1413205 (Refugee)

[2016] AATA 3973

1413205 (Refugee) [2016] AATA 3973 (7 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413205

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Filip Gelev

DATE:7 June 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 07 June 2016 at 6:14pm

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] July 2014.

3. The applicant appeared before the Tribunal on 7 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Section 499 Ministerial Direction

16. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of reference

18. Based on the copy of the applicant’s passport, a copy of which he provided to the Department of Immigration, and his written and oral evidence, the Tribunal accepts that the applicant is a national of Malaysia and has assessed his protection claims against that country for the purposes of s.36(2)(a).

    Background and claims

19. The applicant claims that he is gay and he fears harm because of his sexuality.

20. The applicant was born in January [year] and from his birth up until the time he left Malaysia for Australia in 2012 he lived in [Town 1], Perak state. He told the Tribunal at the hearing that it is a small town with only one small grocery store in town.

21. The applicant last entered Australia [in] December 2012. Prior to that, he had travelled to Australia in 2010 (September-October) and 2011 (July-August).

22. In a statutory declaration dated [in] February 2014, the applicant set out his claims in some detail. He said that he was born in the town of [Town 1] in Perak state. He has [specified siblings including an] older brother, who is about [number] years older. He comes from a religious Muslim family. The applicant’s father died of [medical condition] complications in 2010 and the applicant’s brother [Brother A] is now the head of the family.

23. The applicant said that for as long as he can remember he was “naturally different” from other men – less masculine and more feminine. When the applicant was about [age] years old, [Brother A] slapped him across the face and threw him into a fish pond in a fit of rage that the applicant had put on one of his sisters’ dresses. Since then the applicant’s brother slapped the applicant several times when the applicant was growing up; their father would also from time to time cane the applicant for embarrassing the family.

24. The applicant first had sex with another boy at school when he was about [age] years old. Soon after he formed a two year relationship with a man who was about [number] years older. That relationship lasted for about two years. At the hearing the applicant said that that man had to return to [another country], because his family was pressuring him to get married.

25. According to the 2014 statutory declaration, at school the applicant suffered “censure and abuse”, he was subjected to ridicule and sent to the school counsellor, who advised him to give up his “gay behaviour”.

26. The applicant was openly gay in Malaysia and would spend time with other gay men and trans-sexual friends at a line of food and drink stalls in the [town]. On several occasions, gangs of men would come to the stalls where the applicant and his friends were spending time. They would start with verbal abuse, which would escalate to physical harassment. They would pinch the applicant’s nipples or touch his buttocks. They slapped one of his trans-gender friends. The applicant and his friends would usually run away.

27. On one occasion they sought police assistance. The police came, but then blamed the victims for acting provocatively. At the hearing the Tribunal discussed this incident at some length. The Tribunal suggested that if the applicant was spending time with his friends (and neither he, nor his friends were hiding their sexuality) and he approached the authorities for help when “gangsters” were harassing the group of friends, it indicates that he had no fear of the authorities and that he was expecting protection.

28. The applicant pointed out that he was not doing anything wrong and that while sodomy is a crime, spending time with people who are not “straight” is not an offence in Malaysia. More importantly, he told the Tribunal that the police did not protect him or his friends and they actually threatened them. 

29. The applicant said in his 2014 statutory declaration that in an attempt to become independent from his family, in [year] he found a job as [an occupation] in a [business], but he was constantly insulted, belittled and even physically harassed. His boss seemed very homophobic. The applicant quit without getting paid for any of the work he had already done.

30. In [year] the applicant was almost caught in a police raid of a gay [venue] on Penang Island. On 6 June 2016 the Tribunal received a statutory declaration from [Mr B] in support of the claim about the raid, which took place in December [year]. [Mr B] describes in some detail the raid and how he and the applicant were able to flee, because they were fully clothed when the alarm was raised that the authorities were about to enter the premises.

31. The 2014 statutory declaration describes another relationship the applicant had in Malaysia. In 2009 he entered into a sexual relationship with [Mr C], a man who was working at [a family business]. They tried to be discreet but one day someone found a photo of the applicant and [Mr C], topless, kissing. The whole family confronted the applicant. They told him he should cease being gay and get married. His brother assaulted him again. It was after this incident that the applicant decided to come to Australia.

32. The family sacked [Mr C] some months later, after the applicant came to Australia. He became very angry and started blackmailing the applicant. He said he had no income and demanded [amount] Ringgit. [Mr C] threatened to give a video of himself and the applicant having sex to the applicant’s family. The applicant thought [Mr C] was bluffing and did not pay any money. [Mr C], however, carried out the threat. The applicant’s family contacted him, angry and upset, to tell him that they would never accept him being gay and that he’d better not go back to Malaysia.

33. At the hearing the applicant said that he had not heard from [Mr C] since then and did not know where he was or what he was doing. The applicant was able to provide detailed evidence about the video recording of the applicant and [Mr C] having sex.

34. The applicant claimed in his 2014 statutory declaration and in his subsequent oral and written evidence that in Australia he met a man called [Mr A] online in February 2013 and they moved together soon after. They first met online on a website called [website name]. They met face to face in March 2013 in Melbourne. They spent two days together and things went so well that [Mr A] asked the applicant to move in with him. The applicant went to collect his belongings from [Town 2] where he was living at the time. A week later he returned to Melbourne and moved in with [Mr A].

35. At the time of the hearing the applicant claimed to still be in a relationship with the same man, [Mr A] and [Mr A] came to the hearing to give evidence.

36. In a statutory declaration of 2 June 2016 the applicant said that he had re-established contact with his mother at the insistence of [Mr A]. She even stayed with the applicant and [Mr A] in [Melbourne]. During her stay the applicant had to stay in a separate bedroom. The applicant told his mother that [Mr A] was like a foster parent to him. In order to convince his mother that he lives a Muslim lifestyle, [Mr A] and the applicant placed their pet dogs in a kennel. She seemed to have been wilfully ignorant and refused to see the obvious. She suggested to the applicant that she could find him a wife.

37. At the hearing, the applicant and [Mr A] gave compelling and highly consistent evidence about their relationship. They confirmed what they had claimed in their earlier oral and written evidence that they met online and moved in together rather quickly. The witness explained that he thought it was “crazy” for the applicant to be living in terrible conditions in [Town 2] while [Mr A] has a three bedroom house.

38. Their were not even minor contradictions in their evidence in relation to small but important details – who they have a bank account with ([bank name]), the names of their [various pets], what they had for dinner the night before the hearing, what car [Mr A] has and who drove to the hearing (the applicant, because [Mr A] hates driving in the city) and many other matters.

    Well-founded fear of persecution

39. The Tribunal accepts that the applicant is gay. Under Australian law, whether a supposed group – such as gay persons or lesbian, gay, bisexual, transgender or intersex (LGBTI) persons – is a “particular social group” in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

40. Based on the country information set out below, the Tribunal accepts that gays in Malaysia are identifiable by the common characteristic of their sexual orientation. That common characteristic is not their shared fear of persecution, and it sets them apart from society at large. It is the reason for the discrimination and other forms of mistreatment to which gays in Malaysia are subjected. Therefore, gays are a particular social group.

41. The applicant had two long term relationships in Malaysia and one ended because the other man left to return to [another country]. The other relationship had a more sordid ending when the applicant’s family saw a photo of the applicant and the man he was in a relationship with, [Mr C]. The Tribunal accepts that the applicant has been assaulted by his brother and (now deceased) father many times in the past, over many years, starting with a serious assault when the applicant was only [age] years old.

42. But this is a finely balanced case because the country information indicates that there are many LGBTI people in Malaysia who live normal if somewhat restricted lives. The most recent DFAT Country Information Report (3 December 2014) states:

    Sexual Orientation and Gender Identity

    3.68 The Penal Code provides that anal or oral sex is illegal in Malaysia, as is “carnal intercourse against the order of nature”. Carnal intercourse attracts a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals and were more commonly applied against opposition politicians (see ‘Political Opinion (Actual or Imputed)’, above).

    3.69 The Malaysian Government openly criticises lesbian, gay, bisexual, trans or intersex (LGBTI) individuals. In May 2014, Prime Minister Najib said the Government would “not allow Muslims to engage in LGBTI activities”. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were “poisoning the minds of Muslims with deviant practices”.

    3.70 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media.

    3.71 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the “negative lifestyle” of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.

    3.72 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a “re-education boot camp” or “behaviour corrective program” for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government “viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour” and called for the abolition of the camps.

    3.73 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community in Malaysia depends on the socio-economic and religious status and geographic location of those involved. Many middle and upper class, educated and urban Malaysians are open about their sexuality within their family and community circles. However, many LGBTI individuals, particularly Muslims, continue to hide their identity to avoid harassment.[1]

    [1] DFAT Country Information Report – Malaysia (3 December 2014).

1. Other sources paint a bleaker picture. According to the 2015 Human Right Watch’s report on Malaysia “Sexual Orientation and Gender Identity Discrimination against lesbian, gay, bisexual, and transgender (LGBT) people is pervasive in Malaysia.[2]

   [2] “World Report 2016, Malaysia”, Human Rights Watch, 31 January 2015, accessed at on 6 June 2016.

2. In 2013 Human Rights Watch reported the following in relation to LGBTI persons in Malaysia:[3]

   In 2012, discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons reached new levels of intensity. On June 25, Prime Minister Najib publicly stated that LGBT activities do not “have a place in the country.” On July 19, speaking before 11,000 imams and mosque committee members, he stated that “it is compulsory for us to fight” LGBT behavior.

   In March, the High Court dismissed the application of the LGBT group Seksualiti Merdeka for a review of the police ban on their November 2011 festival, leaving the future of the annual festival in doubt.   

   Two October court rulings concerning transsexuals also caused alarm: in one, a transsexual was refused the right to change the gender recorded on her national identity card; and in the other it was ruled that Muslims born as males may not dress as females.  

   The government refuses to consider repeal of article 377B of the penal code which criminalizes adult consensual “carnal intercourse against the order of nature,” or to replace article 377C on non-consensual sexual acts with a modern, gender-neutral law on rape.

   [3] “World Report 2013, Malaysia”, Human Rights Watch, 31 January 2013, accessed at on 29 October 2013.

3. The 2015 Freedom House report gave Malaysia a downward arrow in their freedom assessment, in part because of arrests and harassment of transgender Malaysians. More generally it said the following about the treatment of LGBTI persons:[4]

   Malaysia’s LGBT (lesbian, gay, bisexual, and transgender) community faces discrimination and hostility from both state and nonstate actors.

   [4] Freedom in the World 2015 - Malaysia , Freedom House, 28 January 2015, accessed at on 6 June 2016.

4. In an April 2012 article published by Malaysiakini, sexuality rights activist Pang Khee Teik stated that these provisions are applied discriminatorily. He argues:

   ... there is no law against homosexuality in Malaysia yet many believe it is a crime to be gay and lesbian. People may cite Penal Code “377a” and “377b”. But according to the wording of the statute, the crime is committed when anyone introduces his penis into a mouth or anus.
   ...
   

   [5] Pang, KT 2012, ‘Justice for LGBTs is justice for Malaysians’, Malaysiakini, 28 April < Accessed 18 February 2015 .

   Clearly, both heterosexual and homosexual oral and anal sex are illegal but where the public and the state are concerned, it is a law against homosexuality. This is because “377” only targets men who have sex with men. If that is not discriminatory, then I don’t know what is. [5]

5. Intolerance by the authorities is also indicated in recurring reports of police raids on venues, consistent with the applicant’s own claims that he was almost caught in a raid in [year]. An article from November 2007 on the Fridae website reported that a police raid on a fitness centre in Penang had led to the arrest of 37 men, but according to observers was unlikely to result in charges. The article reported “no known cases of the laws being used against consenting adults, gay or straight”, with the exception of the controversial case against Anwar Ibrahim. According to the article, the vulnerability of homosexual men to extortion and exploitation arises from the provisions of Malaysia’s Penal Code being “available as a tool to intimidate, harass, extort and exploit”:

