Refugee Status Appeals Authority
REFUGEE APPEAL NO. 1039/93
RE HBS AND LBY
AT AUCKLAND
Before: R.P.G. Haines (Chairman)
S.T.D. Clapham (Member)Appearing for the Appellants: The appellants appeared on their own behalf
Appearing for the NZIS: No appearance
Date of Hearing: 15 March 1993
Date of Decision: 13 February 1995
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DECISION _________________________________________________________________This is an appeal against the decision of the Refugee Status Section of the New Zealand Immigration Service declining the grant of refugee status to the appellants who are both citizens of Malaysia.
INTRODUCTION
The delays in this case have been regrettable.The appeal was heard on 15 March 1993. The appellants were not represented and appeared in person although they have been in receipt of assistance from an immigration consultant who at some point appears to have taken up employment with a solicitor practising at Henderson. The Refugee Status Section of the New Zealand Immigration Service did not attend the appeal hearing.
This appeal raises difficult issues of Malaysian domestic law relating to apostasy by Moslems, the law relating to the marriage of a Moslem male to a non-Moslem female and the consequences of such marriage both in relation to the wife and to the children of the union. The appellants relied upon two letters from a firm of solicitors in Petaling Jaya situated in the state of Selangor in West Malaysia which is the “home” state of both appellants.
Because of the difficulty of the issues and the paucity of the information available to the Authority, the Authority requested the Refugee Status Section to obtain further specified information. The Authority was acting pursuant to paragraph 9 of the (then) Terms of Reference dated 1 April 1992 which provided:
“The Authority may, in relation to any appeal, request the Refugee Status Section to seek to obtain further information or to carry out further investigations and report to the Authority. If, in the opinion of the General Manager of the New Zealand Immigration Service in any such case, it is not practicable to obtain or to seek to obtain the information or to carry out the investigation, the Refugee Status Section shall report accordingly to the Authority.”Subsequent to the making of the request, the Secretariat noted the file “Response received 21/9/93". However, for reasons which cannot now be discovered, the “response” did not reach either of the members who heard the appeal, a fact which was not discovered until May 1994. Enquiries made with the Refugee Status Section revealed that no copy of the response was kept by them nor was there a record of the nature or content of the response. The Refugee Status Section was accordingly requested once more to obtain the specified information. It was not until 20 December 1994 that the General Manager of the Immigration Service advised that the information could not be obtained.In these circumstances, the appeal must necessarily be determined on the information provided by the appellants. In this regard we have borne in mind paragraphs 196 and 203 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. The latter paragraph provides:
“After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.”As noted in paragraph 204, the benefit of the doubt is generally only given when all available evidence has been obtained and checked and when the decision-maker is satisfied as to the appellant’s general credibility. The appellant’s statements must be coherent and plausible, and must not run counter to generally-known facts. In this regard, we find that both appellants are credible witnesses and that so far as we can discover on the information before us, their claims do not run counter to what is generally known of Malaysia.BRIEF HISTORY OF THE APPELLANTS’ ATTEMPTS TO GAIN RESIDENCE STATUS IN NEW ZEALAND
HBS, the male appellant, arrived in New Zealand on 6 March 1989. LBY, the female appellant, arrived in New Zealand approximately one month later on 26 April 1989. Their almost simultaneous arrival was not a coincidence. Prior to coming to New Zealand they had wanted to marry but in circumstances shortly to be outlined (particularly the fact that HBS according to Malaysian law is a Moslem), the couple decided to leave Malaysia for New Zealand and to marry here upon their arrival.
They were married at Auckland on 5 October 1989 and a Certified Copy of Entry of Marriage establishing this fact has been tendered in evidence. Their first daughter was born at Auckland on 25 July 1990 and their second daughter was born at Auckland on 20 November 1992.
Both appellants initially made unsuccessful attempts to gain residence on occupation grounds and it was only after those attempts failed that the refugee application was lodged.
LBY has some basic accounting qualifications and in Malaysia worked as an accounts clerk. In November 1989, having received a job offer from an Auckland enterprise catering to the local Chinese community, she applied for residence. By letter dated 15 December 1989, that application was declined on the grounds that the position offered to her could be filled from the local workforce. Her application for reconsideration of this decision was unsuccessful and the initial decision was affirmed by the Immigration Service in a letter dated 27 February 1990.
HBS who is a specialist painter and decorator applied for residence in March 1990 on the basis of a job offer from an Auckland painting and decorating firm who found that he had the necessary qualifications to meet the standards required by them. However, by letter dated 1 August 1990, Mr S’s application was declined on the grounds that the position could be filled from the local workforce. An appeal to the Minister of Immigration was unsuccessful, the appeal being declined by the Minister in a letter dated 8 May 1991.
