1506440 (Refugee)

[2018] AATA 3216

1506440 (Refugee) [2018] AATA 3216 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1506440

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Paul Windsor

DATE:4 July 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 04 July 2018 at 12:41pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Race – Ethnic Malay Muslim – Social group – Transgender child – History of gender diverse behaviour – A child/boy who does not conform to traditional gender stereotypes – Credibility issues – Delay in lodging Protection visa applications – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
SZBYR v MIAC (2007) 235 ALR 609

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Malaysia, applied for the visas on 7 November 2014.   The delegate refused to grant the visas on 2 April 2015.  Noting the principal applicant provided minimal detail in her written application; provided no supporting evidence; delayed for over 16 months after the family last arrived in Australia on 18 June 2013 before making the application; and did not contact the department to arrange an interview to further discuss her claims and provide additional information when offered the opportunity to do so, the delegate found the applicant’s claims ‘are not credible or genuine’.

3. The applicants applied to the Tribunal for review of this decision on 11 May 2015.  The applicants provided the Tribunal with a copy of the delegate’s decision record.[1]

   [1] See folios 6-10 of Tribunal file 1506440.

4. The applicants appeared before the Tribunal on 8 May 2018 to give evidence and present arguments (at the request of Applicants 1 and 2, Applicant 3 (aged [age]) did not attend the hearing).[2]  The hearing was a combined hearing with Tribunal cases 1711264 and 1722963 (which involve the two children of Applicants 1 and 2 born in [Australia]).  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   [2] See folios 97 and 120 of Tribunal file 1506440.

5. The applicants were represented in relation to the review by their registered migration agent.  The representative attended the hearing.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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).

8. 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.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

   Mandatory considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In her Protection visa application Applicant 1 claims to be a citizen of Malaysia who was born [in] Selangor state Malaysia on [date of birth].  She states that she belongs to the Malay ethnic group, is a Muslim, and speaks, reads and writes Malay and English.  She indicated that she was married in Shah Alam in Selangor state Malaysia [in] October 2010.  Applicant 1 indicates that she departed Malaysia legally and arrived in Australia on 18 June 2013, entering on [a temporary] visa.  Applicants 2 and 3 applied as members of the family unit of Applicant 1 who do have their own claims for protection.  Applicant 2, who the Tribunal accepts is the husband of Applicant 1, indicates he was born in Selangor state [Malaysia], is an ethnic Malay Muslim, and speaks Malay and English.  The application for Applicant 3, who the Tribunal accepts is the son of Applicants 1 and 2, indicates he was born in Selangor state [Malaysia], is an ethnic Malay Muslim, and speaks Malay.[3]

    [3] See folios 2-46 of Departmental file [number deleted].

    Claims from the Protection visa application

12. Applicant 1’s claims from her Protection visa application were contained in a statement co-signed by Applicants 1 and 2 on 5 November 2014 and included with the Protection visa application.  The claims are summarised as follows:[4]

    [4] See folios 47-50 of Departmental file [number deleted].

    ·Her family left Malaysia because they suffered ‘a huge amount of discrimination in Malaysia’ because it is a very religious society and their son has ‘very girly behaviours’.

    ·She, her husband and their child lived with her mother in a religious middle class neighbourhood in downtown Shah Alam city.

    ·They first came to Australia in 2012 to celebrate their wedding anniversary when their son was [age].  By the time they left Australia in May 2013, he was [age] and she started to notice he seemed ‘to be different’.  He refused to get a haircut.  When he went shopping he wanted headbands, necklaces and gowns.  When watching TV he preferred ‘girly’ cartoons.  They became worried that as a Muslim family they should not support his ‘girly’ behaviours and people, especially her family, would be mad, and they would be punished for not educating their child in an ‘Islamic way’.

    ·When they returned to Malaysia in May 2013, Applicant 1’s mother was not happy with her son’s long hair and how he behaved.  Applicant 1 decided not to change him, however, because when she did it made him sad and scared and quiet and shy.

    ·When relatives and friends commented on her son’s behaviour her mother got very mad at her and wanted her to leave.  They were asked to leave a playground because neighbours didn’t want their children to learn bad things from their son.  When she refused to leave some people tried to force them to.  That night neighbours came to their house but they did not let them in.  The neighbours were mad and angry because they thought her son should be punished for acting like a girl.  The next morning her mother asked them to leave.  They found the neighbours had painted bad words in red paint on the wall.

    ·Her employer and her husband’s employer both called to fire them.

    ·In June 2013 they returned to Australia.  In Australia they can take their son to a playground without discrimination.  While her son agrees to wear boy’s clothes he still refused to get his hair cut short. 

    ·She can’t take her son back to Malaysia to suffer discrimination and harm.  They decided to stay in Australia until they think their son is ‘normal enough’ to go back to Malaysia.  He would not be accepted in childcare or school the way he is. 

    ·They had no choice but to overstay their [temporary] visa.  In November 2014 when she found she was pregnant again they decided to explore the possible ways they could stay here with a visa.  They fear that if they return to Malaysia they would lose custody of their son as the government would send him to another family for his education.

    ·She will try her best to teach and educate her son as a boy.  If he still likes to be a girl after he grows up they will respect that choice.

13. Included with the application were five photographs of Applicant 3, dated from 2012 to 10 July 2013.[5]

    [5] See folios 57-58 of Departmental file [number deleted].

14. On 10 March 2017 the applicants’ representative requested that the hearing initially scheduled for 21 March 2017 be postponed as the applicants were awaiting an appointment with [a specified hospital]’s [specialist unit].  This was agreed and subsequently it was agreed that the hearing be scheduled after September 2017 by which time Applicant 3 would have attended three sessions with the Service.   The representative also advised that a second child had been born to Applicants 1 and 2 and that a Protection visa application made on behalf of this child had been refused by the Department and now was also the subject of a review application before the Tribunal (case 1711264).  It was requested that the Tribunal hear this matter together with the other family members.  The hearing was rescheduled for 17 October 2017.

15. On 2 October 2017 the representative provided documents in support of the application including a statutory declaration, sworn by Applicant 1 on 2 October 2017; a report from a Clinical Child [Psychologist], dated [September] 2015; and 16 photographs of Applicant 3.[6]

    [6] See folios 82-97 of Tribunal file 1506440.

16. Relevant additional matters raised in Applicant 1’s statutory declaration of 2 October 2017 are summarised as follows:

    ·She and her husband consider Applicant 3 to be transgender.  Although they had been taking him to celebrations such as Ramadan, with other Malay Muslims, where he plays with toys for both boys and girls, since their daughter was born they have noticed that he has been acting even more like a girl than before.

