1610283 (Refugee)

1610283 (Refugee) [2017] AATA 1116 (27 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1610283
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Windsor
DATE:27 June 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 27 June 2017 at 3:54pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Transgender – Discrimination – Compulsory counselling – No State protection – Sharia law – Criminal penalties apply

LEGISLATION
Migration Act 1958, ss 5H, 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 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] June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] April 2016. The delegate found that the applicant is a transgender person who dresses as a female. The delegate also found that ‘transgender people in Malaysia’ constitutes a particular social group as defined by s.5L of the Act and was satisfied the applicant is a member of this particular social group. The delegate refused to grant the visa on the basis that, while the delegate accepted the applicant would be discriminated against in Malaysia, the delegate found this discrimination does not amount to persecution in the applicant’s particular circumstances because the applicant has demonstrated an ability and willingness to change gender appearance depending on the circumstances. As the Tribunal also finds that the applicant is a transgender person who identifies as a woman the personal pronouns ‘she’ and ‘her’ are used when referring to the applicant in this decision record.
The applicant applied to the Tribunal for review of this decision on 8 July 2016. She provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 22 June 2017 to give evidence and present arguments. The applicant’s ‘partner’ also attended the hearing and gave evidence on her behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

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

In the Protection visa application[1] the applicant claims to be a citizen of Malaysia who was born [in] Kelantan state Malaysia on [date]. She states that she belongs to the Malay ethnic group, is a Muslim, and speaks, reads and writes Malay, English and [another language]. The applicant indicated that they she has never married or been in a de facto relationship. The applicant stated she departed Malaysia legally through Kuala Lumpur International Airport [in] October 2015 and arrived in Australia [in] October 2015, entering on a [temporary] visa.
[1] See folios 73-97 of Departmental file [number].

Claims from the Protection visa application

The applicant’s claims from her Protection visa application[2] are summarised as follows:

The applicant left Malaysia because she is a transgender person – a male dressed like a female. The applicant also left because of discrimination suffered in the workplace because of her appearance.
The applicant was caught by the Federal Territory Islamic Affairs Department [in] November 2013 when she was found dressed as a female in public. The applicant had to attend a compulsory counselling course as punishment[3]. The applicant feels unsafe and ‘not calm’ because if she returns to Malaysia she may be caught again.
The applicant has not sought help within the country because Malaysia is an Islamic country and the rules and regulations for transgender persons state that attending the counselling courses is compulsory and if she does not attend she will be convicted or get compounded punishment. If caught again the applicant will be arrested and sentenced under section 28 of the Federal Territory Syariah Criminal Offences Act 1997 and fined RM[amount] or sentenced to a year in prison or both.
The same rules apply across Malaysia. The Rules and regulations state that males cannot dress as females. Each state has its own Syariah Criminal Offences Act.
[2] See folios 76-78 of Departmental file [number].
[3] See copy of certificate of attendance at the behavioural correction course conducted by the Federal Territory Islamic Affairs Department at folio 116 of Departmental file [number].