By letter from their immigration consultant dated 17 May 1991, Mr S and Mrs L applied for refugee status. The application was supported by a letter from Mr S’s mother outlining the family’s somewhat complicated ethnic and religious background and underlining the difficulties which the appellants would face were they to return to Malaysia.
The Refugee Status Section interview took place on 29 October 1991. For reasons which are not clear, only Mr S attended the interview. He was accompanied by the immigration consultant. Following the interview an Interview Report was sent to the consultant under cover of a letter dated 18 November 1991 and Mr S was invited to submit his comments in writing within ten working days. By letter dated 28 November 1991, the consultant responded at some length enclosing a letter from Saran Singh & Co, Advocates and Solicitors of Petaling Jaya dated 22 November 1991 addressing the relevant domestic law issues in Malaysia. We will return to this letter shortly. However, for present purposes it is sufficient to note that the consultant’s submissions concluded with a reference to Mrs L which is unfortunately somewhat ambiguous:
“The degree of persecution that will result should our clients be made to return to Malaysia and our client’s wife forced to embrace Moslem religion against her wishes may be quantified by an interview with her as her feelings with respect to such conversion are relevant thereto. That is a decision we leave up to you.”The ambiguity, or perhaps indecision, lies in the last sentence. One would have thought that fairness required Mrs L to be heard on her refugee application and it is disappointing both that the consultant did not insist upon an interview and that the Refugee Status Section did not recognize their obligation to investigate the specific circumstances of her case.Be that as it may, the day after the receipt of the consultant’s letter, the Refugee Status Section issued a decision declining Mr S’s refugee application. The decision does not specifically address Mrs L’s position. The decline letter also revealed that information had been received from the UNHCR Canberra office. That information was adverse to the appellant’s interests and is explicitly cited in support of the decline decision. The information had not previously been disclosed to the appellants, a matter to which we will also return.
From this decision the appellants have appealed.
THE APPELLANTS’ CASE
MR S
Mr S’s mother is a Malay Chinese of the Buddhist religion who, at the age of sixteen years, married a Malay man of the Moslem faith. She was required to convert to Islam prior to the marriage. When the appellant was approximately ten years of age, his parents divorced. Custody of the six children was awarded to his mother. The appellant has had virtually no contact with his natural father. The family subsequently moved to Singapore where his mother eventually remarried. The appellant’s stepfather (now deceased) was a citizen of Singapore and Chinese by ethnic origin. However, in order to marry the appellant’s mother who was still a Moslem in name, he too converted to Islam. The conversions by both the appellant’s mother and his stepfather appear to have been in name only as the appellant described his upbringing as “a Chinese” and considers himself to be Chinese, not Malay. His stepfather, whom he regarded as his real father, continued to practise Buddhism until approximately 1985 when he converted to Christianity and became a Pentecostalist.The appellant does not consider himself to be a Moslem and has visited a mosque only once in his life when he went out of curiosity. He considers himself to be a Christian but he makes no claim to being a devout adherent to any particular church or doctrine nor does he claim observance of religious formalities. Rather, he is conscious of himself as a person of Chinese ethnic origin who speaks fluent Malay and Chinese and who as part of his identity considers himself to be Christian. As to this latter aspect of his identity, he has much in common with a large number of New Zealanders who would likewise consider themselves to be Christian by way of religion but without attachment to a specific Church, dogma or formality. We should add by way of completeness that the appellant is not a citizen of Singapore and is not entitled to such citizenship.
MRS L
Mrs L comes from a Malay Chinese family and is a Buddhist by religion although she is not what she described as a “practising Buddhist”.THE CASE
Approximately four years prior to their arrival in New Zealand, Mr S and Mrs L formed a relationship. They wished to marry but feared for the consequences both to them and to any children of the marriage. It is their belief that as Mr S is the son of a Moslem Malay, he remains a Moslem under Malaysian law and is therefore governed by the Shariah Law which forbids marriage between a Moslem man and a non-Moslem woman unless the woman first converts to Islam. The relationship between the couple and every aspect of their daily personal existence would thenceforth be governed by Islamic law. For his part, Mr S does not consider himself to be a Moslem and does not wish to have his personal and family life governed by the Shariah. For her part, Mrs L is adamantly opposed to converting to Islam and living the rest of her life under what she sees as the intolerable oppression imposed on women by that faith. They gave evidence that it would not be possible for Mr S to renounce Islam as the procedures prescribed in Malaysia are extremely difficult and the would-be apostate encounters hostility and bureaucratic obstruction. Mr S stated that one of his sisters has been trying unsuccessfully for the past ten years to renounce Islam and thereby change her name officially from Malay to Chinese. They say that it would not be possible for them to bypass these difficulties by living in a de facto relationship as they will still encounter difficulties in all their dealings with government departments and government-run institutions, such as schools and in addition, they will be at the mercy of groups which enforce the religious law which prohibits khalwat, or “close proximity” between unmarried couples.In support of their claims they have produced letters from Saran Singh & Co, Advocates and Solicitors dated 22 November 1991 and 12 March 1993 respectively. The first letter was obtained for the purpose of the Refugee Status Section hearing, the second for the hearing before this Authority. Saran Singh holds a B.Sc. (Hons) London, is a barrister-at-law (Lincoln’s Inn) and holds a diploma in Syariah (his spelling) law and practice. In summary, his opinion in relation to the factors we have earlier outlined is as follows:
1. Mr S is a Malaysian Moslem by birth. Even though he has not practised Islam, he remains a Moslem for all intents and purposes. By this we understand that all Malays are Moslems by birth.
