1604863 (Refugee)

1604863 (Refugee) [2017] AATA 1045 (8 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1604863
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Stuart Webb
DATE:8 June 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 08 June 2017 at 2:02pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Homosexual – Malay Muslim – Transgender – Sharia law – Risk of discrimination and harassment – No State protection
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Malaysia, applied for the visas [in] August 2015. The applicants provided a copy of the delegate’s decision to the Tribunal. The delegate determined that on the country information about homosexuality in Malaysia demonstrated that the applicants would not be harmed on return to Malaysia.
The first named applicant provided a claim for protection with reasons why he could not return to Malaysia. The second named application provided an application but did not provide any reasons why he could not return to Malaysia. For the purpose of the decision, the first named applicant will henceforth be known as ‘the applicant’, and the second named applicant as ‘the second applicant’.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided the following information with his application. He had never married or been in a defacto relationship. He arrived in Australia in December 2014. He arrived in Australia in December 2014. He lodged his protection application in August 2015. He lived in one place in Kuala Lumpur from [year] to 2014. He worked in a [business] in Malaysia from 2010 to 2014. He was in contact with his family through social applications.
The applicant made the following claims for protection. He came to Australia because Malaysian people hate homosexuals. Sharia laws have been imposed criminalising gay and lesbian acts, including imprisonment and 6 lashes of the whip. There are fines imposed as well. They act dangerously when they see people like the applicant. His family can’t accept him. He will be caught by police and put in jail. He has been hit many times. A stone was also thrown at him and his partner. He cannot move within Malaysia.
The second applicant provided the following information with his application. He had never married or been in a defacto relationship. He arrived in Australia in December 2014. He lodged his protection application in August 2015. He lived in one place in Kuala Lumpur from [year] to 2014. He worked in a [shop] in Malaysia from 2010 to 2014. He was in contact with his family through social applications. He did not lodge any claims of protection of his own. A later email to the Department stated that they claimed to be together.
The applicant provided some further information to the Tribunal. This included some general country information about the way homosexuality was viewed in Malaysia in 2012. Some photographs of the applicants together were also provided.
The applicant provided further information to the Tribunal. This included photographs of the applicant and the second applicant in Australia and in Malaysia. It included a photograph of the applicant with long hair and wearing a dress. Having viewed the photograph and the applicant in person, the Tribunal accepts that this photo is a genuine photo of the applicant.
The Tribunal asked the applicant about her dressing in women’s clothes. The applicant stated that she enjoyed dressing in women’s clothes, that she did identify as transgender and was known as [a female name] in Malaysia. The Tribunal noted that a letter from a friend in Australia, [Mr A] referenced the applicant as [the same female name] as well.[1] [Mr A] is the Australian man pictured in some of the [photos]. The applicant stated that he liked his hair long and wearing a dress, but found it difficult to do so in Malaysia. His work did not approve of this, he worked in a [business], and his family did not like it. They wanted him to dress as a man. The applicant stated he still respected his family’s wishes, so he had not grown his hair in Australia. He remains in contact with his family in Malaysia through social media networks, so they continue to see and influence him. His family and the second applicant’s family know they are both gay.
[1] AAT Folio 29
The applicants stated that they had not been harmed in Malaysia or affected by the authorities. They had been called names and insulted. The applicant stated that the second applicant did not like going out much, while he did. When he was out he was careful as to who he associated with. The applicant stated that he had a group of close friends who knew about his sexual identity, including the transgender interest. However he kept most of the information secret from others. He is seen as feminine and soft in Malaysia.
The applicants provided consistent evidence about their relationship, both relating to the limited information in the application at the Department, but also providing evidence separately at the Tribunal. The Tribunal required the second applicant to leave the room when the applicant was providing his evidence, and when the second applicant came to provide his own evidence, corroborated the evidence of the applicant regarding the nature of the relationship, how they met, and shared experiences in Malaysia.
Findings and reasons
Country of nationality
The applicants claim to be citizens of Malaysia and provided a copy of their passports to the Department with his application, and brought the passports to the Tribunal. The Tribunal finds that the applicants are citizens of Malaysia and that Malaysia is the applicants’ receiving country for the purposes of the refugee and complementary protection assessment.
