65].
Both federal and syariah laws have been applied in a discriminatory manner against Shi’a Muslims. A 1996 fatwa issued by the Committee of the National Council for Islamic Affairs – with effect under syariah – requires Muslims to follow the Sunni Islam doctrine. Under the fatwa, authorities consider Shi’a Islam a ‘deviant’ form of Islam, and 12 out of 14 states ban Shi’a Islam (the exceptions are Kelantan and Sarawak). Several state constitutions (Kelantan, Perlis and Kedah) recognise the state’s official religion as Ahli Sunnah Wal Jamaah (Sunni Islam). These state laws enable state Islamic authorities to detain and prosecute Shi’a found to be proselytising.[10]
[10] DFAT Report, [3.66].
Local non-government groups and religious authorities told DFAT that enforcement efforts were generally focused on conversions (to Shi’a Islam) and proselytisation, not on assembly or worship. However, in 2019, authorities in Selangor and Johor state arrested a total of 31 Shi’a at two private events. DFAT is not aware of charges being laid after these arrests, nor of any arrests of Shi’a since 2019. According to in-country sources, Shi’a who were not involved in activism or proselytisation can typically practice their faith without harassment.[11]
[11] DFAT Report, [3.67].
DFAT assesses that Shi’a face a low risk of societal discrimination and a moderate risk of official discrimination in the form of restrictions on proselytising or promoting Shi’a Islam, which can result in harassment and, in rare cases violence, by state authorities.[12]
Relationships outside of marriage
[12] DFAT Report, [3.69].
Islamic doctrine in Malaysia places a high cultural value on the institution of marriage. An un-married Muslim woman in a close relationship with a non-Muslim man will likely breach various syariah-based laws. Khalwat (illicit proximity) and zina (unlawful sexual intercourse) are syariah-based law violations that are punishable with a fine or imprisonment, or both. Penalties for immoral offences vary between Malaysian states in accordance with each state’s syariah laws. For example, under the Syariah Criminal Code (Federal Territories) Act 1997 both khalwat and zina are offences but in a practical sense, offenders are commonly prosecuted for khalwat:[13]
Under section 27 listed above, two people can be legally arrested for khalwat if they are found “in any secluded place or in a house or room under circumstances which may give rise to suspicion that they were engaged in immoral acts.” Note that this definition refers to “immoral,” not “sexual,” acts. Yet in court, this is taken to mean that the couple were, at the time of arrest, engaged in illicit sexual intimacy that may or may not have included unlawful sexual intercourse (zina). Furthermore, what counts as “immoral” acts heavily depends on the subjective interpretations of the religious enforcement officers conducting the arrest. The rather loose and ambiguous definition of what constitutes khalwat thus makes it easier to prosecute couples on this charge, as opposed to other crimes such as zina (s. 23), for example, which would require the testimony of four male witnesses who actually observed the act of sexual penetration taking place.
[13] ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nurul Huda Mohd. Fazif, Journal of Women of the Middle East and the Islamic World, Volume 18, Issue 2-3, Brill, October 2020, pp.335-336.
Policing of immoral offences is conducted by a dedicated Islamic enforcement unit (Vice Prevention Unit (VPN)) and typically done in areas synonymous with immoral behaviour, like budget hotels, and at other locations when notified by members of the public.[14]
Children born outside of marriage
[14] ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Nurul Huda Mohd. Fazif, Journal of Women of the Middle East and the Islamic World, Volume 18, Issue 2-3, Brill, October 2020, p.336.
Under Islamic Law, a child is considered legitimate if the parents are legally married to each other when the child was conceived and born. Legitimacy is an important issue for Muslims as it involves the issue of nasab (lineage) which is pertinent to legitimacy matters. If a child is legitimate, his nasab is of his father and if illegitimate, of his or her mother. An illegitimate child has no relationship whatsoever with his or her biological father. The Islamic view is that that a child is legitimate if it is born six months after solemnisation of marriage or two or four years after the husband’s death or divorce, respectively.[15]
[15] ‘Does Illegitimacy States of Children Matter? A Review on Malaysia Perspective’, M. D. R. Gopal, International Journal of Applied Psychology ( 2015, pp.109-114 (accessed 23 July 2024.
A child’s birth must be recorded and registered with the National Registration Department. The person providing the registration information must be the father of the child, the mother of the child, a resident of the house where ethe child was born, to the knowledge of the residents, anyone present at the time of birth, and anyone who has custody of the child. While s 13 of the Births and Deaths Registration Act 1957 (Act 299) appears to suggest that the father of an ‘illegitimate’ child can be registered with the father’s consent, the practice of the National Registration Department is to register the birth of the child without attaching the father’s name until the required documents, as discussed in the Fatwa Committee meeting of the National Council for Islamic Religious Affairs Malaysia on 28-29 January 1981. The outcome of this meeting was that a child born out of wedlock with Abdullah is not considered the biological father’s child.[16]
[16] ‘Legal Protection of the Rights Children Born Out of Wedlock: A Comparative Study in Indonesia and Malaysia’, I. Tohari, A. Waseso and E. Herawati, Internatinoal Journal of Current Science Research and Review, Volume 7, Issue 4 April 2024 ( (accessed 24 July 2024).

For illegitimate Muslim children, the words ‘bin/binti Abdullah’ (son/daughter of servant of God) are automatically inserted in place of the father’s name when registering their birth. This can have far reaching consequences as these children are publicly labelled as ‘illegitimate’ by virtue of their surname.[17]
[17] Does Illegitimacy States of Children Matter? A Review on Malaysia Perspective’, M. D. R. Gopal, International Journal of Applied Psychology ( 2015, pp.111-112 (accessed 23 July 2024.
A child born outside of marriage is considered illegitimate and will follow his or her mother’s citizenship.[18]
Gender based violence
[18] DFAT Report, [3.25].
Violence against women is a significant problem in Malaysia. While surveys have indicated that the prevalence of reported intimate partner violence in Malaysia is relatively low (affecting 8 per cent of ever-partnered women, according to one 2013 study), experts believe the actual incidence is likely much higher, and that it is underreported due to it being a ‘sensitive topic’. The Women’s Aid Organization, an NGO, recorded 2,815 cases of domestic violence between 2021 and March 2023. A 2021 survey by the Women’s Aid Organisation found 53 percent of respondents believed domestic violence was a ‘normal’ reaction to stress or frustration.[19]
[19] DFAT Report, [3.116].
State protection for women and girls experiencing gender-based violence (GBV) is mixed. There are special police units that deal with child abuse and GBV; however, in-country sources told DFAT that these services were inadequate to meet demand. Women who approach police for help may not have access to a female officer. According to in-country sources, the families of women who have experienced GBV often placed pressure on them to drop the matter, either directly or through police officers dealing with the case.[20]
[20] DFAT Report, [3.117].
According to in-country sources, police often failed to follow up on reports of GBV. It was not uncommon for a woman who has experienced GBV to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process. In-country sources said specialist GBV investigative units (Branch D11 of the RMP’s Criminal Investigation Department) tended to respond to GBV more sensitively and effectively than regular front-line police officers.[21]
[21] DFAT Report, [3.118].
A requirement to deal with the closest police station to the incident can make it difficult for women who experience GBV to relocate. Other barriers include financial costs of living alone and/or paying for additional childcare, especially where family may have previously provided childcare.[22]
[22] DFAT Report, [3.119].
Amendments to the Domestic Violence (Amendment) Act (2017) strengthened protections for individuals who experience domestic violence and expanded the definition of domestic violence to protect: spouses, former spouses, children, family members, ‘incapacitated adults’ who are living as members of the family, and de facto spouses (couples without a registered marriage who have gone through a religious or customary marriage ceremony). Nevertheless, the Domestic Violence (Amendment) Act does not cover domestic violence between unmarried couples, nor does it include rape within marriage in its definition of domestic violence.[23]
[23] DFAT Report, [3.120].
The amendments to the Domestic Violence (Amendment) Act also introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week to prevent a perpetrator from entering a safe location. An EPO can also be used to remove an offender from the house where the victim lives. In-country sources told DFAT that EPOs were difficult to obtain and required strong evidence of violence or damage to property. Police reportedly do not always enforce EPOs.[24]
[24] DFAT Report, [3.121].
In 1996, the government introduced One Stop Crisis Centres (OSCCs) in the emergency departments of Malaysian hospitals, which aim to provide a centralised one-stop facility to women who experience GBV. The Women’s Aid Organisation reported in 2019 that there were OSCC services in 102 government hospitals nationwide, with the number of clients who access each OSCC varying from fewer than 10 to over 500 a year. In-country sources told DFAT that OSCCs were primarily used in city centres.[25]
[25] DFAT Report, [3.122].
A few dozen government women’s shelters operate throughout Malaysia, as well as several operated by NGOs. Shelter conditions vary. Some are also used to house other vulnerable groups, such as the elderly. Shelters may restrict access to movement and employment of inhabitants. Women can sometimes access protection in hospitals without speaking to a police officer, for example by making a report while receiving treatment for injuries.[26]
[26] DFAT Report, [3.123].
DFAT assesses that women and girls in Malaysia face a moderate risk of GBV in the form of domestic violence. State protection is available but often inadequate or ineffective in practice. Family, economic, and societal pressures often act as barriers to leaving abusive relationships. [27]
State authorities and protection
[27] DFAT Report, [3.125].
