1605830 (Refugee)

[2018] AATA 1738

1605830 (Refugee) [2018] AATA 1738 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605830

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Peter Vlahos

DATE:28 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 March 2018 at 9:46am          

CATCHWORDS

Refugee – Protection visa – Malaysia – Particular social group – Homosexual – Threats of harm – Lack of police intervention – Social stigma – Claims of discrimination lacking detail

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 20 October 2015 and the delegate refused to grant the visa on the basis that the applicant did not satisfy sub-section 36(20 of the Act.

3. On 19 May 2017 the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin Chinese and English languages.

4. The applicant was not represented by legal representative or registered migration agent.

5. On 12 December 2017 the Tribunal invited the applicant to a further hearing scheduled for 15 February 2018 following the submission by the applicant of further documents for the Tribunal’s consideration. As noted from the Tribunal’s file, the applicant was also sent to her mobile phone two reminders concerning the scheduled hearing on 8 February 2018 and 14 February 2018.

6. No response to this letter or to the Tribunal’s SMS mobile phone reminders was received from the applicant and the applicant did not attend the second scheduled hearing invitation scheduled for 15 February 2018. As the applicant has not responded to the invitation to attend a hearing, and has not contacted the Tribunal to explain her non-attendance or sought to engage further in the review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available as provided previously to the Tribunal at the hearing held 19 May 2018.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The issue

13. The issue in this case is whether Australia has protection obligations in respect to the applicant.

14. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Country of Nationality and Identity

15. Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (the Department), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has assessed her claims against that country in relation to sections 36 (2) (a) and 36 (2) (aa).

16. On the basis of the abovementioned reasons, the Tribunal further accepts the applicant’s identity as is claimed.

    Third country protection

17. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any safe third country for the purposes of s.36 (3) of the Act.

    Applicant’s visa background

18. The applicant arrived in Australia from Malaysia as the holder of [a] Visitor visa on 5 December 2013 and on 14 March 2014 the applicant was granted a [Student] visa. On 6 February 2015 the applicant departed Australia and returned to Australia 24 February 2015. On 18 August 2015 the applicant again departed Australia and returned on 5 October 2015. On 20 October 2015 the applicant applied for a Protection visa (Class XA) and an associated bridging visa was granted the Department. On 2 December 2015 the applicant’s course enrolment was cancelled due to her non-payment of her tuition fees. The decision to cancel her student visa by the Department was not the subject of an appeal by the applicant.

    The claims for protection submitted by the applicant to the Department[1]

    [1] DIBP File [number]

19. The applicant’s claims can be summarised as follows:

    §  The applicant claims she is a lesbian.

    §  She claims she was in a relationship with a Muslim Malay girl until her family found out and forced them to separate.

    §  The applicant claims the family threatened and beat her if she did not leave their daughter. The applicant claims her friends and parents isolated her.

    §  The applicant claims the father of her ex-girlfriend will kill her if he finds her and she had to escape to Australia.

    §  The applicant claims the father is a member of a gang

    §  The applicant asked the police for help but they ‘pushed her to the public’.

    §  The applicant claims she failed to start a life when she moved to another city as the locals discriminated against her homosexuality.

    EVIDENCE AT THE SCHEDULED HEARING

    Applicant’s personal Background

20. The [applicant] was born in Malaysia in [year] and before coming to Australia, lived in Kuala Lumpur. Her Protection visa application form submitted to the Department with her claims for protection does not indicate any ‘family’ in Malaysia.[2] However, in her evidence to the Tribunal, the applicant told that she has parents living in Malaysia and [a number of siblings]. The applicant is a Chinese Malay and has specified her religious affiliation as ‘Buddhist’.[3]

    Her same-sex nature and its development

    [2] DIBP File [number], Folio 31-32.

    [3] Ibid Folio 34.