    ·At the beginning of this year her son started [a certain grade] at [a] Primary School.  He had his hair cut but was not happy about it.  He wants to play with make-up and lip gloss. 

    ·They want their son to have a religious education so he can decide for himself if he wants to practise in the future.  If he went to a religious school in Malaysia it would have to be a boarding school which would increase the chances of him being bullied.  For financial reasons he will have to attend a public primary school at the end of year one or two. 

    ·Their former migration agent did not advise them about the opportunity to attend an interview.

    ·They delayed applying for protection because they hoped their son’s behaviour might change in Australia and because they initially did not know about Protection visas.  They found out when his behaviour did not change and they spoke with friends about their situation.

    ·They fear if they return their son is now at an age where he would be treated more harshly and would understand why people were yelling at him, did not like him and would hurt him.  They also fear he would be taken from their care and put in a remote religious boarding school where they would not have any contact with him. 

    ·Because Malaysia has become very corrupt people could target them without facing punishment and they would not have state protection because they are a family with a transgender child.  Transgender people are not accepted in Malaysia and are discriminated against.

    ·They would not have any place to stay because her family will not accept them because of their son.

17. Relevant matters raised in the Clinical Child Psychologist’s Report of [September] 2017 are summarised as follows:

    ·The psychologist has met with Applicant 3 and his parents on four occasions to date (since [May] 2017).  She describes him as a delightful [boy].

    ·She comments that while his parents report a history of gender diverse behaviour including preferences for stereotypically female activities, toys and a preference for female peers, the frequency and intensity of this behaviour seems to fluctuate.  She notes that his best friend at school is a boy, he has not expressed any distress or sadness at being a boy, has indicated he is enjoying playing with ‘boys toys’ such as cars, and chose to dress up as Captain America for Book Week.  He reported verbally that he feels like a boy, will be like his dad when he grows up and likes his hair cut short.

18. On 13 October 2017 the representative made submissions[7] advising, inter alia, that the case of a third child born to Applicants 1 and 2 [also] was now pending before the Tribunal (case 1722963) and confirming that the representative also is acting on behalf of this applicant.   Consequently the hearing scheduled for 17 October 2017 was cancelled and a joint hearing involving this case and cases 1711264 and 1722963 (relating to the children of Applicants 1 and 2 born [date of birth] and [date of birth] respectively, who both have applied for protection on the basis of claims arising from the claimed transgender status of their brother (Applicant 3)) was subsequently rescheduled for 8 May 2018.

    [7] See folios 101-104 of Tribunal file 1506440.

19. The representative submits that available country information confirms the applicants’ fears that there is a real chance the applicants will face serious harm upon return to Malaysia due to Applicant 3’s profile as a young boy who does not conform to traditional gender stereotypes.  She submits that LGBTI individuals face harassment, discrimination and persecution in everyday life in Malaysia and that Malaysian Muslims who are transgender are persecuted, as Muslims are subject to state-level Sharia law.

20. At the hearing on 8 May 2018 the applicant’s submitted a copy of an article dated 12 February 2018 from The Guardian regarding a Malaysian newspaper having published a ‘how to spot a gay’ checklist.[8]

    [8] See folios 125-126 of Tribunal file 1506440.

    Post-hearing submission

21. Following the combined hearing for this case and related cases 1711264 and 1722963 on 8 May 2018, the representative forwarded a further submission on 21 May 2018 to address issues raised by the Tribunal at the hearing and in subsequent correspondence dated 10 May 2018, and to provide further evidence in support of the applications for review.[9]  In essence, the submission provides argument that Applicant 3 has ‘demonstrated signs and symptoms of gender diversity since a very young age’ and that relevant country information confirms that Applicant 3 ‘would not be able to live in Malaysia as a transgender person and not need to hide modify and/or hide his gender identity and/or sexual orientation, now or in the reasonably foreseeable future to avoid persecution and/or serious harm’.

    [9] See folios 131-133 and 151-157 of Tribunal file 1506440.

22. It was also submitted that, in the alternative, there is a real risk the applicants will suffer significant harm if returned to Malaysia.

    Findings and reasons

1. The issues in this review are whether there is a real chance that, if the applicants return to Malaysia, they will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to their receiving country of Malaysia, there is a real risk the applicants will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Identity

3. On the basis of the copies of the applicants’ Malaysian passports provided to the Department,[10] the Tribunal accepts that the applicants are citizens of Malaysia and that their identities are as they claim them to be.  The Tribunal accepts that Malaysia is the applicants’ country of nationality for convention purposes and is the applicants’ ‘receiving country’ for complementary protection purposes.  

   Assessment of claims

   [10] See folios 67-68 of Department file [number deleted].

4. The key issue in this case is whether there is a real chance that Applicant 3 and/or his parents (Applicants 1 and 2) will suffer persecution in the form of serious harm in Malaysia because Applicant 3 is a transgender person or a person who does not conform to traditional gender stereotypes (or in the alternative, whether there is a real risk that Applicant 3 and/or his parents would suffer significant harm, as defined in s.36(2A) of the Act, as a necessary and foreseeable consequence of the applicants’ removal to Malaysia). In considering this issue the Tribunal will consider whether the available evidence indicates or suggests that Applicant 3 is a transgender child or a child/boy who does not conform to traditional gender stereotypes.

5. At the time of the Protection visa application (7 November 2014) Applicant 3, who was born in [Malaysia], was [at a certain age].  It was claimed that the family, which at that time comprised Applicant 3 and his parents (Applicants 1 and 2), suffered ‘a huge amount of discrimination in Malaysia’ because Applicant 3 has ‘very girly behaviours’ and Malaysia is a very religious society.  Applicant 3’s ‘girly’ behaviours were stated to include refusing to have his hair cut, preferring ‘girly’ cartoons when watching television and wanting items such as headbands, necklaces and gowns when the family went shopping.

6. In the initial statement included with the Protection visa application lodged on 7 November 2014, Applicant 1 indicated that by the end of their first trip to Australia she started to notice that her son seemed to be different.  In her statutory declaration of 2 October 2017 in support of the review application, Applicant 1 stated that she and her husband consider their elder son to be transgender.  She stated that since their daughter (case 1711264) was born [they] have noticed that Applicant 3 has been acting even more ‘like a girl’ than before, and that he wants to play with make-up and lip gloss.

