1603678 (Refugee)

1603678 (Refugee) [2017] AATA 1494 (10 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603678
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Peter Vlahos
DATE:10 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 August 2017 at 12:33pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Lesbians – Fear of physical violence – Police – Islamic authorities – Well-established gay community – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 5(1), 5(H), 5J, 5K-LA, 36, 65, 91R(1)(b), 499
Migration Regulations 1994 Schedule 2

CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
Appellant S395/2002 v MIMIA [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

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] 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 [in] February 2016.
The delegate refused to grant the visa [in] March 2016.
The applicant appeared before the Tribunal on 30 May 2017 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 by a legal representative or a registered migration agent.
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 to the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of Nationality and Identity
Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (the Department), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has assessed her claims against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Migration Act (as amended) (the Act).
On the basis of the abovementioned reasons, 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 a right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
The applicant’s background
The applicant arrived in Australia from Malaysia as a holder of a [temporary] visa [in] November 2014 and [in] February 2015 the applicant applied for Protection (Class XA) visa and associated bridging visa.
The claims for protection submitted by the applicant
The applicant’s claims submitted to the Tribunal can be summarised as follows:
§The applicant claims that she left Malaysia because of her homosexuality which is not accepted by her family and the Malaysian state.
§She thinks, if she returns to Malaysia, she will be summoned and arrested by the Department of Islamic Religion and briefed because of her homosexuality.
§The applicant claims no prior harm while in Malaysia.
§She did not seek help [while] in Malaysia because she thinks the Malaysia will not protect her because Malaysia does not promote homosexuality.
§The applicant still has family in Malaysia. The authorities will be questioning her family and this will complicate matters further.
The Tribunal put the above claims to the applicant and asked the applicant whether she confirmed that these were her claims and asked the applicant if she had any further claims she would wish the Tribunal to consider. The Tribunal read each claim that was in the applicant’s application to the applicant and the applicant confirmed to the Tribunal that these were her claims but provided an additional claim:
The applicant had an affair with another man’s wife and this man was a member of an underground group and wants to take revenge on his former wife and her.
The applicant provided the Tribunal with further documents:
§Copies of text conversations in the Malay language (without translation) between the applicant and another person in Malaysia.
§A photograph of the applicant and woman which is undated and has no attached written explanation.
The applicant was asked to explain to the Tribunal the documents she had submitted for the Tribunal’s consideration and the applicant explained that the ‘text messages’ were between her and her current partner who is in Malaysia. The ‘photograph’ tendered for the Tribunal’s consideration was a photo of the applicant and her current partner when she had visited Australia.
The applicant provided no further documents in support of her claim.
EVIDENCE AT THE HEARING
Background
The applicant [before] coming to Australia, lived in Penang, Malaysia, on her own in rented accommodation. Her family also live in Penang but not with the applicant. Her parents are both living and the family consists of [number] children. The applicant, the Tribunal was told was [number] in the line of succession. The applicant also told the Tribunal that she had completed her education up to and including [grade] in secondary school. While in Malaysia, the applicant as [an occupation did specified duties].
Her same-sex nature and its development
The Tribunal was told that the applicant “never liked boys” since early age and her current partner is her sixth same-sex relationship. According to the applicant her first lesbian experience happened at the age of [age] years. Her partner’s name was (according to the applicant) “[name]”. The applicant told the Tribunal the two met each other (did not say to the Tribunal where) and each became very fond and close to the other over time. Her second relationship happened in a ‘shopping complex’ and lasted for ‘four years’ and that partner’s name was “[name]” (this was the applicant’s pronunciation). Her third same-sex relationship, the applicant met at a friend’s birthday party, that partner’s name was “ [name]” and it too had a duration of four years until that individual left the applicant for another woman. Her fourth relationship occurred at her [workplace] and it was with a girl called “[name]” and again lasted for four years until that individual also left the applicant for another woman. Her last same-sex relationship, the Tribunal was told, the applicant ‘knew her’ partner from when both were young. The applicant ‘knew’ her partner’s sister. They both conversed through [social media] and in time her current girlfriend “left her husband” and had maintained an on-going relationship with the applicant.
Applicant’s social life and interests as a member of the LGBTI community in Malaysia
According to the applicant’s evidence, her various relationships were usually discovered by her either while at her work, or at parties which she attended or at local shopping centres. Her usual method of social interaction was to strike up a conversation with a person the applicant was interested in and then the applicant “would take it from there.” One place of entertainment she would regularly attend with her friends was a “Night-club” called the “[name]”. It was not exclusively ‘lesbian’ or ‘gay’ in the patrons it attracted but was a mixed-types entertainment venue and very popular place to go and socialise with partners or friends.
When asked whether the applicant attended or knew of any gay clubs in Malaysia, the applicant told the Tribunal she did not attend such venues because she feared that these types of entertainment venues would be the subjects of raids by the police targeting lesbians and gay males. The applicant was also asked if she knew what the PT Foundation was and what was its purpose and what work it did. Her response was that she did not know.
The applicant was asked whether with her partners did she travel to other countries for a holiday and in particular, did she travel to countries which had an established lesbian and gay community. The Tribunal was told that her only trip outside Malaysia was to travel to Australia and to no other countries.
The Tribunal asked the applicant whether she had read any literature widely known in the Malaysian LGBTI community. The applicant’s response was to tell the Tribunal that she had seen the film called ‘ELWOOD’. When asked to describe that film’s story-line, the applicant told the Tribunal that the film was a gay-inspired classic and that its story line was about “lesbian relationships” and in a particular, “a love story” between two women. However, the applicant offered no further details or the names of the actors involved. The applicant when asked could not tell the Tribunal of any gay-inspired literature she had read or knew of that was in current circulation. The applicant was also asked if she knew of any well-known gay rights activists who had been supporting the rights of the LGBTI community in Asia. The applicant’s response was that she could not identify any such person and only told the Tribunal that “Malaysia does not encourage homosexuality.”
The Tribunal asked the applicant whether her co-workers at the [place] where she worked knew she was a lesbian and if they did know, how did they treat her. The applicant told the Tribunal that half of the applicant’s co-workers accepted her and the other half did not. She also told the Tribunal that some of her fellow employees would taunt her and say direct to her face unpleasant comments which the applicant ignored. It was the applicant’s opinion that it was “…her business what she chose to do in her private life…” and the opinions or views of others did not concern her. With regards to the attitude of her employer, the applicant told the Tribunal that her employer did not have any issues with her as far as it concerned her sexuality or in how she chose to live her own life. The Tribunal asked the applicant what were her aspirations for her future as a member of the LGBTI community. Her response was that she had not thought much about this and at most, the applicant wanted a secure job, a proper home and to live like other people. The Tribunal also explored with the applicant her philosophy of life. The applicant told the Tribunal “…I do not know how to express it…” No other clarification was offered except to tell the Tribunal her family did not accept her life choice and her family’s attitude caused her great difficulties. Nevertheless, the applicant was determined not to live her life, living as “straight” when that was not her character.
The applicant also confirmed for the Tribunal that she was “Muslim” by faith. The Tribunal was told that the applicant believed in her religion even though she understood her faith would never accept her life’s choice to live as a member of the LGBTI community in Malaysia. She also told the Tribunal that though she remains faithful to her religion, she will continue to pray diligently as required her and her sexual preference was her own private concern.
The applicant’s current relationship
The Tribunal was then told that the applicant had the following concerns which arose from her current relationship:
§Her partner is married and has a [child].
§Her partner’s husband cannot accept his wife’s lesbian relationship with the applicant.
§The current partner’s husband has abused his wife because of this lesbian relationship she has committed to with the applicant.