The Royal Malaysian Police is based on the British constabulary model, employs approximately 115,000 officers, and operates over 800 police stations across Malaysia. Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members’ responses varies depending on levels of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service. The RMP is around 80 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians, and Indian Malaysians.[28]
[28] DFAT Report, [5.5].
Religious enforcement officers, known locally as religious police, have a range of powers depending on the syariah laws that apply in each state. Religious enforcement officers can detain and charge individuals to go before syariah courts for a range of reasons, including indecent dress, alcohol consumption, the sale of restricted books, or for being in close proximity to members of the opposite sex. State level syariah imposes a range of penalties. Although state religious officers have no jurisdiction over non-Muslims, their considerable range of powers means their actions can directly impact non-Muslims, who may, for example, feel compelled to comply with Islamic dress codes.[29]
[29] DFAT Report, [5.9].
Relevant state religious departments and the RMP can investigate misconduct by religious enforcement officers, however the RMP is reportedly generally unwilling to involve itself in state religious matters. Most complaints against religious enforcement officers have been related to the mistreatment of transgender people, domestic violence victims and non-Muslim parents in situations of unilateral child conversion to Islam.[30]
[30] DFAT Report, [5.10].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants have given consistent evidence throughout the history of their visa applications and I am generally satisfied with the credibility of their evidence and claims. I have placed little weight on minor inconsistencies between their evidence and, whilst the first-named applicant’s evidence was vague or lacking in detail at certain times, I have also considered the passage of time since he experienced events in Malaysia and the effect that may have on his subsequent recollection. I have not uncritically considered and accepted the applicants’ evidence, however.
The applicants’ four children are not applicants in this review. There is no evidence before me that they have applied for and/or have been refused a Protection visa. I have no jurisdiction in relation to these four children.
Applicant 1
I am satisfied from the available evidence that the first-named applicant is a citizen of Malaysia who does not have a right to enter and reside in any other country. I accept that he was born into a Sunni household which he gradually moved away from and has been a follower of Shia since around the age of [age] years. I do have some concerns about his claim to have been arrested at two Shia gatherings, but he did not seek to embellish his claims beyond being arrested and warned to stop being a Shia and I accept that this is also consistent with country information regarding the general treatment of Shia’s in Malaysia. I accept that his involvement and practice of the Shia faith has continued and deepened whilst in Australia, and that this is a genuine practicing of his faither and is not motivated for the purposes of strengthening his claims. I accept, and place weight upon, the statutory declaration given by a third party which attests to the first-named applicant’s involvement in Shia celebrations and the evolving expression of his faith. I find that he does not hold an official role or position, such as Imam, but is otherwise involved in discussing and expressing his faith. I am comfortably satisfied that he will continue with the public expression of his Shia faith if he returns to Malaysia.
I accept that the applicants’ children are being raised to follow Islam, but the choice of following the Sunni or Shia branch is being left to each child to decide when they are old enough to do so. It is at least possible that one or more of the applicants’ children will follow the Shia branch of Islam when they are older.
The fact that he was able to marry a Malaysian Sunni woman in the past leads me to conclude that being a follower of the Shia faith does not prevent him from marrying the second-named applicant, although I accept that this cannot happen at the moment because she is still legally married to another man. I note the country information that suggest a non-Muslim is prevented from a marrying a Muslim, however, it is less clear whether a Muslim of the Shia branch is still considered a Muslim for the purposes of marriage even if the Shia branch is considered a ‘deviant’ form of Islam.
I accept that he sought permission from the second-named applicant’s family to have a relationship with her, but that her father and brother objected because the first-named applicant is Shia. I accept that her father and brother were physical with the first-named applicant. I find that her family are still likely to be aggrieved and ashamed of the applicants’ relationship and will seek to stop the applicants from continuing their relationship if they return to Malaysia. The fact that the second-named applicant has four children with the first-named applicant and that they are all born out of wedlock will exacerbate her family’s animosity toward them both.
After travelling to Australia with the second-named applicant, I accept that her husband became aware they had left Malaysia together and were in a relationship. I do have some concerns about the lack of any objective evidence, however I am prepared to accept on balance, and given the passage of time since these events occurred, that the second-named applicant’s husband contacted the first-named applicant by social media and made threats against them both. I also accept that her husband contacted the second-named applicant’s family and gave them naked photographs and/or video of the second-named applicant as way of shaming and embarrassing her.
I accept that the applicant is the biological father of four children with the second-named applicant, and that the children will be considered illegitimate in Malaysia because they were all born out of wedlock. This means that the first-named applicant will not be able to be registered as the children’s father. There will be no legal recognition of him as their father and he will be unable to legally exercise any parental rights or responsibilities.
The first-named applicant is a practicing Shia Muslim in a de-facto relationship with a married Sunni woman. They have four children born outside of marriage, and the second-named applicant’s family object to their relationship.
In these circumstances, I find that the first-named applicant faces a real chance of serious harm. Increasing rates of Islamisation in Malaysia, the first-named applicant’s profile as an actively practising Shia Muslim, the outlawing of Shia as a deviant form of Islam, the anger and shame that the second-named applicant’s parents will direct towards the first-named applicant and his inability to be registered as the father of his children or exercise any legal rights in respect of them lead me to conclude that his chance of harm he faces is more than remote. It is a real chance. The harm involves, but is not limited to, a threat to his liberty, significant physical harassment, significant physical ill-treatment and the denial of access to basic services. The agents of harm are the Malaysian authorities, the second-named applicants family and parts of Malaysian society more generally. This makes it a real chance of serious harm that relates to all areas of Malaysia. As the agents of persecution involve state authorities, I find that effective protection measures within Malaysia are not available to him.
The essential and significant reason, or reasons, for his feared harm is his religion and/or his membership of a particular social group(s). This involves being a practicing Shia Muslim who is in a de-facto relationship with a married Sunni woman and being the father of four children born out of wedlock. These are innate, immutable and fundamental characteristics to the applicant’s identity or conscience that he cannot, or should not, be forced to modify, conceal, alter or renounce. The characteristic distinguishes the group from society and the characteristic is not a fear of persecution.
The persecution involves the ongoing denial of the first-named applicant’s ability to practice and express his Shia religion according to his desire and the tenants of his faith, the denial of his ability to live in a de-facto relationship with his spouse without contravening laws and societal norms, and the denial of his status and ability exercise lawful rights as the father to his four children. He will be discriminated against and punished by authorities and Malaysian society more generally because he is a Shia Muslim, is in a de-facto relationship with a married Sunni woman, and because he has four children born out of marriage. This amounts to systematic and discriminatory conduct.
I am satisfied that the practice of his Shia faith, his ongoing de-facto relationship with a married Sunni Muslim and the birth of his four children in Australia is not conduct engaged in in Australia for the purposes of strengthening his claim to be a refugee.
I am satisfied that the first-named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Applicant 2
I also accept the second-named applicant is a citizen of Malaysia who does not have a right to enter and reside in any other country. She is a married Sunni Muslim in a de-facto relationship with a Shia man who is not her husband. She is unable to divorce her husband without his consent, and her husband is not willing to give his consent to get divorced. Her family object to her de-facto relationship because the first-named applicant is a Shia Muslim. She has four children born out of marriage with her de-facto partner.
In these circumstances, I find that the second-named applicant faces the real chance of serious harm. The harm includes, but is not limited to, a threat to her life or liberty and significant physical harassment or physical ill-treatment. It also includes significant physical hardship and the denial of access to basic services or capacity to earn a livelihood that threatens her capacity to subsist. The agents of harm are the Malaysian authorities, members of her own family, her husband and parts of Malaysian society more generally. This makes it a real chance of harm that relates to all areas of Malaysia. The agents of persecution involve state authorities which leads me to find that effective protection measures are not available to her. I also find that protection from the relevant police and/or authorities will be withheld on the basis that the first-named applicant is a Shia Muslim which is deemed a deviant and unlawful branch of Islam in Malaysia.
The essential and significant reason, or reasons, for her feared harm is because of her membership of a particular group. This group is characterised as being a married Sunni woman in a de-facto relationship with a Shia man and who has four children born out of marriage. These are innate, immutable and fundamental characteristics to her identity or conscience that she should not be forced to renounce. The characteristic distinguishes the group from society and the characteristic is not a fear of persecution.
Taking steps to modify her behaviour to avoid a real chance of persecution would involve conflict with characteristic that are fundamental to her identity or conscience and/or require the concealment of innate or immutable characteristics.
The persecution involves the ongoing prohibition on the second-named applicant living together with her de-facto partner and the stigma and societal discrimination associated with being a Muslim woman with four children born outside of marriage. It involves being vulnerable to exposure and prosecution by her family, conservative Muslim members of Malaysia’s community and Malay authorities. She will be discriminated against and punished because of her relationship status and because she has children born outside of marriage who are considered illegitimate. This discrimination will be ongoing and targeted and involves systematic and discriminatory conduct.
I am satisfied her ongoing de-facto relationship with a Shia Muslim and the birth of her four children in Australia is not conduct engaged in in Australia for the purposes of strengthening her claim to be a refugee.
I am satisfied that the second-named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matters for reconsideration with the following directions:
(i)that Applicant 1 (or the first-named applicant) satisfies s 36(2)(a) of the Migration Act; and
(ii)that Applicant 2 (or the second-named applicant) satisfies s 36(2)(a) of the Migration Act.
Andrew Verduci
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3555

26 July 2024

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