1611447 (Refugee)

[2019] AATA 6433

1611447 (Refugee) [2019] AATA 6433 (28 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611447

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Meena Sripathy

DATE:28 August 2019

PLACE OF DECISION:  Sydney

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 28 August 2019 at 5:39pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – gender identity – female-to-male transgender – harassment, threats and attacks by family, at school and work and in the community – married (as a woman, to a man) against wishes – forced sexual relations and pregnancy – legal, religious and social status of transgender people in Malaysia – living as, and accepted as male in Australia – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)(a), 65
Migration Regulations 1994 (Cth)

CASES

Applicant A v MIEA (1997) 190 CLR 225

Applicant S v MIMA [2004] HCA 25

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 25 May 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant faces a real chance of persecution for the reasons claimed or that they face a real risk of significant harm in future in Malaysia. The applicant was invited, but did not attend, an interview with the delegate to discuss their claims. 

3. The applicant appeared before the Tribunal on 31 July and 14 August 2019 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Tamil and English languages. In light of the evidence and the applicant’s gender self-identification, the Tribunal will refer to the applicant throughout this decision by the male gender.

4. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on ‘complementary protection’ grounds.  More specifically the Tribunal must consider whether it is satisfied there is a real chance, if returned to Malaysia, the applicant would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm.

5. For the following reasons, the Tribunal has concluded the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, and on that basis the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The following limited information was provided in the application form.  The applicant is a[age] year old Malaysian national, who is ‘separated’ has one [child].  The following was provided in response to the reasons for leaving Malaysia: My life in danger….I am from very pour (sic)  family. I was married and was separated from my husband. My husband was run away with someone else. I got one [child]. My father was paralys sic) he cannot work was sitting in one place. I was look like a male. My behaviour also like male. Because of my family situation I was planned to come here…. If I return to Malaysia I will be kill myself because I was bullied because I look like male. Chinese Malay and Indian try to force me to do sex with me. Because I don’t know (sic) what to do I was try to suicide and see my [child] and I revive myself.  I want to live for my [child]. People in Malaysia everywhere I am going was see me differently.  The applicant also said, in response to any attempt to move to another part of the country, I’m trying to move to three places but everywhere I’m going to people was disturbing me, I was looked like a male but still was disturbing me. I was worried.

7. The hearing on 31 July 2019 was convened by video, with the applicant attending in Melbourne and the Tribunal and interpreter in Sydney.  The applicant advised he was still residing in [Town] and only came to Melbourne for the hearing. He preferred a face to face hearing, which the Tribunal also agreed would be preferable to discuss the details of his claims.  It was agreed that a further hearing be arranged in Sydney and he would attend in person.  The Tribunal explained that it would be asking questions in some detail about his claims and asked if he had a preference for a male or female interpreter.  He said he did not mind the gender of the interpreter and would be okay to discuss his claims through an interpreter of any gender.

8. At this initial hearing the applicant explained that he did not attend the Department interview because he never received a letter inviting him to an interview. (The Tribunal observes there is no copy of a letter inviting the applicant to an interview on Departmental file [number]). The applicant gave the following evidence regarding his background.  He has no family in Australia.  His family in Malaysia comprises his parents [and a number of siblings]. He was previously married and has one [child] who is now [age] years old.  His siblings, except one younger [sibling], are married.  The younger unmarried [sibling] lives at home with their parents and the applicant’s [child]. This [sibling] suffers from a medical condition and is currently getting treatment, for which the applicant sends money. Regarding his own marriage the applicant said he was married against his wishes when he was younger and it did not work out. He indicated that he will discuss this further at the face to face hearing. 

9. The applicant attended school up to form 3 but did not pass form 3 and so did not proceed to complete form 4 and form 5.  After he stopped studying in [year] he assisted his father for a short period tending to [livestock] on the land.  Subsequently the applicant obtained a job in a [company] as an operator for several months and then worked in several other companies for short periods.  He encountered problems at work because of his appearance like a man.  He was called a ‘tomboy’ and suffered problems and was unable to continue employment because of this.  His problems were continuous from the time he started working at the age of 18. The applicant travelled to [Country] for several years when his [child] was around [age] years old. He worked [doing a job task] at [a Workplace]. He returned to Malaysia when his father had a stroke and he had to look after him. 