Third country protection
There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
The Tribunal accepts the applicant and the second applicant are in a homosexual relationship, and have been since 2010. The Tribunal further accepts that the applicants are ethnic Malay, which means that they are Muslim by birth and are unable to convert to any other religion. They are subject to Federal and state Malaysian laws, as well as being subject to Sharia law as Muslims. The most recent DFAT report on Malaysia states:
3.20 Individuals born in Malaysia of Malay ethnicity are automatically classed as Muslim. Their Muslim status is recorded on their birth certificate and on their national identification card. National identification cards do not distinguish between Sunni and Shia Muslims. Muslims are identified on the card’s surface but for members of other religions, it is encrypted in the card’s smartchip. Married Muslims must carry a special photo identification of themselves with their spouse as proof of marriage.
3.21 Malaysia has a two-track legal system comprising civil law, based on English common law at federal level, and sharia-based law, which is administered at state level and varies state by state. Matters considered by states under sharia-based law relate to; succession, betrothal, marriage, divorce, adoption, guardianship, approval of mosques or any Islamic place of worship, and, broadly, the ‘deterioration of matters of Islamic law and Malay customs’. The federal government delivers national rulings and provides guidance to state religious departments through the National Department of Islamic Development (JAKIM) and the National Fatwa Council. These bodies sit within the Prime Minister’s portfolio.
3.22 Sharia-based law applies only to ‘persons professing the religion of Islam’. However, the enforcement of sharia sometimes affects non-Muslims, particularly on matters involving religious conversion and family law.[2]
[2] DFAT Country Information Report – Malaysia July 2016
The Tribunal noted the country information about homosexuality in Malaysia. The Tribunal discussed country information with the applicants. The Tribunal noted that section 377 of the Penal Code provided Malaysian laws (as opposed to religious law) with respect to sexual activity. 377A is relevant to men, as this discusses ‘the insertion of the penis into the mouth or anus of another person to be carnal intercourse against the order of nature’. 377B says that voluntarily committing carnal intercourse against the order of nature faced up to 20 years jail. 377D of the Penal Code states that ‘Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years’ .
However, these provisions of section 377 are not enforced by the authorities, there being 7 recorded instances in the past 70 years and 4 of these specifically against Anwar Ibrahim[3]. It has been described that the use of these provisions are highly political in nature[4] and not used in the ordinary course of matters against individuals. No other provisions of the Penal Code refer to homosexuality, thus being homosexual in itself is not illegal in Malaysia. The Tribunal considers that while the laws do exist, they are not used to prosecute homosexuals like the applicants who identify and practice as gay men in Malaysia, and would not be used against the applicants.
[3] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July <CISE1310071713 Also note References in DIBP Decision, pp 13-15, AAT Folios 2-3
[4] DFAT Country Report, Malaysia, December 2014, 3.67; US Department of State 2015, Country Reports on Human Rights Practices 2014 – Malaysia, 25 June, Discrimination, Societal Abuses, and Trafficking in Persons’ subsection ‘Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity ’
The Tribunal referred to the DFAT Country Information Report Malaysia from July 2016 at the hearing. This made the following relevant comments on homosexuals in Malaysia.
3.89 Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).
3.90 The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.
3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.
3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.
The Tribunal also notes information in the DFAT report regarding transgender individuals.
3.95 Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality, and, where Muslim, under sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.
3.96 Where transgender women were identifiable as Muslim, and as male, as demonstrated on their national identity card, they were occasionally arrested by state religious authorities or the Royal Malaysian Police. While the majority of arrests occurred in public places, state religious officials occasionally conducted raids on private premises. Members of the Royal Malaysian Police had on occasion accompanied such officials.
3.97 In October 2015, regarding the case of three Muslim transgender women from Negeri Sembilan, the Federal Court reversed a lower court ruling that had found Negeri Sembilan’s state-level prohibition on men dressing as women to be unconstitutional. The Federal Court advised the defendants to exhaust their case in the sharia court, where it had originated. In June 2015, nine transgender women were convicted by a sharia court in Kelantan state under cross-dressing prohibitions. In 2011, a transgender woman was arrested for cross-dressing and was sexually assaulted by religious department officials in Negeri Sembilan. In 2012, religious department officials forcibly entered the home of a transgender woman in Seremban. The woman, a non-Muslim—as confirmed by a check of her national identity card—was not arrested. However, her Muslim transgender friends were arrested for cross-dressing.
3.98 State religious officials have been known to subject transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens or fellow detainees. Societal violence also occurs. On 10 September 2015, Malaysia’s most prominent transgender activist, Nisha Ayub, was brutally beaten by two Indian Malaysian men with iron bars outside her apartment building. She reported the hate crime to police but no suspects have been identified.
3.99 DFAT assesses transgender individuals, especially Muslim men who either cross-dress as women or identify as transgender would face a high level of official and societal discrimination and are at moderate risk of societal violence.

The Tribunal has also considered the significant report from Human Rights Watch that was released on 25 September 2014[5]. The Tribunal notes that this report also identifies Muslim transgender, predominantly female, as being the target of most of the mistreatment, as the religious police are responsible for a significant number of the arrests. The Muslim community in Malaysia, which by law automatically includes all ethnic Malay citizens, is the largest religious and ethnic group in Malaysia. Ethnic Malay transgender individuals, who are deemed Muslim, face specific threats arising from the imposition of Sharia Law, which does not affect non-Muslim groups. However, the fact that it is Sharia law that is the most concerning cause of mistreatment of transgender individuals in Malaysia does not stop the mistreatment of non-Muslims by the authorities and the religious police. The transgender community itself does not segregate itself into ethnic groups, their events, communal locations and gatherings do not differentiate between ethnicity. Therefore, when religious police raid a transgender event all attendees, Muslims and non-Muslim alike, are caught up in the arrest. The report identifies experiences of transgender men, including the following extract
Transwomen told Human Rights Watch that religious officials had forcibly entered their homes or places of work to carry out arrests. [81] In 2012, Religious Department officials forcibly entered the home of Izzati, a transgender woman in Seremban, while conducting a warrantless raid. Izzati, who as a Christian was not subject to Sharia law, was in front of her apartment building with three transgender Muslim friends. When a group of 10 Religious Department officials arrived in the neighborhood in several vehicles, Izzati’s three friends rushed up to the apartment and locked the door. Izzati remained downstairs, where the officials confronted her. She told Human Rights Watch:
They checked my IC [identity card] and saw I wasn’t Muslim. Then they went up to my room because they [had seen] my friends going up to my room. They forcibly took the keys out of my handbag. They pulled the bag from me, looked into it, pulled the keys out, and opened the grill [on the front door]. Then they went upstairs, opened the door, took photos, and arrested and charged the three Muslim transwomen who were upstairs. They were charged with cross-dressing.[6]
[5] I’m Scared to Be a Woman “Human Rights Abuses Against Transgender People in Malaysia, Human Rights Watch Report, 25 September 2014.
[6] Ibid p30
This report was reported on in the following manner. An example of the reporting stated:
Malaysia is among the worst countries in the world to be a transgender person, Human Rights Watch said in a report on Thursday that detailed systematic abuses by religious authorities and police including sexual assault and extortion.
The report, based on interviews with more than 40 transgender people, blamed "increasingly vitriolic" discourse by government officials, politicians and religious leaders in the Muslim-majority country for the deterioration in rights.
Malaysia had steadily shifted towards Islamic conservatism in the past few decades, with every state introducing enactments for Muslims that criminalize "a man posing as a woman" or vice versa, the report by the U.S.-based group said. It said Malaysia, where Islamic authorities banned sex change surgery in 1982, was among only a handful of countries including Nigeria and Kuwait that criminalize transgender people.
"Malaysia is actually one of the worst countries to be a transgender because of the laws, the state-organized arrests and the hate speech by politicians," said Boris Dittric, advocacy director of Human Rights Watch's Lesbian, Gay, Bisexual and Transgender (LGBT) rights program.