   Section 377 of Malaysia’s Penal Code, which prohibits “carnal intercourse against the order of nature” and acts of “gross indecency,” hangs like the proverbial sword of Damocles over the heads of gay men. Although the laws do not explicitly mention homosexuality or homosexual acts (after being amended in 1989 to be gender neutral), the laws are available as a tool to intimidate, harass, extort and exploit gay men and gay-friendly businesses. The attendant publicity – the potential outing – is that very thing which makes gay men vulnerable.[6]

   [6] Lim, SH 2007, ‘No sex party going on at Penang fitness centre, say those arrested’, Fridae, 22 November < Accessed 18 February 2015.

6. In a press release entitled “Malaysia: End Anwar Ibrahim Incarceration”, Human Rights Watch reports that on 10 February 2015 the Federal Court of Malaysia upheld a Court of Appeal verdict that the former senior politician Anwar Ibrahim is guilty of sodomy in breach of s.377 of the Penal Code. He is serving a five year sentence.[7] However, Mr Ibrahim’s rivalry with the current Prime Minister is well-known and these convictions are largely seen as politically motivated.

   [7] “Malaysia: End Anwar Ibrahim Incarceration”, Human Rights Watch, 10 February 2015, accessed at on 6 June 2016.

7. In an article entitled “Malaysia Staunchly Opposes LGBT Rights” the Huffington Post reported that the Prime Minister of Malaysia compared homosexuality to the danger posed by ISIS (the Islamic State) and declared that both are enemies of Islam.[8]

   [8] D. Mosbergen, “Malaysia Staunchly Opposes LGBT Rights”, Huffington Post, 16 October 2015, accessed at on 6 June 2016.

8. Most of the country information referred to by the delegate in his decision is likewise generally supportive of the applicant’s claims, but mixed. It indicates that the legal provisions against sodomy are rarely enforced and the criminal charges against Anwar Ibrahim were politically motivated.

9. The Tribunal considers that the applicant has exaggerated the likelihood that his family would release the photo or video of him and [Mr C]. The Tribunal is not persuaded that his family would be prepared to potentially get the applicant sentenced to a custodial sentence as well as embarrass themselves publicly by telling the world at large, or the authorities, that the applicant is gay.

10. That, however, is not determinative of the applicant’s claims. The applicant may still face a real chance of persecution even if the video is not seen by anybody outside of the applicant’s family.

11. The delegate in his decision accepted the gist of the applicant’s claims but found that the harassment the applicant may face such as

    -    Workplace bullying

    -    Verbal abuse and teasing

    -    Name calling

    -    Being hassled and ‘pinched’

    -    Being disowned by his family and

    -    Being denied financial assistance by his family

    would not amount to persecution when considered individually or cumulatively.

12. The Tribunal notes that unwanted sexual behaviour such as pinching someone’s nipples or touching someone’s buttocks or genitalia constitutes sexual assault. In the state of Victoria it is a criminal offence (s.40 of the Crimes Act 1958 (Vic)) punishable by a penalty of up to 10 years imprisonment. (The offence of rape is separate and carries a maximum term of 25 years imprisonment, s.38 of the Crimes Act 1958 (Vic)).

13. The Tribunal is not prepared to dismiss the risk of future sexual assaults as minor problems which cumulatively would not amount to “serious harm”.

14. The delegate accepted that the applicant’s brother slapped and hit him, but formed the view that the last assault had been an isolated incident. The Tribunal’s view of the evidence is different. It accepts that the applicant’s brother has been assaulting him regularly (if not necessarily frequently) since the applicant was [age] years old. The applicant’s brother would have been an adult at the time, aged about [age], and this cannot be dismissed as a physical fight between two young siblings.

15. Both the applicant’s brother and his father have been inflicting on the applicant significant physical ill-treatment over a prolonged period. The applicant has not seen his brother since [Mr C] showed the applicant’s family the video. Even though some years have passed since the brother saw this video, it is likely that he will assault the applicant once more if he gets a chance.

16. It may be extremely unlikely that the applicant will ever be charged with sodomy and prosecuted if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal agrees with the delegate that s.377 of the Penal Code – the prohibition on sodomy – is very rarely used and that the charges against Anwar Ibrahim were politically motivated.

17. Nevertheless, the country information demonstrates that the atmosphere of homophobia in Malaysia is pervasive and it imbues public discourse from the Prime Minister down to individual families such as the applicant’s. It is no answer to an applicant’s claim for protection to say that it is unlikely they will be prosecuted for sodomy. The reality of the applicant’s life – if he returns to Malaysia now or in the reasonably foreseeable future – is that he will have to hide from his brother and hide his sexuality from the authorities, from potential employers and from members of the community with whom he interacts, except for other LGBTI persons.

18. The Tribunal finds that there is a real chance that the applicant will be subjected to verbal abuse, bullying, sexual assaults and significant physical ill-treatment, amounting to persecution, if he returns to Malaysia now or in the reasonably foreseeable future.

19. Malaysian LGBTI persons are constantly told that their sexual identities are unacceptable and compared to ISIS. The nature of the public discourse of politicians, the police and the media creates a situation of impunity where verbal abuse, bullying and physical assaults on LGBTI persons are considered normal or even well deserved.

20. [Mr A] told the Tribunal that he considered the applicant to be “soft” and easily bullied. On the other hand, the applicant gave the Tribunal the impression that he may be softly spoken and peaceful, but he did not hide his sexuality (even if he did hide his relationships) in Malaysia and he has been suffering the consequences from a young age.

21. Further, the Tribunal has no doubt that the applicant is in a genuine and committed relationship with [Mr A] and that he has become more open about his sexuality since coming to Australia. The applicant has endured many assaults at the hands of family members, and a lifetime of bullying, humiliation and discrimination at the hands of others.

22. The applicant has been living with a gay man in Australia. The Tribunal finds that if the applicant were forced to return to Malaysia he would be forced to modify his behaviour to an even greater extent than prior to his travel to Australia.

23. It is well established that a putative refugee should not be asked to modify his or her behaviour in order to avoid persecution in his or her home country. In the case of Appellant S395/2002 v Minister for Immigration[2003] HCA 71; (2003) 216 CLR 473 (S395) the High Court was concerned with findings by the Tribunal with respect to a claim by the applicants that they would suffer harm if they were to return to Bangladesh, where that harm would arise from their homosexuality. Gummow and Hayne JJ said at [80]:

    It is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide that fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be 'discrete' about such matters is simply to use gentler terms to convey the same meaning.

24. The applicant will also be separated from his partner [Mr A] for many months and possibly years, while they lodge an application for a Partner visa, which both the applicant and [Mr A] said would be the next step if this application fails. It would be out of the question for [Mr A] to move to Malaysia with the applicant and live in a de facto relationship there.

25. The Tribunal finds that the applicant’s membership of the particular social group of gay persons is the essential and significant reason for which he fears harm amounting to persecution, if he were to return to Malaysia now or in the reasonably foreseeable future. He satisfies the requirements of s.91R(1)(a).

26. Based on the applicant’s evidence about past harm and the available country information I find that there is a real chance that the applicant will be subjected to serious harm involving systematic and discriminatory conduct, amounting to persecution. He therefore satisfies s.91R(1)(b) and (c).

    State protection

27. The Tribunal finds based on the country information that the state authorities would not provide adequate or effective protection to the applicant against the persecution he may face. In fact, there is a real chance that the state itself – the police – would be the agents of the feared harm. In these circumstances state protection is not available to the applicant.

    Relocation

28. As the applicant fears harm from the authorities or the authorities would not provide him with adequate protection, the Tribunal finds that the applicant would not be able to avoid the persecution he faces by relocating to another part of Malaysia.  

29. The Tribunal finds on this basis that the applicant has a well-founded fear of persecution if he were to return to Malaysia, now or in the reasonably foreseeable future.

    Conclusion

30. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

31. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a)of the Migration Act.

    Filip Gelev
    Member