7. The Tribunal notes from the delegate’s decision record (provided by the applicants to the Tribunal) that the applicants first came to Australia on 15 November 2012 (when Applicant 3 was [at a certain age]).  Applicants 1 and 2 indicated that this was to celebrate the second anniversary of their wedding (they were married [in] October 2010).  The Tribunal also notes, however, that having arrived on [temporary] visas [the] family obtained further [temporary] visas and remained in Australia for approximately six months until 15 May 2013 (when Applicant 3 was [at a certain age]).  The applicants then returned to Australia on new [temporary visas] just over a month later, on 18 June 2013, and again obtained further [temporary] visas in September 2013.  Applicant 1 indicated that they overstayed their [temporary] visas and they did not apply for Protection visas until 7 November 2014, over 16 months after they returned to Australia.  This means that Applicant 3 has spent only 34 days in Malaysia since he was [age].  Clearly, the circumstances of the applicants’ first visit to Australia from 15 November 2012, and what happened when they returned to Malaysia for 34 days in May 2013, are both very relevant to the applicants’ claims to fear persecution amounting to serious harm (or in the alternative, to fear significant harm) should they return to Malaysia.

   The applicants’ first visit to Australia – 15 November 2012 to 15 May 2013

1. Applicant 1 indicated that she had been working [at] a private [company] since June 2009.  She indicated that her husband (Applicant 2) worked [in] an ‘[type] of company’ (at the hearing Applicant 2 said he resigned from his previous employment where he worked in a [workplace] before he started working with the ‘[type] company’, [in] around 2010).  The applicants indicated that they both earned around [amount] per month (approximately [amount] per month at the current exchange rate).  Considering the applicants’ circumstances as a relatively young couple with a [child] who had been in their current jobs for only two to three years when they first came to Australia to celebrate their wedding anniversary, the Tribunal asked them why they remained in Australia for such a long time, and how they supported themselves during their stay.

2. Applicant 1 said they took annual leave for three months.  She commented that they wanted to explore in Australia and that her husband also likes fishing.  She said they found Australia is a big country and did not get to see many places so they decided to stay a bit longer.  She commented that they had savings they used to fund their stay and they also had their credit card.  Both applicants said they did not work in Australia during this time.  The Tribunal queried Applicant 1 that the Tribunal was surprised they would come to celebrate a wedding anniversary and stay for six months which seems a long time to stay and use up their savings at a time when they had a new child.  She said they were really thrifty and did not spend much, commenting that they stayed at backpacker’s accommodation and met some [people] who invited the family to stay with them for a week.  The Tribunal asked if they risked losing their jobs by staying away for so long.  Applicant 1 replied that they had already asked for annual leave.  When queried that they stayed for six months rather than the agreed three months, Applicant 1 said she called her company and asked for additional leave.  The Tribunal asked the applicant if she and her husband returned to work when they returned to Malaysia.  She indicated that they did not, commenting that they decided to take a rest after they came back to Malaysia.  When the Tribunal put to her that that seems very strange given they had been away on holiday for six months, she said they were suffering jet lag and needed a few days off.  She commented that they told their employers they would be back on a certain date but did not turn up on that date.  She said that was because so many things happened and they were afraid to leave their son unattended.  When asked why that would prevent both of them returning to work, Applicant 1 said they wanted to take care of their child.

3. When the Tribunal spoke with Applicant 2 he said he managed to get time off work because he had not taken annual leave for a long time.  He said he loves to travel and he loves fishing, but when queried regarding where they went in Australia he said they only went to [State1], spending the first three months of summer at [a specified town], where he said he did a lot of fishing.  When asked how he got that much time off work, he replied that he had not had annual leave for a long time and he took paid leave over that time.  He indicated that they still paid him when he sought additional time off.  When asked how they supported themselves for six months, Applicant 2 said he had about [amount] in savings plus they each had a credit card with a $5,000 limit so they had access to a total of [amount].  When queried that it seems a bit strange that they would extend their stay to have a fishing holiday and be prepared to spend their savings and incur a big credit card debt when they had a young child, Applicant 2 commented that Australia is one of the best places for fishing.  When pressed that it is a lot to spend when he earns [amount] a month he said he did not spend all the [amount].  When asked where they stayed, given that accommodation can be very expensive in Australia, he said they spent the first week in [City 1] where they stayed in cheap ($25 a day) backpacker accommodation then travelled, sometimes staying for two to three days with people they met fishing or staying in caravan parks.  He said they travelled on public transport or rented a car.  When asked why he did not return to work when they returned to Malaysia, Applicant 2 said he was supposed to but didn’t due to the ‘situation’ in his mother-in-law’s house when they returned.  He said he still had the balance of paid holiday leave so he took it.  When queried that he had indicated he had only been in this employment since 2010 and asked how he could have more than six months paid leave Applicant 2 did not answer the question but commented that he did not want to work there anymore because of the matter with his son.

4. The Tribunal found the applicants’ accounts regarding why they stayed in Australia for six months and how they supported themselves when they first visited in November 2012 to be unconvincing.  While the Tribunal accepts the applicants may have been thrifty and may, on occasions, have been able to obtain accommodation from people they met and befriended, noting Australia is a high cost economy and the applicants’ evidence indicating that they stayed in caravan parks and sometimes hired a car, considers that they would have had significant expenses over a six month stay.  The Tribunal considers it improbable that they would have run down their savings or accrued a credit card debt at a time when they had only recently commenced having a family, and also found it improbable that their employers would have granted them a further three months paid leave when they had only been in their respective jobs since 2009 and 2010.  The Tribunal also found it improbable that, having been away for six months, the applicants would not have wanted to quickly return to work, and noting the flying time from [City 1] to Kuala Lumpur is only eight and a half hours and the time difference in May is only two hours, would not expect that fatigue from jet lag would be a significant issue requiring more than a day to recover from.  Considering its further findings below and noting that the applicants only remained in Malaysia for 34 days before returning to Australia, the Tribunal is of the view that the applicants had decided before they returned to Malaysia that they would not return to their former employment in Malaysia and would return to Australia.

   The 34 days spent back in Malaysia – from 15 May 2013 until 18 June 2013

5. Applicants 1 and 2 indicated that late in their first stay in Australia they noticed some issues with their son.  Applicant 1 commented that as they were about to leave Australia, their son showed some indication of his ‘girly behaviour’ but as their visas were about to expire they decided to leave.  When asked for examples of his behaviour, she said he has long hair, liked dolls, liked girl’s dresses and liked girl’s stuff.  When queried that he was only [age] when the left Australia and asked how he expressed those ‘likes’, Applicant 1 said he was speaking at that time and if they went shopping he’d pick up a ‘Barbie’ doll and ‘girls’’ toys.  Applicant 2 commented that his wife told him that their son likes to buy girls’ stuff like dresses, lipstick, ‘Barbie’ doll and a ‘Dora’ doll rather than superman.