10. At the resumed hearing in Sydney on 14 August 2019 the applicant gave evidence in person.  The Tribunal was assisted by a Tamil interpreter who appeared by telephone.  A summary of the evidence obtained at this hearing follows.  From childhood he has felt and wanted to behave like a boy rather than a girl. He did not like it when his mother put dresses and skirts on him and he would replace them with shorts. His father would take him to work in the fields and he did the work of boys and men from a young age which he really liked, but his mother was never happy about it and beat him for wearing pants and shorts and behaving like a boy.  While his father was supportive and never stopped him being the way he was and even encouraged him by taking him to work in the fields, he did not intervene to support the applicant against his mother.

11. At school the applicant did well at sports.  He wore a girls’ school uniform and used the girls’ toilets. Sometimes he would get bullied by other students when he was using the girls’ toilets because he looked like a boy. When this happened the applicant would tell the teachers what the students were saying, and they would speak to the students involved and the bullying ceased. The applicant said his teachers were mostly supportive at school and apart from some individual students bullying and taunting him, he did not experience any major issues at school.

12. After completing school the applicant started working.  At work he met a girl, [Ms A], and they had a loving relationship over several years, from when the applicant was around [age] years until [age] years. They lived with their respective families during the period of their relationship. The relationship ended when a person from their workplace informed [Ms A]’s mother, who told the applicant’s mother. The applicant’s mother told him he was a disgrace to the family.

13. After this, [Ms A]’s mother arranged for her to be married.  She also suggested someone for the applicant to marry. Neither the applicant nor [Ms A] had any choice about getting married.  [Ms A] moved away after her marriage and the applicant and she ceased contact.

14. The applicant was married against his wishes.  His mother told him that until he married, his [siblings] would not be able to marry because he was the eldest.  His mother threatened to kill herself if he did not marry. The applicant was [age] years old at the time he married.  From the beginning he had no desire to be with the husband or to have physical or sexual relations with him.  The husband forced himself on the applicant numerous times, until he fell pregnant.  The applicant’s [child] was born in [year].  After this there were no further relations between them. Although they ceased having sexual relations, the husband expected the applicant to work and look after their [child]. The husband took all the jewellery given by the applicant’s mother to pay off his debts. The applicant used his savings to secure a flat for them to live in.  The husband came and went between jobs. 

15. Eventually the husband had an affair with another woman and left the applicant and their [child], taking all of their furniture with him.  The applicant reported him to the police for beating him and taking the furniture (the applicant provided a copy of the police report to the Tribunal). The bank took the flat because they could not pay the loan.  Around 2012 the husband obtained a divorce from the applicant (the applicant provided a copy of this document to the Tribunal).

16. After this the applicant went to live in a rented room and continued working.  When the [child] was 5 or 6 years old, the applicant’s mother agreed to look after [her/him] and the applicant went to [Country] for work.

17. Throughout his life, people have called him ‘tomboy’ and harassed and bullied him for how he looks and behaves.

18. One day, [in] July 2014, the applicant was attacked by a group of boys who were drinking and taking drugs.  Complaints were made about the noise they were making and the applicant asked the group to quieten down.  The boys cornered him in an alley. There were several of them. They hit him from behind and another person hit him from the front.  They ripped his shirt at the front exposing his chest and therefore his sex as female.  One of the group was video recording the assault. They pushed him down and threatened to rape him.  At this point a passer-by started screaming and they dispersed.  One of the boys knew the applicant had a [child], and said if he goes to police his [child] will not be safe. Out of fear for the safety of his [child], the applicant did not report it to police.  He also did not report it because he was not confident the police would help someone like him.  While the applicant had no personal experience of dealing with the police he had heard from other people like himself that the police themselves abuse and harass people like them, and blame them for how they dress and behave.

19. Apart from this incident, sometime earlier the applicant was the victim of an attempted robbery, when returning from [Country].  The robbers put a knife to his throat and demanded his passport and bag.  On this occasion the robbers were disrupted and did not end up taking these items.