The report called on Prime Minister Najib Razak, who has cast himself globally as a voice of moderation, to retract a statement media said he made in 2012 that it was necessary to fight the three "-isms" of pluralism, liberalism and LGBTs.
The 73-page report included witness testimony from one transgender women who said she had been stripped and sexually assaulted by state religious department officials in 2011. Others said they had been arrested and forced to attend "counseling" sessions where Islamic officials lecture them on "being a man".
Some women said they had been jailed for up to three years, with several placed in male wards where they faced sexual assault from prisoners. Widespread discrimination by employers means a disproportionate number of transgender people end up working in the sex trade, where they face heightened risks.
Several transgender women have filed a ground-breaking court case challenging Islamic law, or sharia, in the state of Negeri Sembilan, arguing that it contravenes the federal constitution's guarantee of freedom of expression and equality. The court is expected to deliver its verdict in early November[7].
[7] Malaysia among worst countries in world for transgenders: report September 24 2014
It would appear that despite the report there remains significant issues in Malaysia for transgender individuals. A report from June 2015 states:
Malaysian authorities need to immediately abolish laws against cross-dressing, said Human Rights Watch after a Kelantan shariah court sentenced nine transgender women to fines and jailing last month.
The international non-governmental organisation which researches and advocates human rights said such laws discriminate against lesbian, gay, bisexual and transgender (LGBT) people. "Malaysian authorities need to stop hauling transgender people into court simply because of who they are and what they wear," said Neela Ghoshal, a senior LGBT rights researcher at Human Rights Watch.
“The government needs to recognise that the freedom to express your gender is as fundamental as any other freedom."
Nine of the transgender women were sentenced to fines by the Kelantan shariah court while two were given one month in jail.
Section 7 of Kelantan's Shariah Criminal Code of 1985 states that any male person found to be publicly wearing women’s attire or posing as a women will be liable to a maximum fine of RM1,000 or jailed for four months, or both. The nine were attending a private birthday party at a hotel on June 16 when officials from the Kelantan Islamic Department (JHEAIK) raided the party and arrested them. They pleaded guilty the next day and a lawyer filed an appeal, while the two women sentenced to jail were released on bail.
Human Rights Watch said the raid was the latest incident in a "pattern of arbitrary arrests and harassment of transgender women" in Malaysia.
"The Malaysian authorities should be protecting trans people from discrimination, not perpetuating it."
The Kelantan Islamic Religious Department should immediately drop the charges against the nine women, and all state governments should repeal these discriminatory laws, Ghoshal added.
The NGO’s 73-page report titled "I’m Scared to Be a Woman: Human Rights Abuses against Transgender People in Malaysia" released last year highlighted various abuses suffered by the transgender community in Malaysia, including sexual assault by religious officers and prison guards, extortion, daily fear of arrest by the authorities and violations of their privacy rights.
The research, which covered four states as well as Kuala Lumpur, found that transgender women were regularly abused by authorities including the police and state religious department officials. The report said that these women were also often humiliated by having their arrests paraded in the media. – June 22, 2015[8].
[8] Stop hauling transgenders into court, human rights group tells Putrajaya - See more at:
A further report in July demonstrates that violence is growing, as the community sees it.
Members of Malaysia's LGBTI community are speaking out about being violently attacked in the moderate Muslim nation, saying the abuse has become common as religious authorities push for more power.
"We have cases of transgender [people] that have been killed," said Mitch, a transgender man.
"For us, we call it a hate crime. For the police they don't call it that, because for them these people are not recognised."
The rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) people are largely unrecognised in Malaysia.
Homosexuality as well as oral sex, sodomy and cross-dressing are illegal in both the criminal code and sharia law.
Honestly, I think in Malaysia there is this silent war between the religious agencies and our constitution. The religious agencies want to be in power in Malaysia.
Representatives of Malaysia's LGBTI community said the laws were largely unenforced in the past, but that had changed in recent years.
In June, nine transgender women were arrested for cross-dressing and were either fined or jailed by a sharia court.