2. In Malaysia there is no provision under the Syariah Law for the renunciation by a Moslem of his religion.
3. The Malaysian authorities do not encourage renunciation of Islam as it is the official religion of Malaysia. The opinion states:
"It would therefore be difficult if not impossible for [HBS] to renounce his religion in Malaysia.”4. A Moslem can only marry a Moslem. For the marriage of Mr S and Mrs L to be recognized in Malaysia, Mrs L would have to convert to Islam.5. In the event of Mrs L not converting to Islam and the couple continuing to cohabit, Mr S runs the risk of being charged under the khalwat law and may be jailed or fined.
6. Furthermore, in the event of Mrs L not converting to Islam:
(a) She will not be entitled to inherit any of Mr S’s property.
(b) She will have no rights whatsoever over property and/or other ancillary relief involving the marriage.
(c) She will be shunned by the Moslem community in general.
(d) The children of the marriage will be regarded as illegitimate.
The Authority’s own researches have only confirmed this opinion. For example, on the question of renunciation by a Moslem of his religion, see Gordon P. Means, “Malaysia: Islam in a Pluralistic Society” in Carlo Caldarola (ed), Religions and Societies: Asia and the Middle East (1982) 445, 472-473:
“Islamic laws provide for the conversion to Islam. The convert is issued a certificate of conversion and registered as a Moslem, whereupon he becomes subject to the jurisdiction of the Moslem courts and is made liable for the obligations of Islamic law, as well as eligible for the privileges associated with being Moslem. In some states, the new convert also receives payment by the Department of Religious Affairs from funds derived from zacat and fitrah taxes which are earmarked for “new converts”. There are no provisions in Islamic statues [sic] for the conversion of a Moslem to another religion or for the renunciation of his religion by a Moslem. Traditional Islamic jurisprudence tolerated other religions, but they were not permitted to expand (Levy 1962: 184-185), and Moslems were forbidden to abandon Islam. The same principle is applied in Islamic law in Malaysia, except that it has been unofficially interpreted that a Moslem can petition his ruler asking that he no longer be counted as a Moslem. There must be a waiting period of about a year, during which time the petitioner is placed under the supervision of a religious official for instruction in the principles of Islam, ostensibly so that the petitioner will have full knowledge of what it is that he is renouncing. In the few cases where this procedure has been followed, the rulers have never approved the request for a Moslem to be struck from the registry of Moslems.”The alienation feared by Mr S is not to be under-estimated. Even non-Malay Moslems, such as converts, find it difficult to integrate into the Malay-dominated Moslem community: Hussin Mutalib, Islam and Ethnicity in Malay Politics (1990) 163.The religious and cultural plurality in Malaysia results in a system of family law that is similarly plural. The family lives of those who profess Islam are governed by religious personal law, established and regulated by the states, and those who are regarded as being of an “aboriginal” race are governed by their personal law or adat, again established and regulated by the states, while the personal law of the balance of the community is within the legislative competence of the federal government: Jane Connors, “Malaysia: Responding to Religious and Cultural Pluralism” (1988-89) 27 Journal of Family Law 195, 196.
There is no succession between a Moslem and a non-Moslem and an apostate cannot inherit or be inherited from: M.B. Hooker, The Personal Laws of Malaysia: An Introduction (1976) 44.
Account must also be taken of the fact that there has of late been a more vigorous enforcement of Islamic laws and the application of greater penalties for Islamic violations in most of the states in Malaysia. These trends towards stricter Islamic administration at the state level have been matched by new regulations at the federal level: Gordon P. Means, Malaysian Politics: The Second Generation (1991) 102. In relation to the khalwat laws, religious officers have reportedly raided homes of suspected offenders with reporters and television cameras in tow and Moslems in Malaysia have been criticized for spying on their neighbours to see if they are breaking the khalwat law: Ian Stewart, “Moslem “Morality Spies” Stir up Storm”, South China Morning Post International Weekly, for the weekend of August 20-21, 1994, 8 col 5.