6. In their statements the applicants have indicated that six things happened to them in the 34 day period from 15 May 2013 until 18 June 2013 when they were back in Malaysia.  These are that Applicant 1’s mother (she indicated that her father passed away in [2010]), with whom they lived in ‘downtown Shah Alam City’ (approximately 30 km and 30 minutes’ drive from Kuala Lumpur) was not happy about their son’s long hair and the way he behaved; in the second week after they returned relatives and friends who came to dinner noticed their son’s ‘unusual behaviours’ and talked to them and Applicant 1’s mother about how to ‘educate a child’; neighbours told them to leave a nearby playground because they did not want their children to learn bad things from their son and when she refused, several parents went to pick up her son and throw him onto her; neighbours then came to their house that night with red paint and painted ‘bad words on the wall’; Applicant 1’s mother asked them to leave her house so they went to a motel; and their employers called them to fire them.  They claim that they suffered very bad discrimination and in the end decided to come back to Australia.

7. The Tribunal discussed these matters with the applicants at the hearing.  When asked what happened when they returned to Malaysia in May 2013, Applicant 1 said they had a family gathering.  She commented that her family is quite religious and comes from a religious community environment.  She said when they saw her child behave ‘a little bit girly’ they asked why, and why she allowed him to behave the way he wants rather than teach him the right way.  She said this occurred in the first week of their return.  When queried that her initial statement indicated the dinner was in the second week she said it was in the first week that her mother noticed her son’s behaviour.  When queried again regarding why they had not returned to work by this time if the dinner gathering was in the second week after they returned to Malaysia, Applicant 1 replied that her mum was already angry and her relatives were already angry, so she did not want to leave her son.  When again queried that the dinner with the relatives was during the second week, Applicant 1 said her mother was already angry so she was already having conflicts with her mother.  She added that even though her mother had already asked them to leave the house they remained calm as they didn’t have a home of their own to go to.  Like Applicant 1, when asked what happened on their return, Applicant 2 first mentioned the family dinner.  He commented that they had a dinner where people saw their son’s long hair and that he had lip gloss on, and they were not happy.  He said this was maybe one to two weeks after they returned.  When asked if this was the first time they had experienced any problems since they had been back he said it was.  When asked if they had experienced problems with his wife’s mother before then he replied ‘before then, no’. [11]  When asked whether his mother-in-law was concerned about his son’s long hair and wearing lip gloss, Applicant 2 said she was and that she first expressed these concerns when they first returned. 

   [11] In considering this matter the Tribunal notes that, in accordance with SZBYR v MIAC (2007) 235 ALR 609, this evidence does not constitute adverse information but relates to inconsistencies in the applicants’ evidence.

8. In relation to the claimed playground incident, Applicant 1 said they sometimes took their son to a nearby playground and one day some other people saw them there, and saw they were treating him like a daughter, asked why and said he was a bad influence for their children.  When asked how they were treating him like a daughter, Applicant 1 said they let him have long hair and if he wanted girls’ stuff they let him have girls stuff because when they questioned him he got sad and they wanted him to be happy.  The Tribunal asked her what it was about his behaviour at the playground that caused this reaction from other parents.  She replied that he was just doing the normal things that children do like playing on the slides and swings but because he had long hair and is a ‘bit of a softy’ others asked if he is a son or a daughter.  She said when she told them he was a son they told her to take him home because he is a bad influence.  When asked she said her husband was there as well as maybe two to three other parents.  She said this happened once only.  When asked what they did she replied that her son was crying and she was crying so they just went home.  She said her son was afraid because they were screaming at him.  When asked if anything else occurred, Applicant 1 said that night neighbours came to their home, knocked on the door and asked why they educated their child like that.  Applicant 2 had indicated that at the playground ‘they’ had separated his son from the others and thrown his son to him.  When queried about this incident, however, he indicated he heard about it from his wife.  When queried that she had said he was there and that he had previously said his child had been thrown to him he replied that he said his child was thrown to his wife, and that he was not there but was close by in their parked car (which was later verified by his wife when this apparent inconsistency was discussed with her).  The Tribunal later noticed that Applicant 2 appeared to have been referring to his wife’s statement of 5 November 2014 (which he co-signed) which includes the comment (not referred to by his wife in her oral evidence) ‘several parents went to pick my son up and throw him onto me’.  The Tribunal suspects he was reading this which, along with his wife initially telling the Tribunal that her husband was there at the time of the incident (rather than in their car parked nearby) resulted in the Tribunal gaining the impression the applicants were claiming they were both present in the playground.  Based on the clarifying comments by Applicants 1 and 2, the Tribunal accepts that it was not claimed that Applicant 2 was physically present in the playground at the time of this claimed incident.

9. In relation to the claimed incident later that evening when neighbours came to the house, Applicant 1 said they did not open the door as the neighbours were outside screaming.  She said she did not know how many people were there.  The Tribunal put to Applicant 1 that this seems a very extreme reaction and asked if these were the same people who were at the playground.  She said she was not sure but speculated that maybe the people at the playground had talked to others who had then come to the house.  She said the next morning her mother opened the door and there were some bad words written outside the house.  She said her mother got angry and asked them to leave so they did.  When asked what was written she said ‘fuck’ was written in English and ‘keluar dari sini’ (get out of here) in Malay.  When asked which week this was she said it was in the second or third week after they had returned to Malaysia.  When asked about this incident, Applicant 2 said the next morning he saw red paint splashed outside the house and ‘the bad word’.  When asked what was written he said ‘keluar dari sini cepat’ (get out of here fast) in Malay.  When queried that he said there were bad words he indicated there was nothing else and when asked said there was nothing in English.  When queried that his wife had said that ‘fuck’ was written in English and that the Tribunal was surprised he had not mentioned that, because if it was written the Tribunal would expect he would remember it, he did not respond.[12]

   [12] In considering this matter the Tribunal notes that, in accordance with SZBYR v MIAC (2007) 235 ALR 609, this evidence does not constitute adverse information but relates to inconsistencies in the applicants’ evidence.

10. When asked where they went after her mother asked them to leave her home, Applicant 1 said they rented a cheap hotel where they stayed for a few days.  She added that because they had delayed their return to work their employers told them they might as well not return to work.  Noting Applicant 1 indicated this was the second or third week of their 34 day stay, the Tribunal asked Applicant 1 where they stayed until they came to Australia.  She said they were in the hotel.  The Tribunal put to her that they must have been in the hotel for more than a few days and asked her how long it was for.  She replied that they were in the hotel throughout, thinking what to do next, and then they decided to come to Australia where their lives would not be so stressful and their children would be happier.  The Tribunal again asked Applicant 1 how long they were in the hotel for.  She said they stayed in different hotels and that while she did not remember it may have been two to three weeks.  When asked why they moved to different hotels she said they were looking for a new environment.  She said the hotels were cheap hotels ‘near Kuala Lumpur’ but said she could not remember any of the names.  When queried how they were able to support themselves at this time, Applicant 1 said they were still on paid leave so they still had money coming into their account.  When pressed how this could be the case when they had just returned from six months’ holiday, had not returned to work and had been fired from their jobs, Applicant 1 said they had three months paid salary plus they sold their car and personal belongings such as their television and jewellery.

11. Applicant 2 said they were fired because they did not come to work.  He added ‘plus regarding this matter’ and suggested their neighbours and relatives were ‘talking bad’ about them.  When queried why their employers would have heard from their relatives and neighbours he commented maybe they asked his mother-in-law and relatives and they were talking bad about him.

12. Applicant 2 also indicated that they left his mother-in-law’s house that morning.  When asked where they went he replied that they stayed in a motel for a week or two.  When asked if it was one week or longer he replied he thought it was one week but it may have been longer.  He said it was in Selangor or Kuala Lumpur and when asked if they stayed in one or more than one motel he replied ‘only one hotel’.  When queried about the inconsistencies with his wife’s evidence, Applicant 2 commented that he can’t remember sometimes.[13]

    [13] In considering this matter the Tribunal notes that, in accordance with SZBYR v MIAC (2007) 235 ALR 609, this evidence does not constitute adverse information but relates to inconsistencies in the applicants’ evidence.

13. When queried about how they were able to support themselves after having just returned from six months in Australia (Applicant 2 said he did not work in Australia until he was granted work rights after they applied for a Protection visa in Australia in November 2014, over 16 months later), Applicant 1 said they had a car and personal belongings such as their television and gold jewellery that they sold.  Applicant 2 said he still had nearly [amount] cash savings and they had about [amount] each on their credit cards as they had saved a lot and also sold property such as their cars.  Noting that previously Applicant 2 indicated that he had [amount] savings when he first came to Australia, the Tribunal asked him how he had amassed such large savings when they earned [amount] a month each.  Applicant 2 commented that before they had saved a lot and then they sold his car and his wife’s car and their other possessions.  When queried he confirmed that they lived off their savings until he started work in January 2015, after he was granted work rights following having lodged a Protection visa application in November 2014.  This would indicate that the family lived off savings for nearly two years, from about three months after they first arrived in Australia in November 2012 (during which they might still have been on paid leave) until January 2015.

14. The Tribunal did not find the applicants’ evidence regarding what they claimed happened to them when they returned to Malaysia in May 2013 convincing for the following reasons.  Apart from Applicant 3’s longish hair there seems to be little basis for the claimed extreme reactions to his appearance and behaviour.  The applicants submitted five photographs of their son to the Department and 16 photographs of their son to the Tribunal.  In the photographs submitted to the Department there is one of Applicant 3 cuddling a large ‘Dora the Explorer’ soft toy.  A copy of this photograph was also submitted to the Tribunal.  The applicants indicated at the hearing that their son selected this soft toy from a [store].  While the toy is based on a female cartoon character, from the photo submitted it does not appear to be a stereotypically feminine toy (it is dressed in trousers) and the Tribunal considers such a large plush cuddle toy would be something that many children under [certain age] (as Applicant 3 was at the time) would be attracted to, regardless of gender.  There is also a photograph taken on 24 May 2013 (nine days after the applicants returned to Malaysia in 2013) which shows Applicant 3 sitting with another child while his grandmother nurses a third, younger child.  Apart from Applicant 3 having longer hair than the other two, there is nothing that sets him apart from the other children.  In none of the photos is Applicant 3 wearing headbands, necklaces, dresses/gowns or other girl’s clothes, or wearing make-up.  Similarly, while Applicant 3 may have clear lip gloss on his lips in one or two of the photographs submitted to the Tribunal, and has long hair in some of the photos, he does not have ‘make-up’ on, and is not dressed in girls’ clothes or wearing headbands or necklaces. 

1. While the Tribunal accepts that Applicant 1’s mother and relatives may have queried Applicants 1 and 2 about why they did not force Applicant 3 to have a haircut and may have made comments indicating they thought Applicants 1 and 2 were not raising or educating their child correctly, and this may have caused some tensions between them, for the reasons detailed below the Tribunal does not accept that Applicant 1’s relatives were ‘already angry’ with them in the first week after they returned from Malaysia; that Applicant 1’s mother asked them to leave her house; that neighbours came to the house and screamed and shouted at them and subsequently splashed red paint and wrote ‘bad words’ outside the house; that the applicants were fired by their employers because their employers found out about their son’s appearance and behaviour; or that the applicants stayed in one or more hotels or motels before they returned to Australia.  While the Tribunal also accepts that some other parents may have enquired whether their son was a boy or a girl because he had shoulder length hair at that time, and when told he was a boy may have expressed some disapproval to Applicant 1 that she did not have his hair cut, the Tribunal does not accept that other parents demanded that he stop playing with their children, that he be removed from the playground, screamed at him until he was in tears, and threw him to his mother as claimed.  In this regard, the Tribunal gives weight to Applicant 1’s oral evidence as noted above when asked what it was that her son was doing at the playground that caused a reaction from other parents.  She replied that he was just doing the normal things that children do like playing on the slides and swings.  She did not indicate that he was dressed like a girl or wearing make-up or that other children were distressed by his appearance and/or activities but commented that because he has long hair and is a ‘bit of a softly’ others asked if he is a son or a daughter, and when she said he was her son was told to take him home because he was a bad influence on their children.  She said there were only two or three other parents present.  When asked what she did she said she and her son just went home as her son was afraid because they were screaming at him and both she and her son were crying.  She did not state that her child was thrown to her as she had stated in her written statement, even though the Tribunal asked her if anything else happened after she claimed other parents said her son could not play there and screamed at him.  The Tribunal considers it highly improbable that two or three other parents in the playground would react in such an extreme way simply because Applicant 3, at [a certain] age, had shoulder length hair.

2. In relation to the claim by Applicant 1 that her relatives were already angry with them in the first week after they returned from Australia in May 2013, the Tribunal notes that, as discussed above, Applicant 1 corrected her oral evidence that the dinner with relatives was in the first week after their return when the Tribunal put to her that her written statement indicated that it was in the second.  She then stated that her mum was already angry and they were having conflicts with her and her mother had already asked them to leave the house.  At the hearing, Applicant 2 stated that the dinner with relatives was one or two weeks after they returned and indicated this was the first time they had experienced problems since they had been back in Malaysia.  He also indicated that they had not experienced problems with his wife’s mother before then, although when pressed whether his wife’s mother was concerned about his son’s long hair and wearing lip gloss he said she was and that she expressed these concerns when they first returned.  He did not, however, comment that relatives were angry with them at this time, or indicate that his wife’s mother was ‘angry with them’ at this time and had already asked them to leave.[14]

   [14] In considering this matter the Tribunal notes that, in accordance with SZBYR v MIAC (2007) 235 ALR 609, this evidence does not constitute adverse information but relates to inconsistencies/omissions in the applicants’ evidence.

3. In relation to the claimed red paint incident the Tribunal does not accept that Applicant 2 (who speaks English) would have forgotten that ’fuck’ had been written by neighbours on the outside of his mother-in-law’s house.  When queried directly regarding what was written, even though he had said there was a bad word, he indicated that all that was written was the Malay words for ‘get out of here fast’.  The Tribunal also did not find convincing Applicant 1’s comment (when the inconsistencies in their accounts were put to both applicant’s together) that the Tribunal was asking them to remember things they are still traumatised about, or Applicant 2’s comment that maybe his wife came out and saw another part of the house that he did not see.  The Tribunal considers that given the extreme and shocking nature of Malay Muslims writing the word ‘fuck’ in red paint on the outside of the house the applicants would have either seen or discussed it, both would have been aware of it, and neither would have forgotten it.

4. In relation to the claim that they stayed in one or more hotels or motels before they returned to Australia, Applicant 1 initially said they stayed at a hotel for a few days.  She changed her evidence, however, when the Tribunal pointed out that this left a large period of time unaccounted for.  She then said they stayed at a number of different hotels, but this was contradicted by her husband’s evidence.   Neither she nor her husband could name any of the hotels and her reason for moving (they were looking for a new environment) was unconvincing.  Applicant 2’s response (indicating that sometimes he can’t remember) when asked why he said they only stayed at one hotel, was also unconvincing.   When the differences in their accounts were put to the applicants together Applicant 1 reasserted that they went to a number of hotels/motels in the Kuala Lumpur area and Applicant 2 again said he couldn’t remember. 

5. In relation to their previous employers both calling to fire them the Tribunal considers that the evidence overwhelmingly supports the conclusion that the applicants lost their jobs because they did not return to work after their periods of approved leave expired.  The Tribunal does not accept the speculation by Applicant 2 that their employers might have spoken with his mother-in-law and found out that their relatives and neighbours were ‘talking bad’ about them.

6. In considering the genuineness of the applicants’ claims regarding what happened to them while they were back in Malaysia in May-June 2013, the Tribunal has also given some weight to the fact that the applicants did not lodge Protection visa applications until over 16 months after they returned to Australia on 18 June 2013.  While the Tribunal accepts that they remained lawful for part of this period through applying for a further [temporary] visa onshore, they did overstay their visas, and the Tribunal considers that if they had experienced the incidents they claimed to have experienced in the 34 days they were back in Malaysia, they would have had a strong motivation on return to Australia to explore their options to remain longer term, and given the availability of information regarding Protection visas from a variety of sources, such as migration agents and NGOs, but also including online sources including the Department’s website, could have found information regarding Protection visas.  In addressing the delegate’s concerns regarding this matter, Applicant 1 commented in her statutory declaration of 2 October 2017 that their son was very young [when] then returned to Australia, and they hoped his behaviour would change, but when it did not they spoke with friends about their situation, who suggested they apply for a Protection visa.  She comments that prior to this they were not aware they were able to apply for a Protection visa.   At the hearing both applicants commented that they did not know about Protection visas.  Applicant 1 also commented that she was disinclined to mix with the broader Malaysian community because she feared they would reject the family because of their son.  Applicant 2 commented that after a friend told him about Protection visas he thought they only applied to people from a ‘war country’.  Given the applicants are both educated people with English language skills, and had experience dealing with the Department in applying for further [temporary] visas onshore on two occasions, the Tribunal was not convinced that the applicants would not have undertaken their own research and found out about Protection visas much earlier than they did, if their claimed experiences in Malaysia were true.

7. In relation to the delegate’s concerns that the applicants also did not take advantage of an opportunity afforded to them to arrange an interview with the Department to discuss their claims for protection, while the Tribunal finds this strange, it is prepared to accept that, as claimed, the applicants’ then Registered Migration Agent only sent them the first two pages of the relevant letter and did not advise them of this opportunity, so they were never aware that they could seek an interview with the Department.

   Gender diversity assessment

8. In the post-hearing submission of 21 May 2018 the representative refers to ‘the information published by the Royal Children’s Hospital on gender dysphoria’ and provides a reference to: which is a ‘fact sheet’ produced by the hospital.  In this fact sheet the hospital’s Gender Service describes gender dysphoria as the ‘distress felt by people whose sense of being male or female differs from the gender they are assigned at birth’.  The Gender Service comments that: ‘For some people, the difference between their gender identity and physical characteristics can cause significant and persistent emotional distress’ and that ‘The terms ‘transgender’ or ‘gender diverse’ are often used to describe these identities’.  Applicants 1 and 2 indicated that their General Practitioner referred them to [a specialist unit] at [a hospital] and they submitted a summary assessment dated [September] 2017 by a Clinical Child [Psychologist].   This assessment indicates that Applicant 3 and his family have attended four sessions with the Clinical Child Psychologist from [May] 2017 to [September] 2017.  In the summary assessment, the Clinical Child Psychologist commented, inter alia, that Applicant 3 ‘reported verbally that he feels like a boy, will be like his dad when he grows up and likes his hair cut short’.  She reported that he ranked himself equally male and female on a ‘gender slider test’ they completed together, but noted that he also did this in relation to other family members.  She commented that he is a ‘delightful [boy]…whose parents report a history of gender diverse behaviour…, however, the frequency and intensity of this behaviour seems to fluctuate’.  She noted that ‘At this point his parents are not reporting that he is expressing any distress about his gender’.

9. The Tribunal put to the applicants that Applicant 1’s statutory declaration of 2 October 2017 indicated that they consider their son to be transgender.  The Tribunal commented that when it read the report from the Clinical Child Psychologist there didn’t seem to be a lot to support that conclusion, and asked them why they think their son is transgender.  Applicant 1 said that in the first meeting the doctor asked her son whether he liked dolls and he said he did but later on he said he didn’t, and he asked why he needed to see a doctor and whether he is sick.  She said he is only [age] and doesn’t understand the questions being asked.  The Tribunal read to the applicants some of the comments in the report.  Applicant 1 commented that he keeps changing, he fluctuates a lot, and that when he meets with the doctor his behaviour is different.  She said that now he has a sister and when his sister puts on make-up he puts on make-up, and that he has a collection of lip gloss, and in relation to wanting to be like his dad, commented that she thinks most kids see their parents as their role models.  The Tribunal queried Applicant 1 that it was surprised that his [age] year old sister was wearing make-up.  She replied that when her daughter sees her putting on make-up she wants a bit for fun and her son then asks for a bit as well on his cheek, adding that he did not want blush but wanted a dollar sign on his cheek.  Applicant 2 also commented that his son’s behaviour changes on and off, adding that he is very young and perhaps he is confused.

10. When asked what they feared would happen if they had to return to Malaysia, Applicant 1 said because they are not sure whether their son will continue to act like a girl they are not sure whether the community would accept them, commenting that they had a bad experience in May 2013 and are scared it will happen again.  She said she had been disowned by her mother and all her siblings and no longer has a relationship with any of her family members.  When asked if her family knew her son was attending an Islamic college in Australia she said she had not told them because she was hurt and was also afraid he would be taken from her and forced to attend an Islamic boarding school.  The Tribunal put to her that it would seem very unlikely that her son would be put in an Islamic boarding school in Malaysia given her son is attending an Islamic school [in] Australia, and would receive an Islamic education at a Government school in Malaysia given Malaysia is a Muslim majority country.[15]  The applicant indicated that she was referring to a Madrassa where children learn how to read the Koran.  Applicant 2 said they did not have a place to stay and he was still scared about the reaction of his mother-in-law and relatives.  He expressed concerns about whether his son could go to school or get a job in the future ‘if like that’.  He commented that it is illegal to be transgender in Malaysia and that he knew a person in school and someone at college that looked like girls and became prostitutes.  When it was put to Applicant 2 that his son is going to an Islamic college in Australia, has had his hair cut and that the Clinical Child Psychologist’s report had indicated he enjoys being a boy and expresses no distress or sadness at being a boy, Applicant 2 replied that they are trying to teach him the best way but if in the future he wants to change, in Australia he would be safe but in Malaysia he would not be safe.

    [15] Islamic Education In Malaysia, ResearchGate, 10 April 2017, pages 7-13, >

    Considering all the evidence, including that Applicant 3 has had his hair cut to attend school, is attending an Islamic school in Australia, has male as well as female friends and enjoys playing with boys toys, appears to be well-adjusted and is not expressing any distress or sadness at being a boy, the Tribunal does not accept that Applicant 3 is a transgender person or a young boy who does not conform to traditional gender stereotypes.  At the hearing the representative commented that doctors are reluctant to diagnose gender dysphoria at this time because Applicant 3 is only [at a certain age] and that they generally just check that the child is happy, as is the case with Applicant 3, which reflects on the environment he is in with very supportive parents.  In the post-hearing submission, the representative submitted that the Tribunal had misconstrued the observations in the psychologist’s report and misunderstood the purpose of Applicant 3’s sessions with the psychologist.  In relation to the first point the representative commented that the Tribunal failed to have regard to the other relevant professional observations made that ‘The first time I met with [Applicant 3] and asked him about toys he likes to play with, he first said he likes dolls…he said he plays with both girls and boys at school…[and] marked himself as equally male and female’.  The representative commented that they noted that the information published by [a specified hospital] on gender dysphoria’ indicates that [Applicant 3’s] stereotypically effeminate behaviour and preferences for ‘girls toys’ from a young age can be ‘signs and symptoms’ of gender dysphoria in young children, quoting from the Gender Service’s fact sheet as follows:

    Almost all children begin expressing their gender identity at 2-3 years of age through their preference for particular clothing, toys and interests.  Many transgender or gender diverse children will also express their gender identity around this time, and this may differ from what parents are expecting’.

11. The Tribunal has, however, carefully considered all the observations in the psychologist’s report as well as the applicant’s responses to the Tribunal’s questions and queries, and does not accept that the report supports the claims that Applicant 3 is a transgender child or a child who does not conform to traditional gender norms or stereotypes.  In this regard, the Tribunal has taken into consideration that the report notes that Applicant 3’s parents reported that Applicant 3 behaved in what they believed to be a ‘stereotypically feminine manner when they came to Australia when he was aged [age]’, such as choosing ‘girls toys’ such as dolls and showing a preference for ‘girls TV shows’, refusing to have his hair cut short until last year, showed a preference for female playmates and that his behaviour ‘seemed to get more intense’ when he was around his ‘many’ female cousins in Malaysia and that he likes to do things that his sister does such as putting on lip gloss, and that the reported ‘frequency and intensity of this behaviour’ seemed to fluctuate.  The report also notes that in the first session Applicant 3 said he liked playing with dolls and then said he didn’t, and in a later appointment was quick to point out that he preferred stereotypically male toys and colours and to express a dislike for dolls.  The Tribunal also notes the reported results on the ‘gender slider’ test (where Applicant 3 rated himself and all his other family members as equally male and female), the psychologist’s comments that it is unclear whether he fully understood the task, and later comments that it should be noted that Applicant 3 found it very difficult to engage in conversations about his gender identity and expression with her and that it is difficult to know whether past experiences of being reprimanded for his gender expression had had an impact on his current presentation and expression.  The Tribunal further notes that the psychologist describes Applicant 3’s parents as ‘concerned but supportive’, and that she comments that Applicant 3’s mother reports she is now largely allowing him to express himself as he wishes, and he is reported to be happy and doing well in all areas.  The Tribunal finds that against this background the Psychologist indicates that Applicant 3’s parents now report his best friend at school is a boy, he ‘really appreciated’ receiving and is enjoying playing with ‘boys toys’, he chose to go to book-week dressed as Captain America, he has not expressed any distress or sadness at being a boy, and that when she met with him he said he plays with both girls and boys at school, reported verbally that he feels like a boy, will be like his dad when he grows up and likes his hair cut short.  The psychologist comments that Applicant 3 is a ‘delightful [boy]’ and notes that his parents are not reporting that he is expressing any distress about his gender.

12. The representative also refers to comments by the psychologist in the report indicating that Applicant 3 has ‘had some experiences of being reprimanded for his gender expression, and that it is difficult to know whether this has had an impact on his current presentation and expression’.  The representative comments that the Tribunal has failed to consider whether Applicant 3 has modified his behaviour due to his past experiences.  The Tribunal has considered this and does not accept that this is the case.  In this regard the Tribunal has noted that Applicant 1 and 2 have claimed that they were criticised by relatives and neighbours in Malaysia for not reprimanding Applicant 3 but they stopped commenting on his behaviour because they wanted him to be happy, not sad.  In her report the psychologist comments that Applicant 2 indicated he had made attempts to stop Applicant 3 from behaving in a ‘girly way’ by doing things such as taking away his toys, but these attempts had been largely unsuccessful; and that while Applicant 1 indicated she had also attempted to change Applicant 3’s behaviour, now she is trying to allow him to do what makes him happy.  The Tribunal finds that the evidence indicates that since returning to Australia in June 2013 Applicant 3 has been in a very supportive environment where his parents have been focused on ensuring he is happy.

1. In relation to the representative’s assertion that the Tribunal has misunderstood the purpose of the psychologist’s sessions with Applicant 3, the representative indicates that the psychologist advised she has never made a diagnosis of gender dysphoria for [an age] year old and that the focus with young children is on checking whether the children are happy and whether the parents are doing the right thing.  The representative quotes from the Gender Service fact sheet regarding differences in treatment for children pre and post-puberty, indicating that treatment before puberty aims to support individuals in affirming their gender identity, with a focus on physical and psychological well-being through talking to the child and their family and providing support for home and schooling environments.  In contrast, treatment after puberty can include options such as the use of puberty blockers to stop the physical changes of puberty that the adolescent finds distressing.  The representative submits that although the psychologist has not concluded in her report that applicant 3 is transgender or made a formal diagnosis of gender dysphoria, the psychologist also does not conclude that Applicant 3 is not transgender, ‘particularly given his young age’.  The representative further submits that at Applicant 3’s age diagnosis is less relevant than the behaviours he exhibits and that ‘he and his family continue to face a real risk of persecution and/or serious harm due to him not confirming (sic) to traditional gender norms’. 

2. The Tribunal agrees with the representative that the behaviours exhibited by Applicant 3 are highly relevant and that at age [age] a diagnosis either way is less relevant but finds that Applicant 3’s more recent and current behaviours do not support a conclusion that he would be regarded as a transgender child or as a child who does not conform to traditional gender norms.  In this regard, the psychologist’s report indicates that Applicant 3 has had his hair cut short and has not indicated any concerns about that but rather has said that he likes it cut short; he is enjoying playing with boys toys (and didn’t ask for any girl’s toys for his last birthday); he plays with both boys and girls at school; and that his best friend is a boy.  The Tribunal also notes that Applicant 3 is attending an Islamic college, which is a more conservative schooling environment than other available options (the report states his parents insisted he have his hair cut for school), and yet the report indicates that he is not exhibiting any distress or sadness, including at being a boy.  The Clinical Child Psychologist has not expressed any concerns about Applicant 3’s mental health.  Having carefully considered all the available evidence, the Tribunal does not accept that Applicant 3 is a transgender person or a young boy who does not conform to traditional gender stereotypes or norms.   Accordingly, the Tribunal does not accept the assertion that Applicant 3 would not be able to live in Malaysia without hiding his gender identity and/or sexual orientation, now or in the reasonably foreseeable future, to avoid persecution and/or serious harm, as submitted by the representative in her post-hearing submission.

3. As the Tribunal does not accept that Applicant 3 is a transgender person or a young boy who does not conform to traditional gender stereotypes the Tribunal does not accept that there is a real chance that if he returned to Malaysia he would be removed from the care of his parents, forcibly sent to an Islamic boarding school or a madrassa, be targeted for serious harm by very corrupt people, bullies, relatives, neighbours, the Islamic community or the broader community, not be accepted into a school or be able to secure employment and/or become a prostitute, now or in the reasonably foreseeable future.

4. Applicants 1 and 2 have indicated they have been disowned by family in Malaysia and would not have anywhere to live.  Considering the findings above, the Tribunal does not accept that the applicants have been disowned by their family members but accepts nonetheless that they may no longer be able to or want to live with Applicant 1’s mother in her home in Shah Alam should they return to Malaysia.  The Tribunal considers, however, that the applicants can return to their home area of Malaysia and take rental accommodation in the same way that they have rented accommodation in Australia.  In this regard the Tribunal notes that Applicant 1 indicated at the hearing that before they came to Australia her husband rented a room in [Kuala Lumpur] (because his workplace was one to two hours away from where her mother lived).

5. Considering the individual circumstances of Applicants 1, 2 and 3, and their claims individually and cumulatively, the Tribunal finds there is not a real chance that any of Applicants 1, 2 or 3 will suffer persecution amounting to serious harm from their relatives, neighbours, the Islamic community, the broader community, corrupt persons, bullies, Malaysian authorities or anyone else arising from Applicant 3’s gender identity, degree of conformity with traditional gender stereotypes, or manner of dress (and Applicants 1 and 2 being the parents of such a person), should they return to Malaysia, now or in the foreseeable future. 

6. Accordingly, the Tribunal is not satisfied that any of Applicants 1, 2 and 3 are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) of the Act.

   Complementary protection

7. Having concluded that none of the applicants meet the refugee criterion in in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.

8. The representative has asserted that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants’ removal to Malaysia, there is a real risk that they would suffer significant harm, as defined in s.36(2A) of the Act for the purposes of s.36(2)(aa), in the form of:

   ·Cruel and inhuman treatment and punishment; and/or

   ·Degrading treatment or punishment.

9. In considering whether there is a real risk that the applicants will suffer significant harm, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[16]

   [16] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

10. The applicants and their representative have not advanced any arguments indicating that they consider they would face a real risk of significant harm if returned to Malaysia for reasons other than those advanced in relation to the refugee criterion, that is, because it is claimed that Applicant 3 is a transgender child and a boy who does not conform to traditional gender stereotypes in Malaysia. As the Tribunal has not accepted that this is the case, the Tribunal, having regard to the findings of fact set out above, and the claims individually and cumulatively, also finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that any of Applicants 1, 2 or 3 will suffer cruel and inhuman treatment and punishment; and/or degrading treatment or punishment, or any of the other forms of significant harm as set out in s.36(2A), from their relatives, neighbours, the Islamic community, the broader community, corrupt persons, bullies, Malaysian authorities or anyone else, on return.

    Conclusions

11. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).

12. Having concluded that none of the applicants meet the criterion set out in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). Having regard to the findings of fact set out above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

13. There is no suggestion that any of the applicants satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, none of the applicants satisfies the criterion in s.36(2).

    DECISION

14. The Tribunal affirms the decision not to grant the applicants protection visas.

    Paul Windsor

    
    

    Member