1607718 (Refugee)

1607718 (Refugee) [2017] AATA 1825 (25 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607718
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Brendan Darcy
DATE:25 September 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 25 September 2017 at 4:22pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Homosexual women – Pengkid – Physical harassment and violence
LEGISLATION
Migration Act 1958, ss 5CB, 5H-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] April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of the Federation of Malaysia (Malaysia), applied for the visa [in] February 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant has a real chance of serious harm or a real risk of significant harm in the foreseeable future.
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
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant claimed to be born [in] Kota Kinabalu in the Malaysian state of Sabah and to be a citizen of the Federation of Malaysia
The applicant provided a copy of her valid passport issued by the relevant authority in Malaysia [in] 2015.[1]
[1] DIBP Folio 49
The applicant arrived in Australia while holding a visitor visa [in] November 2015 and then applied for a class XA subclass 866 protection via [in] February 2016 and was granted an associated bridging visa.
The applicant provided some limited written claims in her submitted 866C form at the time of application. These claims include:
The applicant claimed it was not safe for her, she was threatened to be killed and she has been beaten by a gang who she suspects was connected to her girlfriend;
·The applicant claimed she went to the police station to report the incident but on the her way to the police, she was surrounded by a gang of men and they shouted at her and pushed her and hit her til she fell to the ground;
·The applicant claimed she was warned not to make a police report;
·The applicant states her parents suggested that she go into hiding or leave the country for her safety;
·The applicant fears returning to Malaysia because she will be killed by a gang and she also fears being beaten again and raped.
In this form, the applicant also claimed to be able to speak, read and write Bahasa Malaysia and English; that her religious affiliation was Christian; and that her ethnicity was Kadazan. She further claimed that her parents reside in Sabah and that she had [siblings].
[In] April 2016, a delegate on behalf of the Minister refused to grant the protection visa to the applicant.
On 30 May 2016, the applicant applied to have the delegate’s refusal decision reviewed by the Tribunal.
On 23 June 2017, the applicant attended a scheduled hearing at the Tribunal as a witness for another review applicant (1607694) from Malaysia with protection claims. During this hearing, the applicant, as a witness, claimed to be the partner of the review applicant.
The applicant appeared by a scheduled hearing of the Tribunal [on] 31 August 2017.
During the hearing, the review applicant referred to above who claimed to be the partner of the (1607694) requested that the same post hearing documents submitted for her application be also submitted for this review application under review.
Submitted to the Tribunal were the following:
Included in this submission was a jointed statement by the applicant and her putative partner date [in] July 2017.[2] In this statement, it was claimed that the applicant and her partner were in a de facto relationship since [February] 2014; that they met on social media and first met [in] January 2014 when they went to the cinema. Both of them maintained the relationship over the phone by text and by conversation and that they had their first kiss [in] February 2014. The applicant describes her putative partner as very shy and nervous. [Ms A] claimed the applicant was very friendly and talkative. [Ms A] acknowledged she was still in a relationship with her then boyfriend at this stage. The applicant and her partner claimed they have been together for three years during which they have had good and bad times and that they want to marry but our country ‘doesn’t allow lgbt community in that country’. The applicant and her punitive partner claimed they want to build a family together, either adopt children or through artificial fertilisation and to buy a house and that they both feel less judged in Australia which is fair and safe.
Also attached to this post hearing submission were:
·     A copy of the [Ms A] passport, indicating that she was a Malaysian citizen and born [in date];
·     A copy of the applicant’s booking to travel from Kuala Lumpur to [Australia] indicating that the putative couple travelled together;
·     Numerous printed pages from the [Ms A’s] facebook account, indicating the development of the putative couple’s romantic relationship between [April] 2014 and [April] 2016;
·     Numerous news articles about the treatment of LGBT persons in Malaysia;
·     A 2015 submission by the International Gay and Lesbian Human Rights Commission to the UN Commission on the Status of Women;
·     A signed 888 statement form from [a named person], residing in Sabah in Malaysia, claiming to know the applicant since 1998 and her putative partner since 2014 and attesting to the applicant’s relationship with [Ms A] to be genuine and continuing; and
·     A signed 888 statement form from [Ms B] residing in [Australia], claimed to know the applicant and [Ms A] since September 2016. Attached to this were pictures from a social media account of the applicant, [Ms A] and [Ms B] at a nightclub.