21. According to the applicant her introduction to same-sex relationships began approximately [number] years ago, after her graduation from high school when she broke up with her then boyfriend. Thereafter, the applicant told the Tribunal she preferred and found it more “…enjoyable” to be in the constant “company of women…”

22. With her relationship with her boyfriend ended, the Tribunal was told she left to live in another city, called [City 1] where she made new friends and it was there, she tried to “date” another girl. According to the applicant the prospect of developing a same-sex relationship made her “feel good” and affirmed in her mind her same-sex nature as the way she wished to live her life. The Tribunal was also told that the applicant’s move to live in [City 1] was her attempt to begin her life “…afresh” as a lesbian and a member of the LGBTI community.

23. According to the applicant, her first same-sex encounter was with a Chinese Malaysian girl she identified to the Tribunal as “[Ms A]”. This relationship lasted for three years and then both (according to the applicant) went their own ways. The applicant provided no further details about this relationship. After this relationship, the applicant met and developed a new relationship with another Chinese Malaysian girl, called “…[Ms B]…” The Tribunal asked the applicant – where did she meet [Ms B]? The applicant’s response was that she met [Ms B] through a mutual friend. Again, the applicant provided no details concerning this relationship except to say that it too had duration of three years.

24. Following the end of the applicant’s third relationship, she came to know through her attendance at a friend’s birthday party a Muslim Malaysian girl called “…[Ms C]…” However, this girl was not, according to the applicant a person who was a lesbian. The Tribunal asked the applicant – could she explain how then, her relationship developed with this girl? First, the applicant told the Tribunal that she had a “strong crush on this girl…” and that the applicant tried a number of ways to secure a “…date her…” and when she thought she would not succeed, the girl was “…finally moved…”

25. The Tribunal asked the applicant to describe what she meant that she persistently tried to date this girl. The applicant stated that ‘[Ms C]’ was at that time still attending school and one day the applicant confronted her in the street after school and asked her to meet and to share a meal together. [Ms C] agreed to the applicant’s proposed luncheon date. Then, after that meeting, the applicant exchanged emails and numerous text messages with her. These messages were described to the Tribunal as “…caring messages” and according to the applicant the content of these, for example, would express the “…saying of good night” each night when the two conversed. The applicant was asked if these text messages were available on the applicant’s mobile phone and also whether the applicant could produce translated copies of any messages she claimed to have exchanged with her Muslim Malaysian girlfriend. The applicant told the Tribunal told that she could not provide any emails or text messages because they had all been deleted.

26. The Tribunal asked applicant how her girlfriend’s parents found out about their relationship with their daughter. The applicant told the Tribunal that her girlfriend’s parents directly confronted both of them after they (the parents) had observed their “…intimate…” behaviour. The applicant was asked – what did she mean by the word intimate. The Tribunal was told that by intimate behaviour the applicant meant that both the applicant and her girlfriend would spend some nights in a week together at her girlfriend’s parent’s home in her bedroom.

27. The Tribunal also asked the applicant to describe the ways she chose to socialise with her girlfriend. The Tribunal was told that as a same-sex couple, they did what ordinary “lovers” would do and that was to “…go shopping…enjoy movies…” and “enjoy dinner together…” The applicant also told the Tribunal that the couple did not go to any night clubs and that was because [Ms C] did not enjoy frequenting such places.

28. However, their relationship was dealt a severe blow when [Ms C]’s parents found out about them in 2014. After [Ms C]’s parents found out about their relationship, they disallowed their daughter from seeing the applicant. Regardless of this prohibition imposed by the parents and in particular, her girlfriend’s father, the Tribunal was told, the two continued to meet with each other clandestinely. These meetings were arranged by both the applicant and her girlfriend by using their mobile phones to communicate time and place. Nevertheless, in time, these meetings would be abruptly stopped because the applicant’s girlfriend’s mother discovered the messages on her daughter’s mobile phone. The girlfriend’s phone was subsequently confiscated and all means of communication between the applicant and her girlfriend ceased.