Evidence from the hearing of 22 June 2017

The applicant attended the hearing dressed as a woman (the delegate’s decision record indicates that the applicant also attended the departmental interview dressed as a woman).
The applicant indicated that her parents are both deceased. She said she has [siblings]. The applicant indicated that she is really close to one of her [siblings] but is not so close with her [other siblings] since they found out through her [social media] account that she is a transgender person.
The applicant indicated that she first came to Australia in March 2015 for about [number] weeks on vacation to ‘observe’, because a former housemate had visited and spoke positively about Australia. The applicant indicated that she also has a professional interest in [certain organisations] and was interested in [those organisations] in [Australia].
The applicant indicated that after she returned to Australia in October 2015 she lodged a Protection visa application but it was deemed invalid. She said this was because she did not receive the letter about providing personal identifiers. She lodged a valid application in April 2016.
The applicant indicated that she obtained a [tertiary qualification] in 2010 and then obtained a [further tertiary qualification] in [course] and in 2013 secured employment as an [occupation] for [a company] in Kuala Lumpur after serving [an] internship with the company. The applicant indicated that she resigned from this job in March 2015, before she first came to Australia. She indicated that she resigned because, while she had a very good relationship with her manager, her colleagues at level made her feel stressed and depressed by their attitudes towards her. She indicated that they bullied [her]. The applicant indicated that she thought this was partly due to professional jealously but was also due to her appearance. She commented that she thought they were trying to make her resign and their attitudes towards her caused her to feel stressed and depressed, be unable to sleep and to take medical leave.
The applicant indicated that she knew from a young age, since she was in kindergarten, that she was more like a girl than a boy. She commented that she liked to wear her sisters’ clothes and her mum’s shoes and lipstick. She said it was when she was around [age] and was studying for her [first qualification] that she first revealed herself by dressing as a woman and going to clubs on weekends. The applicant indicated that she was living off-campus with a group of friends who were supportive of her. She said at this stage she still dressed as a man during the day.
The applicant indicated that she took hormone pills [for] [number] years from the age of [age], based on information provided by friends (rather than professional medical advice), but has now stopped as she is happy with her appearance. She indicated that she was not considering surgery, injections or transplants.
The applicant indicated that she had a small circle of transgender friends in Kuala Lumpur comprising some classmates and friends of friends and they liked to go to a 24 hour [café]. She said there were also clubs in [an] area that they went to but commented that this area was known for prostitution and she had a bad experience there when she was going to a club. She indicated that she stopped there when she was on her way to a club and the police thought she was a prostitute and took her to the police station where she was held for [time period]. She indicated that she was provided with a lawyer and the case was dismissed when she was brought before the magistrate. The applicant indicated that she was not physically mistreated but was upset that the police arrested her on the assumption she was a prostitute without any evidence (that is, without speaking to her or her speaking to them) and were rude to her while she was in custody (looked at her in a prejudicial way assuming she was guilty) and screamed at her. She said she was made to feel uncomfortable and afraid. The Tribunal asked the applicant why she had not mentioned this incident previously. She replied that she had no evidence that she had been detained/charged such as a letter, and the charge was dismissed and she was released so she did not think she should mention it.
The applicant indicated that she was arrested by religious officers when she was dressed as a woman and was in a car late at night near a lake in [a] district of Kuala Lumpur. She indicated the religious authorities had an operation in that area looking for transgender people and unmarried couples. She said she was charged with being a man dressed as a woman and had to attend a counselling course [in] December 2013. The applicant indicated that if she kept doing this in Malaysia she could be charged and fined or imprisoned or both.
The applicant commented that it would be difficult for her to find work if she returned to Malaysia. She commented that since she resigned from her previous job she has transformed herself to a woman 24 hours a day. She indicated that she had attended some job interviews in Malaysia when she returned in May 2015 dressed as a woman but had not been successful getting the jobs. The applicant also spoke about an offer she had had from a person who said they would provide capital for her to run a [business] but indicated this fell through when the person would not provide payment for a project paper she worked on in relation to the proposed project.
The Tribunal asked the applicant if she had ever been harassed or threatened in Malaysia. She commented that there is a mindset of hate towards transgender people and that some people will throw small stones or blow their car horns very loudly if they see a group of transgender persons. She indicated that people pass remarks using Malaysian words such as ‘Bapok’ and ‘Pundan’ which are derogatory slang terms of abuse for transgender people.
The applicant indicated that if she returned to Malaysia she would want to be herself and not be fake. She said she would still want to appear as a woman.
The applicant’s witness, an Australia citizen man, indicated that he had known the applicant since around June 2016. He said they met through a ‘dating app’ and then started meeting up in person. He indicated that the applicant was experiencing problems with accommodation and he subsequently invited her to come and live at his friend’s house where he lives. The witness indicated that his friendship with the applicant became a relationship from December 2016. The witness indicated that the applicant presents solely as a woman and that he knows her by [a female name]. He indicated that their relationship is a sexual relationship but he does not consider himself to be a gay man.
The applicant also forwarded to the Tribunal a copy of a letter of support from a Counsellor/Psychotherapist at [agency] who indicates that he has been seeing the applicant since the beginning of 2016 and has worked with the applicant to reduce stress and trauma symptoms which he considers are strongly and directly linked to her concerns about having to conceal her true identity should she have to leave Australia and return to Malaysia[4].
[4] See folio 50 of Tribunal file 1610283.

Findings and reasons

The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Identity

On the basis of the copy of the applicant’s Malaysian passport provided to the Department[5], the Tribunal accepts that the applicant is a citizen of Malaysia and that her identity is as she claims it to be. The Tribunal accepts that Malaysia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.