In short, Mr S and Mrs L submit that they are in an impossible situation. He regards himself as Chinese and of the Christian faith, but under the law of Malaysia is regarded as a Malay of the Islamic faith. His only option is to renounce Islam and that in turn results in a challenge to the fundamental tenet of Islam that renunciation is not provided for. In addition, such procedures as are prescribed by the laws of Malaysia are difficult, if not impossible to take advantage of. The quotation from Gordon P. Means, “Malaysia: Islam in a Pluralistic Society” cited above rather suggests that no renunciation requests have ever been approved. Even if Mr S is ultimately successful, he will face the ostracism of the Malay community. For her part, Mrs L does not wish to convert to what to her is a strange and alien faith which will impose upon her a life-long burden restricting how she can behave and what she can eat and how she can dress. As a “Westernized” Chinese Malay she would find it totally unacceptable to observe what she believes to be the humiliating and oppressive dress code and behaviour restrictions imposed on Moslem women. For example, the government of Kelantan, a seat of Malay culture, has ordered Moslem women to cover everything but their faces and hands: “Casting the First Stone”, Asia Week, September 22, 1993, 32, 33.
Thus, from the simple desire of the appellants to live together in the union of marriage, difficulties of enormous magnitude emerge. He would like to renounce Islam but cannot. She will have to convert to Islam, but does not wish to. Living in a de facto relationship is not a realistic alternative because of the khalwat law. From their point of view they must either end their relationship or face legal and practical impediments which threaten not only their family life, but also their respective personal identities.
THE REFUGEE STATUS SECTION DECISION
The decline decision of 29 November 1991 is, as mentioned, directed only to Mr S’s case. No real consideration was ever given to Mrs L’s case and indeed, she was never interviewed. This was a most regrettable oversight.Furthermore, there was an inexplicable failure to observe the rules of fairness by receiving from a third party (the UNHCR) information prejudicial to the appellants’ case without affording an opportunity to comment on that information. See Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA); Chen v Minister of Immigration [1992] NZAR 261 (CA); Benipal v Ministers of Foreign Affairs and Immigration (High Court Auckland, 29 November 1985, A993/83, Chilwell J); Refugee Appeal No. 474/92 Re KA (12 May 1994) 15.
The Refugee Status Section decline letter of 29 November 1991 gave the following grounds for declining Mr S’s application:
1. It was not accepted that his return to Malaysia “would be intolerable”.
As explained in Refugee Appeal No. 992/92 Re PS (12 May 1994) 6 this test is wrong in law for at least two reasons:
(a) The test whether a fear is well-founded is whether there is a real chance of persecution, not whether the asylum seeker’s return to the country of origin “would be intolerable”. This was established in the Authority’s first decision, namely Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991).
(b) In any event, the “would be intolerable” test postulates a threshold equivalent to or possibly higher than the criminal standard of beyond reasonable doubt. Such a test is both unrealistic and unsustainable in the face of the “real chance” test.
Similar misdirections have been noted by this Authority in Refugee Appeal No. 81/92 Re AN (25 June 1992) 6, Refugee Appeal No. 55/91 Re SR (10 August 1992) 11, and Refugee Appeal No. 89/92 Re MS (11 August 1992) 8.
Reference should also be made to what was said in Refugee Appeal No. 855/92 Re HHM (5 August 1994):
“It is a misdirection in law to postulate a test couched in terms requiring an asylum seeker to establish that return to the country of origin “would necessarily be intolerable”. The Refugee Convention only requires that a well-founded fear of persecution be established. This means no more than that there be a “real chance” of persecution.The Refugee Status Section formulation imposes a standard of proof impossible to attain except in the most extreme case.It is difficult to see how such a test came to be applied by the Refugee Status Section as it is to be found in no jurisprudence or academic writing of which the Authority is aware. More fundamentally, it is entirely at odds with this Authority’s first decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991) which has been consistently adopted and applied in every decision of the Authority since July 1991.”2. Prior to coming to New Zealand, Mr S experienced no harassment or persecution for failing to adhere to Moslem customs and observances, despite having a Moslem name.This ground entirely misses the point of Mr S’s case. He does not dispute that he has suffered no past harassment or persecution, but his case is premised on the fact that the consequences of his marriage to Mrs L now create a real chance of persecution in the future.
3. The decision also relies on the United States Department of State Country Reports on Human Rights Practices for 1990: Malaysia (February 1991) as authority for the proposition that conversion from Islam is permitted, but not encouraged.
