1603040 (Refugee)

1603040 (Refugee) [2017] AATA 1287 (18 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603040
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Alison Murphy
DATE:18 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 18 July 2017 at 12:39pm

CATCHWORDS

Refugee – Protection visa – Malaysia – Religion – Muslim – Social group – Transgender – Gender Identity –State protection not available
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Malaysia. He first arrived in Australia [in] October 2015 and applied for the visa [in] January 2016. The delegate refused to grant the visa on the basis that he was not satisfied the applicant was a person to whom Australia owed protection.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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 – 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Act.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is “well-founded”, or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Although the concept of onus of proof is not appropriate in administrative enquiries and decision-making, the relevant facts of an 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 accept uncritically any and all of the allegations made by an applicant[1].
[1] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The Tribunal records that it found the applicant to be a credible witness.
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport. He has at all times maintained that he is a citizen of Malaysia. The Tribunal finds he is a Malaysian citizen and has assessed the applicant’s claims against Malaysia as his country of nationality.
Assessment of claims
The applicant claims to fear persecution in Malaysia because he is transgender. For the reasons that follow, the Tribunal accepts the applicant has a well-founded fear of persecution on this basis.
Consistently with the information contained in his protection visa application, the applicant told the Tribunal he was born in [Town 1], Johor in Malaysia in [year] as one of [several] siblings. He is of ethnic Malay ethnicity who attended school to year [level]. He told the Tribunal that his parents had passed away, but he remained in touch with his siblings who continue to live in Johor. His father worked [in an occupation] and his siblings variously work in [workplaces]. His family have all known he is transgender for many years and were initially angry but are now resigned.
The applicant gave evidence that since he was small he always wanted to dress up as a girl. After finishing school at age [age], he spent a lot of time with his older transgender [relative] and his transgender friends. The applicant gave evidence he started dressing in women’s clothes and wearing make-up, trying initially to keep it secret from his family. However they found out and he was scolded and beaten on one occasion by his [relative] at the direction of his mother when he was aged [age] and still living at home. Since that time the family has come to tolerate the applicant’s sexuality.
The applicant gave evidence that his family moved to Johor twenty years ago but he did not go with them, remaining among the transgender community in [Town 1]. He rented a house with other members of the transgender community and applied for a number of [positions] but was rejected because he was transgender. He found work with a transgender friend in the make-up and wedding planning industries, preparing weddings, decorating dais and doing make-up for brides and continued to work in that industry for [number] years, where he was known by the female name ‘[name]’.
The applicant told the Tribunal he had a serious relationship with a man and they lived together between 1982 and 1985. Their relationship ended when the man married although he later brought his children to meet the applicant. While living in Malaysia he regularly travelled to [another country] to receive hormones and other medications and he developed breasts which he still has. He has not undergone gender reassignment surgery.
The applicant gave evidence that when his mother passed away in 1997, he was blamed by his family for bringing shame on his mother and for a time made an effort to dress as a man to please his father, cutting his hair and behaving like a gay man. He gave evidence he didn’t want to do this for himself, but did it to save his father’s feelings. When his father passed away, he again dressed as a woman.
The Tribunal heard evidence from a witness[who is] also a Malaysian citizen[The witness] gave evidence she met the applicant when she arrived in Australia in August 2016 and they share a room in rented premises. She told the Tribunal that the applicant was just like her, having the body of a man but being mentally a woman. She stated she also faced harm and discrimination in Malaysia as her ID showed her to be a man but she dressed as a woman.
The Tribunal accepts the applicant, now aged [age], has identified as transgender from a young age. The Tribunal accepts he has lived and worked among the transgender community in [Town 1] and is well-known in that community. The Tribunal accepts his sexuality has been widely known to his family and community for almost [number] years. The Tribunal accepts he can be readily identified as transgender by his appearance and his engagement in that community.
The Tribunal accepts the applicant’s evidence he has in the past suffered harm because of his sexuality, considering it consistent with country information about the situation for transgender persons in Malaysia :
·In the 1980s and 1990s he was detained in a cell along with other members of the transgender community for periods of up to a day;
·On one occasion he was taken to hospital in hand cuffs and forcibly subjected to blood tests without his consent;
·On other occasions he was chased out of public areas by police but not caught;
·He has been discriminated against in the areas of employment and housing;
·He and his family have been subjected to adverse and derogatory comments about his sexuality by members of the public and the authorities.
As to his future risk of persecution if returned to Malaysia for reasons of his sexuality pursuant to s.5J(2), DFAT reports the Malaysian Government openly criticise, exclude and discriminate against lesbian, gay, bisexual, transgender and intersex persons:
·In August 2015, Prime Minister Najib was reported as stating at an international seminar that such people are a threat to Malaysian society, and that ‘groups like the Islamic State and lesbians, gay, bisexuals and transgenders (LGBT) 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 and in April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’;
·The police and judiciary have banned public demonstrations for support of the LGBTI community and those bans have been upheld by Malaysia’s High Court and Court of Appeals;
·Since 1994 the LGBTI individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote acceptance of same sex relationships[2].
[2] Department of Foreign Affairs and Trade 2016 DFAT Country Information Report: Malaysia 19 July at 3.90 – 3.94
Nor is the treatment of the transgender community in Malaysia community limited to acts of discrimination and exclusion, rather country information indicates it’s members are subjected to arbitrary arrest and detention, banned from making some decisions about their medical treatment and not permitted to change their official identity documents to reflect their gender.
The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards. Transgender women identified as male on their national identity card are subjected to arrest by state religious authorities and the Royal Malaysian police. While the majority of those arrests occur in public places, state religious officials occasionally conduct raids on private premises. DFAT also reports that transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality and if they are Muslim, for impersonating women contrary to sharia law. DFAT notes that these laws are predominantly applied to biological men dressing as women.
Overall DFAT assesses that LGBTI individuals in Malaysia, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia, the level and frequency of which differs depending on the socio-economic status, religion and location of the individual. DFAT reports that while in the past there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events, that level of societal acceptance is believed to have disappeared and many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment[3].
[3] Department of Foreign Affairs and Trade 2016 DFAT Country Information Report: Malaysia 19 July at 3.90 – 3.94
In this case the applicant is a Muslim with limited education from [Town 1], in Malaysia’s Johor district. He has suffered harm on a number of occasions in the past including arbitrary detention and being forcibly subjected to medical tests without his consent. The Tribunal accepts each of those incidents to constitute ‘serious harm’ for the purposes of 5J(5). He has also faced discrimination in employment and housing and been subjected to harassment by Malaysian authorities and members of Malaysian society. For a period of time before the death of his father, he hid his transgender identity to avoid harassment and discrimination. While the applicant has worked in the wedding industry for several decades, DFAT advises that societal acceptance for LGBTI individuals working in that industry has disappeared. The Tribunal accepts that should the applicant return to Malaysia, there is a real chance he will again be subjected to serious harm for reasons of his sexuality.
It is well established that persons of non-normative sexuality in a given country can constitute a particular social group[4]. Having accepted that the applicant is transgender, that he is well known in that community and can be readily identified as such by his appearance and engagement in that community, the Tribunal accepts that he is member of the particular social group of ‘transgender persons in Malaysia’. The Tribunal finds that he fears persecution in Malaysia for reasons of his membership of that particular social group pursuant to s.5J(1)(a).
[4] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
The Tribunal further finds that any modification of the applicant’s behaviour to avoid a real chance of persecution in Malaysia on that basis would conflict with a characteristic that is fundamental to his identity or conscience or conceal an innate or immutable characteristic. Therefore he cannot be required to take steps to modify his behaviour so as to avoid the feared persecution pursuant to s.5J(3).
As the perpetrator of harm in this case is the Malaysian state, the Tribunal accepts that the state protection is not available to the applicant and the real chance of persecution relates to all areas of Malaysia.
For these reasons the Tribunal accepts the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group ‘transgender persons in Malaysia’ if he returns to that country, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Alison Murphy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1287

18 July 2017

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