29. Around this time (no specific date was provided) the Tribunal was told of a meeting the applicant had with her girlfriend’s father. The Tribunal was told that at that meeting, her girlfriend’s father warned the applicant that if she continued to see his daughter he would “…beat her up…” and that he had no fear in doing this because he told her, he was a ‘…gangster.’ The Tribunal asked the applicant how she knew that her girlfriend’s father was a gangster. Her response was that she had no actual evidence of her girlfriend’s father’s gangster background except that it was her father that told her that he was a gangster. Nevertheless, after this brief encounter with her girlfriend’s father the applicant told the Tribunal that the incident was reported to the police. The response of the local police was (according to the applicant) that the issue was a “‘domestic” one and it would be better for it to be resolved privately between all parties concerned without the intervention of the police.

30. After this incident the applicant told the Tribunal she stopped seeing or contacting her girlfriend and decided to come to Australia.

31. However, after two years in Australia, the applicant told the Tribunal that she returned to Malaysia to see her former girlfriend, [Ms C]. The purpose of her return visit to Malaysia was to tell her girlfriend “…good-bye” according to the applicant. The applicant offered no further details concerning this meeting with her girlfriend.

    Applicant’s relationship with her family and friends- currently

32. The applicant was asked by the Tribunal what was the current state of her relationship with her family. According to the applicant her relationship was at the level they seldom talked to each other. The applicant told the Tribunal that she did not know whether her family ‘knew’ about her being a ‘lesbian’. By ‘family’, the applicant meant her elderly parents. As for the applicant’s [siblings] they did know about her being a lesbian and had told her “…stop being a lesbian” and warned her that if she did not cease being one, they would end their relationship with her. In similar terms, her friends, the applicant told the Tribunal have warned her to end being a lesbian or they would terminate their friendships with her.

33. Unfortunately, some friends of the applicant have placed a distance between themselves and her because of her desire to live her life as a lesbian and member of the LGBT community.

    Fears of ‘discrimination’ because of her ‘homosexuality’

34. The applicant told the Tribunal that ‘discrimination’ of same-sex people is very common in her country, Malaysia. It was her evidence that people ‘…look at you differently…’ and they ‘…do discriminate’ when they find out a person has preference for same-sex relationships.

35. In Australia, the applicant told the Tribunal, it is a very different situation. Here, according to the applicant, one is not discriminated against and nor does society see people in same-sex relationships differently. In Australia, one felt respected.

    The applicant’s employment in Malaysia and in Australia

36. The Tribunal was told that when in Malaysia, the applicant worked in a [certain] position and travelled around [Malaysia].

37. In Australia, the applicant is currently working [earning] AUD$[amount] a week and has been working for the past year. The applicant’s previous employment in Australia included part-time [work].

    What does the applicant fear if she was to return to Malaysia in the reasonably foreseeable future?

38. The applicant told the Tribunal that she had never seriously thought about what would happen if she was to return to Malaysia in the reasonably foreseeable future. The applicant told the Tribunal she might find it difficult in getting familiar with new surroundings.

39. The applicant hoped to take measures not to cause her similar issues as she encountered in her relationship with her former girlfriend, [Ms C].

40. Finally, the applicant lamented the fact that Malaysia did not recognise same-sex marriage and hoped one day that same-sex marriage would be officially recognised.

    Post-Hearing submissions provided by the applicant

41. The applicant provided the following post-hearing submissions for the Tribunal to consider:

    Statutory Declaration dated 25 May 2017[4] by the applicant:

    §The applicant declares that she is a “homosexual…” that “homosexuality” is considered a “crime in Malaysia”. She also states that the Penal Code has a clause punishing people for having sexual relations with persons of the same-sex. She also fears cultural and religious “stigma” attaching to “homosexuality” in her country, Malaysia. Also, she considers Australia a safe place to be if one is a homosexual.

    Statutory declaration dated 23 May 2017[5] by Ms [D]:

    §Ms [D] claims currently to be in a same-sex relationship with the applicant. She claims that she has visited the applicant on 3 occasions in Australia – that is in December 2015, June 2016 and December 2016. She considers Australia “is the right place” for her and the applicant to “live together as a couple [for] the long term. She believes that Australia offers both a life “free from discrimination” and with the opportunity to “continue” “our relationship with dignity.”