FINDINGS AND REASONS
Nationality
The applicant claims to be a citizen of Malaysia and provided a copy of her Malaysian passport to the Department. On the basis of the copy of her passport the Tribunal finds that the applicant is a national of Malaysia. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Malaysia. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Malaysia, the Tribunal also finds that Malaysia is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
Refugee Criterion s.36(2)(a)
During the hearing, the applicant was provided an opportunity to elaborate about the development of her sexuality and specifically, the relationship with her putative partner and the triggering event that led to them both departing Malaysia.
The applicant claimed that she born in [year] was brought up as a Roman Catholic in Kota Kinabalu in Malaysian state of Sabah and later moved to the Malaysian Peninsula as an adult. The applicant claimed that both her parents remain in Kota Kinabula, along with her [siblings]. The applicant claimed that she has never married and never had children. The applicant also claimed that her ethnicity is Kadazan (or Kadazan-Dusan, a large Indigenous grouping in Borneo) and that she can speak, read and write in English and Bahasa Malaysian but only speaks Kazadan. The applicant claimed her education was relatively limited and that she moved to Kuala Lumpur and Selangor on the Malaysian peninsula in 2006 for work opportunities. The Tribunal accepts these personal circumstances to be the case, including that she does not from a social stratum of any great privilege or wealth.
During the scheduled hearing, the applicant claimed that she realised that she was same-sex attracted when she began trying to date boys as a teenager. The applicant elaborated that when she was aged [age], the applicant worked in a [workplace] where she had a sexual relationship with a woman there that developed into a romantic relationship. The applicant claimed to identify as a ‘pengkid’ – a Malaysian word that roughly translates to ‘tomboy’ in English; and that she preferred to wear long sleeves shirt and trousers as is commonly worn by Malaysian males. At the scheduled hearing, the applicant was slightly built and wore a shortly cropped ‘boyish’ haircut. The applicant claimed that she had experienced some bullying in the past, including one of her friends trying to pull down her pants to see if she had male genitalia. The applicant further claimed that she had experienced some societal harassment, including insults, and some employment discrimination in the service sector but did not claim she had experienced harm anyone in authority for her sexuality. The applicant also stated that she enjoyed lesbian-theme television shows and movies such as the ‘L-Wodk’ and ‘Boys Don’t Cry”.
The applicant also provided a number of facebook entries, attended lesbian themed night club, indicating that the applicant identified a lesbian over a long period of time. The applicant also provided supporting statements, one from Malaysia and one from Australia, supporting the applicant to be a lesbian who was in a same-sex relationship with [Ms A].
Based on the overall credibility and persuasiveness of the applicant life story, her convincing demeanour, the witness statements and the available country information about social stigma towards lesbians in Malaysia, the Tribunal accepts the applicant is a homosexual and considers herself a lesbian and as a ‘pengkid’ with identifiable ‘tomboy’ dress and manner, and for the purposes of s5J(1), belongs to a membership of particular social group as a homosexual woman who is identifiably ‘pengkid’.
It also accepts that the applicant, although emotionally resilient, had experienced level of physical and verbal harassment from the broader Malaysian society in the past based on this specific membership of a particular social group in the past, as claimed.
The Tribunal has considered whether the applicant is in a genuine spousal relationship with [Ms A] and that they both experienced threats or other harm in the past, as claimed: As mentioned above, the applicant submitted witness statements to support that they are in an ongoing relationship. She also provided printed facebook evidence that the relationship in question which not only demonstrates a great deal of communication between the two parties but also the beginning of their relationship [in] February 2014. It was claimed by the applicant that the relationship began after a movie date and that [Ms A] told her that she was in a relationship at the time with a man [and] that [Ms A] wanted to ended it but was unsure how to. The applicant claimed that she continued to meet her putative partner about one or twice a month in secret over almost a two year period and that during that time, their romantic relationship had become sexual.
