1604321 (Refugee)

1604321 (Refugee) [2017] AATA 2089 (17 July 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604321
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Denis Dragovic
DATE:17 July 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 July 2017 at 9:39am
CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Chinese Malaysian male homosexual - Effeminate males – Psychological harm – Fragile mental health
LEGISLATION
Migration Act 1958, ss.5H, 5J, 5K-LA, 36, 65, 377, 499
Migration Regulations 1994, Schedule 2
CASES
S395/2002 V Minister for Immigration and Multicultural Affairs [2003] HCA 71
SZALZ v MIMIA [2005] FCA 143
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] October 2015. The Tribunal viewed a copy of his Malaysian passport. The Tribunal accepts that the applicant is a citizen of Malaysia and will assess the applicant’s claims against Malaysia as his country of reference for the purposes of s.5H(1)(a) 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.
The Tribunal received evidence from [the] applicant’s partner.
The delegate refused to grant the visa on the basis that they were not satisfied that there was neither a real chance of persecution nor a real risk of suffering significant harm.
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
Summary of applicant’s claims: The applicant stated that he is a man of ‘sissy’ characteristics and that people believe him to be a woman. They would point at and verbally abuse him when he went out in public. Because of this he has been under considerable stress and feels that he is unable to live in Malaysia. He claims that he wasn’t promoted in a job because of this. He left Malaysia once before remaining in Australia for 3.5 years without declaring himself or claiming protection because he didn’t know the visa system. Upon return to Malaysia he claimed that things hadn’t improved for him and as such he returned to Australia but this time claimed protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings of Fact
The applicant claimed that he is perceived to be a man with ‘sissy’ characteristics and that people on the street would think that he was like a woman in part because his behaviour wasn’t like a man. I accept his claim that people perceive him to have ‘sissy’ characteristics and I equate this with effeminate characteristics.
In a written submission the applicant claimed that since high school he suffered from constant and continuous discrimination and harassment such that he was referred to as being ‘morally low and kinky’. He claimed that his parents would approach school authorities but nothing would be done. I accept that the applicant’s youth was coloured by official and social discrimination and harassment.
The applicant claimed that his family objected to his sexual orientation so much so that his mother disowned him and his father admonished him not to engage in any homosexual activities. I accept that this happened as claimed.
He claims that he worked [for] [number] years. Originally he began as an ‘ordinary staff’ member. In 1997 his boss wanted to promote him to a[senior role], but workers objected because he was too feminine. Since leaving [that job] he has been doing part time work. I accept that he was denied promotion. Finding the applicant overall credible, I give him the benefit of the doubt and accept that the reason that he did not receive the promotion was because of the objection by colleagues to him being perceived as effeminate.
At the hearing he stated that he first came to Australia in 2008 and stayed 3.5 years while in his application he stated that it was 2009 when he arrived and December 2011 when he returned to Malaysia. He claimed that he returned because he wanted to see if he can get used to life in Malaysia and if the environment had improved. Between his return to Malaysia and coming to Australia the second time he lived in [a town] with his father. He claims that he didn’t apply for protection during the first period in Australia because he [lived] on the farm and didn’t have a chance to learn about other visa possibilities. I accept these statements of the applicant and do not find the discrepancy of dates as a relevant matter.
During the interim period in Malaysia he worked part time 2-3 days per week in a [workplace]. He claims that sometimes he would have to [do certain type of work] and others would joke, ‘see him, he doesn’t have energy to do this type of work.’ He also worked in [another workplace] as [an occupation] but due to his characteristics he claimed that it was difficult to be accepted by people. I accept these claims.
I asked the applicant at what point in his life did he come to realize his homosexual orientation? He responded that when he was [age] years old he started having some feelings for boys. He initially thought that he was not a normal person and so he tried to have some relationships with women but he didn’t feel interested. In 2002 he met his partner at a swimming pool. It is the only partner he has had and they have been together for 15 years. I asked whether the swimming pool was a place known to be where gay people congregate to which, he responded that he didn’t know but rather that he went to the swimming pool to swim every week, it just happened that he met his partner there. I accept this narrative as fact.
I asked if he and his partner had socialized as a gay couple. He responded that he became frightened to do so. He claimed that he stopped other activities such as going out to saunas after he read in the newspaper that the government was trying to crack down on homosexuals. I asked why he was going to saunas to which he responded that at first he would go for the massage, but then realized that this place had a special service, if he gave money they would give him sexual service by a man so he would return but he didn’t go there to meet other gay people. I accept these claims.
The applicant claimed that in 2003 he and his partner were in a [hotel]. While resting in their room a group of men claiming to be the Selangor Religious Police together with the Royal Malaysian Police who were doing rounds inside the hotel checked on them. He claims that his partner paid some money to the policeman and they withdrew. I accept that this occurred.
In a post hearing submission the applicant claimed that the relationship was discreet and that they couldn’t live as a couple. I accept that they have maintained a discreet relationship.
I asked the applicant if he had told anyone in his family about his sexual orientation and how did those family members react. He responded that he hadn’t dared to tell his father because its illegal and he claims that his [siblings] don’t know either because he is sure that they are not willing to accept his sexual orientation. He is afraid that they might try to disown him. This claim at the hearing contrasts with the post-hearing submission in which he stated that he had told his father who admonished him and his mother who had disowned him. I put this discrepancy to him at the second hearing to which he responded it was only when he was young that they didn’t know. He then explained that they found out when he started dating his partner. I put to him that his parents knew about his homosexuality since the beginning of his relationship yet he continued to live with them his whole life which would indicate that they weren’t opposed to it. He responded that they knew it but that they were opposing it all of the time and that he didn’t have a good relationship with his parents. I find that his parents did know about his homosexuality and that while they may have disliked that they continued to allow him to live in their home suggests that they had a tolerance of it.
The applicant claimed that the second time he went to Malaysia he took his boyfriend home as his father had passed away. He claimed that when the neighbours witnessed what he was doing they started to make comments and remarks. They mentioned that what he is doing is highly unethical and said that he brought shame on his parents and [siblings]. I asked him what he is afraid of from his neighbours, relatives and work colleagues to which he responded that he is afraid that they will refuse to be friends with him. I accept that the neighbours acted in the way described at the hearing as summarized here and reflected further in the post-hearing submission.
The applicant claimed that he had never been physically harmed because of his effeminate nature or homosexuality. I accept that this is the case.
The applicant claimed that the state had persecuted him for his effeminate nature by preventing him from serving in the army. He said that he wanted to do what boys want to do such as join the army but the government wouldn’t accept him. This desire and sense of repudiation from the government occurred when he was in middle school. He said that he wanted to join the army because in Malaysia you had to join the army. ‘I gave my materials but they didn’t approve. They told me that I was too feminine and not strong enough. They looked at me in a weird way.’ I accept that the applicant had applied for some form of junior military service and was rejected for the reasons given.
The applicant presented passes to gay venues and business cards for gay venues in Australia. The passes date from November 2015 through to 2017. He said that in Australia he can join a club like this, that colleagues and friends don’t see him differently as they do in Malaysia. I put to him that he told me that in Malaysia he went to similar places to which he responded that he did but that he was quite worried as its illegal in Malaysia. I accept that the applicant attended these venues in Australia and that were he living free from fear in Malaysia he would attend the same venues he had already along with others as well.
The witness stated at the hearing that he met the applicant in 2002 at a swimming pool that had a lot of these kind of people (gay). He stated that they have been committed to each other since then but they don’t show affection openly when they go out as they don’t want to get caught fearing a fine and jail. The witness stated that he knows gay friends who have been caught by policemen and then had to pay money to get away for simply talking in a car. He stated that he would see his partner twice a week. The witness’s statements align with the applicant’s and as such I accept those claims.
Applicant’s personal attributes
The applicant submitted through the representative that he is particularly vulnerable due to his age, introverted personality, education background and his perception of being ‘weak’ and ‘unable to protect himself’.
The applicant repeatedly stated that while he hasn’t been hurt physically his spiritual and emotional health has been damaged and that it is harder to recover from such harm. He put to the Tribunal that with physical harm the body can recover but with emotional and spiritual harm it takes time to heal. He claims that sometimes he doesn’t have the motivation to continue with his life. He claims that he is feeling exhausted and on the verge of a breakdown.
I put to him in the latter part of the hearing that what he had described is not serious harm and asked for his response to which he said that perhaps from an outsider’s point of view it is not equivalent to a very serious level of harm but given the person that he is, being very introverted, it is.
The applicant claims that his fragile mental health makes him more susceptible to the discriminatory harassment that he has encountered in the past and that while maybe not for others, considering his particular psychological situation, were he to return to Malaysia his circumstances would amount to being considered as having a well-founded fear of persecution.
In considering this claim I have drawn on the guidance provided by Raphael FM in SZALZ v MIMIA[1], a similar case in which the appellant argued that ‘the Tribunal failed to take into account the serious mental disturbance that had occurred to her which resulted in her having a mental breakdown and requiring attendances upon her doctors and the prescribing of medication which she takes even today.’ The cause of her mental breakdown was claimed to be Convention related persecution. In response Raphael FM found that, ‘[T]he test of persecution is objective. If the harassment that the applicant suffered from her neighbours was not sufficiently serious to constitute persecution that finding cannot be changed because of the more serious affects that it had on the applicant than it might have had on another person.’ As the applicant in this case currently before the Tribunal was represented and yet no medical evidence was provided and considering the guidance in SZALZ v MIMIA I do not accept that the applicant’s claimed mental frailty without any independent medical advice changes what constitutes serious or significant harm.
[1] SZALZ v MIMIA [2005] FCA 143
In considering the case I have taken into consideration the applicant’s [age] and education as far as they may limit his opportunities to avoid serious or significant harm in the form of significant economic hardship or socio-economic depravation.
Membership of Particular Social Groups – Chinese-Malaysian male homosexual and effeminate males
The applicant fears returning to Malaysia for reason of harm based upon being effeminate and gay.
Based on the country information set out below, I accept that Chinese-Malaysian male homosexuals (country information suggests a distinction in levels of risk between ethnicities[2]) in Malaysia, when free from fear, are identifiable by common characteristics through their outward behaviour or public signs of affection. Similarly I accept that effeminate men are identifiable by common characteristics. These common characteristics set them apart from society at large. This common characteristic of each member is not a shared fear of persecution. It is the reason for the discrimination and other forms of mistreatment to which effeminate males and Chinese-Malaysian male homosexuals in Malaysia are subjected. Therefore, I accept that effeminate males and Chinese-Malaysian male homosexuals are a particular social group.
Chinese-Malaysian male homosexuals
Harm deriving from the state
[2] See Department of Foreign Affairs, DFAT Country Information Report: Malaysia 19 July 2016 [3.90] and [3.94]
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.[3]
[3] 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 Selangor has the following on their statutes:
Laws on Same-Sex Conduct: Sexual relations between persons of the same gender. Any person who engages in a sexual act with another person of the same gender shall be guilty of an offence and shall be liable on conviction to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding one year or to both. (Section 27)
Sexual intercourse against the order of nature. Any person who performs sexual intercourse against the order of nature with any man, woman or animal is guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof. (Section 28)[4]
[4] 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 and whipping up to six strokes 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.[5]
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. [6]
[5] Department of Foreign Affairs, DFAT Country Information Report : Malaysia, 19 July 2016
[6] 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 for people like Anwar Ibrahim the usage of s.377 occurs infrequently but for people like him it could occur at any time. He asked whether I could guarantee that it won’t. I put to him that the test is whether there is a real chance to which he answered that there is because Islamic culture does not accept people like us. ‘They find our existence unethical.’
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.”[7]
[7] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July >
Other sources noted that while the law is infrequently used, it is a tool that is used to intimidate, harass and even extort.
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.[8]
[8] 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 now turn my mind to the state laws. State legislatures have authority to implement Islamic Law which is applied to Muslims.[9] The applicant is not a Muslim as such I find that the applicant does not face a real chance or a real risk of harm from the state through state laws.
[9] Introduction to the Sources of Law in Malaysia, Hauser Global Law School Program, April 2014, Available at [accessed on 20 April 2017]
In considering whether the applicant may face a real chance of serious harm by the federal authorities I first 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?’[10] (highlighted added by the Tribunal)
[10] 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 federal laws I note the above country information that the law is infrequently if at all applied. While acknowledging the applicant’s responses I do not accept that they differentiate his circumstances from country information. As such I do not accept that there is a real chance or a real risk that the applicant ‘will be prosecuted if returned’. I find the applicant does not face a real chance or a real risk of harm in the form of being arrested, charged and convicted under federal law for anal sex or same-sex conduct.
I now turn my mind to considering the risk that the law will be used to ‘intimidate, harass, extort and exploit gay men and gay-friendly businesses.’ 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 first question is whether there is a real chance or a real risk that it will be used against the applicant in the reasonably foreseeable future.
While acknowledging that the applicant has lived discreetly in Malaysia I still draw upon his past experiences but give them less weight. He named a single incident in 2003 in which police were doing inspections of a hotel that he and his partner were in. The outcome was that his partner paid a bribe to the police. The applicant also noted in his statutory declaration that as in that case police seldom prosecute but rather use the law to achieve their own objectives such as in that instance to solicit a bribe.
I have reviewed country information sources (internet searches, DIBP CISNET, Refworld, Thomson Reuters Westlaw Newsroom) that other than the above report does not indicate that intimidation, harassment and extortion are a problem. I acknowledge that the lack of information does not necessarily preclude it from existing as a current problem.
Considering that the extortion the applicant referred to was a single incident (I asked if there were other instances to which he said it occurred ‘just once’) despite telling the Tribunal that he regularly spent time with his partner in hotels and recognizing that country information does not support the view that extortion against homosexuals is a problem 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 not Muslim and has not identified in his adult life any official discrimination despite being effeminate; a characteristic which in Malaysia is associated with homosexuality.[12] The applicant himself gave an example of perceived discrimination in that he had wanted to join the army but was refused based upon the grounds of being too feminine and not strong enough. I find that the type of official discrimination that has been identified by country information is very limited. I find that the discrimination against the applicant when he was in middle school is not representative of a circumstance that he would face again were he to return to Malaysia. I asked whether there were any other situations, to which the applicant had stated that there weren’t. Taken together with the country information and a cultural context of Malaysia where being effeminate leads to a perception of being homosexual, hence heightening the chance of discrimination for this applicant, I do not accept that he faces a real chance or real risk of harm for this sub-set of his claim.
Non-state actors
[11] Human Rights Watch 2013, World Report 2013 - Malaysia, 31 January, UNHCR Refworld < Accessed 6 June 2017 (DIBP CISNET Malaysia CX302940)
[12] Malaysia: CI151126150755046 - Gay and effeminate men in Malaysia, 29 January 2016 p27 ff
I now turn my mind to considering whether there may be non-state actors who could harm the applicant either through such actions as vigilante activities or social opprobrium that would encourage discrimination such that it reaches to the level of serious or significant harm.
The applicant noted that he is a very introverted person and fears being affectionate publicly. In his country when he goes out he cannot bear the tone and pitch of other people or how they address him. When he goes out some people tell him that he shouldn’t appear before them, that he doesn’t belong. He feels that he doesn’t have personal space.
In a Foreign Policy article the author notes the Prime Minister of Malaysia’s position:[13]
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.
[13] 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 has been over recent years a current process of Islamization within Malaysia that is mobilising discontent towards homosexuals.
In reviewing country information about the gay scene in and around his area including Kuala Lumpur, a 45 minute drive from where he lives, I found the Travel Gay Asia website which described the gay scene as: ‘Kuala Lumpur has a vibrant, somewhat discreet bar & club scene. A growing number of mainstream venues have recognised the value of the Pink Ringgit and host parties for the gay crowd.’[14] I found listings of gay clubs as of late 2016 to include among others:
Blue Boy
Malaysia's oldest gay club, rolling on past its 2nd decade, has been renovated in 2016. Small, friendly neighborhood place that gets completely packed on Fri and Sat nights. Main room has a bar and dance area. Second room has table seating. Decor is basically dim lighting. The guys here are very open and really good at dancing (some of them love to show off in front of the mirror). The highlight of the night is their drag show. They have their own troup and occasionally they will invite other performers as well. Crowd is mostly young Malay and their matt saleh (white) admirers, with a handful of foreigners, Chinese and Indians. The MBs [money boys] are rather obvious and to be avoided. After all, why dish out with all the complimentary treats on hand?[15]
[14] Travel Gay Asia, available at [accessed on 20 April 2017]
[15] Utopia website available at accessed on 2 June 2017
I acknowledge that the above country information suggests that the gay bar and club scene is ‘somewhat discreet’, though I distinguish this from an individual acting discreetly. Bars and clubs can be discreet for a variety of reasons ranging from exclusivity to businesses wanting to avoid undue attention to their activities. In this case I find that the preference for discretion would be to avoid risking authorities extorting their owners or shutting down their business and not for the reason of limiting the actions of their clientele.
The Tribunal also identified a list of LGBTI support groups, organisations and associations which provide services including a business directory, news of events, social networking, leadership programs, social get-togethers, events and general information.[16] Upon being asked whether he had accessed any he responded that he hadn’t because he didn’t know about them.
[16]
He explained that he is a quiet person. When asked whether he would look them up were he to return to Malaysia he responded that he would not because he is quiet and withdrawn, ‘I don’t want to take part in such a things’. When pressed noting that these groups have people who are similar to him, organize events for people similar to him and provide support to people similar to him he maintained that he wouldn’t because he doesn’t want to let many people know.
It was explained to the applicant that the Tribunal has to consider what type of life he would lead free from fear were he to return and whether that life would put him at risk. I put to him that he would chose not to engage with such groups while knowing that there are groups that support people like him and provide opportunities to meet others indicates to me that the type of life he would lead, free from fear, isn’t one that would bring him out into the public and put him at risk. He responded that he doesn’t want people to know. While there are brave people who are happy to say that they are gay publicly I am a quiet and conservative person.
The applicant continued by explaining that he has Malaysian friends who he believes would push him away if they knew his sexuality. I found this contradictory to his earlier claims and as such put to him that he had been arguing that in Malaysia being effeminate meant that people perceived you as being gay and as such why wouldn’t his friends already think that he is gay? He responded that it is because he hasn’t been exposed to community groups. I I put the question to him once more as it appears he was intentionally avoiding answering the question. He acknowledged that his friends suspect that he is gay. I put to him that if they suspect that he is gay based upon being effeminate and yet he still has friends indicates that they accept him as a gay person. He responded that he disagreed.
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 asked the applicant to which he responded only with the earlier mentioned example of his neighbour and work colleagues.
The Tribunal also considered the applicant’s personal experience of being gay and considered effeminate in Malaysia. The applicant’s experience, as noted, is that he was never physically harmed, though he has been emotionally harassed and believes that he was deprived of a promotion because of colleagues’ perceptions of him. While I acknowledge that this evidence is limited in value as it is tinged by the applicant’s fear which may have influenced his behaviour I nevertheless have taken it into consideration while giving it less weight.
I put to the applicant that the information that he has provided suggests to me that in Malaysia there is an environment such that he could identify and attract sexual partners and maintain any relationship established. He disagreed and said that it is not reasonable to disclose his sexuality as it is a source of shame. In others’ view people like him belong in a third class of being. He believes that others’ views are that he should vanish.
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 but I find that this is not the case among the ethnic Chinese community. I note that there is country information that suggests that acts of physical and sexual violence against homosexual men exists,[17] however I also note the clear evidence of gay venues, associations and organisations operating openly in and around his locality, the applicant’s past experience of not facing physical violence 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. As such while I accept that acts of physical and sexual violence amounts to serious and significant harm, I do not accept that there is a real chance or a real risk of such harm occurring in the case of the applicant.
[17] 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>
I have also considered the psychological harm that he may face from state and non-state actors. In doing so I have considered the evidence he has provided of mental harm in the past including but not limited to those emanating from his fears of the law, official discrimination, family, neighbours and work colleagues. I have also considered country information referenced throughout this decision which gives examples such as verbal threats, hate mail and harassing telephone calls. Together this information has informed my understanding of the psychological harm for which there is a real chance or a real risk that he will face in the reasonably foreseeable future were he to return to Malaysia. I find that these include verbal harassment and threats, social discrimination, hurdles in finding employment, being ostracized from his [siblings] as well as his neighbours and relatives not wanting to be friends with him. In doing so I have considered 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.
Effeminate nature
The applicant fears returning to Malaysia because of how society treats him as an effeminate man. He claims that the community is not accepting and that his life is at risk. He claims that when he has arguments with friends they will use swear words against him. I pressed him on how his life is being threatened and how it would be in the future to which he responded that when he argues he has no power to fight back and that he would even be pushed by them on numerous occasions. At the workplace he would be called a nuisance and believes that in their eyes he doesn’t deserve to live.
A review including internet searches, The Department of Immigration’s DIBP CISNET (including a report prepared by Country of Origin Information Services Section of DIBP in response to a specific question on the harm faced by effeminate men)[18] and Thomson Reuters Westlaw Newsroom for country information on the circumstances of effeminate men has found no results. Instead, considerable information was found on the situation faced by effeminate boys including being sent to a ‘boot-camp’ and perceived risk by the government of effeminate boys turning into homosexual men.[19] While I acknowledge the absence of material does not negate the possibility of its existence, under the circumstances of a country with extensive NGO activity and considerable international attention that there isn’t reporting on the matter convinces me that neither federal nor state jurisdictions have laws pertaining to effeminate males.
[18] Malaysia: CI151126150755046 - Gay and effeminate men in Malaysia, 29 January 2016
[19] Malaysia: CI151126150755046 - Gay and effeminate men in Malaysia, 29 January 2016

In the second hearing I put to the applicant that I was unable to find any evidence to support a claim that effeminate men risk harm because they are effeminate and requested a response. The applicant said that he didn’t think that there was a risk that a man would suffer for being effeminate. Instead he said that it heightens his risk among those who see the two, effeminate nature and homosexuality, as being one and the same.
Cumulative
I have also considered the risks to the applicant cumulatively as being a member of both particular social groups. In reviewing country information it is apparent that in Malaysia the two are often interlinked such that effeminate boys are considered to be more likely to become homosexual men and that homosexual men have a tendency to act effeminate.[20] This leads to the applicant being more easily identifiable as a homosexual. In considering the country information available to the Tribunal I find that even with this increased exposure I do not accept that it raises the possibility to a real chance or a real risk of harm by state and/or non-state actors. 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.
[20] Malaysia: CI151126150755046 - Gay and effeminate men in Malaysia, 29 January 2016 p27 ff
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
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2089

17 July 2017

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

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