20. The applicant told the Tribunal he does not feel welcome or free to participate in family gatherings because he won’t wear saris or women’s clothes and so he is not permitted to attend functions or gatherings.  His siblings always complain that he brings disgrace and shame to their family. The applicant said his mother has a room for each of the siblings at her house, except for the applicant. When the applicant asked her why, the mother said he brings shame upon the family.     

21. The Tribunal asked the applicant about his experiences finding and keeping jobs.  He said he always had a hard time getting jobs because people ask him if he is a girl or a boy, and he has experienced harassment and verbal abuse at work.  He has left many jobs because of this treatment.  His problems at work are because of the way people treat him on account of his gender identity.

22. The Tribunal asked the applicant what he fears if he returns to Malaysia.   He said he cannot go back because of the problems he has had in the past with his family and society.  If he goes back he will be treated badly because of how he looks and behaves.  He has tried to commit suicide in the past and only stopped because of his [child].  His [child] is now an adult, but if he marries, the applicant is afraid he will be rejected by his [child]’s family.

23. The Tribunal put to the applicant that independent information before it indicates the laws specifically against people like himself appear to be “fatwas’ under Muslim law issued against ‘pengkid’ or ‘tomboys’ in several states in Malaysia, and asked how this affects him as a Hindu.  The applicant acknowledged that this is a Muslim law but as a Hindu he is not permitted to go to temples dressed as he does. All of the problems he has faced in Malaysia have been from Hindus and Tamil people because he is not accepted by this community.

24. In Australia people see the applicant as a man and this makes him feel good.  Here he looks at himself as a man and he likes that.  When he first started at his job in [Town], they assumed he was a man, and allocated work to him as a man.  It was only after three months that they came to know his sex as female. He was very happy to be treated as a man however. Here he feels safe and secure with his gender identity in a way that he was never able to back home.

25. The Tribunal asked the applicant if he had accessed or sought out any support organisations since coming to Australia for advice about his gender or sexuality.  He said he has not, and he never talked with anyone about it in Malaysia either.  This is the first time he is discussing this issue with anyone.  He feels like a weight has been lifted from him and thanks the Tribunal for allowing him to tell his story.

26. Regarding his sexuality, the applicant told the Tribunal he is attracted to women.  He has never been attracted to men.  He feels and thinks like a man and is attracted to women. 

    Independent information

    Treatment of women perceived as ‘tomboys’ or ‘masculine women’

27. In September 2014, Human Rights Watch reported that from 2008 to 2010, seven states in Malaysia ‘issued fatwas against “pengkid,” which roughly translates as “tomboy” or “masculine woman.” The fatwas, which have been gazetted in four states, specifically state that women who have a “masculine appearance or gestures” or a “male sexual instinct” are forbidden in Islam’. The fatwas were reported to ‘exist in Johor, Kedah, Kelantan, Malacca, Pahang, Perak, and Sarawak. They have been gazetted in Johor, Kedah, Malacca, and Perak’.[1]

    [1] Human Rights Watch 2014, I’m Scared to Be a Woman – Human Rights Abuses Against Transgender People in Malaysia, September, pp.11 & 75 & footnote 13 <CIS2F827D91419>

28. A May 2014 report by the International Gay and Lesbian Human Rights Commission,  Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia’, describes the country context in Malaysia as follows: Lesbians, 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.[2]

    [2] 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 < <CIS2F827D91966> Also available at  OutRight Action International, Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia - Malaysia, 5 June 2014, available at: [accessed 15 August 2019]

29. The report indicates that fatwas had been introduced in Malaysia ‘to prohibit Muslim women from masculine gender expression (i.e., pengkid, butch women or tomboys)’. According to the report:

    With the state endorsing Islamic dominance in Malaysia, fatwa also plays a very important role in shaping non-religious public policies and enactment of secular laws. In 1983, the Council of Rulers imposed a ban on SRS for Muslims through a fatwa. Since then, many additional fatwas have been introduced to prohibit Muslims from changing their assigned gender on the national identification card and to prohibit Muslim women from masculine gender expression (i.e., pengkid, butch women or tomboys). Fatwas are enforceable only after they have been gazetted but many are treated as if they are law regardless of their gazetted status.[3]

    [3] ibid p.33

30. The report also indicates that:

    In October 2008, the National Fatwa Council announced a fatwa (Islamic edict or opinion) against pengkid, a term that loosely translates as tomboys for individuals in the Malay Muslim community who fall within the spectrum of lesbian butch and transman (see Glossary for more details). The announcement of the fatwa against tomboys sparked protests from people, notably non-Malay Muslims. Many Malay Muslim conservatives, such as members of the National Fatwa Council, nationalist pressure groups, politicians, bloggers, and some members of the public, saw these protests of non-Muslims against the pengkid fatwa as interference in an Islamic matter. Presently, fatwas have been gazetted (officially announced to the public and published in a journal or state controlled newspaper) in the state of Malacca and the federal capital, Kuala Lumpur, to prohibit tomboy or tomboy behaviour.[4]

    [4] ibid p.11

31. The report refers to pengkid facing verbal abuse or warnings from strangers in public places, inappropriate physical contact, and job discrimination.[5]

    [5] Ibid pp.20, 27 & 30

32. Under manifestations of violence, the report states, LBT people whose gender expression was more visible, meaning they are not able to pass as “straight” (heterosexual) or as cisgender (people whose gender identity and gender expression conform with the gender they were born with) were more likely to be targeted for violence and discrimination.  It observes, Severity of violence directly correlated with the interviewee’s socio-economic class, actual or perceived ethnic heritage, and religion.[6]  And noted, Generally, LBT persons fear reporting abuse, since they do not want their identity exposed and want to avoid further ridicule or harassment by the authorities. No laws are in place that explicitly protect them and their human rights.[7]

    [6] Ibid, p14

    [7] Ibid, p28

1. The November 2012 report on discrimination and inequality in Malaysia by The Equal Rights Trust also refers to the National Fatwa Council issuing a fatwa prohibiting girls from acting and dressing like boys.[8]

   [8] The Equal Rights Trust 2012, Washing the Tigers: Addressing Discrimination and Inequality in Malaysia, November, p.87 < Accessed 8 July 2014 <CIS28954>

2. The April 2012 alternative report by Malaysian NGOs assessing the government’s progress in implementing CEDAW indicates that ‘the National Fatwa Council ruled that “pengkids, women whose appearance, behaviour and sexual inclination are like men is forbidden in Islam”’ in October 2008. Among the reasons given for the fatwa was that pengkids were ‘likely to become lesbians’. According to the report, ‘The Malay term used for tomboy in the fatwa is pengkid, which targets Muslim Malay women and girls with a masculine appearance and/or mannerisms’. The report also states that ‘Similar to the fatwa on female circumcision, the fatwa on pengkids has not yet been gazetted by states in Malaysia so is not considered law. However, the sentiment is nevertheless concerning, and especially so because it comes from the authority of the National Fatwa Council, which advises Malaysian states’.[9]

   [9] Women’s Aid Organisation 2012, CEDAW & Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s progress in implementing the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), April, p.82 < Accessed 10 October 2012 <CIS24169>

3. A October 2008 article in The Sydney Morning Herald refers to Malaysia’s National Fatwa Council issuing a ruling which ‘banned females from dressing or behaving like men and engaging in lesbian sex, saying it is forbidden by the religion’, also indicates that ‘The Fatwa Council does not have jurisdiction in civil law but the ruling appears to be an attempt to push female homosexuality towards illegality’.[10]

   [10] ‘Malaysian Fatwa council bans lesbian sex’ 2008, The Sydney Morning Herald, 24 October < Accessed 19 February 2015 <CXAB8B92D24082>

4. A more recent article describing a contest calling for videos on how to prevent homosexuality and transgenderism promoted by the Malaysian Health Ministry, and references to gay, lesbian and transsexual people, as well as tomboys as examples of a ‘disorder’ indicates that discrimination and adverse stigma continue. [11]

   [11] Malaysia calls gays, tomboys a ‘disorder’,  4 June 2017, The Independent , >

   A 2018 article in The Guardian refers to several recent incidents suggesting that the LGBT community is again under attack, with a raid on a nightclub known to be popular with the LGBT community, in respect of which a government minister is quoted as stating “Hopefully this initiative can mitigate the LGBT culture from spreading into our society,” a report of a brutal beating of a transwoman on the streets, and a sharia court ordering a lesbian couple to be caned for having sex in a car.[12] 

   [12] Malaysia accused of 'state-sponsored homophobia' after LGBT crackdown , 22 August 2018, The Guardian, >

   In its 2018 Country Information Report Malaysia, DFAT assessed 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 LGBTI individuals differs according to their socio-economic status, religion, geographic location and degree of openness. Some well-educated urban Malaysians of high socio-economic status can be open about their sexuality within their family and social circles. For others, previous societal acceptance of certain roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events, have largely disappeared. Many LGBTI individuals, especially Muslims, hide their identity to avoid harassment.[13]

   [13] DFAT Country Information Report Malaysia 18 April 2018,  paragraph 3.120, p 28

5. In respect of transgender individuals in particular, the DFAT report states cross-dressing is not technically illegal, but police are known to arrest transgender men under the Minor Offenses Act (1955) for public indecency and immorality and, where Muslim, under sharia-based law for impersonating women.  DFAT is aware of past allegations of state religious officials subjecting transgender women to physical or sexual violence and degrading treatment while in custody. Authorities hold transgender women in male prisons where corrections officers or fellow detainees have sexually assaulted them. Societal violence also occurs. In February 2017, Sameera Krishnan, a transgender woman, was murdered in Pahang state. Police arrested five men in April, and released them on bail. The case had not come to trial by the end of 2017. 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 crime to police, who failed to identify any suspects. NGO reports have identified 11 cases of murder of transgender women between 2007 and 2017. DFAT assesses transgender individuals, especially biologically male Muslims who either cross-dress or identify as transgender, face a high risk of official and societal discrimination and a moderate risk of societal violence.[14]

   [14] DFAT Country Information Report Malaysia 18 April 2018,  paragraph 3.124-3.125, p 28

6. The 2019 Human Rights Watch Country Report on Malaysia[15] states the following about sexual orientation and gender identity:

   Discrimination against LGBT people remains pervasive in Malaysia. Federal law punishes “carnal knowledge against the order of nature” with up to 20 years in prison, while numerous state Sharia laws prohibit both same-sex relations and non-normative gender expression, resulting in frequent arrests of transgender people. While the new minister for religious affairs called for an end to workplace discrimination against LGBT people, he also made clear any visible expression of an alternative sexuality or gender identity will be prosecuted under existing laws, and that he supports programs, broadly discredited, designed to change personal sexual orientation.

   In August, the religious affairs minister ordered the removal of portraits of transgender activist Nisha Ayub and LGBT activist Pang Khee Teik from an exhibit in Penang celebrating influential Malaysians, claiming the government’s policy is to not promote LGBT activities. The controversy unleashed a wave of verbal abuse against transgender people. On August 18, eight men brutally beat a transgender woman in Negeri Sembilan, causing internal injuries, broken ribs, and injuries to her head and back.

   In September, a Sharia court in Terengganu state ordered two women be given six strokes of the cane for alleged same-sex conduct. The sentence was carried out in a courtroom in front of 100 witnesses, prompting global criticism.  

   On September 21, Prime Minister Mahathir stated that Malaysia “cannot accept LGBT culture,” raising concern about the government’s commitment to protect the rights of LGBT people.

   [15] Human Rights Watch World Report, Malaysia  >

   In coming to its decision, the Tribunal has taken into account the evidence now before it, including the compelling and credible oral evidence of the applicant given to the Tribunal at a face to face hearing, as well as independent country information about Malaysia and the treatment of LGBTQI persons in Malaysia.

7. A summary of the relevant law is set out in the Attachment to this decision.

   Nationality

8. The Tribunal is satisfied, on the basis of his passport and personal particulars provided that the applicant is a citizen of Malaysia, and that Malaysia is the country of nationality and the receiving country for the purposes of the refugee and complementary protection provisions.

   Findings of fact

9. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

10. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; and Prasad v MIEA (1985) 6 FCR 155 at 169-70.

11. Having regard to the above, and having had the benefit of a face to face hearing and opportunity to question the applicant at some length in relation to the claims made in the application, the Tribunal is satisfied that the applicant, who was born female, identifies as a man and has identified this way since childhood. The applicant provided authentic, persuasive and credible evidence about his history and experiences with his gender identity since childhood. He spoke genuinely and convincingly about feeling like a boy from childhood, how he hated his mother putting him in dresses and skirts and rebelled against this by wearing shorts and pants and behaving as a boy. The Tribunal observed his emotion and distress when he gave evidence about his mother’s reactions, including physical beatings and verbal abuse and the change in his voice when he spoke about his father’s quiet and indirect support of him. It accepts that he is, and has always been, attracted to women and that he was forced against his wishes, to marry a man and bear a child.  It accepts that he has suffered harassment, bullying and verbal abuse throughout his life, from his family, students at school and in the work place. The applicant gave examples of specific incidents that occurred at different times in his life, in convincing and credible detail.  

12. The Tribunal accepts that the applicant was a victim of a physical attack in July 2014, in which he was accosted in an alley, physically assaulted, denigrated and humiliated and threatened with sexual assault on the basis of his transgender identity.

13. In addition to the authentic and credible account given by the applicant about his experiences the Tribunal finds that his testimony is supported by, and is consistent with, independent information about the experiences of violence against transgender people in Malaysia, as indicated in the information discussed above (paragraphs 27- 40 above).  The applicant has not exaggerated or embellished his claims, on the contrary the Tribunal would not be surprised if he has in fact understated the extent of adverse experiences he has suffered throughout his life.

14. The Tribunal also accepts the applicant’s evidence that, as a transgender man, he is sexually attracted to women and is not, and has never been attracted to men.

15. The Tribunal accepts that since coming to Australia the applicant has felt comfortable and happy openly identifying as a man and it accepts that he would want to continue to live openly and publically as a man upon return to Malaysia and it would be an unreasonable modification to require him to conceal or alter this fundamental characteristic of his person to avoid harm.

16. The Tribunal will therefore consider his claims to fear persecution and/or significant harm on the basis of his identification as a transgender man, and his sexual attraction to women, if returned to Malaysia in future.

    Fear for a reason specified in s5J(1)(a) – membership of particular social group    

17. The persecution an applicant fears must be for one or more of the reasons enumerated in s5(J)(1)(a), specifically: race, religion, nationality, membership of a particular social group or political opinion.  A particular social group is one that is identifiable by a characteristic or attribute common to all members of the group, which is not the shared fear of persecution, and which must distinguish the group from society at large: Applicant S v MIMA [2004] HCA 25, Applicant A v MIEA (1997) 190 CLR 225. In the present case, the Tribunal is satisfied that transgender people in Malaysia are identifiable by a characteristic or attribute common to all members, which is not the shared fear of persecution. Furthermore, the possession of that characteristic distinguishes the group from society at large.

18. The Tribunal is satisfied that the applicant is a member of the particular social group of ‘transgender persons in Malaysia’. The Tribunal is also satisfied that the applicant falls within the following subsets of this particular social group, being ‘same sex attracted persons’, in light of the applicant’s sexual attraction to women, and/or ‘transgender men who are attracted to women'.

    Real chance of serious harm in the reasonably foreseeable future

19. The Tribunal is satisfied that the applicant has a well-founded fear of persecution if he returned to Malaysia in the reasonably foreseeable future for reasons of his membership of the particular social group ‘transgender persons in Malaysia’ and/or subsets of that group referred to above, for the reasons set out below.

20. The applicant fears serious harm from his family and society if he returns to Malaysia.  The Tribunal accepts that the applicant is visibly identifiable and self identifies as a transgender man and on this basis has been exposed to and targeted for violence, harassment, bullying and discrimination throughout his life.  He did not seek assistance from the police for fear of further violence and/or harassment or ridicule. The Tribunal accepts, on that basis, that he holds a genuine subjective fear of serious harm in Malaysia from his family, community and the authorities on the basis of his gender identity. The Tribunal must also, however, be satisfied that there is an objective basis for that fear in assessing whether he faces a real chance of serious harm upon return.

21. The independent country information before the Tribunal indicates that lesbian, gay, bisexual and transgender (LGBT) people in Malaysia face violence and discrimination from both state authorities and civilian actors. Specifically, lesbians and transgender people whose gender expression was more visible, meaning they are not able to pass as “straight” (heterosexual) or as cisgender (people whose gender identity and gender expression conform with the gender they were born with) are more likely to be targeted for violence and discrimination, and it is reported that the severity of violence directly correlates with the socio-economic class, actual or perceived ethnic heritage, and religion.[16]  In September 2018, a Sharia court sentenced two women to caning for purportedly attempting to engage in homosexual relations. With regards to the particular vulnerabilities of transgender persons, reports of state religious officials and police officers physically and sexually assaulting transgender women arrested during raids to enforce Sharia laws that prohibit “a male posing as a female”[17] and as HRW states, even when state agents are not the culprits of violence, they bear responsibility for propagating discriminatory beliefs that may lead to hate crimes and for failing to denounce violence when it takes place.[18]

    [16] Ibid, p14

    [17] Malaysia: Transgender People Under Threat, 24 September 2014, Human Rights Watch, See, Neela Goshal, “The Deceased Can’t Speak for Herself:” Violence Against LGBT People in Malaysia, 25 June 2019, Human Rights Watch, >

    Despite the historic election result in May 2018, where the incumbent United Malay National Organization (UMNO) party that had been in power since independence in 1957 was massively defeated, there is no sign of any change in favour of LGBT rights by the new government, with the Prime Minister Mahathir Mohamad describing “LGBT” as among “things we cannot accept,” and Pakatan Harapan leader Anwar Ibrahim calling for mobilization against “LGBT tendencies and their ideas.[19]  

    [19] Ibid.

22. Against this context of rising hostility, discrimination and abuse against LGBT persons, together with the Tribunal’s findings above regarding the applicant’s past experiences and background, the Tribunal is satisfied there is a real chance, in the sense of one that is not remote or insubstantial, that the applicant will face serious ill-treatment or harm as a transgender man, if he returns to Malaysia now or in the foreseeable future.

23. On the evidence before it, including the country information cited above, the Tribunal is satisfied that a real risk of persecution exists in the country as a whole, and safe relocation within Malaysia is not open to the applicant. 

24. The Tribunal finds that the essential and significant reason for the harm feared is the applicant’s membership of the above mentioned particular social group(s).  It is satisfied that the harm feared includes significant physical harassment and ill treatment, significant humiliation and degradation, denial of access to basic services and/or denial of capacity to earn a livelihood and this amounts to serious harm and systematic and discriminatory conduct for the purposes of s5J(4) and within the meaning contemplated by s5J(5). 

25. The Tribunal accepts the applicant has not sought assistance from the police in the past for fear of further violence and/or harassment or ridicule, and in light of the independent evidence (see for example paragraph 40 and 56 above), it is not satisfied that police provide a reasonable level of protection for LGBTI people.  Therefore, the Tribunal finds that the applicant would be unable to access effective state protection should he persecuted by non-state actors.

26. Accordingly, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his membership of the abovementioned particular social group(s). 

27. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations because he is recognised as a refugee. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

28. There is no evidence before the Tribunal to suggest or indicate the applicant has a right to enter or reside in a country other than Malaysia and therefore s36(3) does not apply.

    DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Meena Sripathy

   
   

   Member

   ATTACHMENT 

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. 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.

4. 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).

5. 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.  

6. 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), extracted below.

   Mandatory considerations

7. 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.

   Extracts from Migration Act 1958

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

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

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

   but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   …

   5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

   5K  Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

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

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

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

   5L  Membership of a particular social group other than family

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

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

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

   (c)     any of the following apply:

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

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

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

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

   5LA  Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

   ..

   36Protection visas – criteria provided for by this Act

   …

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

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

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

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

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

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

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

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

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

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

   …