The applicant claimed that the boyfriend of [Ms A] became suspicious and then became very jealous, threatening and violent towards [Ms A] when he saw pictures and texts that the two were exchanging. The applicant claimed the boyfriend hit the applicant and that [Ms A’s] parents found out about the secret same sex romance. The applicant claimed her partner’s parents hoped the relationship would become a marriage. The applicant claimed that the boyfriend called her to insult the applicant and threatened to punch and even kill her. She then claimed that on leaving her residence in Malaysia to make a police report, friends of the boyfriend heckled and shoved her, forcing her to return to her house. The applicant claimed that she and [Ms A] made a plan to [depart] by bus but [Ms A] was prevented by her parents at the bus station. Soon after this, the applicant and [Ms A] planned to depart Malaysia, altogether for Australia where they hoped they could marry.
The Tribunal notes that the applicant has submitted evidence that they travelled together in Australia by submitted airline tickets and a relationship document issued by the relevant state authority [and] they have claimed to reside in the same places while in Australia The applicant claimed she loved [Ms A] whose demeanour, in contrast to herself, was very feminine, shy and lacking in confidence. She also claimed that they did not realise marriage between two adult women was not permitted but hoped the laws will change. She also mentioned that she was interested in utilising artificial reproductive technology to have a child; while her partner was more interested in adoption. The applicant claimed that when they are in public in Australia, they hold hands and hug as a couple, such as at a shopping centre, and they have not encountered any insults or other stigma.
The Tribunal found the applicant’s oral evidence detailed and persuasive and consistent with the information she had previously provided to the Department. Her oral evidence was also very consistent between her earlier oral evidence as a witness for [Ms A’s] scheduled hearing as part of her own separate review application. On the evidence before it the Tribunal accepts the applicant had a long term same sex relationship with [Ms A] which has been ongoing committed relationship and that they have shared the same household since their arrival in Australia in February 2016.
In this regard, the Tribunal accepts that the applicant is in a de facto spousal relationship with [Ms A] for the purposes of s.5CB of the Act and that the applicant and her accepted same sex partner satisfies clause 1.12(1)(a) of the Migration Regulations, as they have a mutual commitment to a shared life to the exclusion of all others, have a relationship between them that is genuine and continuing; they do not live separately or apart on a permanent basis; and because they are not related by family.
With regards to the incidents of past harm to the applicant arising from this relationship, the Tribunal accepts that the harm experienced by the applicant and her partner occurred, as claimed, based on the Tribunal’s overall favourable credibility findings towards the applicant. The Tribunal further accepts the secrecy was required to conceal their lesbian relationship from another person who [Ms A] was in a relationship and because the nature of relationship being between two homosexual women and that the mores of society and their family compelled them to avoid harassment and harm.
Real Chance of Serious Harm
With regards to returning to Malaysia, the applicant claimed that she feared harm would come to her partner because she believed that [Ms A’s] former boyfriend, would still harm her. It was pointed out to the applicant that her partner claimed in her own hearing that [Ms A’s former boyfriend] had probably moved on and that [Ms A] has a sister residing in Sabah who is in a same-sex relationship who had not experienced any harm; the applicant said she was aware of these aspects of her partner’s testimony but it was still a serious concern to her given his propensity towards violence. The applicant did not claim that she feared any harm from her own parents but again was concerned about the harm arising from [Ms A] immediate and extended family members who lived in both Selangor and Sabah, as well as the former boyfriend.
Based on the applicant’s own admission that she does not fear her own family members, the Tribunal does not accept the applicants face a real chance of serious harm as a lesbian, in this regard.
While the Tribunal accepts that the applicant’s fears of persecution on behalf of her partner are genuinely personally-held, it does not accept that the chances of serious harm to her personally arising from her relationship family members will be more than remote or insubstantial, if she were to return to Malaysia. This is based on the Tribunal’s assessment that they will be able to return to anywhere in Malaysia, as a couple and avoid such significant physical ill-treatment harm from such family members, given the passage of time and because the level of toleration of the lesbian sister of the applicant’s partner living in Sabah without serious or significant harm.

However, the Tribunal, based on the testimony of [Ms A’s] own hearing, accepts that she faces a chance of serious harm from her partner’s former boyfriend who is motivated to harm both the applicant and his former girlfriend. The Tribunal’s findings are based on the findings that the claimed harm occurred in the past, as claimed; the violent nature of the physical harm and harassment; and the former boyfriend is likely to remain motivated to harm both or either of the parties based on their sexuality and the perceived humiliation he had experienced, if the applicant were to return to Malaysia.
In considering whether the chances of harm amount to a real chance of serious harm arising from the former boyfriend, the Tribunal has considered the relevant available country information:
Given the applicant’s oral evidence about her fear of outward appearance as a pengkid and her experiences of societal discrimination and harassment in that regard, and the country information noted below, the Tribunal does not accept the applicant will remain discreet about her sexuality in Malaysia by choice, or largely due to the nature of her personality. The Tribunal accepts the applicant fears returning to Malaysia based on her relationship with another woman. It accepts that her partner is not as confident or emotionally resilient as the applicant and that it distresses the applicant to worry about psychological impact in retuning together to avoid persecution or just being separated from each other.
That DFAT report indicates that “carnal intercourse against the order of nature” is illegal in Malaysia under the Penal Code and although the law is rarely enforced the government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals, the police and judiciary have banned public demonstrations of support for the LGBTI community, and 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. The Federal government, and a few State governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth, and throughout 2013 the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. Re-education boot camps or ‘behaviour corrective programs’ continue to operate in Malaysia. DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia and that many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.
A May 2014 report by the International Gay and Lesbian Human Rights Commission[3], records pengkid facing verbal abuse or warnings from strangers in public places, inappropriate physical contact, and job discrimination. In relation to religious laws directed against Muslims, it goes on to state:
In October 2008, the National Fatwa Council announced a fatwa (Islamic edict or opinion) against pengkid, a term that loosely translates as tomboys for individuals in the Malay Muslim community who fall within the spectrum of lesbian butch and transman (see Glossary for more details). The announcement of the fatwa against tomboys sparked protests from people, notably non-Malay Muslims. Many Malay Muslim conservatives, such as members of the National Fatwa Council, nationalist pressure groups, politicians, bloggers, and some members of the public, saw these protests of non-Muslims against the pengkid fatwa as interference in an Islamic matter. Presently, fatwas have been gazetted (officially announced to the public and published in a journal or state controlled newspaper) in the state of Malacca and the federal capital, Kuala Lumpur, to prohibit tomboy or tomboy behaviour.
[3] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, in Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia, 6 May, p.33: see <CIS2F827D91966>
In considering the applicant’s prospects on her return to Malaysia, the Tribunal notes that there appears to be a gulf between the broad thrust of country information on the one hand – which paints a fairly bleak picture of the situation for LGBTI community in general – and the applicant’s own experiences in Malaysia. In the Tribunal’s view, the Department of Foreign Affairs’ most recent report provides important, and reliable context (with the Tribunal’s emphasis, see Appendix B for the full excerpt):
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.
Looking ahead to the reasonably foreseeable future, the Tribunal has taken into account a large amount of country information about the treatment of lesbians (and other LGBTI people) in Malaysia, and in particular pengkid, which is variously translated as ‘tomboy’ or ‘masculine women’. Recent material indicates that the overall outlook for LGBTI rights in Malaysia is poor. The key components to this are the nationwide ban on homosexual activity (‘carnal intercourse against the order of nature); the Malaysian Government’s open criticism of LGBTI individuals, and restrictions on rights; the issuance of State religious laws directed at LGBTI people (including pengkid); and declining official and social tolerance of the LGBTI community and individuals. The Tribunal is mindful of the issuance of State religious laws, or fatwas, apply to Muslims, and therefore put them at greater risk than other groups in Malaysia
The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBT people, providing an environment for societal discrimination and harassment and violence against LGBT people in Malaysia[4]. The Tribunal finds there is no country information that this discrimination, harassment and violence will be any significantly reduced due to the applicant being from an indigenous and Christian background or due to the level or frequency harmed will be reduced based on the applicant’s relatively low social status.