An identical statement is to be found in the United States Department of State Country Reports on Human Rights Practices for 1993: Malaysia (February 1994) 683, 687. However, in both reports the topic of religion is dealt with in three brief paragraphs in contrast with the much more detailed treatment of the topic in the letter from Saran Singh & Co dated 22 November 1991 which the Refugee Status Section had before it. This letter is not mentioned at all in the decline letter. This was a breach of the decision-maker’s duty to refer to the evidence, documents and submissions of the appellants and to deal with them: Bains v Canada (Minister of Employment and Immigration) (1993) 20 Imm LR (2d) 296, 300 (FC:TD):
“The second issue raised by the applicant is that although three pieces of documentary evidence directly specific to the applicant were introduced, namely, a doctor’s certificate, a letter from the applicant’s wife and a letter from the president of the Punjab Human Rights Organization, the Refugee Division made no mention of these documents in their decision. Once again, I am concerned that no mention of this documentation is made in the reasons. I agree that it is within the purview of the panel to review the documentation and accept or reject the information, however, the Refugee Division cannot simply ignore the information, particularly where in its own reasons it notes that there are genuine refugees from the Punjab. The Refugee Division, in my view, is obligated, at the very least, to comment on the information. If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant’s position.”In Ioda v Canada (Minister of Employment and Immigration) (1993) 21 Imm LR (2d) 294 (FC:TD) it was held that the case law has established that a tribunal errs in law when it:(a) Fails to consider the totality of evidence properly before it; or
(b) Fails to satisfy the Court that it has done so.
See further Rosales v Canada (Minister of Employment and Immigration) (1993) 23 Imm LR (2d) 100 (FC:TD).
4. The marriage of Mr and Mrs S is described as one in which a non-Moslem has married a non-Moslem holding a Moslem family name.
This perception is entirely mistaken. It fails to take account of the fact that because Mr S’s father was a Malay Moslem, Mr S himself is a Malay Moslem by birth. The issue is whether in practical terms he can ever lose that status, thereby becoming free to marry Mrs L without her having to convert to Islam.
5. The decline letter recites that a representative in the UNHCR Canberra office has advised that “in Malaysia, conversion from Islam is permissible”.
The information on which this opinion is based is not disclosed, nor are the circumstances in which the opinion was given. Examination of the file rather suggests that an account of the appellants’ case was given verbally over the telephone. Just how much information was given to the UNHCR officer is not recorded. It is highly unlikely that the legal opinion from Saran Singh & Co was mentioned to the UNHCR officer. It is certainly not mentioned in the decline decision itself. These factors, combined with the failure to disclose the UNHCR opinion to the appellants inevitably lead to the conclusion that no weight at all could be given to the UNHCR opinion.
6. The Amnesty International 1991 Report makes no mention of persecution in Malaysia of persons who have changed their religion from Islam, or of persons, who being non-Moslem have married non-Moslems holding a Moslem family name.
The annual reports published by Amnesty International are so general in their terms that it is hardly surprising that the Refugee Status Section found no information of value relating to the specific issues raised by this case. The more so when the facts under consideration are highly unusual and when it is remembered that the mandate of Amnesty International is not to report on all acts of persecution. Its primary focus is on “prisoners of conscience”.
We should add that nowhere in the Refugee Status Section decision is there a discussion of or reference to the relevant provisions of the Universal Declaration of Human Rights 1948 or of the International Covenant on Civil and Political Rights 1966. It is doubtful whether the issues raised by the case were ever grappled with in a meaningful way.
In the circumstances, it was hardly surprising that an appeal was lodged against the Refugee Status Section decision.
THE ISSUES
The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who:“... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.”In the context of this case the four principal issues are:1. Is the appellant genuinely in fear?
2. Is it a fear of persecution?
3. Is that fear well-founded?
4. If so, is the persecution he fears persecution for a Convention reason?
In this regard we refer to our decision in Refugee Appeal No. 1/91 Re TLY and Refugee Appeal No. 2/91 Re LAB (11 July 1991).
In the same decision this Authority held that in relation to issue (3) the proper test is whether there is a real chance of persecution.
ASSESSMENT OF THE APPELLANTS’ CASE
Having seen and heard both appellants, the Authority accepts them as credible witnesses. We also intend, in the circumstances outlined in the Introduction, to rely on the two opinions from Saran Singh & Co.We find that both Mr S and Mrs L are genuinely apprehensive as to what might happen to them should they return to Malaysia and that the consequences feared are unquestionably related to the Convention reasons of race and religion. In Refugee Appeal No. 1222/93 Re KN (5 August 1994) 23-27 we held that for the purpose of the Refugee Convention a broad meaning must be given to the word “race”. In an ethnically diverse country such as Malaysia both Mr S and Mrs L have distinct racial or ethnic origins or in Mr S’s case, mixed origins. The privileged position given to Malays by the Constitution, coupled with the constitutional linkage between Malays and the Moslem religion, inevitably brings religion into the picture. As observed by Susan E. Ackerman & Raymond L.M. L in Heaven in Transition: Non-Moslem Religious Innovation and Ethnic Identity in Malaysia (1988) 4, like ethnicity, religion in Malaysia is deeply intertwined with the individual’s sense of self and power.
In these circumstances we have little difficulty giving an affirmative answer to issues (1) and (4).
Furthermore, in the light of the opinions from Saran Singh & Co, we further conclude that the fears held by the appellants are well-founded in that there is a real chance of the anticipated difficulties occurring should they return to Malaysia in their now married state together with their two New Zealand-born daughters. An affirmative answer is given to issue (3). The real issue in this appeal is whether the consequences of the marriage as earlier outlined amount to persecution.
THE ISSUE OF PERSECUTION
The distinction between discrimination on the one hand and persecution on the other is highlighted by the analogous decision of the English Court of Appeal in Moezzi v Secretary of State for the Home Department (6 October 1988, unreported) (CA) noted in [1989] Imm AR 600. The note is in the following terms:“Moezzi v Secretary of State for the Home Department concerned an Iranian national who had been refused political asylum in September 1985. An application for judicial review had been dismissed by McCullough J. While in the United Kingdom the appellant had married an Indian national. Sir Roualeyn Cumming-Bruce delivered the leading judgment with which Fox and Lloyd LJJ agreed. The relevant passage (page 8 of the transcript) reads:“A further point has been made, arising from the situation of the appellant’s Indian wife. There was material pointing to the fact that the marriage would not be recognized in Iran because she is Hindu and is not prepared to abandon her religion and accept the tenets of the Moslem faith. Therefore, if the marriage were not recognized, their child would be treated as being born out of wedlock.“Persecution” is not defined in the Refugee Convention, although Articles 31 and 33 refer to those whose life or freedom may be threatened. There is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 399 (Dawson J). But the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute “persecution” for the purpose of the Convention: Chan 430 per McHugh J. Measures in disregard of human dignity may, in appropriate cases, constitute persecution. In Canada (Attorney-General) v Ward [1993] 2 SCR 689, 733 (SC:Can) there is acknowledgement that anti-discrimination notions underlie the Convention:The Secretary of State was entitled, when considering that facet of the family situation, to consider that there might well be a risk that the marriage would not be recognized and in my view it was open to the Secretary of State, if so minded, to regard that as a risk of discrimination as compared with a risk of persecution. If the Minister of State took the view that the degree of discrimination was likely to be such as not to have the quality of persecution, he was in my opinion entitled so to find.”““Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination.”The Court quoted with approval Professor Hathaway’s discussion of the concept of persecution in The Law of Refugee Status (1991) 104:“... persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”And at 108:“... refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard.”We recognize that the determination whether the treatment feared in any particular case amounts to persecution will involve normative judgments going beyond mere fact-finding: Damouni v Minister for Immigration, Local Government and Ethnic Affairs (1989) 87 ALR 97, 101 (FC:French J).While the right to freedom of thought, conscience and religion is a non-derogable right even in times of compelling national emergency and therefore in the first hierarchy of rights (Hathaway op cit 109), Professor Guy S. Goodwin-Gill in The Refugee in International Law (1983) 39 points out that in view of the frequently close connection between persecution and personal freedom, the following rights, although not included within the same “fundamental class” are also relevant: the right to liberty and security of the person, including freedom from arbitrary arrest and detention; and the right to freedom from arbitrary interference in private, home and family life:
“Recognition of these rights is essential to the maintenance of the integrity and inherent human dignity of the individual.”For present purposes we will concentrate on the issues of religion, privacy and family.ICCPR: ARTICLE 18 - THE RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE, RELIGION AND BELIEF
Peter van Krieken in his study Apostasy & Asylum (Raoul Wallenberg Institute, Report No. 14 (1993)) argues that the right to change religion is a fundamental human right. He points out that Article 18 of the Universal Declaration of Human Rights explicitly acknowledges a right to change religion:
“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”However, Article 18(1) if the International Covenant on Civil and Political Rights, 1966 (the ICCPR) contains no such explicit recognition:“Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”Examination of the Travaux Préparatoires shows that the difference in wording is attributable to the opposition of a bloc of Islamic states: M.J. Bossuyt, Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights (1987) 357-359. However, it is widely accepted that the words “to adopt” in Article 18(1) unambiguously imply a choice, as do the terms of the Article 18(2):“No-one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.”In this way, Article 18(2) reinforces the freedoms guaranteed in Article 18(1): Manfred Nowak: UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 317-318. See further John P. Humphrey, Political and Related Rights” in Meron (ed), Human Rights in International Law: Legal and Policy Issues (1984) 171, 178-179; Yoram Dinstein, “Freedom of Religion and the Protection of Religious Minorities” (1990) 20 Israel Yearbook on Human Rights 155, 158; van Krieken, Apostasy & Asylum Raoul Wallenberg Institute, Report No. 14 (1993) 17.Our conclusion is that international human rights law clearly acknowledges the right to change religion. The question which arises is whether Islam recognizes such right. The clear answer is that it does not. Having emphasized that he has not confused Islam with fundamentalism, Peter van Krieken in Apostasy & Asylum at 39 states:
