1604178 (Refugee)

1604178 (Refugee) [2017] AATA 1173 (14 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1604178
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Denis Dragovic
DATE:14 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 14 July 2017 at 9:10am
CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Homosexual men – Not harmed in past – Laws infrequently applied – Sharia law not applied in Sabah state – Existence of LGBTI support groups
LEGISLATION
Migration Act 1958, ss 5H(1), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 499
Migration Regulations 1994, Schedule 2
CASES
S395/2002 V Minister for Immigration and Multicultural Affairs [2003] HCA 71

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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] January 2016. The applicant showed a copy of his Malaysian passport at the hearing. The Tribunal accepts that the applicant is a citizen of Malaysia and that Malaysia is the country of reference for Refugee Convention reasons and receiving country for Complementary Protection purposes. I also find that the applicant cannot avail himself of a right to enter and reside in a third country.

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.
Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or that would conceal an innate or immutable characteristic, or to a modification that would require the person to alter his or her religious beliefs (including by renouncing a religious conversion), conceal his or her true religious beliefs, cease to be involved in the practice of his or her faith, conceal his or her true race, ethnicity, nationality or country of origin, alter his or her political beliefs, conceal his or her true political beliefs, conceal a physical, psychological or intellectual disability, enter into or remain in a marriage to which that person is opposed, accept the forced marriage of a child, alter his or her sexual orientation or gender identity, or conceal his or her true sexual orientation, gender identity or intersex status.

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

Summary of the applicant’s claims: The applicant is a [age] year old man who claims to be homosexual. He was in a relationship at the time of the first Tribunal hearing but subsequently had broken up by the second hearing. While in Malaysia he had a long term relationship with another man but was discrete and since coming to Australia he has decided that he no longer wants to hide who he is and how he feels. The applicant fears that his family will report him to the police and that the police will potentially prosecute him for the maximum penalty of up to 20 years in prison for sodomy.
The applicant appeared before the Tribunal on the 5 April and 10 July 2017. The hearing was conducting with the assistance of a translator in the Malay language.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Findings of Fact