    §The applicant also provided four photographs with Ms [D] take at various locations but provided no further information on when these photographs were taken.[6]

    [4] AAT File No. 1605830 folio 31

    [5] Ibid Folio 30

    [6] Ibid Folio 26-29

    COUNTRY INFORMATION – MALAYSIA – LGBTI COMMUNITY

1. According to independent country information accessed by the Tribunal much discrimination is suffered by Malaysia’s LGBTI persons. According to the Department of Foreign Affairs and Trade (DFAT) 2016  Malaysia country report, the Malaysian government openly discriminates against LGBTI persons:

   3.90The Malaysian Government openly criticises lesbian, gay, bisexual, trans or intersex (LGBTI) individuals. 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.[7]

   [7]‘DFAT Country Report – Malaysia’, Department of Foreign Affairs and Trade (DFAT), 19 July 2016, CIS2F827D91671.

2. Much of the discrimination encountered by the LGBTI community in Malaysia is traced to religion. The US State Department reported in 2010 that religious and cultural taboos against homosexual conduct were widespread.[8] An article published in 2008 on an Asian gay website, Fridae, stated that the marginalisation of gay men in Malaysia is a resault of a highly moralistic and conservative society and the rise of political Islam. It blames the ‘bigotry among the masses’ on entrenched prejudice and homophobia spread by religious bodies, local media and other groups.[9]

   [8]‘2009 Country Reports on Human Rights Practices – Malaysia’, US State Department, March 2010.

   [9]‘Malaysia’s PT Foundation turns 21’, Fridae website, 27 November 2008, CXAB8B92D4119

3. The most recent US State Department Malaysia Country Report also acknowledges official discrimination against the LGBTI individuals in Malaysia.[10]

   [10]‘2016Country Reports on Human Rights Practices – Malaysia’, US State Department.

4. Freedom House also acknowledges discrimination against the LGBTI community by state and non-state actors. More to the point, ‘…same-sex sexual relations are punishable by up to 20 years in prison under the Penal Code.’[11] The report further outlines the impact of state-level Sharia law on a case involving 16 cross –dressing transgender women:

   Malaysia’s LGBTI community faces discrimination and hostility from both the state and non-state actors. In June, an Islamic law court in the state of Negeri Sembilan fined 16 transgender women and sentenced them to seven days in prison under a law that prohibits men from wearing women’s clothing in public. In a historic decision in November, the Court of Appeal ruled this law to be unconstitutional.[12]

   [11]‘Freedom in the World 2015: Malaysia’, Freedom House, May 2015, NG5A1E6BC218.

   [12]Ibid

5. According to a 2014 Human Rights Watch report, Malaysia has effectively criminalised sodomy by way of article 377 of the penal code:

   Article 377 makes it a criminal offence to commit “carnal intercourse against the order of nature.” The law effectively criminalizes same-sex sexuality, and does not distinguish between consensual and non-consensual sex, contrary to international human rights standards.[13]

   [13]‘Malaysia: End political case against Anwar’, Human Rights Watch, 10 November 2014, CX1B9ECAB7213.

6. The May 2014 report by the International Gay and Lesbian Human Rights Commission notes that ‘Sections 377A and 377B criminalise “carnal intercourse against the order of nature” between consenting adults regardless of the sexual partner’s gender, as well as gross indecency:’

   Section 377 comes under Unnatural Offences in the Malaysian Penal Code (Act 574). Sections 377A and 377B criminalise “carnal knowledge against the order of nature” (anal sex, oral sex) between consenting adults regardless of the sexual partner’s gender, as well as gross indecency. These sections of the Penal Code have reportedly been invoked only seven times since 1938, four of which were against Anwar Ibrahim, the former Deputy Prime Minister. Punishment for “carnal intercourse against the order of nature” is prison up to 20 years with liability for whipping. Section 377C criminalises rape-non-consensual sexual intercourse that involves oral and anal sex acts carried out under threat of death or hurt to the victim. Punishment for these acts of rape is a prison term of not less than five years and not more than twenty years with liability for whipping. The prevalent notion as expressed in 377C is that oral and anal rape is a lesser crime than anal and oral sex between consenting adults. Section 377D covers “outrage on decency” and criminalises the commission of, attempt to, or conspiracy to commit any act of gross indecency. Punishment is two years in prison.[14]

   [14]‘Malaysia: On the Record: Violence Against Lesbian, Bisexual Women and Transgender Persons in Malaysia’, in ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia’, International Gay and Lesbian Human Rights Commission, 6May 2014, at p.33, CIS2F827D91966

7. The same report also indicates that:

   In Malaysia, secular laws – Criminal and Civil – and Islamic or Syariah laws co-exist to govern its citizens. Syariah laws are administered at a state level by religious departments, Syariah courts and muftis. These laws apply to Muslims regarding issues such as marriage, divorce, and the creation and punishment of offences in relation to Islam.[15]

   [15]Ibid

8. According to DFAT’s 2016 Malaysia Country Report, in 2011 the Malaysian authorities banned an annual sexuality rights festival under the Police Act after complaints had been lodged by some Muslim organisations:

   3.91The police and judiciary have banned public demonstrations of the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordination 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.[16]

   [16]DFAT Country Report – Malaysia, Department of Foreign Affairs and Trade (DFAT), July 2016, page 20.

9. DFAT’s report also notes that from 2011 onwards, various government initiatives have aimed at ‘rehabilitating’ suspected LGBTI youth:

   3.92The 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.[17]

   [17]Ibid

10. In September 2014, it was reported that a Malaysian lesbian couple had been arrested by religious officers during a raid on a hotel in Johor Bahru. Nine officers from the Johor Islamic Religious Department it was reported raided the women’s room as part of a morality raid ahead of the country’s national day. According to the article, “…the women were arrested for lesbian sex under section 26 of the state’s Syariah law and taken to a police station for booking, then to the religious department’s office for further action…’ The women ‘…could face up to three months in jail, six cane strokes and a fine of RM5K.’[18]

    [18]‘Malaysia lesbian couple arrested by religious officers in hotel raid’ Gay Star News, 2 September 2014, CX1B9ECAB9843.

11. Overall, DFAT asserts that the LGBTI community faces on-going official discrimination:

    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.[19]

    [19]DFAT Country Report – Malaysia, Department of Foreign Affairs and Trade (DFAT), July 2016, p.20,

12. Also, despite discrimination by state and non-state actors and the criminalisation of same-sex acts, a body of evidence exists that shows LGBTI individuals experience varying degrees of tolerance. A July 2013 article in The Star refers to the comments of ‘activist, artist and arts consultant Pang Khee Teik’, who said that ‘…while some Malaysian LGBTIs have managed to live openly among their friends and families, many others have more pressing things to worry about’, including ‘being discovered and getting fired from work, being disowned by families, and getting arrested.’[20]

    [20]‘Activists: Legalising gay marriages in Asia won’t solve Malaysia’s LGBT issues’ The Star Online, 29 July 2013, CXC28129413923.

13. A May 2012 report on the Gay Star News website refers to the comments of Lee Kam Wye, a netizen[21] and retired secondary school teacher in Malaysia, who said that ‘LGBTI may appear to be spreading not because more people are being recruited into the LGBTI lifestyle but because this community is braver and more open now.’[22]

    [21]A netizen is defined as ‘A user of the Internet, especially a habitual or keen one’ on Oxford Dictionaries n.d.,  

    [22]‘Malaysia training helpers to curb homosexuals’, Gay Star News, 23 March 2012, CX288268

14. A February 2012 Hindustan Times article, sourced from Agence France-Presse, reported that ‘[t]he gay and lesbian community in socially conservative Malaysia has slowly gained a higher profile in recent years, and transsexuals live openly in cities.’ The same article also went on to report that ‘…many complain they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country…’ and ‘ [a]uthorities periodically raid gay-friendly bars or massage parlours, and a prominent religious body in 2008 issued a fatwa, or Islamic religious ruling, against lesbian sex.’[23]

    [23]‘Malaysian transsexuals targeted in attacks: report’, Hindustan Times, 16 February 2012, CX0D38E20065

15. In July 2011, The Star Online reported that a lesbian couple had married in a traditional wedding ceremony in Batu Pahat in Malaysia.[24] An article on Fridae, a media and social networking website for LGBTI persons in Asia,[25] indicated that the couple was ‘…said to be the first lesbian couple to publicly marry in Malaysia and have a wedding banquet for 400 guests, according to the local media…’ The marriage was ‘…however not legally recognised as Malaysia has no provisions for same-sex marriages.’ The article goes no to refer to a column in Malaysia’s Sin Chew Daily  which related that their ‘….newsroom had received many calls from readers who disapproved of the coverage of the same-sex wedding in the paper and were concerned that the wedding would set a precedence.’[26]

    [24]‘Lesbian couple tie the knot’, The Star Online, 31 July 2011, CXCB3E63420579

    [25]Fridae, About Fridae

    [26]‘Banquet for 400, lesbian wedding in Malaysia makes the news’, Fridae, 1 August 2011, CXCB3E63420580

16. The level of safety for gays in Malaysia depends heavily on the region in question. While dangers exist for gays anywhere in Malaysia, Kuala Lumpur is the country’s most gay friendly city and according to one gay social website, is a place where gay life is ‘widespread’ and ‘surprisingly sophisticate.’[27] An article in the Brisbane Times reported that that city (Kuala Lumpur) boasts ‘…riotous gay bars…’ Despite this, the gay scene is still underground and Kuala Lumpur maintains a ‘…deeply religious underbelly…’[28]

    Tribunal’s conclusions about the applicant’s claim

    [27]‘Malaysia: Fear for safety/torture or ill-treatment’, Amnesty International, 3 August 2007, CX236938

    [28]‘Malaysia’s transsexuals battle sex change woes’, Brisbane Times, 28 October 2007, CXE90FC0120242

    Credibility

17. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

18. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

19. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

20. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

21. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

    The applicant’s claims

22. First, the applicant claimed that she became a lesbian after her graduation from high school and just after her sudden break up with her boyfriend. What followed were two same-sex relationships with two Chinese Malaysian women each lasting three years. Her last same-sex relationship before leaving Malaysia was with a Muslim Malaysian girl. The applicant provided very little information concerning the social activities she involved herself with her first two relationships except to tell the Tribunal that they met through a friend or at a party and after three years the relationships ended with each party going their own way. The applicant made no claims that her first two same-sex relationships caused her any grief or fears of personal harm. Though the Tribunal has concerns about the applicant’s explanation of events concerning her transition from a heterosexual relationship to a same-sex one, it concedes that the applicant was a person who had in the past engaged in same-sex relationships and considered herself a lesbian and a member of the LGBTI community in Malaysia.

23. Second, the applicant claimed that her third same-sex relationship was with a Muslim Malaysian girl, called [Ms C]. She met this girl at a party and after persistence and constant texting the friendship developed into a relationship which was abruptly put to an end by the intervention of the applicant’s lover’s parents in 2014 and in particular, her father. The applicant provided no evidence of this ‘texting’ to the Tribunal when requested except to tell the Tribunal that the texts did exist but had been deleted. While the applicant provided very vague and limited evidence and details of this relationship, the Tribunal concedes that the applicant was in a same-sex relationship with Malaysian Muslim girl for a period of time until that relationship was ended by the intervention her parents and in particular, girlfriend’s father as claimed.

24. Third, the applicant told the Tribunal that she had been confronted by her lover’s father and had been warned and threatened by him that if she did not end her relationship with his daughter, he would inflict harm on her and that he had no hesitation in doing so because he was a ‘gangster’. Again, the Tribunal asked the applicant how she determined that her lover’s father was gangster. The Tribunal was told that she determined this because her lover’s father told her that he was a gangster. The Tribunal was also told that having been threatened by her lover’s father, the applicant reported the threat to the local police who refused to take any action, telling the applicant that this was a ‘domestic matter’ best resolved privately and without police intervention. The Tribunal questioned the threats the applicant had claimed. The applicant could provide only limited information about when this conversation with her lover’s father occurred. Furthermore, her evidence to the Tribunal about police indifference to her report of a threat made against her was limited in detail and very vague. The Tribunal was told that the police were not interested. The Tribunal finds this claim as not credible. While the Tribunal accepts that there are difficulties and inadequacies in the policing and judicial system in Malaysia generally speaking, having regard to the advice of DFAT, the Tribunal finds that the protection provided by the authorities in Malaysia consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system as required by s.5LA(2)(c) of the Act. The Tribunal considers on the evidence before it that his protection is durable and the applicant can access it. The Tribunal does not accept, as the applicant claimed, the police were uninterested in her plight and would be unable to provide her with the protection she needed because they thought that the issue she had with her girlfriend’s father (because of her relationship with his daughter) was a domestic matter.

25. The Tribunal has considered the applicant’s personal experiences in Malaysia. As detailed, the applicant has not been physically harmed or harassed in Malaysia. She may have had comments made to her by her family members and the by the father of her girlfriend, but the Tribunal does not find that these comments were such that they constituted serious or significant harm, as defined in the Act.

26. The Tribunal noted the DFAT information about homosexuality in Malaysia, and the Tribunal noted that the applicant was not a Muslim but a Buddhist and Chinese. The applicant stated there was discrimination, but she was not able to provide information about this. In her application for protection the applicant claimed that “she failed to start of life when she moved to a new city” because she was discriminated due homosexuality. However, when asked by the Tribunal how she had been discriminated because of her homosexuality the applicant could only tell the Tribunal that people in Malaysia ‘look at you differently’ when they find out one is a homosexual and that they ‘do discriminate’ against homosexuals. The applicant the Tribunal noted was unable to provide instances of discrimination she had encountered because she was homosexual.

1. Nevertheless, the Tribunal noted societal attitudes towards homosexuals. The Tribunal is aware that the situation for ethnic Malays was different to other groups of the Malay community, as stricter provisions of Islam were implemented by the Islamic police. However the Tribunal does note that the situation for other ethnic groups was not without challenge. The Tribunal is aware that political statements have vilified the homosexual community generally.

2. The Tribunal has considered the evidence regarding the treatment of lesbians in Malaysia and the Tribunal accepts that there is a degree of social stigma, formed through the conservative Islamist perspectives that affect all of the community, and comments by politicians. The Tribunal accepts the applicant’s contention that those identifying as gay in Malaysia have more difficulties than in Australia.

3. However the Tribunal does not accept that the treatment in the community of lesbians in Malaysia constitutes serious or significant harm. There are the legal provisions relating to unnatural acts, however as discussed above, these are not enforced in Malaysia other than one highly political case. The Tribunal finds that the applicant will not be imprisoned if discovered in a relationship with another woman. The Tribunal notes at that the applicant at the hearing provided no evidence whatsoever of being a person of interest to the local police because of her homosexuality. She provided no instances of having her social life interrupted by police in her past. Moreover, the Tribunal notes the DFAT information provided above specifically identifies the issue for Muslim homosexuals, given the activities of the religious police in enforcing Syariah law, something that does not affect the applicant being a Chinese Malaysian and a Buddhist. The Tribunal does not accept that the applicant will be persecuted by the authorities because of her sexual identity or activities. The applicant has not been persecuted in the past. The Tribunal does not accept that she will be persecuted in the future for this reason.

4. The Tribunal further finds that the applicant’s lack of a subjective fear of harm for these reasons is supported by the consideration of the country information. The Tribunal considers objectively, that while there are some difficulties in the community for some members of the gay community, the applicant, as a gay Chinese Malaysian woman, and a Buddhist who does not face harm, including discrimination, that amounts to serious harm, as defined in s.5J(5) of the Migration Act. The Tribunal finds that the applicant does not have a real chance of serious harm arising from her being a lesbian in Malaysia. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

5. Further, having considered the claims and evidence, and the definition of significant harm as found in s.5(1) of the Migration Act, the Tribunal finds that the applicant does not have a real risk of significant harm on return to Malaysia for these reasons.

6. 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).

7. 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).

8. 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

9. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Peter Vlahos
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …