1516247 (Refugee)

[2017] AATA 2576

1516247 (Refugee) [2017] AATA 2576 (31 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516247

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Jason Pennell

DATE:31 October 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.  

Statement made 31 October 2017 at 2.42pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Social group – Malaysian homosexual male – No evidence of previous harm – Lived quietly and discreetly by choice

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

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 [in] November 2015 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] May 2015.

CRITERIA FOR A PROTECTION VISA

1. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. 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 because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

5. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. 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 – PAM Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee an humanitarian - Refugee Law Guidelines – and relevant country information assessment Case Number 1516847 Page 3 of 1 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.[1]

CONSIDERATION OF CLAIMS AND EVIDENCE

[1] DFAT Country Information Report Malaysia 19 July 2016.

Background

1. The applicant claims that he left Malaysia because he is homosexual. He says that if he returns his family and the government of Malaysia will not allow him to continue his relationship with his partner. He claims that the government cannot help him because homosexuality is against religious law. 

2. A copy of the delegate’s decision was attached to the application for review. The delegate refers to the applicant lodging a joint application [in] May 2015 with a [Mr A] who arrived in Australia [in] March 2015. The delegate’s decision refers to the applicant not participating in an interview.

3. The applicant claims to be born on [date] in [town], Johor, Malaysia. He can speak, read and write Malay, his ethnic group is Malay and his religion is Muslim. The applicant has a mother, father, [and siblings]. All his family remain in Malaysia except for [a sibling] who now lives in [Country 1].

4. The applicant has never been married but says he was in relationship with another man, [Mr A], from [date] March 2014 for approximately 2 years.

5. He departed legally from Kuala Lumpur, Malaysia [in] March 2015. In April 2011 he travelled on vacation to [Country 2], and in February 2014 to [Country 3]. He lived in Sabah until March 2014 when he moving to Johor. He indicates that from 2005 to 2013 he was employed in Malaysia as [an occupation] and then from 2013 until November 2014 as [an occupation] in [a certain] industry.

6. The applicant states that he fears returning to Malaysia because he is a homosexual. He says that he cannot relocate and obtain assistance from the government in Malaysia because it is against the law to be homosexual in Malaysia.

7. He arrived in Australia in March 2016 for the purposes of continuing his relationship with his partner, [Mr A] who arrived in Australia in or about January 2015. He says that his relationship with his partner came to an end in or about July 2016 and he is no longer in a relationship. The Tribunal accepts this evidence.

8. At the hearing the applicant supplied documentation which showed that he was born in Sabah on [date] and that [in] 2003 he was registered as being adopted by his parents. He lived with his parents in Sabah and then Johor until he was approximately [age]. The Tribunal accepts the applicants evidence that he was adopted and that he lived with his parents until he was [age].  

9. His parents have returned to live in Sabah where they own a [property]. His [siblings] also live in Sabah while [another sibling] is married and now lives in [Country 1].

10. The applicant told the Tribunal that he commenced homosexual relations when he was about [age] and that he had several relationships leading up to the time that his parents discovered that he was homosexual. He says that as a result of being a homosexual his family forced him to leave home. Since leaving home he has not had any further contact with his family.  

11. The applicant’s evidence was that he was a relatively quiet person who generally keeps to himself. He said did not like going out preferring to stay at home and socialise with close friends.  

12. In or about March 2014 he commenced a relationship with [Mr A]. He said that they lived together in Johor and worked at the same company in [a certain] industry. The applicant’s evidence was that because he was lived a relatively quiet life his relationship with [Mr A] and the fact that he is homosexual did not attract general attention. He said that because he is masculine looking few people realise that he is homosexual.

13. The applicant’s evidence was that he didn’t have many friends and as result he mainly socialised with friends of [Mr A]’s. He did not go to night clubs and has been to Kuala Lumpur on only one occasion. Rather, he and [Mr A] would frequent a local restaurant on a regular basis.

14. The Tribunal accepts and finds that the applicant is homosexual. It also accepts and finds that he is naturally a quiet person who does not socialise broadly and generally keeps to himself. 

15. He said that [Mr A] travelled to Australia in or about January 2015. He said that [Mr A] left without informing him. He said that he was upset by [Mr A] sudden disappearance and only found out that he had travelled to Australia through a friend.

16. The applicant evidence was that he travelled to Australia to be with [Mr A]. He said that [Mr A] had agreed for him to travel to Australia and live with him as he was not working and the applicant had promised to pay for his living expense in Australia. He said that upon arriving in Australia he and [Mr A] lived together for a short period of time. However, in or about July 2015 [Mr A] left and the relationship ended. He said that he had not had any contact with [Mr A] but that he was aware that he had travelled to [another city in Australia].

17. In July 2016 the applicant gained employment [at] the [workplace] in [town].

18. The applicant told the Tribunal that he is no longer in a relationship but from time to time does have casual affairs. He said as a result of him not being a social person he does not go out on a regular basis. He said that while he has been in Australia he has not attended and does not know any gay bars.  He said that such places are expensive and he prefers to save his money.  The Tribunal accepts the applicant’s evidence and finds that he has not socialised on a regular basis while in Australia.

Independent Country Information

1. The applicant was referred to the country information contained in the DFAT Country Information Report. [2] It states that:

   3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).

   3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. 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’.

   3.91 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 and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.

   3.92 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. Case Number 1516847 Page 6 of 13

   3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running ‘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. DFAT understands that many of these camps continue to operate.

   3.94 Much of the discrimination suffered by the LGBTI community in Malaysia is rooted in religion. The USSD reported in 2010 that religious and cultural taboos against homosexual conduct were widespread.[3] A 2008 article on the Asian gay website, Fridae, states that the marginalisation of gay men in Malaysia is the result of a highly moralistic and conservative society and the rise of political Islam. It blames the ‘bigotry among the masses’ on entrenched prejudice and homophobia spread by religious bodies, local media and other groups.[4]

   [2] The DFAT Country Information Report– Malaysia – 19 July 2016

   [3]    US Department of State 2010, Country Reports on Human Rights Practices for 2009 –Malaysia, March, Section 6 <CISNET>

   [4]   Tan, S. 2008, ‘Malaysia’s PT Foundation turns 21’, Fridae website, 27 November

   malaysias-pt-foundation-turns-21> <CXAB8B92D24119>

2. The most recent USSD Country Reports on Human Rights Practices for 2014 – Malaysia report also acknowledges official discrimination against LGBT individuals in Malaysia.[5]

   [5]   US Department of State 2015, Country Reports on Human Rights Practices for 2014 – Malaysia, 25 June pdf> <OG2B06FAF115>

3. Freedom House’s Freedom in the World 2015: Malaysia report acknowledges discrimination against the LGBTI community by state and non-state actors. Moreover, ‘Same-sex sexual relations are punishable by up to 20 years in prison under the Penal Code’.[6] The report further outlines the impact of state-level Sharia law on a case involving 16 cross-dressing transgender women:[7]

   ‘Malaysia’s LGBT (lesbian, gay, bisexual, and transgender) community faces discrimination and hostility from both state and nonstate actors. In June, an Islamic law court in the state of Negeri Sembilan fined 16 transgender women and sentenced them to seven days in prison under a law that prohibits men from wearing women's clothing in public. In a historic decision in November, the Court of Appeal ruled this law to be unconstitutional.’

   [6]   Freedom House 2015, Freedom in the World 2015: Malaysia, May, Section: Overview, p.1

   html> <NG5A1E6BC218>

   [7]   Freedom House 2015, Freedom in the World 2015: Malaysia, May, Section: Overview, p.1

   org/docid/55506fa913.html> <NG5A1E6BC218>

4. The International Gay and Lesbian Human Rights Commission 2014 report indicates that in Malaysia, ‘Syariah laws criminalise Muslims for lesbian sexual relations (musahaqah)’:[8]

   ‘While Malaysia may have inherited the British colonial laws that prudishly criminalise consensual anal and oral sex acts (carnal intercourse) between adults, it is the current State’s identity politics and the institutional strengthening of Malaysia’s Islamization that has witnessed the increasing importance and influence of state-administered syariah (sharia) or Islamic law. Syariah laws criminalise Muslims for lesbian sexual relations (musahaqah), sex between men (sodomy), sex that is considered “against the order of nature” (liwat), and for “posing” or “impersonating” as the opposite sex (e.g., cross dressing). Government representatives actively reject sexual orientation and gender identity issues as human rights issues in various national, sub-regional (such as, at the Association of Southeast Asian Nations/ASEAN Intergovernmental Human Rights Commission) and international fora.’

   [8]   International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, in Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia, 6 May, p.9 <CIS2F827D91966>

5. The Human Rights Watch World Report 2015: Country Summary Malaysia, describes discrimination against LGBTI persons in Malaysia as ‘pervasive’. According to the report, ‘transgender persons face arbitrary arrest, physical and sexual assault, imprisonment, discriminatory denial of health care and employment’ among other discrimination.

6. Malaysian government Ministry’s openly campaigns against LGBTI through education and media outlets. In 2014, the Ministries of Health and Education initiated campaigns for parents, teachers, counsellors, and young people to "prevent, overcome, and correct" symptoms of homosexuality in children, while the Ministry of Information banned television and radio shows depicting gay characters.[9]

   [9]   Freedom House 2015, Freedom in the World 2015: Malaysia, Section: F. Rule of Law, May

   < <NG5A1E6BC218>

7. Despite discrimination by state and non-state actors and the criminalisation of same-sex acts, a body of evidence exists that shows LGBTI individuals experience varying degrees of tolerance. A July 2013 article in Malaysian newspaper The Star refers to the comments of ‘activist, artist and arts consultant Pang Khee Teik’, who said that ‘while some Malaysian LGBTs have managed to live openly among their friends and families, many others have more pressing things to worry about’, including ‘being discovered and getting fired from work, being disowned by families, and getting arrested’.[10]

   [10] Tam, M 2013, ‘Activists: Legalising gay marriages in Asia won’t solve Malaysia’s LGBT issues’, The Star Online, 29 July < LGBT-rights Malaysia- Malaysia-Thailand-Vietnam> <CXC28129413923>

8. A May 2012 report on the Gay Star News website to the comments of Lee Kam Wye, a retired secondary school teacher in Malaysia said that ‘LGTBI may appear to be spreading not because more people are being recruited into LGBT lifestyle but because this community is braver and more open now.’[11]

   [11] CX288268: ‘Malaysia training helper to curb homosexuals’ Gay Star News 23 March 2012.

9. In 2012 the Hindustan Times indicated that ‘the gay and lesbian community in socially conservative Malaysia has slowly gained a higher profile in recent years, and transsexuals live openly in cities.’ The article also notes that ‘many complain they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country.’[12]

   [12] CX0D38E8E20065: ‘Malaysia transsexuals targeted in attacks.’ Hindustan Times 16 February 2012.

1. Finally, the DFAT report assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For example, middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. The DFAT report notes however, that many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.[13]

   [13] The DFAT Country Information Report– Malaysia – 19 July 2016; para 3.94

Assessment of claims

Country of Reference

1. The Tribunal finds that the applicant is a citizen of Malaysia. In this respect, the Department's file contains a photocopy of the applicant's passport and at the hearing the applicant presented to the Tribunal his Malaysian passport.The applicant’s passport was issued by the government of Malaysia [in] 2015. It shows he was born in Sabah and that his nationality is Malaysian. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.

2. Accordingly, the protection claims will be assessed against Malaysia as the country of reference and 'receiving country' respectively.

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of that assertion or that the fear is 'well-founded' or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. The applicant must satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any or all the allegations made by an applicant.[14]

   [14] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[15] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [15] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.[16] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

   [16] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

5. The Tribunal has found the applicant to be a creditable He claims to be homosexual and says that if he returns to Malaysia his family and government will not allow him to continue his relationship. He says that the government cannot help him due to the fact being a homosexual is against the religious law. The Tribunal therefore finds that he belongs to a membership of particular social group pursuant to s.5J(1)(a), namely Malaysian homosexual males.

6. The applicant’s evidence was that in Malaysia he did not hide the fact that he was homosexual. The fact that he appears masculine and is naturally shy and socially introverted meant that his relationship with his partner and his homosexuality went largely unnoticed.

7. The applicant did not provide any details of harassment or violent behaviour towards him as a result of his homosexuality while in Malaysia. In fact his evidence was that he held a responsible position in [a certain] industry and that he socialised with friends, albeit friends of his partner. It appears that it was the applicant’s choice to live quietly in Malaysia uninfluenced by any fear of harm he may suffer if he had not live discreetly.[17] 

   [17] S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 per McHugh J & Kirby J @ [35]

8. The applicant said that he no longer had any contact with his family as result of them discovering that he was a homosexual.  While this would be upsetting for the applicant, it does not amount to a fear of persecution or any serious or significant harm. He had lost contact with his family some time before traveling to Australia and did not provide any evidence of harm that his family were likely to inflict upon him in the event he was to return to Malaysia.  

9. The applicant’s own evidence was that the reason for him traveling to Australia was to be with his partner. He did not allege that he had suffered serious or significant harm in Malaysia as a result of him being homosexual. In fact his evidence lead the tribunal to conclude that if his partner had not moved to Australia he would have remained living in Malaysia without fear of harm.

10. The applicant says that he does not have many friends in Australia and claims to have spent most of his time with his partner. However, his partner left him in or about July 2016. However, this does not account for the period of approximately 12 months in Australia after his partner left the relationship.

11. While in Australia the applicant has had the opportunity to openly live openly as a homosexual person. Despite the relative freedom in Australia he has not established any relationships in Australia. Rather, consistent with his way of life in Malaysia, the applicant has maintained a quiet and private life.  He has not engaged with the LGBTI community and does not patronise any bars or venues that cater for the LGBTI community.

12. Based on the country information provided and the applicants own evidence that he lived a quiet life in Malaysia, the Tribunal does not accept that there is a well-founded fear of persecution by the applicant and that there is a real chance the applicant will face serious harm upon his return to Malaysia.

FINDINGS

Refugee Criteria

1. Accordingly, the Tribunal does not accept that the applicant has a well-founded fear of persecution as required by s.5J of the Act and therefore finds that he is not a refugee within the meaning of s.5H and does not satisfy the criterion set out in s.36(2)(a).

2. As a result, the Tribunal is not satisfied that the applicant is a person  in respect of whom Australia has protection obligations under s.36(2)(a).

Complimentary Protection.

53.  Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).[18]Tribunal finds that it is not a foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk he will suffer significant harm.

[18] MIAC v SZQRB [2013] FCAFC 33 (20 March 2013)

54.  The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

55.  The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell
Member