1608621 (Refugee)

Case [2017] AATA 982

1608621 (Refugee) [2017] AATA 982 (23 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608621

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Dr Colin Huntly

DATE:23 May 2017

PLACE OF DECISION:  Perth

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 23 May 2017 at 12:23pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Homosexual – Muslim Malay – State protection – Physical harassment

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

Migration Regulations 1994, Schedule 2


CASES
Abebe v The Commonwealth (1999) 197 CLR 510
Ponnundurai v MIMA [2000] FCA 91
MZZJO v MIBP [2014] FCAFC 80
Croome v Tasmania (1997) 191 CLR 119
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZFDV v MIAC (2007) 233 CLR 51
Appellant S395/2002 v MIMA (2003) 216 CLR 473
SZATVv MIAC (2007) 233 CLR 18
Chan Yee Kin v MIEA (1989) 169 CLR 379
Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167

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 [in] May 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 [in] June 2015.  The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was entitled to protection on the basis of being a member of a particular social group.  The delegate made this determination by reference to the particular social group “homosexual men in Malaysia”.

  3. [In] June 2016 the applicant lodged an application for review of the delegate’s decision not to grant Protection visas to any of applicants with the Tribunal. 

    Hearing

  4. The applicant attended a hearing with the Tribunal on 8 May 2017 to give evidence and present arguments.  The…

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1608621 (Refugee) [2017] AATA 982
Case
[2017] AATA 982
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant, a Malaysian citizen, claimed to be a homosexual Muslim man who feared persecution in Malaysia due to his sexuality and religious identity. The dispute centred on whether Australia had protection obligations towards the applicant under the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether he was a person in respect of whom Australia had protection obligations because he was a refugee, as defined by section 36(2)(a) of the Act. This required the Tribunal to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, or membership of a particular social group, and if such persecution would involve serious harm and systematic, discriminatory conduct. The Tribunal also considered the definition of a "particular social group" under section 5L of the Act.

The Tribunal found the applicant to be credible and forthright. It noted that Malaysian law criminalises same-sex acts and that the Malaysian government openly criticises LGBTI individuals, with politicians making statements that equate LGBTI activities with "deviant practices" and "poisoning the minds of Muslims." Country information indicated that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination, harassment, and intimidation. The Tribunal considered that the applicant's fear of persecution for being a homosexual Muslim Malay man in Malaysia was based on a characteristic that is fundamental to his identity and distinguishes him from society, thus potentially constituting membership in a particular social group.

The Tribunal concluded that the applicant satisfied the criterion set out in section 36(2)(a) of the Migration Act. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies this criterion.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Relevant extracts of Country Information referred to by the Tribunal in this decision are set out in Appendix B to this Decision.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant engages Australia’s protection obligations for the essential and significant reason of his membership in a particular social group, namely, homosexual Muslim Malay men in Malaysia. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Country of reference According to the applicant’s movement record, he arrived in Australia using his current Malaysian passport [in] April 2014 on [temporary] visa. The Tribunal has also had regard to the Departmental files, in particular, the “Biometric Identification Test: Legislative script-Adult” declaration of an authorised officer dated [date]. On the basis of the above evidence, the Tribunal finds that the applicant is a man born on [date], and is a citizen of Malaysia. The Tribunal therefore finds that the country of reference and the receiving country for the applicant, is Malaysia for the purposes of s.36(2)(aa) of the Act. Having regard to all the evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country. The Applicant is therefore not excluded from Australian protection by the operation of s.36(3) of the Act.Applicant’s Claims Claims were lodged by the Applicant in an “Application for a protection visa Form 866B” dated 28 May 2015. During the hearing the Tribunal questioned the applicant order to determine the nature of his claims and to satisfy the Tribunal as to applicant credibility. The Tribunal also sought clarification from the applicant about matters of concern raised by the delegate and published in the delegate’s Decision Record, dated [May] 2016. The Tribunal found the applicant to be credible and forthright. Delegate’s findings The Tribunal notes that the delegate’s summary of the applicant’s claims protection at [4] of the Decision Record includes the following:· The applicant is a homosexual Muslim and has faced physical and psychological affects [sic] because of his sexuality.· The applicant has been in a relationship with his partner for over four years and has been badly perceived and treated by family members and relatives.· The applicant has been continuously discriminated against by society and fears persecution from the Malaysian authorities.· The applicant was whipped, beaten and bound by his father and brother when they forced him to live separately from his partner. They also insisted he get married to a girl that they have chosen. Their relationship is still not good.· The applicant met with an LGBTI member in Malaysia for support and consulted with a counselling practitioner for stress relief and medication.· After the applicant completed his degree studies he moved away from his family as he feared they would report him to the religious authorities as he was living with his partner.· The applicant claims it is wrong in relation law to have sex with someone from the same sex and a person can be jailed for up to 20 years. No one in Malaysia reports acts of harm to the police if they are homosexual.

Decision

Reasons for decision

For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Dr Colin HuntlyMemberAPPENDIX A – RELEVANT LAW60.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, the applicant 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.Refugee criterion61.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.62.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. 63.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). 64.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 below. 65.The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[28][28]Chan Yee Kin v MIEA (1989) 169 CLR 379.66.If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).Complementary protection criterion67.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 a protection 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 the applicant 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’).68.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. 69.There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.Section 499 Ministerial Direction70.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.Applicant credibility71.The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[29] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. [29]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.72.In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[30] Foster J stated that “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.”[31] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. [30](1996) 40 ALD 445.[31]At 482.73.The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[32] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[33][32](1996) 185 CLR 259.[33]At [25].First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.74.The Tribunal is not required to accept uncritically any or all allegations made by an applicant. Nor is it 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, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[34] Nevertheless, as Burchett J counselled,[35] it is necessary to:[34][1997] FCA 1198 ( accessed 15 February 2017).[35]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.75.The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[36] On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[37] Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case. However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[38] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[39] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[40] [36]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 February 2017).[37]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9. [38]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed). [39]MIMA v Rajalingam (1999) 93 FCR 220. [40](1999) 197 CLR 510 at [191].… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.APPENDIX B – RELEVANT COUNTRY INFORMATION76.The Tribunal has had regard to the following Country Information with respect to this decision:DFAT Country Information Report – Malaysia, 19 July 2016Sexual Orientation and Gender Identity 3.89Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is “carnal intercourse against the order of nature”. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated (see ‘Political Opinion (Actual or Imputed)’, above).3.90The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that “groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society”. In May 2014, Prime Minister Najib said the government would “not allow Muslims to engage in LGBTI activities”. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were “poisoning the minds of Muslims with deviant practices”.3.91The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.3.92The 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.3.93Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a “re-education boot camp” or “behaviour corrective program” for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government “viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour” and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.3.94DFAT 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. DIBP Malaysia: Common Claims, Country of Origin Information Services Section, 1 September 2016Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) A May 2014 report by the International Gay and Lesbian Human Rights Commission comments in relation to the Malaysian Penal Code that ‘Sections 377A and 377B criminalise “carnal intercourse against the order of nature (anal sex, oral sex) between consenting adults regardless of the sexual partner’s gender, as well as gross indecency.” According to the report:Section 377 comes under Unnatural Offences in the Malaysian Penal Code (Act 574). Sections 377A and 377B criminalise “carnal intercourse 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.[41][41]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 Accessed 28 January 2015 <CIS2F827D91966>An outline of the ‘Unnatural Offences’ and associated punishments within the Penal Code can be located within the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s 2015 publication State-Sponsored Homophobia.[42][42]International Lesbian, Gay, Bisexual, Trans and Intersex Association 2015, State-Sponsored Homophobia 2015 - A World Survey of Laws: criminalisation, protection and recognition of same-sex love, pp 77-8 The International Gay and Lesbian Human Rights Commission reported in May 2014 that”‘[i]n 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 only to Muslims regarding issues such as marriage, divorce, and the creation and punishment of offences in relation to Islam”.[43] In January 2015, Malaysia’s Court of Appeal was reported to have recently ruled that ‘the Federal Constitution restricts Islamic legislation to marriage, divorce and inheritance based on the Supreme Court’s ruling in the landmark 1988 Che Omar Che Soh case’.[44][43]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 Accessed 28 January 2015 <CIS2F827D91966>[44]‘Islamic law restricted to familial matters, Court of Appeal says in transgender case’ 2015, Malay Mail Online, 21 January Accessed 23 January 2015 <CXBD6A0DE575>According to DFAT’s 2016 Country Information Report – Malaysia, the Malaysian Government openly discriminates against LGBTI persons:3.90The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.[45][45]See above.The Human Rights Watch World Report 2015: Country Summary Malaysia, describes discrimination against LGBT persons in Malaysia as “pervasive”.[46][46]Human Rights Watch 2015, World Report 2015: Country Summary Malaysia, 29 January <NG5A1E6BC48>Amnesty International’s Amnesty International Report 2014 – 2015 reports notes LGBTI individuals experience “harassment and intimidation” in Malaysia.[47][47]Amnesty International 2015, Amnesty International Report 2014-15 - Malaysia, 25 February <CXBD6A0DE13338>In 2016 Freedom House outlines various government led initiatives that discriminate against sexual minorities:The Ministries of Health and Education conduct campaigns to “prevent, overcome, and correct” symptoms of homosexuality in children, while the Ministry of Information has banned television and radio shows depicting gay characters.[48][48]Freedom House 2016, Freedom in the World 2016: Malaysia, May, section F, p.6 Malaysian government ministries openly campaign against LGBTI through education and media outlets:… In 2014, the government continued attacks on LGBT individuals. The Ministries of Health and Education initiated campaigns for parents, teachers, counselors, and young people to “prevent, overcome, and correct” symptoms of homosexuality in children, while the Ministry of Information banned television and radio shows depicting gay characters.[49][49]Freedom House 2015, Freedom in the World 2015: Malaysia, May, Section F <NG5A1E6BC218>…Lesbian A May 2014 report by the International Gay and Lesbian Human Rights Commission indicates that “[l]esbians, bisexual women, queer and transgender persons (transwomen and transmen), and other gender non-conforming people and communities currently face rising hostility, discrimination and abuses in Malaysia. They are unprotected by a political system, which is geared towards promoting and imposing a specific vision of Malaysia”.[50] The report refers to lesbians facing physical and emotional violence from family members, verbal abuse or warnings from strangers in public places, and job discrimination, with some employers openly expressing ‘that they did not hire lesbians because they are “trouble”’.[51][50]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.9 Accessed 28 January 2015 <CIS2F827D91966> [51]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, pp.20 & 30-31 Accessed 28 January 2015 <CIS2F827D91966> The same report indicates that in Malaysia, “[s]yariah laws criminalise Muslims for lesbian sexual relations (musahaqah)”:While Malaysia may have inherited the British colonial laws that prudishly criminalise consensual anal and oral sex acts (carnal intercourse) between adults, it is the current State’s identity politics and the institutional strengthening of Malaysia’s Islamization that has witnessed the increasing importance and influence of state-administered syariah (sharia) or Islamic law. Syariah laws criminalise Muslims for lesbian sexual relations (musahaqah), sex between men (sodomy), sex that is considered “against the order of nature” (liwat), and for “posing” or “impersonating” as the opposite sex (e.g., cross-dressing). Government representatives actively reject sexual orientation and gender identity issues as human rights issues in various national, sub-regional (such as, at the Association of Southeast Asian Nations/ASEAN Intergovernmental Human Rights Commission) and international fora.[52][52]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.9 Accessed 28 January 2015 <CIS2F827D91966> As noted by a Women’s Aid Organisation 2012 report, Syariah law does not offer protections to lesbian individuals. Women found guilty of lesbianism can be punished by whipping.[53][53]Women’s Aid Organisation 2012, CEDAW and Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s process in implementing the UN CEDAW, April, p.194 Accessed 10 December 2012 <CIS24169> In September 2014, it was reported that a Malaysian lesbian couple had been arrested by religious officers during a raid on a budget hotel in in Johor Bahru, Malaysia. Nine officers from the Johor Islamic Religious Department reportedly 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 Shariah 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 RM5,000”.[54][54]Wee, D 2014, ‘Malaysia lesbian couple arrested by religious officers in hotel raid’, Gay Star News, 2 September Accessed 18 February 2015 <CX1B9ECAB9843>ToleranceDespite 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 Malaysian newspaper The Star refers to the comments of “activist, artist and arts consultant Pang Khee Teik”, who said that “while some Malaysian LGBTs 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”.[55][55]Tam, M 2013, ‘Activists: Legalising gay marriages in Asia won’t solve Malaysia’s LGBT issues’, The Star Online, 29 July Accessed 17 February 2015 <CXC28129413923> A May 2012 report on the Gay Star News website refers to the comments of Lee Kam Wye, a netizen[56] and retired secondary school teacher in Malaysia, who said that “LGBT may appear to be spreading not because more people are being recruited into LGBT lifestyle but because this community is braver and more open now”.[57][56]A ‘netizen’ is defined as “A user of the Internet, especially a habitual or keen one” on the Oxford Dictionaries website. Oxford Dictionaries n.d., netizen [57]‘Malaysia training helpers to curb homosexuals’ 2012, Gay Star News, 23 March A February 2012 Hindustan Times article, sourced from Agence France-Presse, indicates that “The gay and lesbian community in socially conservative Malaysia has slowly gained a higher profile in recent years, and transsexuals live openly in cities”. The article also indicates, however that “many complain they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country”, and “Authorities 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”.[58][58]‘Malaysia transsexuals targeted in attacks: report’ 2012, Hindustan Times, source: Agence France-Presse, 16 February Accessed 17 February 2015 <CX0D38E8E20065> In July 2011, The Star Online reported that a lesbian couple had married in a traditional wedding ceremony in [Town 1] in Malaysia.[59] An article on Fridae, a media and social networking website for LGBT persons in Asia,[60] indicates 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 local media”. The marriage was “however not legally recognised as Malaysia has no provisions for same-sex marriages”. The article also refers 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”.[61][59]Gasper, D T & Yun, Y X 2011, ‘Lesbian couple tie the knot’, The Star Online, 31 July Accessed 19 February 2015 <CXCB3E63420579> [60]Fridae n.d., About Fridae [61]Fridae 2011, Banquet for 400, lesbian wedding in Malaysia makes the news, 1 August Accessed 19 February 2015 <CXCB3E63420580> A January 2011 Inter Press Service article refers to the comments of Michael Lam, a gay accountant in Malaysia, who, when discussing the reaction to Azman Ismail, a Muslim, going on YouTube.com and confessing that he was a gay, said that “What’s shocking to many Malaysians is not the fact that there are LGBT persons or LGBT behaviour, which is common but never in your face”, it was “the open admission of being gay and the defence of homosexuality by a Malay Muslim”. It was “the openness that is inviting adverse reaction”. Lam also said that “LGBT is generally tolerated, but as long as it is not flaunted”.[62][62]Kuppusamy B 2011, ‘Malaysia: Muslim gay faces govt wrath’, Inter Press Service (IPS), 15 January Accessed 17 January 2011 <CX256528> The level of safety for gays in Malaysia depends heavily on the region. 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 sophisticated”.[63] A Brisbane Times article states that the city boasts “riotous gay bars”. Despite this, the gay scene is still underground and Kuala Lumpur maintains a “deeply religious underbelly”.[64][63]Amnesty International 2007, ‘Malaysia: Fear for safety/torture or ill-treatment’, AI website, 3 August <CX236938>[64]Y-Sing, L. 2007, ‘Malaysia’s transsexuals battle sex change woes’, Brisbane Times, 28 October <CXE90FC0120242> UNHRC Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras—Addendum: Visit to Malaysia (19 November–2 December 2014)D. Lesbian, gay, bisexual and transgender persons[65][65]Footnotes omitted.83.Although discrimination on the basis of gender is prohibited in the Federal Constitution (art. 8 (2)), the rights of lesbian, gay, bisexual, and transgender (LGBT) persons are not explicitly recognized. Colonial-era provisions have been retained under the Penal Code and they criminalize sodomy (Penal Code, sects. 377(a) and 377(b)) and perpetuate discrimination against LGBT persons. In addition, discriminatory societal attitudes towards LGBT persons prevail in Malaysia and have been exacerbated over the past few decades by the use of a stigmatizing rhetoric by politicians, public officials and religious leaders.…86.The criminalization of same-sex conduct and of different forms of gender identity and expression has reinforced negative societal attitudes and has led to serious human rights violations of the rights of this group of the population, including significant barriers in access to health care. Law enforcement officials arrest transgender women and subject them to various abuses, including humiliation in the media, and physical and verbal abuse.87.Transgender women also face serious discrimination in public health-care facilities. They are often associated with sex work, which is a crime, and they are forcibly tested for HIV/AIDS. They are identified on the basis of their identity card and, unless they have undergone sex reassignment surgery, are often housed in male wards where they can be exposed to violence and abuse. The fear of stigma and discrimination deters transgender women, and other LGBT people, from seeking health care, with the consequent devastating effects that this can have.88.The Special Rapporteur welcomes the judgement of the Court of Appeal issued on 7 November 2014 that found section 66 of the Syariah Criminal Enactment of Negeri Sembilan State criminalizing cross-dressing unconstitutional. The judgement of the Court of Appeal stated that section 66 of the Syariah enactment was not in conformity with the Federal Constitution and violated the rights to live with dignity, equality before the law and non-discrimination, and directly affected freedom of movement and expression. The judgement explicitly acknowledges the profound effect that section 66 has on the appellants who live perpetually at risk of arrest and prosecution simply because they express their gender identity. The Court of Appeal underlined that the existence of a law that punishes gender expression is degrading and deprives those affected of their dignity and value in society.89.Laws that criminalize same-sex conduct, as well as legal enactments that criminalize transgender women, infringe on the enjoyment of the right to health and other basic human rights (see A/HRC/14/20, para. 6) which are guaranteed by the Federal Constitution and the international treaties that Malaysia has ratified, including the human rights to dignity, equality before the law and equal protection of the law, freedom from discrimination and freedom of expression.90.During his visit, the Special Rapporteur was also very concerned about information received on programmes and practices supported by public institutions to change the sexual orientation of adolescents, so-called “corrective therapies”. Such therapies are not only unacceptable from the human rights perspective but they are also against scientific evidence, and have a serious negative impact on the mental health and well-being of adolescents. State-led programmes to identify, “expose”, and punish LGBT adolescents contribute to a detrimental educational environment where the inherent dignity of the child is not respected and discrimination on basis of sexual orientation and gender identity is encouraged.…V.Conclusion and recommendations108. The Special Rapporteur notes with appreciation the progress made in Malaysia since independence, in particular, the significant reduction of poverty and the Government’s commitment to improving the health of the population. The Government has recognized that the further successful development of the country depends not just on investing in economic growth but also on the social well-being of the population. It has taken steps to improve the well-being of the population, some of which could serve as an inspiration to other countries.109. However, during his visit, the Special Rapporteur observed deeply entrenched discriminatory attitudes towards groups in vulnerable situations, mostly based on certain restrictive interpretations of culture or religion that discriminate and restrict the rights of these groups, including the right to health. These arguments go against international human rights principles and standards, and when initiated, supported or tolerated by public authorities, they threaten the development of a healthy and inclusive society.110. Malaysia needs to move away from a selective approach to human rights. The rights of all people living in Malaysia need to be protected, and more efforts are needed to combat the discrimination of the more disadvantaged groups and to achieve their full inclusion in society.111. The Special Rapporteur recommends that the Government:(a)Ratify all core universal human rights treaties and the optional protocols thereto, remove all reservations to the treaties ratified and ensure timely reporting to the monitoring bodies; and extend an standing invitation to the special procedures of the Human Rights Council;(b)Ratify the 1951 Convention relating to the Status of Refugees and its 1967 Protocol in order to ensure adequate protection of refugees and asylum seekers;…(q)Decriminalize sodomy and remove any legal provisions that criminalize same-sex conduct and different forms of gender identity and expression so as to guarantee that the existing legal framework is in accordance with the Federal Constitution and international human rights law;(r)Legally recognize the gender identity of transgender people and prohibit any discrimination on the basis of gender identity in all areas, including health, education, employment and access to public services;(s)Put an end to State-led programmes that expose and punish LGBT children, and ensure that they enjoy safe and enabling spaces in schools, and other public and private institutions; ATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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