Transgender woman Sulastri said her community was living in fear as pressure increased.
"They [transgender people] are so scared to go out ... scared to go out because it is so hostile at the moment," she said.
Both Mitch and Sulastri help run a centre for the poor in central Kuala Lumpur called SEED, where people can receive meals and learn skills to eventually get a job.
Many of the centre's clients are also transgender.
But the centre is in jeopardy of closing after the government decided to cut funding.
Mitch said he believed the government was under pressure from religious authorities to enforce Islamic law, providing a possible reason as to why arrests had increased.
"Honestly, I think in Malaysia there is this silent war between the religious agencies and our constitution. The religious agencies want to be in power in Malaysia," he said.
He said the attitude of authorities also meant physical attacks were on the rise.
"We know of these cases where a group of people will just go beat up a transgender," Mitch said.
Sulastri said some had also been killed.
"We are being bullied and discriminated in the schools, even the universities and colleges. Discriminated at jobs, you know. Not able to find work," she said.
Malaysian homosexuals also face abuse, disownment
Members of the gay community agreed transgender people were facing increasing abuse.
"For the trans people it is has definitely become harder because they are at the forefront ... and are receiving the brunt of retaliation from authorities," Pang Khee Teik said.
He said in parts of Malaysia gay and lesbian people were left alone if they were discreet.
But Pang Khee Teik said things were getting harder for everyone in Malaysia's LGBTI community.
"I often receive stories of young people who are either being punished, beaten up or thrown out of their homes who just discovered they are gay," he said.
In recent years, some government departments made attempts to stamp-out homosexuality.
In 2011, a Malaysian state education department ran a camp to try and stop boys from being gay.
Malaysia's film censorship board also said it would only allow a homosexual character to be in a film if the character repented before the end of the movie, or died.
While marriage between people of the same sex is becoming a major issue worldwide, Malaysia's LGBTI community says that is not something they are even considering.
Activists such as Sulastri just want homosexuality and cross-dressing to no longer be illegal.
"We want to reduce the stigma, the discrimination. We just want people to accept us and understand us for who and what we are. We just want to live like other people," she said.[9]
[9] Transgender Malaysians targeted as religious authorities' influence grows, LGBTI community says
The Tribunal notes that there has been a recent decision by the Federal Court that overturned a lower court decision that a state’s prohibition on “cross-dressing” was unconstitutional. On wholly procedural grounds, the Federal Court upheld Sharia laws prohibiting “a male person posing as a woman.”
The judicial decision is a serious setback in a four-year struggle by transgender activists to end arbitrary arrests of transgender women on the basis of discriminatory laws, Human Rights Watch said.
“This Federal Court ruling is a major setback for transgender rights,” said Neela Ghoshal, senior lesbian, gay, bisexual, and transgender (LGBT) rights researcher at Human Rights Watch. “Trans women in Malaysia, who were buoyed by the landmark lower court decision recognizing their rights to be themselves, have been let down once again.”
The court found that the three respondents – transgender women in Negeri Sembilan who had all been arrested and prosecuted simply for wearing women’s clothing – should have obtained judicial permission of a Federal Court judge when they commenced their constitutional challenge. Although a High Court judge had granted permission in November 2011, the Federal Court ruled that it had done so erroneously. The transgender women will now have to reinitiate the case, starting at the Federal Court level.[10]
[10] Malaysia: Court Ruling Sets Back Transgender Rights ‘Oppressive and Inhuman’ Cross-Dressing Ban Restored, 8 October 2015,
The original ruling had been seen as a powerful decision in Malaysia on individual rights and limiting the effect of Sharia Law. While the Federal Court ruling was on procedural issues, and the right to seek to have the matter determined appropriately is still alive, the decision means that the implantation of strict Sharia Law, and societal attitudes that sharia law generally supports, are given strength. An example of this is in the Negeri Sembilan, whose original laws had been deemed illegal
Thilaga said the authorities in Negeri Sembilan, Federal Territory of Kuala Lumpur and Penang had intensified their warnings against transgenders following the apex court ruling on October 8
"Their security is of concern because the authorities, especially in Negeri Sembilan, have issued warnings that they will come down hard on Muslim transgenders seen in public places," she said.[11]
[11] Transgender women fear crackdown after court ruling, mulling legal options :
The Tribunal has considered this country information, relevant and not available to the delegate at the time of their decision. The Tribunal considers that the country information supports the applicant’s contention that transgender females in Malaysia, also known as transsexual females, face harm arising out of their gender identity. The information demonstrates that Muslim transgender women are at particular risk, arising out of the actions of the religious police implementing Sharia Law, and that official, family and societal attitudes in this area are continuing to affect all such women.