Claims under the ‘refugee’ criterion

[5] See folio 52 of Departmental file [number].

The Tribunal found the applicant to be open and forthcoming about her circumstances, experiences and concerns. The Tribunal considers the applicant to be a credible witness.
The Tribunal finds that the applicant is a transgender person who identifies as a woman. The Tribunal accepts that since coming to Australia the applicant has presented herself solely as a woman.
Like the delegate, the Tribunal finds that the applicant is a member of a particular social group as defined by s.5L of the Act: ‘transgender people in Malaysia’. The Tribunal considers that the characteristic of being a transgender person is shared by each member of the group; the applicant shares the characteristic; the characteristic is an innate or immutable characteristic and is so fundamental to the member’s 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 the particular social group, transgender people in Malaysia, 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), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).
The Tribunal accepts that the applicant will continue to present herself as a woman in future, including through dressing as a woman, and that she wants to live openly as a transgender person who identifies as a woman.
The Tribunal has considered country information in relation to LGBTI individuals including transgender persons in Malaysia including the Department of Foreign Affairs and Trade (DFAT) County Information Report of 19 July 2016[6], which indicates the following:
[6] DFAT Country Information Report, Malaysia, 19 July 2016, sections 3.89-3.99.

Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years or caning. However, the Penal Code offences have infrequently been applied to homosexuals except where its application has been politically motivated).
The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex (LGBTI) individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbians, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society’. In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices’.
The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.

The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
Some 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. Sixty-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.
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.
Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality, and, where Muslim, under sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.
Where transgender women were identifiable as Muslim, and as male, as demonstrated on their national identity card, they were occasionally arrested by state religious authorities or the Royal Malaysian Police. While the majority of arrests occurred in public places, state religious officials occasionally conducted raids on private premises. Members of the Royal Malaysian Police had on occasion accompanied such officials.
In October 2015, regarding the case of three Muslim transgender women from Negeri Sembilan, the Federal Court reversed a lower court ruling that had found Negeri Sembilan’s state-level prohibition on men dressing as women to be unconstitutional. The Federal Court advised the defendants to exhaust their case in the sharia court, where it had originated. In June 2015, nine transgender women were convicted by a sharia court in Kelantan state under cross-dressing prohibitions. In 2011, a transgender woman was arrested for cross-dressing and was sexually assaulted by religious department officials in Negeri Sembilan. In 2012, religious department officials forcibly entered the home of a transgender woman in Seremban. The woman, a non-Muslim—as confirmed by a check of her national identity card—was not arrested. However, her Muslim transgender friends were arrested for cross-dressing.
State religious officials have been known to subject transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens or fellow detainees. Societal violence also occurs. On 10 September 2015, Malaysia’s most prominent transgender activist, Nisha Ayub, was brutally beaten by two Indian Malaysian men with iron bars outside her apartment building. She reported the hate crime to police but no suspects have been identified.
DFAT assesses transgender individuals, especially Muslim men who either cross-dress as women or identify as transgender would face a high level of official and societal discrimination and are at moderate risk of societal violence.