§In July 2012 (approximately) the applicant’s partner’s husband followed his wife and caught her with the applicant embracing each other in a hotel room and he assaulted both of them.
§On another occasion the applicant and her partner were caught together while at the movies by her partner’s husband and her brother. The husband on that occasion told them to come to his home to discuss the matter with a view of resolving it. The husband on that occasion indicated that he would accept their relationship but he warned the applicant when they were on their own that he would plant drugs on her person in order to get her into trouble with the police if she continued with the relationship with his estranged wife.
§The applicant told the Tribunal that she remained in Malaysia for one year with her partner and then left her in Penang and she came to Australia.
§Her partner’s husband wants custody of her partner’s child.
§The applicant also told the Tribunal that the husband knows the whereabouts of her family but has not threatened them but he has continued to threaten the applicant. The applicant’s partner’s husband knows she is currently in Australia and the applicant fears that when she returns to Malaysia he will find her and do her harm.
§He can locate her anywhere in Malaysia because he has “many networks” throughout Malaysia.
Regardless, of the issues between all parties, the Tribunal was told that her partner still maintains contact with her husband because of their child. Indeed in recent times, as far as the applicant has been told by her partner, her partner’s husband has not been abusive or violent towards her because of their relationship.
If the applicant was to return to Malaysia in the future what does she fear?
The applicant told the Tribunal if she was to return to Malaysia in the reasonably foreseeable future what she feared the most was her partner’s husband’s contacts locating her wherever she was in Malaysia and doing her physical harm. The applicant also expressed her fear of the local police in Malaysia because (according to the applicant) they would not provide her with any assistance if she required it. The applicant also expressed her fear of the Islamic Religion Department. Her fear of this government agency stemmed from her social media activities with her friends and she feared being monitored if she was to return to Malaysia. The applicant also feared being detained by the local police because of her being a lesbian. However, the applicant did concede to the Tribunal that so far, even when she was in Malaysia, she had not been monitored or questioned by the authorities. Nevertheless, the applicant continues to fear that she will be the victim of intimidation and detention by the due to her being a lesbian and a member of the LGBTI community in Malaysia.
The applicant also told the Tribunal that her partner came to Australia in April 2015 but stayed for only for one week. Also, according to the Applicant, during her partner’s time in Australia, her child was left with her partner’s husband. The Tribunal asked the applicant to explain - why would a woman that had been threatened and physically abused by her husband because she had been and was in a lesbian relationship (as she claimed) would leave her child in the care of the abusive husband. The Tribunal was told that the applicant’s partner did this as a means to pacify her husband’s anger over their continuing lesbian relationship.
Delay by the applicant in making her application for protection visa
The applicant was also asked why she had delayed in making her application for Protection visa once she had arrived in Australia and chose to submit her application only after her [temporary] visa was to expire. The reason provided by the applicant for the lateness of her application was that she did not know about this visa until a friend told her about it and then she made her application.
The Applicant’s activities while in Australia
While in Australia, the applicant has been [working]. She has been in her current employment for the last two years and she is earns approximately AUD$[wage range] per week as a wage. The applicant, the Tribunal was told did not do much socialising while here [and] preferred when not working to stay at home. Also, the applicant told the Tribunal while here she had not explored any gay social and friendship sites on the internet with the aim of developing her contacts within the LGBTI community or socialised at any ‘gay’ entertainment venues.
In view of the applicant’s apprehensions and fears concerning her persecution by the Malaysian state if she was to return to Malaysia, the Tribunal explored the possibility of the applicant relocating to Kuala Lumpur, the capital of Malaysia, and according to the country information accessed by the Tribunal had a large gay population as well as a well- developed gay culture and entertainment establishment. The applicant told by the Tribunal that she understood this was an option available to her but to be part of that culture in Kuala Lumpur, one has to be in exclusive employments and part of a society set and the applicant was not part and could not blend into such social environment nor expect to be accepted by it, even if, she was a lesbian.
The applicant’s relationship with her family in Malaysia

The applicant told the Tribunal that she was on speaking terms with her family in Malaysia but they refused to accept her desire to live her life as a lesbian. She went on to tell the Tribunal that her family had asked her to change but she had made it known to them that this change was not going to happen and that what she feels was “…something that comes from within me….” Overall, according to the applicant, the family accepted her as their daughter but refused to acknowledge her life choice to live her life as a lesbian. In concluding her remarks about her family to the Tribunal, the applicant said that her family had not been violent towards her or threatened her because of her desire to live her life as a committed lesbian.
Homosexuality in Malaysia
The Tribunal has considered the claim that the applicant would be harmed in Malaysia because of her sexual identity. The applicant claimed that homosexuality was illegal in Malaysia, a colonial era criminal ban applying, however the Tribunal has noted from the available country information that there were no Malaysian laws that state that homosexuality is illegal. The Tribunal did accept and identifed that different laws apply to different parts of the community, that Islamic laws policed by religious police predominantly impact Muslims in Malaysia. The Tribunal considers that the applicant was female Malay Muslim background, so the country information regarding religious police (also known as the morality police) enforcing Sharia law was relevant to her circumstances.
The Tribunal also noted that section 377 of the Penal Code provided Malaysian laws (as opposed to religious law) with respect to sexual activity. The provisions of this section of the Penal Code targets male activity. Section 377A is relevant to men, as this discusses “…the insertion of the penis into the mouth or anus of another person to be carnal intercourse against the order of nature…” Section 377B says 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 7 recorded instances in the past 70 years and 4 of these specifically against Anwar Ibrahim.[1] It has been described that the use of these provisions are highly political in nature[2] and not used in the ordinary course of matters against individual. They have not been used against any women. No other provisions of the Penal Code refer to homosexuality, thus being homosexual in itself in Malaysia. The Tribunal considers that while the laws do exist, they are not used to prosecute women like the applicant who identify and practice as lesbians in Malaysia, and would not be used against the applicant herself.
[1] Brownwell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July
[2] 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’ subsection ‘Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity’
The Tribunal referenced the DFAT Country Information Report- Malaysia from July 2016 which made the following relevant comments on homosexuals in Malaysia:
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.
3.94 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.
A body of evidence exists that shows LGBTI individuals experiencing varying degrees of tolerance. A May 2012 report on the Gay Star News website refers to the comments of Lee Kam Wye, a 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.”[3] A February 2012 Hindustan Times article, sourced from Agence France-Presse, indicates that “the gay and lesbian community is 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.”[4] 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.”[5]
[3] M\’Malaysia training helpers to curb homosexuals’2012, Gay Star News, 23 March
[4] ‘Malaysia transsexuals targeted in attacks:report’2012, Hindustan Times, 16 February, source: Agence France-Presse
[5] Kuppusamy B 2011, ‘Malaysia: Muslim gay faces government wrath’, Inter Press Service (IPD), 15 January >CX256528>
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.[6] A 2008 article on the Asian gay website, Fridae, states that the marginalisation of gay men in Malaysia is a 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.[7] The most recent USSD Country Reports on Human Rights Practices for 2014 – Malaysia also acknowledges official discrimination against LGBT individuals in Malaysia.[8]
[6] US Department of State 2010, Country Reports on Human Rights Practices for 2009- Malaysia, March, Section 6 <CISNET>
[7] Tan, S. 2008, ‘Malaysia’s PT Foundation turns 21’, Fridae website, 27 November
[8] US Department of State 2015, Country Reports on Human Rights Practices for 2014 – Malaysia, 25 June >
The International Gay and Lesbian Human Rights Commission 2014 report indicates that that in Malaysia, “Sharia law 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 Islamisation 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, the Association of Southeast Asian Nation/ASEAN Intergovernmental Human Rights Commission) and international fora.”[9]
[9] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia’: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons in Malaysia, 6 May, at p.9 lens-lbt-people-asia <CIS2F827D9166.
In September 2014, it was reported that a Malaysia lesbian couple had been arrested by religious officers during a raid on a budget hotel in Johor Bahru, Malaysia. Nine officers from the Johor Islamic Religious Department reportedly raided the women’s room as part of a morality a 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 Syariah 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.”[10]
[10] Wee, D 2014, ‘Malaysia lesbian couple arrested by religious officers in hotel raid’, Gay Star News, 2 September CX1b9ECAB943>
Information about the applicant’s home town – Georgetown demonstrated that there is a gay community in the area and in her home state of Penang. Gay Website Utopia provides the following summary of Malaysia:
Malaysia will no doubt surprise you. This multicultural nation, largely populated by moderate Muslims and fiercely intolerant of being bullied by western powers, is filled with charm, nature, culture, and warm hospitality. Remarkably, it also has a thriving gay scene (perhaps Southeast Asia’s most exciting) which, while still mostly underground, is basically tolerated by the live-and-let-live attitude of its people.
Yes, the country was once lead by a cranky homophobe, Mahathir Mohamad, who infamously ousted his one-time protégé, Anwar Ibrahim, on a trumped-up sodomy charges, despicably wielding antique colonial buggery laws to do so.
Times change. Homohaters and dictators are relegated to the dust bin these days. Anwar’s groundless conviction was overturned by Malaysia’s High Court in 2004. Mahathir’s daughter, Marina, works tirelessly behind the scenes to support AIDS/HIV education, including championing efforts by Malaysian LGBT health worker heroes.
Malaysia is thriving under the fresh air of tolerance and democracy. Straight-owned venues openly cultivate custom from the gay community, while homosexual entrepreneurs launch trendy business and multi-utopias of their own.
Conversations with locals are delightfully candid. Educated and pragmatic, the younger generation takes a practical point of view towards the special challenges of their rainbow society. As one highly placed official told us: as a gay Muslim he just takes the hurdles of life one day at a time.
The website also identifies locations in the applicant’s home state of ‘Penang’ for gay people to meet.[11]
FINDINGS AND REASONS
[11] comments - Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 194:
….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted….
The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see, The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph [196]). However, the Handbook states at (paragraph [204]):
…The benefit of doubt should, however, 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…
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal notes that it is also legitimate to take into account an applicant’s delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant’s claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).
The applicant’s claims
First, the applicant claimed that she was always a lesbian from her younger years and never ‘liked boys’. According to the applicant she has had four same-sex relationships in addition to her current relationship. The first four relationships all lasted for a period of four years and then each individual went their own way. The Tribunal was also told that these relationships were established either by chance meetings at local shopping centres or through social gatherings with friends at parties. The applicant’s current relationship and the subject of this review materialised through the applicant’s friendship with her current partner’s sister. What is challenging to the Tribunal as far as it concerned the applicant’s same-sex relationships was that the first four all persisted in their duration for four years and yet the applicant could not provide to the Tribunal any further description about these relationships. Though the Tribunal has concerns about the applicant’s explanation concerning her claims about her life as a lesbian, it concedes that the applicant was a person who had in the past engaged in same-sex relationships, was a lesbian from a very young age, considered herself a lesbian and a member of the LGBTI community in Malaysia.
Second, the applicant claimed that her fifth same-sex relationship was with a married woman who also had a young child. This woman was estranged from her husband but not divorced. According to the applicant the relationship continues and it was the cause for her to flee to Australia because of threats made against her by her partner’s husband. The Tribunal was also told that the applicant’s current partner visited Australia (for a brief period) in 2015[12] to be with applicant and the two have been ‘texting’ each other since.[13] While the applicant provided very vague and limited evidence and details of this relationship with this married Malaysian woman, the Tribunal concedes that the applicant is in a same-sex relationship with a married Malaysian woman in Malaysia and that relationship has persisted while the applicant has been in Australia.
[12] AAT File no.1603678 folio. 43
[13] AAT File no.1603678 folio. 42
Third, the applicant told the Tribunal that her difficulties arose when in July 2012, the applicant and her partner were confronted while enjoying each other’s company in a local hotel room. On that occasion, her partner’s husband assaulted both women. On another occasion, the applicant and her partner were discovered in a theatre by the husband and her brother and on that occasion both were told to follow the two men home to discuss the situation. Indeed, her partner’s husband told the applicant he would accept the relationship but warned the applicant, when only the two were present that he would plant drugs on her in order to involve the applicant with the local police if the applicant continued with the relationship with his wife. The Tribunal questioned the threats the applicant claimed to have been made against her. The applicant could provide only limited information about when the conversation between her and her partner’s husband actually occurred. The Tribunal finds that the applicant was exaggerating her experience in Malaysia. Given the vague, limited and exaggerated comments of the applicant, including the fact that she was assaulted by her partner’s husband in July 2012, and yet remained in Malaysia until she decided to leave for Australia in 2014, - two whole years in Malaysia, the Tribunal does not accept that the applicant has faced threats the cause of which being her sexuality or that she has been threatened by her girlfriend’s husband while in Malaysia forcing her to leave for Australia to find sanctuary.

Fourth, the applicant told the Tribunal if she was to return to Malaysia in the reasonably foreseeable future she feared that she will come to the attention of the police because of her sexual identity and suffer sharia law as decided by the Islamic Religion Department of her state. The Tribunal has considered the applicant’s personal experiences in Malaysia. As detailed, the applicant has not been physically harmed or harassed in Malaysia by the local authorities or the religious authorities. Moreover, the comment about the applicant facing possible harassment from the police and the religious authorities if she returned to Malaysia because of her sexual identity is not credible, in the Tribunal’s opinion. Indeed, the Tribunal noted the DFAT information about homosexuality in Malaysia, and the Tribunal noted the applicant was a Muslim. However, the applicant in her evidence did not provide any instance of past harassment because of her sexual identity while living in Penang committed against her by the authorities and yet she told the Tribunal that she actively socialised with her partners at social gatherings, bars and at shopping centres. Therefore the Tribunal does not accept that the applicant will be subject to any harassment by the authorities or the subject of punishment by the Islamic Religious Department in her home state, Penang if she was to return to Malaysia.
With respect to her freedom to express her sexual nature, the applicant has had the freedom to work and live and find people of a similar nature in her home area. The Tribunal does not accept that the applicant will be required to be discreet in Malaysia. This does not appear to be the applicant’s own actions while living in Malaysia. Considering the applicant’s personal circumstances and the country information, the Tribunal finds that the applicant will not have to be, or will be, discreet about her sexual identity on return to Malaysia. The Tribunal does not consider that the applicant will have to be discreet in her behaviour on return to Malaysia, noting the judicial guidance of Appellant S395/2002 v MIMIA [2003] HCA 71 on this point.
The Tribunal noted the societal attitudes towards homosexuals. The Tribunal noted that the situation for ethnic Malays was different to other ethnic groups of the Malay community, as stricter provisions of Islam were implemented by Islamic police in the various states of Malaysia. However, the Tribunal does note that the situation for other ethnic groups was not without challenge. The Tribunal is aware that political statements have vilified the homosexual community generally.
The Tribunal has considered the evidence regarding the treatment of lesbians in Malaysia. The Tribunal accepts that there is a degree of social stigma, formed through the conservative Islamist perspectives that affect all of the community, and comments by political figures. The Tribunal accepts that identifying as a gay in Malaysia has more difficulties than in Australia.
However the Tribunal does not accept that the treatment in the community of lesbians in Malaysia constitutes serious or significant harm. There are as the Tribunal noted, the legal provisions relating to unnatural acts, however as discussed above, these are not enforced in Malaysia other than one highly political case. The Tribunal finds that the applicant will not be imprisoned if discovered in a relationship with another woman. The Tribunal notes the DFAT information provided above that specifically identifies the issue for Muslim homosexuals, given the activities of the religious police in enforcing sharia law, but the information referenced by the Tribunal above concerning the ‘gay scene’ in the applicant’s hometown of Georgetown and in her state of Penang, described a well-established and flourishing gay community which seems to function without major issues and also has been placed on the tourist map as a tourist destination for the LGBTI communities of Southeast Asia.[14] The applicant has not been prosecuted in the past. The Tribunal does not accept that she will be prosecuted in the future for this reason.
[14] see paragraph [46] above.
The Tribunal has considered the applicant’s claims that she will be harmed on return to Malaysia because of her homosexual identity. She did not make this claim on arriving in Australia, and lodged her protection visa after a significant period of time had passed and her [temporary] visa was about to expire. The Tribunal does not accept that the applicant was unaware of her ability to for protection. The Tribunal considers that the applicant did not apply for protection because she did not fear returning to Malaysia because of her sexuality. The Tribunal considers that the applicant does not have a subjective fear of harm arising out of her sexual identity in Malaysia. The Tribunal considers that the applicant’s failure to seek protection as soon as having arrived to Australia and only doing so when her [temporary] visa was about to expire, supports this finding.
The Tribunal further finds that the applicant’s lack of a subjective fear for these reasons is supported by the consideration of the country information. The Tribunal considers objectively, that while there are some difficulties in the community for some members of the homosexual community, the applicant as a gay Muslim Malaysian woman, who does not face harm, including discrimination, that amounts to serious harm as defined in s.5J(5) of the Migration Act. The Tribunal finds that the applicant does not have a real chance of serious harm arising from her being a lesbian in Malaysia, or on return to Malaysia. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
Further, having considered the claims and evidence, and the definition of significant harm as found in s.5(1) of the Migration Act, the Tribunal finds that the applicant does not have a real risk of significant harm on return to Malaysia for these reasons.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
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). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

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Citations

1603678 (Refugee) [2017] AATA 1494

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71

Kopalapillai v MIMA [1998] FCA 1126

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

[2017] AATA 1494

10 August 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Appeal