“The reactions of Moslem political officials and religious leaders to the idea that human beings have a basic right to follow their consciences, change religion as they see it fit, and be free of discriminatory treatment based on religious belief, as Little & Co put it, are, for the most part, well-summarized as follows:“A major area of disagreement is freedom of religion. The Qur’an vigorously denounces those who renounce Islam, for “the Devil has seduced them” away from the true faith (67:25). Abu Bakr, and jurists since then, condemned secession from Islam (ridda) as doubly heinous: it is not only a violation of the compact of submission, but also a breach of contract with Allah’s representatives on earth. It is an offence both against God and the state, it is both apostasy and treason. Far from having the right to become non- Moslem, the Moslem faces the death penalty as a sanction for such a charge.”“We hasten to add that there is no evidence that renunciation of Islam is punished in Malaysia by death. However, the fact that such punishment is prescribed by Islamic law (see, for example, Lippman, McConville & Yerushalmi, Islamic Criminal Law and Procedure 40, 48) goes a long distance towards explaining the almost insuperable difficulties placed in the way of those in Malaysia who wish to renounce Islam. In this way the guarantee of religious freedom in the Constitution of Malaysia is in effect denied to Moslems: Gordon P. Means, “Malaysia: Islam in a Pluralistic Society” in Carlo Caldarola (ed), Religions and Societies: Asia and the Middle East (1982) 445, 473. As ethnicity and religion are the central components of social identities in contemporary Malaysia, the insistence that Mr S remain in law both a Malay and Moslem in spite of his wish to be considered Chinese and Christian constitutes an infringement of his civil and political rights of some magnitude.From Mrs L’s point of view conversion to Islam is an irrevocable step not only on the religious plane, but also the political. The position, as summarized by Professor Hathaway in The Law of Refugee Status (1991) at 148 is that a claim to refugee status can be established where an individual is allowed to adopt or exercise a belief system but other serious human rights consequences flow from such decision or action.
In this context we emphasize that there is no obligation on Mr S to demonstrate that he is a Christian. Nor is there any obligation for him to demonstrate that he “practises” Christianity or adheres to any particular dogma or creed. That is because the freedom of religion includes the negative freedom not to belong to any religion and to live without religious confession. In other words, freedom of religion includes freedom from religion: Dinstein, “Freedom of Religion and the Protection of Religious Minorities” (1990) 20 Israel Yearbook on Human Rights 155, 158; Nowak: UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 317 paras 15 and 16; Hathaway, The Law of Refugee Status (1991) 145-146.
Finally, we should observe that Malaysia is not a party to the ICCPR: Benjamin Mulamba Mbuyi, Refugees and International Law (1993) 327, 328.
ICCPR ARTICLE 17: THE RIGHT TO PRIVACY AND FAMILY
Article 17 of the ICCPR provides:
“1. No-one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.2. Everyone has the right to the protection of the law against such interference or attacks.”The importance of “privacy” to individual existence and autonomy is highlighted in the following passage from Nowak: UN Covenant on Civil and Political Rights: CCPR Commentary 294 para 17:“With respect to the area of individual existence, the protection of privacy is conditioned on a number of other rights of existence or closely associated with these. The protection of individual existence presupposes the protection of life, physical and mental integrity, freedom of thought and conscience and, in a State governed by the rule of law, also recognition of legal personality. Moreover, privacy protects the special, individual qualities of human existence, a person’s manner of appearance, his or her identity. Identity includes, in addition to one’s name, also one’s appearance, clothing, hair and beard style, one’s gender, feelings and thoughts, one’s specific past, as well as confession to a belief or some other conviction, i.e., passive freedom of religion and belief. Mandatory clothing or hairstyle rules therefore represent as much interference with a person’s privacy as the forced changing of a name or religious belief or this forceful influencing of thoughts and feelings (e.g., by way of mandatory treatment with psychoactive drugs that change personalities, by way of “brainwashing” or other manipulation of the subconscious without the awareness of the person concerned).”There are, on the facts of the case, very real issues relating to identity, particularly for Mrs L who does not wish to change her religious belief, to adopt a Moslem name or to change her entire existence including her appearance, clothing and way of life.And as pointed out by Nowak op cit 295 para 18, the examples just given also serve to illustrate a second manifestation of individual existence that is covered by respect for privacy: the protection of personal integrity.
Turning now from interference with privacy to interference with family life, this can result from the discriminatory and unequal treatment of Mrs L in the marriage relationship by the failure to recognize her as Mr S’s wife: Nowak op cit 300 para 29 citing the Mauritian Women case. That is, the non-recognition of the marriage carries with it the consequence that Mrs L will have no rights of inheritance, rights to matrimonial property and possibly to the children of the marriage. In the context of the analogous Article 8 of the European Convention on Human Rights, it has been held that the right to protection of family implies the right to recognition of a legal relationship between members of a family: van Dijk & van Hoof, Theory and Practice of the European Convention on Human Rights (2nd ed 1990) 368, 381. In this context the evidence that the children of the marriage will be regarded as illegitimate is significant.
ICCPR: ARTICLE 23 - MARRIAGE AND FAMILY
Article 23 of the ICCPR provides:“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.2. The right of men and women of marriageable age to marry and to found a family shall be recognized.3. No marriage shall be entered into without the free and full consent of the intending spouses.4. State Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”As to this Article, Nowak op cit 402 para 1 states that it is the only provision in the Covenant containing an institutional guarantee, i.e., protection of a status under private law is a human right. In modern human rights conventions, marriage and family have attained a prominence going far beyond Western Christian notions. As an institutional guarantee, Article 23 therefore differs from the negative protection against interference with private and family life guaranteed by Article 17.In the present case, the inability of the appellants to marry in Malaysia unless Mrs L converts to Islam amounts to a substantive denial of the rights enshrined in Article 23. The more so when living in a de facto relationship is not possible.
CONCLUSIONS ON PERSECUTION
As illustrated by Moezzi v Secretary of State for the Home Department (6 October 1988, unreported, CA) noted in [1989] Imm AR 600, a number of the elements in the present case could properly be described as discrimination rather than persecution. However, it is well-recognized that measures of discrimination, taken cumulatively, can amount to persecution. See, for example, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status paras 54 and 55. The Authority should also consciously strive both to recognize and to give proper weight to the impact of discriminatory measures on women. Although not on point, the decisions of the Federal Court of Canada at both Trial Division and Court of Appeal level addressing the question of Islamic dress code are instructive: Namitabar v Canada (Minister of Employment and Immigration) (1993) 23 Imm LR (2d) 150 (FC:TD); Fathi-Rad v Minister of Employment and Immigration (F.C.T.D. No. IMM-2438-93, April 13, 1994) (FC:TD), Reflex Issue 28 (September 1994) 2. Reference can also be made to Case Abstract IJRL/0170 (1993) 5 International Journal of Refugee Law 611, a decision of the Bayerische Verwaltungsgericht Ansbach (Administrative Court Ansbach, Germany).After a careful assessment of the facts as presented to us we have arrived at the conclusion that the various aspects of discrimination itemized in the Saran Singh & Co opinion, in their cumulative effect, do amount to persecution in that they deny the human dignity of Mr S and Mrs L in the key ways we have highlighted in discussing the provisions of the International Covenant on Civil and Political Rights.
In arriving at this conclusion we have borne in mind the principle that the appellants are to receive the benefit of our doubts as to whether the discrimination faced by them crosses the threshold to persecution. Turning as it does on the rather unusual facts of the appellants’ case, our decision will have little value as a precedent.
RELOCATION
In some of the material we have sighted there are suggestions that an internal flight alternative might exist in the states of Sabah and Sarawak. It is stated by Hussin Mutalib in Islam and Ethnicity in Malay Politics (1990) 162 that these two states have neither Malay majorities nor Malay political domination and have had some problems with the Federal government in Kuala Lumpur. In the Europa World Book at 1810 it is stated that twenty-nine per cent of the population in Sarawak and twenty-four per cent in Sabah are Christians. However, on this slender information it could not be said that the appellants could access effective state protection by relocating to one or other of these states. See the test prescribed in Refugee Appeal No. 135/92 Re RS (18 June 1993) 26. The difficulties faced by the appellants arise primarily out of federal law, and the Constitution in particular.
CONCLUSION
In summary our conclusions are as follows:1. The appelants hold a bona fide subjective fear of returning to Malaysia.
2. The harm feared by them is cumulatively of sufficient gravity to constitute persecution.
3. There is a real chance of the feared harm occurring were they to return to Malaysia.
4. The harm feared by the appellants is connected with or related to two Convention reasons, namely race and religion.
For these reasons we find that the appellants are refugees within the meaning of Article 1A(2) of the Refugee Convention. Refugee status is granted. The appeal is allowed.
“R P G Haines”
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[Chairman]