While the DFAT advice indicates that the law criminalising “carnal intercourse against the order of nature” 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 have portrayed 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.
While there is some country information indicating some LGBTI individuals experience varying degrees of tolerance depending on their socio economic status, culture, religion and urban location, the Tribunal also notes the US Department of State and a number of nongovernment organisations have reported on the Malaysian government’s laws and programs and public vilification of LGBT people as providing an environment for societal discrimination and harassment and violence against LGBT people in Malaysia[7].
[7] US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International,
Specifically in relation to transgender people, a September 2014 report by Human Rights Watch[8] noted that:
Transgender people in Malaysia face discrimination and abuse from a range of state officials and agents—including police officers, state Religious Department officials, public sector health workers, prison guards, and public school teachers and administrators. Official discrimination against transgender people is compounded by other forms of discrimination for which the government provides little or no protection: Human Rights Watch found that transgender people are fired from their jobs, evicted from their homes, physically and sexually assaulted, and denied access to health care because of their gender identities. When public officials or private individuals commit violence against transgender people, the victims face serious obstacles—and at times further sexual abuse—from the police who are supposed to be helping them.
Government officials, politicians, and religious leaders fuel the flames of violence and discrimination against transgender people with transphobic and homophobic rhetoric.
[8]‘I’m Scared to Be a Woman’ Human Rights Abuses Against transgender People in Malaysia, Human Rights Watch, September 2014. Sourced at <>
In the same report Human Rights Watch called on the federal and state governments of Malaysia to:
‘repeal discriminatory laws and fatwas that deny transgender people their basic rights—and prohibit them from being who they are. State Religious Departments and the federal police should end all forms of abuse against transgender people, including arbitrary arrests and detention; sexual assault, torture and ill-treatment; and extortion of money and sex. The authorities should investigate and appropriately discipline or prosecute those responsible for such abuses. Malaysian government officials, politicians, and religious leaders should cease making inflammatory or denigrating statements about transgender people and should instead take steps to protect them from violence and discrimination.’
While the applicant’s evidence did not indicate that she had suffered serious physical harm to-date, she indicated, and the Tribunal accepts, that she suffered discrimination and bullying in the workplace that made her employment (a professional role in her field which she otherwise enjoyed) intolerable and caused her to resign from her job due to stress; suffered derogatory remarks and felt unsafe in the street; was arrested and detained for [number] days on the assumption she was a sex worker solely because of her appearance; and was forced to undergo compulsory religious counselling because religious authorities found her dressed as a woman. As the applicant indicated in her evidence, the Syariah Criminal Offences (Federal Territories) Act 1997 makes it an offence for a male person to ‘pose’ as a woman:
Section 28. Male person posing as woman.
Any male person who, in any public place, wears a woman's attire and poses as a woman for immoral purposes shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding one year or to both[9]
[9] Syariah Criminal Offences (Federal Territories) Act 1997. Sourced at >
Given the country information above, the Tribunal concludes that the applicant faces a real chance of being detained, fined and imprisoned under Sharia law provisions for dressing as a women if she returns to Malaysia. Considering the relevant country information, the Tribunal finds that the combination of Sharia law provisions, article 377 of the Penal Code, negative official (including at the highest level of government) and societal attitudes to transgender people, especially those of the Muslim faith, and the lack of any anti-discrimination measures in relation to transgender people, makes the applicant vulnerable to significant harm, including sexual assault and other forms of physical violence. The Tribunal considers that this finding is supported by the DFAT assessment above that transgender individuals, especially Muslim men who either cross dress as women or identify as transgender persons, face a high level of official and societal discrimination and are at moderate risk of societal violence.
On the evidence before it the Tribunal is unable to find with confidence that the chance of the applicant suffering serious harm for reasons of her status as a transgender person in Malaysia, in the form of significant physical harassment and significant physical ill-treatment from Malaysian officials and the broader Malaysian community, if she lived openly as a transgender person who identified as a woman, would be remote or a far-fetched possibility.
The Tribunal accepts that this threat of serious harm exists throughout Malaysia.
While the Tribunal accepts the applicant has modified her behaviour in the past to avoid harm (such as dressing as a man during the day and while at work), the Tribunal notes that s.5J(3) 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 conceal his or her true sexual orientation. The Tribunal finds the applicant is a transgender person who identifies as a woman and a modification of her behaviour to avoid a real chance of persecution, such as dressing and presenting as a man, would conflict with a fundamental characteristic of her identity and conceal an innate or immutable characteristic and her true gender identity.
The Tribunal considers that criminal law provisions such as article 377 of the Penal Code and Sharia law provisions against men ‘impersonating’ women and the government’s ongoing public vilification of LGBT people contributes to an environment where transgender people face discrimination, harassment and violence in Malaysia. Given the country information 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 she was to return to Malaysia now or in the reasonably foreseeable future.
The Tribunal finds there is a real chance the applicant will suffer persecution for reasons of her membership of the particular social group comprising transgender persons in Malaysia, 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. Accordingly, the Tribunal finds the applicant is a refugee as defined by s.5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.

Paul Windsor
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

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.
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.
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.
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.
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.
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

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.
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.
…

Malaysia must recognize and stop hostilities towards LGBT people”,

International Gay and Lesbian Human Rights Commission, “Violence: Through the lens

Case Number 1604315 Page 5 of 9;

[2017] AATA 1116

27 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice