1603598 (Refugee)

1603598 (Refugee) [2018] AATA 1739 (10 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603598
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:10 April 2018
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 10 April 2018 at 6:11am

CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Lesbians – Sexual identity – Discrimination – Cross-dressing – Employment – Fear of torture – Verbal and physical abuse – Muslim – Legal provisions on homosexuality – Police

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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 on 7 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 6 January 2016 and the delegate refused to grant the visa on the basis that it did not satisfy subsection 36(2) of the Act.
On 28 April 2017 the applicant appeared before the Tribunal to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was not represented in relation to this review by a registered migration agent or legal representative.
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 Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of Nationality and identity
Based on a copy of the applicant’s passport, which was provided to the Department of Immigration & Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has had her claims assessed against that country in relation to sections 36(2) (a) and 36(2)(aa) of the Migration Act (the Act).
On the basis of the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act
The Tribunal has before it the Department’s file relating to the applicant.[1] The Tribunal also has had regard to material referred to in the delegate’s decision.[2] The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.
[1] [File number]
[2] Ibid
Background – Migration history of the applicant
The applicant first arrived in Australia on [a temporary] visa on 22 September 2013. On 6 January 2016 the applicant applied for a Protection (Class XA) visa and was granted the associated bridging visa.
EVIDENCE AT THE HEARING
The applicant provided the following information with her application. She had never married or been in a de facto relationship. She arrived in Australia in September 2013. She lodged her protection visa in January 2016. She lived in Johor Bahru, Malaysia from 2011 to 2013. She worked as senior [business] executive ([business name]) from 2011 to 2013. The applicant states in her application that she is not in regular contact with her family members in Malaysia.
The applicant made the following claims for protection. She came to Australia because she was being pressured by society and the religious authorities because she was a homosexual. She claims to have faced emotional pressure from her friends and family and Malaysian society because it does not accept cross-dressing. She has experienced difficulties in finding employment because of her sexuality. She fears that if she returns to Malaysia she will face persecution because society discriminates against homosexuals and the LGBTI community and this is due to the prevalence of sharia law. She claims that it is not safe in Malaysia for homosexuals because sharia law applies in all States. If she is forced to return to Malaysia the applicant fears that she will suffer mistreatment, will be unable to find suitable employment and be ‘tortured’ for being a homosexual (lesbian).[3]
[3] [File number]
The applicant provided some further information to the Tribunal. This included some general country information about the way homosexuality was viewed in Malaysia in 2016.[4] Some photographs of the applicant and her current partner together were also provided.
[4] AAT File 1603593 Folios [21] to [76]
The applicant provided some further information to the Tribunal. This included various photographs with her current partner while she was visiting Australia, statements from her current partner (currently in Malaysia) and from other persons including the applicant’s sister attesting to the applicant’s homosexuality and her relationship with her current partner[5] and copious telephone records of conversations between the applicant and her partner (in Malaysia).
[5] Ibid
The Tribunal asked the applicant about her homosexuality. The applicant stated that her homosexuality began to be felt at the age of sixteen. While at all-girls school, the applicant felt strong feelings for females and had no interest in the male sex. The applicant stated that it was during this time that she developed relationships with females but not intimate relationships or serious relationships. She was, however, certain about her homosexuality and her sexual attraction to females.
The Tribunal asked the applicant did her family know that she was a homosexual. The applicant stated that her parents were not aware of her homosexuality but only her younger sister knew about it. The applicant stated that during her life, though her father was not strict with her as far as it concerned her dress and demeanour, it was the applicant’s mother who always expected her on particular occasions to dress in traditional female dress. That being so, the applicant stated that both of her parents were never privy to her real sexual feelings or beliefs and she always carefully concealed her preferences.
The Tribunal asked the applicant about her life experiences as a female homosexual in living in Malaysia. The applicant stated that she lived her life the way she wanted but was always careful and discrete. The applicant would socialise on a regular basis and would meet friends and partners through friends at parties or at various entertainment venues. The applicant stated that while in Malaysia she had three intimate sexual encounters with other consenting females. The first relationship was with a female, the applicant called ‘[Ms A]’ [applicant’s spelling]. This relationship was sexual but of a casual nature and did not develop into a serious relationship and lasted for six to nine months. It was followed by a relationship with a female called ‘[Ms B]’ [applicant’s spelling] which lasted for three years and was described as intimate by the applicant but again, not a serious long-term relationship. The applicant’s third partner who is also the applicant’s current partner was [Ms C].
The applicant stated that her relationship with [Ms C] commenced in 2012 and has been on going. It was also revealed to the Tribunal that the applicant’s current partner was married and is now divorced[6] and has [an age] year old child. The applicant stated that her partner had regularly visited her in Australia and has continued to regularly keep in contact with her through [social media] apps specific for communication and regular mobile telephone calls. The applicant also stated that she always experienced difficulties in regularly seeing her partner because the applicant was working in Johor while her partner lived and worked in Selangor. However, though a great distance was between them they managed on the weekends to meet and to socialise together with other close friends but were always very careful and discrete not to be too open with their relationship.
[6] AAT File no. 1603598 Folio [106] copy of applicant’s partner’s divorce certificate.
The applicant was asked whether she experienced any violence because of her homosexuality. The applicant stated that a partner of an ex-girlfriend when he found out that the applicant was intimately involved with his girlfriend confronted the applicant in the street and ‘slapped her’. The applicant reported the incident to the local police but the police did not take the matter seriously and no further action was taken.
The applicant was asked how she was treated by the wider community in Malaysia. The applicant stated that she was always very careful and discrete when she was in the wider public eye. The applicant did admit to the Tribunal that her friends accepted her homosexuality and never questioned her. However, when in public – at various entertainment venues or eateries the applicant was always careful and vigilant not to attract unnecessary attention or display to much familiarity to invite either ridicule, anger or the threats of violence. In other words, when in Malaysia – being a predominantly traditional society with deep religious beliefs (dominated by the teachings of Islam) the applicant never took the chance. Moreover, the applicant stated that even her comments and discussions on her various social media accounts were never clear or direct but always carefully worded not to invite attention by homophobes or the authorities.
The applicant was asked how she reconciled her desire to be open with her homosexuality and Muslim faith. The applicant stated that she did not think much about the intolerance of Islam towards homosexuality. The applicant told the Tribunal that she just wanted to get on with her life and live it as she and her partner wanted to live it. Indeed, the applicant stated that she has accepted her homosexuality regardless of the dictates of her religion and its traditions due to her current partner being more open. Her partner is always open with how she feels at a particular moment and believes that is how God wanted it. This openness of attitude the applicant told the Tribunal greatly assisted the applicant in working towards removing her hesitations and reservations but they had not been totally extinguished.
The applicant was asked to tell the Tribunal about her experiences in the workplace while in Malaysia. The applicant stated that she worked as a Senior Executive at [a business] between the years 2011 to 2015 and then she chose to resign. The reasons for her resignation were because increasingly, there was a culture of sexual bias within the [business] when it came to promotions. Also, the applicant stated there was a direct bias towards her because of her appearance. The applicant explained to the Tribunal that her dress preference was the ‘sporty look’ instead of the traditional female dress expected generally for a woman in her position.
The applicant was asked what her experience has been while here in Australia as a female homosexual. The applicant stated that she has been open about her sexuality with her work colleagues and friends and has not encountered any problems. The applicant also told the Tribunal that at first, she was naturally careful and reserved but those feelings have gone because Australia’s society is more tolerant and accepting of people with different sexual preferences than is the case in her country, Malaysia. The applicant also stated that she was surprised but happy that her friends and work colleagues (in Australia) would invite to their homes even though they knew she was a homosexual.
The applicant was asked if she is in Australia with her partner. The applicant stated that her partner had come to Australia to be with the applicant in November 2016 for one week and again in February 2017 for five days but had to return to Malaysia to be with her daughter during her examination period. Having viewed the photographs provided by the applicant and having observed the applicant’s general demeanour, the Tribunal accepts that the photographs provided are genuine and display a couple in a close and intimate same-sex relationship.
The applicant was asked what would happen if she was to return to Malaysia. The applicant stated that first, her relationship with her partner ([Ms C]) could not be open and that she would not be able to live her life openly as a homosexual as she wanted to do. Second, her employment prospects as an open homosexual – dressing differently and displaying a different set of social mores would bring her no success in the employment market in the higher corporate world. Third, the applicant would face consistent pressures from her family to finally decide who she will marry. That was very difficult and causes a lot of pressures. Finally, the applicant feared facing the religious police and the punishment if caught, of the sharia law which does not tolerate homosexuals. Moreover, to live her life openly with her long-time partner and her child as a family would be impossible in Malaysia. In Malaysia, society as a whole was judgemental and dictated to by the traditions and moral code ordained by Islam.
FINDINGS AND REASONS
The Tribunal accepts that the applicant is female homosexual (lesbian) and is in a same-sex relationship and has been so since 2012. The Tribunal further accepts that that the applicant is ethnic Malay, which means she is Muslim by birth and is unable to convert to any other religion. She is subject to Federal and State Malaysian laws, as well as being subject to Sharia law as Muslims. The most recent Department of Foreign Affairs and Trade (DFAT) report on Malaysia states:
3.20 Individuals born in Malaysia of Malay ethnicity are automatically classed as Muslim. Their Muslim status is recorded on their birth certificate and on their national identification card. National identification cards do not distinguish between Sunni and Shia Muslims. Muslims are identified on the card’s surface but for members of other religions, it is encrypted in the card’s smart chip. Married Muslims must carry a special photo identification of themselves with their spouse as proof of marriage.
3.21 Malaysia has a two-track legal system comprising civil law, based on English common law at federal level, and sharia-based law, which is administered at state level and varies state by state. Matters considered by states under sharia-based law relate to; succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and, broadly, the ‘deterioration of matters of Islamic law and Malay customs’. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Development (JAKIM) and the National Fatwa Council. These bodies sit within the Prime Minister’s portfolio.
3.22 Sharia-based law applies only to ‘persons professing the religion of Islam’. However, the enforcement of sharia sometimes affects non-Muslims, particularly on matters involving religious conversion and family law.
The Tribunal notes the country information about homosexuality in Malaysia. The Tribunal also noted the applicant’s information submitted to the Tribunal concerning the plight of homosexuals in Malaysia. The Tribunal also notes that section 377 of the Penal Code provided Malaysian laws (as opposed to religious law) with respect to sexual activity. Section 377A is relevant to men, as this discusses ‘the insertion of the penis into the mouth ore anus of another person to be carnal intercourse against the order of nature.’ Section 377B states that voluntarily committing carnal intercourse against the order of nature faced up to 20 years jail. Section 377D of the Penal Code states that ‘Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.’
However, these provisions of section 377 are not enforced by the authorities, there being seven recorded instances in the past 70 years and four of these specifically against Anwar Ibrahim.[7] It has been described that the use of these provisions are highly political in nature[8] and not used in the ordinary course of matters against individuals. No other provisions in the Penal Code refer to homosexuality, thus being homosexual in itself is not illegal in Malaysia. The Tribunal is of the opinion that while the laws do exist, they are not used to prosecute homosexuals like the applicant who identifies and practices as lesbian in Malaysia, and would not be used against the applicant.
[7] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July Also note in DIBP Decision, pp.5-9.
[8] DFAT Country Report, Malaysia, December 2014, 3.67; US Department of State 2015, Country Reports on Human Rights Practices 2014- Malaysia, 25 June, Discrimination, Societal Abuses, and Trafficking in Persons’ subsections ‘Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity’

The Tribunal also makes reference to DFAT Country Information Report Malaysia from July 2016. This made the following relevant comments on homosexuals in Malaysia:
Sexual Orientation and Gender Identity
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.
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 a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.
3.94 DFAT 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 instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.
The Tribunal also makes reference to the information in the International Gay and Lesbian Human Rights Commission which indicates that:
“[L]esbians, bisexual women, queers and transgender persons (transwomen and transmen), and other gender non-conforming people and communities currently face rising hostility, discrimination and abuses in Malaysia. They are unprotected by a political system, which is geared towards promoting and imposing a specific vision of Malaysia….[9]
[9] 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 Accessed 28 January 2015 <CIS2F827D91966>
The report also refers to lesbians facing physical and emotional violence from family members, verbal abuse or warnings from strangers in public places, and job discrimination, with some employers openly expressing “that they did not hire lesbians because they are trouble.”[10]
[10] 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, pp.20 & 30-31 Accessed 28 January 2015 <CIS2F827D91966>
The same report indicates that in Malaysia, [s]yariah laws criminalise Muslims for lesbian sexual relations (musahaqah):
“….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 for a….[11]
[11] 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 Accessed 28 January 2015 <CIS2F827D91966>
As noted by a Women’s Aid Organisation 2012 report, Syariah law does not offer protections to lesbian individuals. Women found guilty of lesbianism can be punished by whipping.[12]
[12] Women’s Aid Organisation 2012, CEDAW and Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s process in implementing the UN CEDAW, April, p.194 <
In September 2014, it was reported that a Malaysian lesbian couple had been arrested by religious officers during a raid on a budget hotel in in Johor Bahru, Malaysia. Nine officers from the Johor Islamic Religious Department reportedly raided the women’s room as part of a morality raid ahead of the country’s national day. According to the article, ‘The women were arrested for lesbian sex under section 26 of the state’s Shariah law and taken to a police station for booking, then to the religious department’s office for further action’. The women ‘could face up to three months in jail, six cane strokes and a fine of RM5,000’.[13]
[13] Wee, D 2014, ‘Malaysia lesbian couple arrested by religious officers in hotel raid’, Gay Star News, 2 September < Accessed 18 February 2015 <CX1B9ECAB9843>
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’.[14]
[14] Tam, M 2013, ‘Activists: Legalising gay marriages in Asia won’t solve Malaysia’s LGBT issues’, The Star Online, 29 July < Accessed 17 February 2015 <CXC28129413923>
A May 2012 report on the Gay Star News website refers to the comments of Lee Kam Wye, a netizen[15] and retired secondary school teacher in Malaysia, who said that ‘LGBT 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’.[16]
[15] A ‘netizen’ is defined as ‘A user of the Internet, especially a habitual or keen one’ on the Oxford Dictionaries website. Oxford Dictionaries n.d., netizen <
104 ‘Malaysia training helpers to curb homosexuals’ 2012, Gay Star News, 23 March < Accessed 31 May 2012 <CX288268>
[16] ‘Malaysia training helpers to curb homosexuals’ 2012, Gay Star News, 23 March < Accessed 31 May 2012 <CX288268>
A February 2012 Hindustan Times article, sourced from Agence France-Presse, indicates 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 indicates, however that ‘many complain they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country’, and ‘Authorities periodically raid gay-friendly bars or massage parlours, and a prominent religious body in 2008 issued a fatwa, or Islamic religious ruling, against lesbian sex’.[17]
[17] ‘Malaysia transsexuals targeted in attacks: report’ 2012, Hindustan Times, source: Agence France-Presse, 16 February< Accessed 17 February 2015 <CX0D38E8E20065>
In July 2011, The Star Online reported that a lesbian couple had married in a traditional wedding ceremony in Batu Pahat in Malaysia.[18] An article on Fridae, a media and social networking website for LGBT persons in Asia,[19] indicates that the couple was ‘said to be the first lesbian couple to publicly marry in Malaysia and have a wedding banquet for 400 guests, according to social media’. The marriage was ‘however not legally recognised as Malaysia has no provisions for same-sex marriages’. The article also refers to a column in Malaysia’s Sin Chew Daily which related that their ‘newsroom had received many calls from readers who disapproved of the coverage of the same-sex wedding in the paper and were concerned that the wedding would set a precedent’.[20]
[18] Gasper, D T & Yun, Y X 2011, ‘Lesbian couple tie the knot’, The Star Online, 31 July < Accessed 19 February 2015 <CXCB3E63420579>
[19] Fridae n.d., About Fridae <
[20] Fridae 2011, Banquet for 400, lesbian wedding in Malaysia makes the news, 1 August < Accessed 19 February 2015 <CXCB3E63420580>
A January 2011 Inter Press Service article refers to the comments of Michael Lam, a gay accountant in Malaysia, who, when discussing the reaction to Azman Ismail, a Muslim, going on YouTube.com and confessing that he was a gay, said that ‘What’s shocking to many Malaysians is not the fact that there are LGBT persons or LGBT behaviour, which is common but never in your face’, it was ‘the open admission of being gay and the defence of homosexuality by a Malay Muslim’. It was ‘the openness that is inviting adverse reaction’. Lam also said that ‘LGBT is generally tolerated, but as long as it is not flaunted’.[21]
[21] Kuppusamy B 2011, ‘Malaysia: Muslim gay faces govt wrath’, Inter Press Service (IPS), 15 January < Accessed 17 January 2011 <CX256528>
The level of safety for gays in Malaysia depends heavily on the region. While dangers exist for gays anywhere in Malaysia, Kuala Lumpur is the country’s most gay-friendly city and according to one gay social website, is a place where gay life is ‘widespread’ and “surprisingly sophisticated”.[22] A Brisbane Times article states that the city boasts ‘riotous gay bars’. Despite this, the gay scene is still underground and Kuala Lumpur maintains a ‘deeply religious underbelly’.[23]
[22] Amnesty International 2007, ‘Malaysia: Fear for safety/torture or ill-treatment’, AI website, 3 August < <CX236938>
[23] Y-Sing, L. 2007, ‘Malaysia’s transsexuals battle sex change woes’, Brisbane Times, 28 October < <CXE90FC0120242>
As noted above relevant to the applicant’s case in this instance is the DFAT’s 2016 Country Information Report – Malaysia, where DFAT assessed the overall situation for LGBTI individuals in Malaysia as follows:
3.94 DFAT 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 instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.[24]
[24] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.94, p.20 <CIS38A80121311>
The Tribunal has considered this country information, relevant and not available to the delegate at the time of their decision. The Tribunal considers that the country information supports the applicant’s contention homosexual females in Malaysia, also known as lesbians, face harm arising out of their gender identity. The information demonstrates that Muslim lesbian women are at particular risk, arising out of the actions of the religious police implementing Sharia Law, and that official, family and societal attitudes in this area are continuing to affect all such women.
The Tribunal considers that the country information demonstrates that the issue of mistreatment of homosexual females or lesbians in Malaysia can transcend the ethnic divide. However it is clear, as detailed in the country information, including the most recent DFAT report, that lesbian/transgender Muslims “face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia”.
The applicant has not experienced this in the past to a significant extent, (only once) though she has altered her behaviour to an extent to avoid being targeted for harm. The Tribunal notes that the assessment of protection is in fact a forward looking assessment, what would happen to the applicant on her return to Malaysia. Past experience can be a guide as to what would occur in the future, but is only an aspect of the consideration.
The Tribunal considers that the country information demonstrates that the situation for those identifying as transgender/or lesbian in Malaysia is becoming more difficult, and that political and societal attitudes towards individuals who identify as transgender/lesbian are becoming more adverse. Being gay in Malaysia may not in itself found a claim for protection however the Tribunal considers that the country information demonstrates that being a transgender gay ethnic Malay certainly places a person in the situation where they could be harmed. The Tribunal considers that the chance of being harmed can be described as real, and the harm that would be experienced would be serious.
The Tribunal considers that the applicant’s circumstances as a person who identifies herself as a lesbian, and has provided evidence of this identification and experience, causes her to be someone who has a real chance of serious harm on return to Malaysia.
The Tribunal notes the provisions of s5J(3) of the Migration Act. Relevantly this states:
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:
…
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
The applicant’s sexual identity has been hers for most of her life and since she was 16 years of age. It is fundamental to her identity. The Tribunal finds that the provisions of s5J(3) of the Act do not apply to the applicant’s circumstances.
In the circumstances of the applicant, the Tribunal considers that the subjective fear that she has for the future is objectively made out on the available country information. The Tribunal considers that the violence that the applicant faces does constitute serious harm. The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of serious harm arising from her membership of a particular social group of a female homosexual or lesbian Muslim in Malaysia.
The Tribunal finds that the applicant has a real chance of serious harm on return to Malaysia as a female homosexual or lesbian Muslim. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
The Tribunal has considered whether the applicant has the ability to avail herself of state protection. The Tribunal notes in its considerations that the actors causing the harm in this instance include state actors, the religious police who can be said to have a real chance of seriously harming the applicant in the future. Given the involvement of the religious police and the RMP in such persecution, the Tribunal does not consider that the applicant can avail herself of state protection.

With respect to the consideration of relocation, while the Tribunal notes that citizens within Malaysia can live where they wish and there is no restriction on movement, the Tribunal considers that the State is responsible for serious harm in this instance, and there is no location in Malaysia where the mistreatment of homosexual females or lesbian individuals is not reported. Large urban area such a Kuala Lumpur, while not as affected by Sharia law as certain States, has a litany of examples of mistreatment of such individuals. The Tribunal does not consider that there is a location within Malaysia where the applicant would not face the real chance of serious harm arising out of her gender identity and thus the particular social group the applicant is a member of.
The Tribunal finds that the applicant has a real chance of serious harm arising from her membership of a particular social group female homosexual or lesbian Muslims in Malaysia. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
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.
Peter Vlahos
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.
…

Accessed 10 December 2012 <CIS24169>

[2018] AATA 1739

10 April 2018

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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