The applicant claims to have begun realising his homosexual orientation when he was [age] years old while at a religious high school where he was staying as a boarder. At that time he had a sexual relationship with a friend but he claimed that he still liked girls. I accept this narrative of the applicant’s early sexual experiences.
I asked how he felt about himself when he had that first experience with a male. He responded that at that time he just needed an outlet to release his sexual desires because his heart was still interested in girls. But when he was [age] years old he began an affair with his [brother’s] friend who would often come to his house. This illicit relationship continued for [number] years. I accept that the applicant was in a long term homosexual relationship since the age of [age] that lasted for [number] years.
The applicant arrived to Australia [in] October 2015. He was still involved with his brother’s friend who was also in Australia at the time. The applicant came to Australia to meet with him and they lived together until March or April 2016. At that time he found out that his boyfriend had married a distant [relative]. He was married in July 2014 but had kept it a secret until March of April 2016. Since then his boyfriend returned to Malaysia and is now living with his wife. I accept these claims.
I asked the applicant why he had submitted his protection visa application in December 2015 before knowing that his relationship would fall apart, a decision that appears to suggest that he was not committed to the relationship. He responded that his boyfriend had told him that if he, the boyfriend, was unable to obtain permanent residency for himself in Australia and in turn for the applicant that they would then go back to Malaysia briefly and then apply to migrate to [country]. He applied for protection because he felt that he couldn’t return to Malaysia as his family can’t accept him, because of his religion and the pressure his mother is putting on him to get married. I accept that the applicant applied for protection because he feared returning to Malaysia for the reasons outlined and that he was seeking alternative countries that he saw as safe havens.
I asked the applicant if he saw other people during his [number] year relationship with his boyfriend. He claimed that he had a relationship with a woman that began when he was [age] years old and lasted [number] years. I asked him why he was in that relationship to which he responded that his mother was keen on this girl and that he loved his mother. He claimed that he would see her three days a week and then he would see his boyfriend every night because he would come to do revision with his brother. He claimed that he would see him privately twice a week. He would also go out with his boyfriend but would never publicly show affection. I accept that he had a heterosexual relationship but that it wasn’t genuine and that he maintained a genuine homosexual relationship.
The applicant claims to have had gay friends while he was living in Sabah. One was the husband of [Ms A] ([Ms A] did not know that her husband was ‘gay’). At that time he was [age] years old and [Mr A] took him to his [work]. One night they had drinks together and then [Mr A] took him to his room and they had sex. The applicant claimed that he continued to meet with [Mr A] and would use him for money. Whenever he needed money he had sex with him. I accept this narrative.
The applicant also mentioned another gay friend who was a religious teacher at a government school. Otherwise, the applicant claims not to have other gay friends which I accept.
I asked if he would ever go to gay nightclubs in Malaysia. He responded that he did go with [Mr A] and his other gay friend to a nightclub in Sabah where gay people would frequent. There would be drag shows and lip singing. It was a club frequented by males and younger men who are money boys (straight but need money). He claimed that it was a secret club with a sign outside depicting a woman so as to provide cover. I accept that he went to a nightclub in Sabah where gay people frequented. I do not accept that it was a secret club for reasons outlined below in the section discussing [Venue 1].
I asked the applicant if he had ever lived in other parts of Malaysia to which he responded that he had lived in Kuala Lumpur for three months but that he didn’t seek out gay entertainment because he was committed to his boyfriend, a claim which I accept.
In the first hearing he said that he had had a boyfriend and after that had met another man through [website name] but that relationship only lasted for one month subsequently he met his current partner with whom he has been together for over a month. At the second hearing the applicant claimed that since being in Australia he has had [number] relationships, one night stands, plus a relationship with the man who was his partner at the time of the first hearing but that he was no longer involved in the relationship. I accept this description of the applicant’s relationships in Australia.
While in Australia the applicant claims that he did not socialise in the gay community. I asked the applicant why he didn’t attend nightclubs as he did in Malaysia. He replied that he had matured and that he went to [Venue 1] in Malaysia when he was young. He also said that he didn’t know anyone here. I put to him that he uses [website name] so he would know how to use the internet to find a gay nightclub. He responded that he wanted to but that he felt inferior because he is not an Australian and that he believes that people would not accept him because of his ethnicity. I put to him that I must consider whether he were free from fear how would he act in Malaysia and whether this would bring him to harm. He responded if he is free from fear in Malaysia he would interact freely with other gay people and act like couples do. He also believed that he could have free interaction and courtship with other men. I said to him that he has been here in Australia for two years and hasn’t done that. He responded that he is still in touch with his former partner whom he met in Australia. I put to him that he was living in a country where homosexuality is accepted but yet chose not to do anything that he claimed he wanted to do in Malaysia. He responded, ‘The thing is that I don’t have many friends to go out with to do what I did back home.’ He added that he is still looking for friends to do that with. I accept that the applicant free from fear would seek to find a partner, though, that he has matured and does not necessarily want to find one by going to nightclubs. I accept that he wants to be able to engage with his partner in a way like other couples.
At the hearing the applicant claimed that his [siblings] are both [occupation] and that his family observes the Islamic faith and pray five times a day. He claimed that his mother doesn’t understand homosexuality and does not believe that such a thing exists. He also claimed that his [sibling] ‘is a [political]’. I put to him that he had earlier said that [the sibling] was a [occupation]. He responded, ‘Yes, but [this sibling] is also a youth leader of the ruling party [in] [name] district’. I accept that the applicant’s family is religious and that he has [siblings] who are [occupation], and that in addition this [sibling] is a youth leader at the district level of the ruling political party.
The applicant claimed that he doesn’t want to get married to a woman. If anything he wants to get married to another man as he doesn’t desire women any more. I accept that the applicant is homosexual and that he desires a future in which he can openly express his sexual orientation.
The applicant claims to be a Muslim. I accept this claim.

Membership of a Particular Social Group – Muslim male homosexual

The applicant fears returning to Malaysia for reason of harm based upon being a Muslim male homosexual. He stated at the Tribunal hearing that he read an article that homosexuals face imprisonment of up to 20 years. He is also afraid that his family will do something to him such as forcing him to get married and apply pressure such that he will suffer mental harm.
Based on the country information set out below, the Tribunal accepts that Muslim male homosexuals in Malaysia are identifiable by the common characteristic of their sexual orientation, which when lived in a non-discrete manner may be evident in public signs of affection or means undertaken to find partners, as well as the ethno-religious nature of Islam in Malaysia which is evident as a physical characteristic of being Malay but also on identity cards and in other official documentation. These common characteristics set them apart from society at large and the common characteristic is not their shared fear of persecution. It is the reason for the discrimination and other forms of mistreatment to which Muslim male homosexuals in Malaysia are subjected. Therefore, I accept that Malay male homosexuals are a particular social group.

Harm deriving from the state

The DFAT Country Information Report Malaysia from July 2016 notes:
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.[1]
[1] Department of Foreign Affairs, DFAT Country Information Report : Malaysia, 19 July 2016
Human Rights Watch has compiled a list of state laws as they relate to homosexual Malaysians. Based upon their research the applicant’s home state of Sabah has the following on their statutes:
Source of State Sharia Laws: Syariah Criminal Offences Enactment 1995
Laws on Same-Sex Conduct: Intercourse Against the Order of Nature. Whoever has sexual intercourse against the order of nature with any man, woman or animal, shall be liable to takzir and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to caning not exceeding six strokes or to any combination of such punishment. (Section 76)
Liwat [anal sex]. Any male person who wilfully commits an act of liwat shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to both. (Section 82)[2]
[2] Human Rights Watch, I’m scared to be a woman: Human Rights Abuses Against Transgender People in Malaysia, 2014 available at accessed on 1 June 2017
I find that section 377 of the penal code’s penalty of up to 20 years imprisonment constitutes what can be considered serious as well as significant harm and that imprisonment for up to three years under Sharia law similarly can be considered as serious as well as significant harm.
I now turn my mind to consider whether there is a real chance or a real risk that the applicant will suffer such harm.
[T]he Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated.[3]
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. [4]
[3] Department of Foreign Affairs, DFAT Country Information Report : Malaysia, 19 July 2016
[4] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July Additionally the United States Human Rights Practices report of 2016 notes that authorities rarely enforce this act.
The applicant responded that his [sibling] and family will do something to change him and would be willing to report him to the police. I put to him that what I read out suggests that the police don’t take action. He responded that if that’s the case then the family will take their own action but he doesn’t know what they would do. I put to him that he doesn’t need to tell his family if he returned to Kuala Lumpur to which he replied that sooner or later they will find out as his [sibling] has a lot of influence. I put to him that [this sibling] didn’t hold a senior position and that if [this sibling] was living in Kuala Lumpur [this sibling] wouldn’t have a lot of influence. He responded that it still worried him as he believes that they will find out where he is.
In considering the view by DFAT that s.377 of the Penal Code is ‘infrequently being applied’ I have also reviewed other sources. The chief information officer of the PKR, the political party established by Anwar Ibrahim who was twice convicted of sodomy, was interviewed on the matter of section 377 of the penal code:
Latheefa [chief of information for Parti Keadilan Rakyat] says that’s not a scenario Malaysians need to worry about. Islamic law requires four witnesses for offences related to sex and sexuality, because charges are intended to be infrequent. Charges under Section 377 are meant to be rare for the same reason, she says. “The whole philosophy behind such offences is to say that we look at it very seriously, but in order to establish it, you would probably have to [commit] it in public,” she says. Zulkifli [former member of parliament] makes a very similar point: “I don’t think the government is interested to barge into all these gay clubs and whatnot, unless somebody lodges a report,” he says. “But if it’s rampant, if people start having (homosexual) sex at every corner, then maybe we will take action.”[5]
[5] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July type="1">
I now turn my mind to the state laws as it is through state legislatures that Islamic Law is applied to Muslims, such as the applicant.[6] Country information suggests that it is not clear when a case will be prosecuted under civil law or under Sharia law as such I accept that the applicant could be charged under either.[7]
[6] Introduction to the Sources of Law in Malaysia, Hauser Global Law School Program, April 2014, Available at [accessed on 20 April 2017]
[7] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July >
The Tribunal could not find any evidence that the Sabah state Sharia laws are being applied.[8] I put this to the applicant at the second hearing. He responded he had never heard of any either, though he mentioned that he had heard of a raid on a gay nightclub that he had frequented. He claims that he was told that the police were searching for Muslim men. I asked when this had occurred to which he responded that it would have been 2006 or 2007.
[8] I used the search term “Sabah and homosexual but not Kuwait” in country—Malaysia through the Thomson Reuters Westlaw newsroom service as well as general internet searches and the use of the Department of Immigration’s CISNET.
While I acknowledge the absence of the applicant’s direct experience and any reporting does not negate the possibility of government crack downs or the veracity of his friend’s claim, under the circumstances of a country with extensive NGO activity and considerable international attention that there isn’t independent reporting on the matter convinces me that the laws, both federal and state, are not being applied fully. The question then becomes whether the extent that they are being applied places the applicant in the situation of facing a real chance of serious harm or a real risk of significant harm.
In considering whether the applicant may face a real chance of serious harm I follow the guidance Justices McHugh and Kirby provided in S395/2002 V Minister for Immigration and Multicultural Affairs in which they wrote that consideration must be given to whether there is ‘a real chance that the applicant will be prosecuted if returned to the country of nationality?’[9] (highlight added by the Tribunal)
[9] S395/2002 V Minister for Immigration and Multicultural Affairs [2003] HCA 71 at [45]
While I accept that the nature and severity of the harm feared constitutes serious as well as significant harm under both the federal and state laws I note the above country information that the law is infrequently if at all applied. As such I do not accept that there is a real chance or a real risk that the applicant ‘will be prosecuted if returned’. As such I find that despite having on its statutes an act that would cause serious harm against homosexual Malay males were the applicant to fulfil his desire to live in a manner that openly expresses his sexual orientation the applicant does not face a real chance or a real risk of being arrested, charged and convicted under either federal or Sharia law for anal sex or same-sex conduct. For this reason I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from state actors.
I now turn my mind to considering the risk that the law will be used extra-judicially.
A commentator on the Asia wide gay website fridae wrote:
Section 377 of Malaysia's Penal Code, which prohibits "carnal intercourse against the order of nature" and acts of "gross indecency," hangs like the proverbial sword of Damocles over the heads of gay men. Although the laws do not explicitly mention homosexuality or homosexual acts (after being amended in 1989 to be gender neutral), the laws are available as a tool to intimidate, harass, extort and exploit gay men and gay-friendly businesses.[10]
[10] No sex party going on at Penang fitness centre, say those arrested, Fridae: Connecting Gay Asia, 22 November 2007. available at accessed on 20 April 2017
I asked the applicant if he had any such experience to which he said that it never happened to him, though he claims it was because he was very discrete in Sabah. I asked if he had heard of any such cases, to which he responded, no.
The source of this country information stated that the law is available as a tool for state actors to use extra-judicially. While I accept that it is available, the question is whether there is a real chance or a real risk that it will be used upon the applicant. While acknowledging that the applicant has lived discreetly in Malaysia I still draw upon his past experiences, though with less weight, that indicate he has not experienced any instances of such action. I have also reviewed country information sources (internet searches, DIBP CISNET, Refworld, Thomson Reuters Westlaw Newsroom) which other than this reference do not show that this is a problem in Malaysia. For this reason I find that the applicant does not face a real chance or a real risk of harm in the form of extra-judicial activity by state actors.
The Department of Foreign Affairs notes that LGBTI individuals face official and societal discrimination and goes on to say that this is the case particularly for Muslims. The document does not describe the type of discrimination, though other sources give examples such as the government’s ‘shutdown of the November 2011 Seksualiti Merdeka (Sexual Diversity) Festival’ and ‘a government program to train volunteers to “convert gays”’.[11] The applicant is Muslim but has not identified in his adult life any official discrimination. Considering that the type of official discrimination that has been identified by country information is very limited along with the applicant not experiencing any, I do not accept that the applicant faces a real chance or real risk of harm through official discrimination.

Non-state actors

[11] Human Rights Watch 2013, World Report 2013 - Malaysia, 31 January, UNHCR Refworld < Accessed 6 June 2017 (DIBP CISNET Malaysia CX302940)

I now turn my mind to considering whether there may be non-state actors who could harm the applicant either through such avenues as vigilante activities or social opprobrium that would encourage discrimination such that it reaches to the level of serious or significant harm.
In a Foreign Policy article the author notes:[12]
Prime Minister Najib Razak has joined the attacks on the LGBT community. "LGBTs, pluralism, liberalism — all these ‘isms’ are against Islam and it is compulsory for us to fight these," Najib said in July 2012, speaking to a 11,000-strong crowd of religious scholars.
[12] Lim Li Min, ‘Still in the Closet: Life isn't easy for Malaysian gays. And it may actually be getting worse’, Foreign Policy, 3 July 2014 available at accessed on 20 April 2017
I accept that there is a current process of Islamization within Malaysia that is mobilising discontent towards homosexuals.
In an academic article Collin, Zaman and Raslan note that, ‘Gay Malays are often accused of bringing shame and destruction to the Malay Muslim community in particular, and the Muslim-majority Malaysian nation-state in general, for committing the very sins of ‘kaum Lut’ (the people of the Prophet Lut). This in many ways has direct material impact on various aspects of gay Malay’s lives which include the creation and articulation of their notions of self and identity.’[13]
[13] Jerome, Collin, Dina Zaman, and Karim Raslan. 2013. "Queer Malay identity formation." Indonesia And The Malay World 41, no. 119: 97-115. pp100-101
Seksuality Merdeka activist and co-founder Pang Khee Teik stated that transgender people were frequent targets ‘for verbal threats, hate mail, harassing telephone calls, and acts of physical and sexual violence committed by the same persons who target lesbian, gay, and bisexual people.’[14]
[14] Alphonsus A 2011, ‘Treat Transgenders Positively’, FMT News, 4 August < Accessed 21 January 2016 <CXCB3E63420933>
I asked the applicant if he had heard of cases of gay bashing or other community violence. He said that he had not. He added that he knew of a story in which the son of a man who had a relationship with a boy attempted to commit suicide because villagers humiliated for his father’s actions.
Representative of these pieces of country information was an article from which I read the below paragraph at the hearing:
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.’[15]
[15] Kuppusamy B 2011, ‘Malaysia: Muslim gay faces govt wrath’, Inter Press Service (IPS), 15 January < <CX256528>
The applicant responded to the above paragraph by saying that he does not believe that nothing happened to Mr Lam. He suggested that maybe because his family is more open minded, but then put to the Tribunal that his family is more religious.
I read to the applicant an article from February 2012 in the Hindustan Times sourced from Agence France-Presse: ‘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.’[16]
[16] Malaysia transsexuals targeted in attacks: report’ 2012, Hindustan Times, 16 February, source: Agence France-Presse < <CX0D38E8E20065>
The applicant responded that this was something new to him. He stated that he had not bothered to find out about gay and lesbian matters in Malaysia. I asked him that if he is seeking protection in Australia why he didn’t look into the situation in Malaysia. He responded that he had heard from other people that gays can face imprisonment up to 20 years. But I put to him that he hadn’t done any research himself. He said that he read an article that said the same thing and that he had attended a religious talk where the religious teacher said that homosexuals will be damned.
In reviewing country information about the gay scene in Sabah the Tribunal found websites which suggest that there are openly gay nightclubs, Q Bar and PluTonic, as well as gay friendly hotels such as the Hyatt Regency Kinabalu which has a Hypride initiative in support of the LGBT community.[17] Another source shows an initiative in Sabah to establish a gay business friendly community.[18]
[17]
[18] See Pink Borneo:
I asked the applicant if he knew of [a certain venue] to which he responded that for a period he would regularly go there. I said that it’s a well-known gay bar. He said that his friends don’t know that. I said that when I Googled it its apparent that it’s a gay bar to which he responded, its only popular in Sabah to those who know it exists. I asked if he knew about [the venue] but he claims that he hadn’t heard about it.
The Tribunal also identified a list of LGBTI support groups, organisations and associations operating throughout Malaysia which provide services including a business directory, news of events, social networking, leadership programs, social get-togethers, events and general information.[19] I put this to the applicant and asked if he had engaged with any of them. The applicant responded that he hadn’t. He claimed that he was afraid of people knowing that he’s gay. I put to him that this is strange because he stated that he often went to [Venue 1]. The applicant responded that the time that he went to [Venue 1] was between 2007-2009 and when he went it was at night and the only people he knew were the owners, staff and [Mr A]. Most of the customers were foreigners. I put to him, that then not all were foreigners. ‘I don’t mix with Malaysian customers,’ he responded. I asked if it was risky for him to be seen in a gay club. He responded that it would be a risk, but he is confident that nobody would know. He never thought that he would be seen by people who know him.
[19]
I put to him that if he’s not afraid of going to a gay bar why is he afraid of contacting a gay association or support group? He responded that he was young at that time. Didn’t think about approaching such groups at that time. I asked after his period of attending [Venue 1] whether he engaged with the gay community. He responded that he had not because he felt so stressed and that he didn’t have anyone to talk to. So he kept it to himself claiming that he didn’t have many friends. I asked why he wouldn’t Google ‘gay community in Malaysia’ and engage with them? Again he responded that he was afraid at that time and really depressed. In particular he was afraid that his family will know about who he is.
The Tribunal consulted various sources (internet searches, DIBP DIBP CISNET, Refworld, Thomson Reuters Westlaw Newsroom) to consider whether there is evidence of non-state actor violence or vitriol against homosexual men such that it would amount to a real chance of serious harm or a real risk of significant harm. The Tribunal cast a wide net in its research but did not find evidence to support such claims.
I acknowledge that high level politicians and community leaders espouse vitriol against homosexuality including the prime minister. I also accept that community standards within the Malay segment of society are such that discrimination does occur against homosexual Malays. I note that there is country information that suggests that acts of physical and sexual violence against homosexual men exists,[20] however I also note the clear evidence of gay venues, associations and organisations operating openly, the applicant’s past experience of not facing physical violence (which I acknowledge stems in part due to acting discretely and for this reason place a lower weight on this evidence) and searches failing to find any information on an extent of violence that would suggest that the applicant faces a real chance or a real risk. Considering these competing factors I find that there isn’t a real chance or a real risk that the applicant would face physical violence from non-state actors.
[20] Seksuality Merdeka activist and co-founder Pang Khee Teik stated that transgender people were frequent targets ‘for verbal threats, hate mail, harassing telephone calls, and acts of physical and sexual violence committed by the same persons who target lesbian, gay, and bisexual people.’ I note that the applicant is not transgender but include this as it indicates that there are acts of violence being claimed to occur against gay men. Alphonsus A 2011, ‘Treat Transgenders Positively’, FMT News, 4 August < Accessed 21 January 2016 <CXCB3E63420933>
In reviewing the country information referenced above on the type of discrimination (i.e. non-physical violence) that the applicant may face including accusations of bringing shame to the family and eliciting adverse reactions if flaunting his sexuality I find that the severity does not amount to serious or significant harm.
I have also considered the psychological harm that he may face from state and non-state actors despite the applicant not claiming past harm in this form. Country information referenced throughout this decision gives examples such as verbal threats, hate mail and harassing telephone calls and accusations of bringing shame to the family that has informed my understanding of the specific circumstances for which there is a real chance or a real risk that the applicant will face in the reasonably foreseeable future were he to return to Malaysia. I find that these include verbal harassment and threats, social discrimination and accusations of bringing shame to the family. I consider these circumstances as cumulative over time. I find that the psychological harm the applicant faces in the reasonably foreseeable future does not amount to serious or significant harm.

Harm deriving from his family

The applicant stated that he is afraid that his family will do something to him such as forcing him to get married. I put to him that he is [age] years old and asked how they can force him to get married. He responded that they would be embarrassed of his sexuality and to them it is an illness that can be changed. He claimed that he would be forced to get married otherwise they would send him to the police. I put to him that I have to consider whether he faces serious harm and I said that what he has told me that his family would do does not amount to serious harm. He responded that the harm is mental harm, because he will not be free to do what he wants. I asked why he couldn’t move to Kuala Lumpur. He responded that it’s easy for his family to travel to Kuala Lumpur. I said that he could live his own life in Kuala Lumpur and not worry about his family at which stage he responded that he was worried that his family would make a police report.
I asked the applicant if he had thought about going back to Malaysia without telling his family to which he responded, ‘No. Because I do not wish to go back to Malaysia.’ He elaborated that he no longer wanted to pretend to be who he is not.
Based upon the evidence provided by the applicant I do not accept that the applicant, a [age] year old man who could reasonably be expected to establish a life independent of his family in the cultural context of Malaysia, would experience the harm that may be imposed by his family, including pressure to modify his behaviour, in such a way that he would be unable to resist or were he to resist the impact would amount to serious or significant harm as described in the Migration Act.

Cumulative

I have also considered the cumulative risks and impact upon the applicant were the above listed actors to bring to bear upon the applicant their actions concurrently. I do not accept that the risk of harm to the applicant increases when considering the potential persecutors concurrently. While there are some possible inter-relationships between state and non-state actors such as but not limited to the family informing the police, I find that the risk would not increase such that there is a real chance of serious harm or a real risk of significant harm. I have also turned my mind to whether the combined psychological pressure on the applicant arising from the fear of harm derived from a number of different directions would cause the applicant serious or significant harm. I find that it would not. As such even when considered cumulatively, I do not accept that the level of risk and the degree of harm is such that the applicant faces a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of returning to Malaysia.
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).

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

Denis Dragovic
Senior 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

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.
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.
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.
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.
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.
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

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.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1173

14 July 2017

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