2303255 (Refugee)

This matter concerned an application for a protection visa by two applicants, identified as Applicant 1 and Applicant 2. The dispute centred on whether the applicants met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), which requires Australia to have protection obligations because the person is a refugee. The decision was made by Member Andrew Verduci of the Administrative Appeals Tribunal.

The court was required to determine if the first-named applicant, a Malaysian citizen, held a well-founded fear of persecution for reasons of religion, specifically his practice of Shia Islam, and if he would be unable or unwilling to avail himself of the protection of Malaysia. Additionally, the court needed to assess whether the second-named applicant, a Malaysian Sunni Muslim woman in a de facto relationship with the first-named applicant, also met the criteria for a protection visa, considering her circumstances and potential risks in Malaysia. The court also had to consider the country information regarding the treatment of Shia Muslims in Malaysia, the legal framework surrounding religious practice, and the implications of relationships outside of marriage and children born outside of marriage under Malaysian law.

The Tribunal found that the first-named applicant was a credible witness and accepted his evidence that he was a practicing Shia Muslim who had faced some level of arrest and warning for his religious practice in Malaysia. The Tribunal was satisfied that he would continue to publicly express his Shia faith if returned to Malaysia. The Tribunal also considered the country information indicating that Shia Islam is considered a 'deviant' form of Islam in Malaysia, with 12 out of 14 states banning it, and that Shia Muslims face a moderate risk of official discrimination. The Tribunal concluded that the first-named applicant satisfied the criteria for a protection visa under section 36(2)(a) of the Act.

The Tribunal remitted the matters for reconsideration with directions that both Applicant 1 and Applicant 2 satisfy section 36(2)(a) of the *Migration Act*.