[4] US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International, Malaysia must recognize and stop hostilities towards LGBT people”, International Gay and Lesbian Human Rights Commission, “Violence: Through the lens of lesbians, bisexuals women and trans people in Asia”, May 2014.
On the evidence before it, including the country information referred to above, the Tribunal is unable to find with confidence that the chance of the applicant suffering serious harm for reasons of her sexual orientation, in the form of significant physical harassment from the broader Malaysian community, if she lived openly as lesbian or as a lesbian who identifiably ‘pengkid’, would be remote or a far-fetched possibility. The Tribunal also accepts that the applicant because of her relationship with [Ms A] is further open to frequent degrading and humiliating public slurs, employment discrimination, blackmail and/or police and other harassment that has a real chance of being initiated by the ’[Ms A’s] former boyfriend, given the Tribunal accepts the incidents of past harm occurred as claimed. In this regard, the Tribunal also accepts that this threat of serious harm is heightened based on her own personal circumstances and that harm exists throughout Malaysia.
The Tribunal accepts the applicant has modified some of her behaviour in the past to avoid harm to accommodate her secret relationship with [Ms A], while remaining outwardly ‘pengkid’ and even enduring a level of verbal and physical harassment in the past. The Tribunal notes that s.5J(3) of the Act states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation. The Tribunal finds the applicant is a homosexual woman who is distinctly ‘pengkid’ and a modification of her behaviour to avoid a real chance of persecution would conflict with a fundamental characteristic of her identity and conceal an innate or immutable characteristic and her true sexual orientation. Furthermore, it finds that the applicant will not be able to return to Malaysia and live without modifying her behaviour where she can express outwardly her commitment to another woman with whom the Tribunal accepts is in committed genuine and continuing de facto relationship with aspirations to form a family and marry, which the Tribunal accepts are fundamental to the applicant’s identity and conscience.
While the Tribunal notes the law criminalising homosexual acts is rarely enforced, especially towards women, the Tribunal also notes the law has not been repealed and the Tribunal considers the effect of the law and the government’s ongoing public vilification of LGBT people contributes to an environment where homosexuals experience discrimination and harassment and violence in Malaysia. Given the country information and the applicant’s particular circumstances, as noted above, the Tribunal is not satisfied the State is willing to offer effective protection measures to the applicant, nor is the Tribunal satisfied the applicant would be able to access effective protection measures if returned to Malaysia, now or in the reasonably foreseeable future.
The Tribunal accepts that homosexual women who are identifiably pengkid are a particular social group as defined by s.5L of the Act as the characteristic among pengkids is shared by each member of the group; and the applicant shares the characteristic; and the characteristic is an innate or immutable characteristic and is so fundamental to the members identity or conscience, the member should not be forced to renounce it; and the characteristic distinguishes the group from society and is not a fear of persecution.
The Tribunal finds that the applicant’s membership of a particular social group, homosexual women who is identifiably pengkid, is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment as listed in subsection s.5J(5) of the Act, and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4) of the Act.
The Tribunal finds there is a real chance the applicant will suffer persecution for reasons of her membership of this particular social group, homosexuals, if she returned to Malaysia, now or in the reasonably foreseeable future.
Therefore the Tribunal is satisfied the applicant’s fear of persecution in Malaysia is well-founded, and the Tribunal finds the applicant is a refugee as defined by s.5H of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a)of the Migration Act.
Brendan Darcy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1825

25 September 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction

Standing