The Tribunal considers that the country information demonstrates that the issue of mistreatment of transgender/transsexual females in Malaysia can transcend the ethnic divide. However it is clear, as detailed in the country information, including the most recent DFAT report, that transgender Muslims ‘face a high level of official and societal discrimination and are at moderate risk of societal violence.’
The applicant has not experienced this in the past to a significant extent, though he has altered his behaviour and appearance to an extent to avoid being targeted for harm. The Tribunal notes that the assessment of protection is in fact a forward looking assessment, what would happen to the applicant on his return to Malaysia. Past experience can be a guide as to what would occur in the future, but is only an aspect of the consideration.
The Tribunal considers that the country information demonstrates that the situation for those identifying as transgender in Malaysia is becoming more difficult, and that political and societal attitudes towards individuals who identify as transgender are becoming more adverse. Being gay in Malaysia may not in itself found a claim for protection, however the Tribunal considers that the country information demonstrates that being a transgender gay ethnic Malay certainly places a person in the situation where they could be harmed. The Tribunal considers that the chance of being harmed can be described as real, and the harm that would be experienced would be serious.
The Tribunal considers that the applicant’s circumstances as a person who identifies himself as transgender, and has provided evidence of this identification and experience, causes him to be someone who has a real chance of serious harm on return to Malaysia.
The Tribunal notes the provisions of s5J(3) of the Migration Act. Relevantly this states:
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c)without limiting paragraph (a) or (b), require the person to do any of the following:
…
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
The applicant’s sexual identity has been his for over [number] years. It is fundamental to his identity. The Tribunal finds that the provisions of s5J(3) of the Act do not apply to the applicant’s circumstances.
In the circumstances of the applicant, the Tribunal considers that the subjective fear that he has for the future is objectively made out on the available country information. The Tribunal considers that the violence that the applicant faces does constitute serious harm. The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of serious harm arising from his membership of a particular social group of transgender gay Muslims in Malaysia.
The Tribunal finds that the applicant has a real chance of serious harm on return to Malaysia as a transgender gay Muslim. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
The Tribunal has considered whether the applicant has the ability to avail himself of state protection. The Tribunal notes in its considerations that the actors causing the harm in this instance include state actors, the religious police who can be said to have a real chance of seriously harming the applicant in the future. Given the involvement of the religious police and the RMP in such persecution, the Tribunal does not consider that the applicant can avail himself of state protection.
With respect to the consideration of relocation, while the Tribunal notes that citizens within Malaysia can live where they wish and there is no restriction on movement, the Tribunal considers that the State is responsible for serious harm in this instance, and there is no location in Malaysia where the mistreatment of transgender individuals is not reported. Large urban area such a Kuala Lumpur, while not as affected by Sharia law as certain States, has a litany of examples of mistreatment of transgender individuals. The Tribunal does not consider that there is a location within Malaysia where the applicant would not face the real chance of serious harm arising out of his gender identity and thus the particular social group the applicant is a member of.
The Tribunal finds that the applicant has a real chance of serious harm arising from his membership of a particular social group transgender gay Muslims in Malaysia. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.

For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).
The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the second named applicant is the partner of the applicant and is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Stuart Webb
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.
…

Other examples of such reporting includes: Rights group urges Malaysia to scrap laws against transgender people, Human Rights Watch urged the Malaysian government Thursday to immediately revoke all laws discriminating against transgender people

[2017] AATA 1045

8 June 2017

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