1612187 (Refugee)

1612187 (Refugee) [2017] AATA 1310 (1 August 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612187
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Windsor
DATE:1 August 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

Statement made on 01 August 2017 at 12:49pm
CATCHWORDS
Refugee – Protection Visa – Malaysia – Social group – Homosexuals – Muslim lesbians – Pengkids – Forced marriage – Physical harassment – No State protection
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth (1999) 197 CLR 510
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] August 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Malaysia, applied for the visas [in] April 2016. While the delegate did not interview the applicants she refused to grant the visas on the basis that she did not find that the applicants had suffered past significant harm or persecution for reasons of their sexuality in Malaysia, or are likely to face the same in Malaysia in the reasonably foreseeable future.
The applicants applied to the Tribunal for review of this decision [in] August 2016. They provided the Tribunal with a copy of the delegate’s decision record.
The applicants appeared before the Tribunal on 27 July 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicants’ representative attended the hearing.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In her Protection visa application[1] applicant one claims to be a citizen of Malaysia who was born in [Country 1] on [date of birth]. She states that she was previously a citizen of [Country 1] but her parents fled [Country 1] as refugees and she was granted refugee status in Malaysia when she was very young. She indicates that she belongs to [a specific] ethnic group, is a Muslim, and speaks, reads and writes Malay and (limited) English. She indicates that she has been married but separated [in] September 2009, and has been in a de facto relationship [since] January 2014. In Part B of her application she lists applicant two as her partner. She indicates that she has [children], [dates of birth removed]. Applicant one stated she departed Malaysia legally through Kuala Lumpur International Airport [in] March 2015 and arrived in Australia on [date] March 2015, entering on a [temporary visa].
[1] See folios 44-68 and 16 of Departmental file [information deleted].
In her Protection visa application[2] applicant two claims to be a citizen of Malaysia who was born in Pulau Pinang Malaysia on [date of birth]. She indicates that she belongs to the ‘Bumiputera’ ethnic group (DFAT advises that ethnic Malay and indigenous Malaysians collectively are known as bumiputera – ‘sons of the soil’[3]), is a Muslim, and speaks, reads and writes Malay. She indicates that she has been in a de facto relationship [since] January 2014. Applicant two stated she departed Malaysia legally through Kuala Lumpur International Airport [in] March 2015 and arrived in Australia [date] March 2015, entering on a [temporary visa].
[2] See folios 4-63 of Departmental file [information deleted].
[3] DFAT Country Information Report, Malaysia, 16 July 2016, section 2.3).
Claims from the Protection visa applications
Applicant one’s claims from her Protection visa application[4] are summarised as follows:
·She is a lesbian. She left Malaysia because Malaysia and the general Muslim community do not accept gay and lesbian people. She has been persecuted because she is a lesbian.
·She fears that if she returns to Malaysia she will suffer harm and discrimination by the general Muslim community; religious officers will harass her, and/or jail her and/or cane her; and her family will force her to return to her husband. It is against Sharia law to be a lesbian.
·Her family forced her to return to her husband in the past. They threatened to harm her if she didn’t become a straight woman. It is against their religion to be in a same sex relationship.
·Malaysia is a Muslim country and the majority of people who work for the authorities are Muslim. There are also religious officers who will catch her and punish her for being a lesbian. The authorities will not protect her anywhere in Malaysia. The general Muslim community in Malaysia are against lesbians.
[4] See folios 47-49 of Departmental file [information deleted].
Applicant two’s claims from her Protection visa application[5] are summarised as follows:
·She is a lesbian. She left Malaysia because Malaysia and the general Muslim community do not accept gay and lesbian people. She has been persecuted because she is a lesbian.
·She fears that if she returns to Malaysia she will suffer harm and discrimination by the general Muslim community; religious officers will harass her, and/or jail her and/or cane her; and her family will force her to marry a man. It is against Sharia law to be a lesbian.
·Her family threatened to harm her if she didn’t become a straight woman. It is against their religion to be in a same sex relationship.
·Malaysia is a Muslim country and the majority of people who work for the authorities are Muslim. There are also religious officers who will catch her and punish her for being a lesbian. The authorities will not protect her anywhere in Malaysia. The general Muslim community in Malaysia are against lesbians.
[5] See folios 22-24 of Departmental file [information deleted].
[In] June 2016 the applicants’ representative provided a legal submission and a statutory declaration by applicant one declared [in] June 2016[6]. In her statutory declaration applicant one set out her experiences relevant to her sexual orientation, including her first same sex experiences. She indicates that she was counselled by Islamic religious officers from the Jabatan Agama Wilayah Persekutuan (JAWI) when she was sitting in a car at a beach holding hands with another girl. She claims that her parents forced her to marry in 2000 and she had [a child]. She indicated that she continued to have same-sex encounters and her husband became suspicious of this (when he saw ‘love-bites’/red marks on her body) and they quarrelled and he slapped her. She claims that subsequently her husband came to her then lover’s house and told her lover’s parents he believed they were having a lesbian relationship. Her parents also warned her then lover not to see her again. Applicant one indicates that she continued to see this person and she and her husband quarrelled further. She states she asked her husband for a divorce but he refused. She states her parents harassed and abused her, reminding her that that it was against their religion and sharia law to engage in lesbian affairs. They threatened her by saying she does not have respect for them, already has a husband and a child and that she should stop being a lesbian. Applicant one claims she had a further same-sex relationship before she met her current partner, applicant two, sometime in 2014. She claims her parents have taken her to a ’bomoh’ or shaman to have her cured of her ‘unnatural ways’ and return home to be a wife and mother. She claims that if she returns to Malaysia she will be forced to return to her husband.
[6] See folios 109-125 of Departmental file [information deleted] .
In his submission the representative has summarised applicant one’s claims; provided argument regarding the applicability of relevant law; and referred to country information regarding the situation for same-sex couples in Malaysia. The representative submits that the applicants fear harm because they are members of the particular social group comprising Muslim lesbian women in Malaysia. It is submitted that the applicants fear serious harm including severe discrimination, threats to their lives or liberty, exclusion, vilification and harassment, from members of the police and religious police, government officials, members of the public, their family members and the large Muslim community.
Pre-hearing submission
The applicants’ representative submitted a further submission in support of their claims on 5 July 2017[7]. He comments that in Australia the applicants feel they can openly embrace their sexual orientation as lesbians and as same-sex partners. He states they remain committed to their relationship, they share a relationship to the exclusion of all others and intend to commit to a long term relationship with each other. He states they have been openly lesbian since coming to Australia as they feel Australia is a safe place for lesbians to be who they truly are. He comments that the applicants find it absurd and oppressive that they cannot live the way they are in Malaysia, and cannot imagine having to hide their sexual orientation or suppress their love and affection for each other, but will have to do this if they return to live in Malaysia. The submission also included a discussion of relevant Australian law and relevant country information including regarding Syariah law, attitudes to homosexuals and treatment of LGBTI people in Malaysia. The submission also comments on the delegate’s findings. It is argued that the delegate erred in relying on past events and not considering possible future harm in finding that the applicants are not subject to a real chance of persecution. The representative comments on the delegate’s finding that the delay of twelve months in lodging the application for a Protection visa ‘indicates that upon arrival to Australia the applicants did not have a genuine fear for their safety’, acknowledging that the timing of a protection application is a legitimate and relevant basis on which to assess the genuineness of the depth of a persons stated fear or persecution, and whether their fear is well-founded. The representative argues, however, that this relates to the subjective fear of the applicants and comments that section 36(2)(aa) (the complementary protection criterion) does not require the applicants to have a subjective fear of persecution. The representative also submits that since coming to Australia the applicants have lived openly together as a lesbian couple and would wish to continue to do the same on return to Malaysia. He argues this was not done for the purpose of strengthening their claim to be recognised as refugees but because they acted in accordance with their true nature and engaged in a romantic and physical same-sex relationship with each other.
[7] See folios 25-50 of Tribunal file 1612187.
Evidence from the hearing of 27 July 2017
At the hearing applicant one indicated that she is still legally married to her husband and he has refused to consent to a divorce. She indicated that the address given in her protection visa application is her parent’s address and that she lived there with her husband (and her parents) after she and her husband were married. She confirmed that she has [number] children (and the representative apologised for the errors in the submissions which refer to her having [number children]). Applicant one indicated that her husband now lives with his parents who reside about 15 minutes by motorcycle from where her parents live. She indicated that her children live with her parents. She said her husband has a good relationship with her parents and maintains contact with their children, and sometimes used to stay overnight. She said this was because he and her parents were trying to get her to go back to the marriage. She said that while their relationship is ‘not that great’ she speaks with her husband from time to time and he asks her to send money for the children and car expenses.
Applicant one indicated that she had told her husband that she had only come to Australia for a holiday. She said she did not tell him that she had come to Australia with applicant two and now he has insisted she come home. She said she just told her parents that she just wanted to get out of the country. She commented that in her country she can’t say she is a lesbian or else she will be scolded. Applicant one said she fears that if she returns to Malaysia her parents and her estranged husband will insist she go back to her marriage and she will not be able to stay with applicant two. She commented that her husband had been violent towards her when she was in a previous lesbian relationship and she did not want this to happen again. She said in 2011 he had hit her with [an object]. She added that her parents had also locked her up for a week.
The Tribunal discussed applicant one’s relationships. She said that from 2010-2014 she was with a woman called [Ms A] and she would sometimes stay with her in Selangor. She said she lived with her parents at that time and would mostly stay with them, but her husband would also stay there from Monday-Thursday. She added that she only came back when he was not there. The Tribunal queried that this seemed like a very unusual arrangement, and asked why she did not stay with [Ms A] in Selangor full-time. She said her parents would not allow her to.
Applicant one indicated when she was [age] she was living with her [relative] in Johor state where she was working. She said she befriended a ‘tomboy’ and it was at that time she realised she was gay. She said her [relative] told her parents about the friendship and she was sent to a religious boarding school in Perak for a year. She indicated that after she returned to her parent’s home in Selangor she befriended another tomboy and at the age of [age] her parents said she needed to marry so she would become straight. She indicated that she did not say to her parents that she was lesbian but told them she was too young to get married, but within a month she was already married and within a year she had her [child]. She said she returned to work in a factory two years later where she met and had a relationship with another ‘tomboy’ ([name]). She indicated that she also became pregnant again.
Applicant one indicated that she met applicant two on Facebook. She said that applicant two came from Penang to live in Selangor for 4-5 months before they came to Australia. She commented that applicant two stayed in a house rented by her friend, and indicated that this was the same house as the one where her previous lover, [Ms A], stayed. Applicant one indicated that applicant two came to Selangor to meet her after their relationship developed through social media over the internet. She indicated that she had already decided to come to Australia with [Ms A] before their relationship broke up, and so she asked applicant two to come to Australia with her. She said applicant two asked her parents if she could go to Australia but told them she was just going for a holiday. She commented that applicant two does not speak with her parents often and she thinks that applicant two does not want her parents to ask questions about who she is with and what she is doing.
Applicant one told the Tribunal she had not divorced her husband because of her children, indicating that she did not wish to have her children moved into his care because he has proof that she is a lesbian and brings this up in the Sharia court.
Applicant two indicated that she was born and grew-up in Penang. She said applicant one had been a Facebook ‘friend’ of hers for several years (from 2011) but [in] October 2014 she started to actively communicate with her and on [date] October 2014 they agreed to be together. She said she was aware that applicant one was a lesbian because of the things she posted on Facebook and commented that she (applicant one) only retained non-straight people as Facebook friends. Applicant two said she realised she was a lesbian when she was sixteen and at age eighteen she started to dress like a male. She said she had a relationship with a younger woman for about five years from when she was eighteen. She indicated that they did not live together but had sex at applicant two’s parents’ house when her parents were not around. Applicant two commented that her parents are not happy with her and give her advice to change but she does not listen. She said she is ‘not really’ in contact with her parents, commenting that they are not close, but talks with her [sibling]. She said her parents know she likes living in Australia but she has not told them what she is doing or that she is in a same-sex relationship in Australia. She commented that her parents would want her to change and to get married.

Applicant two said she went to Selangor and stayed with applicant one in [Town 1] and after three months she went home to get her clothes before they came to Australia. When queried about how often applicant one stayed with her in [Town 1], applicant two said applicant one went home when her parents asked her to. She commented that she had met applicant one’s parents once but they did not seem to like her.
When asked why they decided to come to Australia applicant two said that in Malaysia people looked down on her and she could not be free. She said she is not free to do what she wants as she is female but her heart is more like a man. She commented that Malaysia is an Islamic country and there she has to follow the Islamic rules. When asked if she had experienced any harm in Malaysia she said that she had never been harmed but she was afraid and added that if she was caught she could be put in jail for 20 years.
Applicant two said she was afraid of applicant one’s parents and what they might do because applicant one still has ‘status’ with her husband and he does not like her having same-sex relationships. She said she has not told her parents that she is in a same-sex relationship because it would make them very sad.
The applicants indicated that they are sharing a room in a group house in [City 1] and undertake farm work as well as applicant one undertaking work [at various workplaces].
At the prompting of the representative applicant one said she was afraid of JAWI and JAKIM (the Department of Islamic Advancement) because she was sent to camp after she was caught with ‘another tomboy’. When queried she said this was after the incident included in her statutory declaration, and said she had to attend a [religious] camp. Applicant two said she can’t dress like a man in Malaysia and when she goes to work she has to be ‘more polite’. She commented that if JAWI caught her holding hands with applicant one they would definitely be in trouble.
Applicant one commented that if they returned to Malaysia and insisted on being in a relationship together she could not tell what would happen next. She commented that when her husband caught her with a previous lover he was mad but could not do too much as he was staying at his parent’s house. She commented that the freedom to release her is in her husband’s hands but she is still married and her husband could ask the police to look her up (find where she is) if she returned to Malaysia.
The applicants’ representative commented that as Muslims the applicants face a higher risk of harm because same-sex relationships are against their religion. He indicated that Malaysian state Sharia laws all outlaw lesbian sexual relations (musahaqah). The representative commented that Muslims face a higher chance of harm and that non-Muslims can live more openly in same-sex relationships. He commented that because a Muslim has been warned previously in relation to Khalwat (unmarried couple caught in close proximity) does not mean that they will continue to get away without punishment if they persist.
Post-hearing submission
Following the hearing at which the Tribunal’s queried the applicants’ that country information provided by their representative focused overwhelmingly on examples involving gay males or non-consensual acts of sexual-violence, the applicants’ representative submitted further country information in support of the applicants’ claims. This included articles summarising state based Syariah laws as they relate to sexual orientation and gender identity, further articles regarding the arrest of lesbian women, and a copy of On The Record, Violence Against Lesbians, Bisexual Women and Transgender Persons in Malaysia, a report based on data collected by a team of five interviewers on violence and discrimination experienced by LBT persons in Malaysia between November 2010 and November 2011.
Findings and reasons
The issues in this review are whether the applicants have 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 the applicants being removed from Australia to their receiving country of Malaysia, there is a real risk they 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 copies of the applicants’ Malaysian passports provided to the Department[8], the Tribunal accepts that the applicants are citizens of Malaysia and that their identities are as they claim them to be. The Tribunal accepts that Malaysia is the applicants’ ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Assessment of claims
[8] See folios 104-107 of Departmental file [information deleted] .
The Tribunal found the evidence given by the applicants at the hearing generally to be direct, frank, without embellishment, and convincing. The Tribunal accepts that the applicants are both lesbians. The Tribunal also accepts that they are in a same-sex relationship to the exclusion of others. The Tribunal also accepts that applicant two is as she described herself at the hearing, a female whose ‘heart is more like a man’s’. The report On The Record, Violence Against Lesbians, Bisexual Women and Transgender Persons in Malaysia submitted by the applicants’ representative indicates that in Malaysia applicant two would likely be described as a Pengkid, a term ‘used almost exclusively by the Malay community’ and broadly referring to Malay girls or women who dress in a masculine way and are in romantic relationships with women.
The Tribunal accepts that applicant one, while [of specified ethnicity] from [Country 1], is a Muslim. The Tribunal accepts that applicant two is an ethnic Malay Muslim. The Tribunal accepts that both applicants considered themselves to be lesbian from their late teens and that both have had previous lesbian sexual relationships.
The Tribunal accepts applicant one’s evidence that her parents forced her to marry in [2000], at a relatively young age (when she was [age]), because they were concerned that she was associating with tomboys and needed to marry to become ‘straight’. The Tribunal accepts that she had [children].
The Tribunal accepts that applicant one continued to have lesbian relationships and that her husband and parents became aware of these relationships. The Tribunal accepts that she and her husband quarrelled as a consequence, that he beat her on at least one occasion, and that they ceased to live together on a permanent basis but did continue to use the same residence (her parents residence) on occasion because of her relationship with her parents and her children and her husband’s relationships with their children and her parents (which she described as positive). The Tribunal accepts that the applicant wanted and still wants a divorce from her husband but that he has declined to consent to this. The Tribunal accepts her evidence that her parents do not approve of her engaging in same-sex activities and relationships and took her to a ‘bomoh’ (a Malay shaman or traditional medicine practitioner) on a number of occasions in an attempt to cure her of her lesbian desires. The Tribunal accepts her evidence that her parents and her estranged husband want her to return to the role of wife and mother.
The Tribunal accepts that applicant one maintained a form of live-in relationship in Malaysia both with a previous lesbian partner and with applicant two, where they took a room in accommodation rented by an [ethnic] Malaysian that the partner used on a full-time basis and where applicant one stayed on occasion, while also staying on occasion with her parents and children (and on occasion her estranged husband) at her parents’ residence. The Tribunal finds that applicant one did this because she felt that in Malaysia she could not live in an openly lesbian relationship with a same-sex partner and due to her concerns about Syariah law prohibitions on lesbian sexual relations, her parents’ wishes, the possible implications for her access to her children, and concerns about what action her estranged husband might take against her.
The Tribunal accepts that the applicants want to be able to live openly as a same sex-couple and have done this in Australia, but feel that they cannot do this in Malaysia as Muslim women, in particular because of applicant two’s status as a married women with [children] and because of official and Islamic community condemnation of lesbian women, the impact of Syariah law provisions criminalising lesbian sexual acts and their fears of both community and family scorn and pressure in the case of applicant one to return to her husband and in the case of applicant two to marry a man.
In considering the applicants’ claims and circumstances the Tribunal has taken account of the following advice from the Department of Foreign Affairs and Trade (DFAT):
3.89 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 (see ‘Political Opinion (Actual or Imputed)’, above).
3.90 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’.
3.91 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.
3.92 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.
3.93 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.
3.94 DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by the LGBTI community differs, depending on the socio-economic status, the religion and the geographic location of the individual. For instance, many middle and upper class, educated and urban Malaysians can be open about their sexuality within their family and community circles. Contacts described that, in the past, there were nominal roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events. However, they believed that this level of societal acceptance had disappeared. Many LGBTI individuals, especially Muslims, continue to hide their identity to avoid harassment.[9]
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 19 July 2016.
Reports also indicate that ‘being homosexual’ is not tolerated by the community generally or any of the religious faiths, and there are reports of men and women being abused, threatened and assaulted for reasons of their sexual orientation. The US Department of State report on human rights practices in Malaysia for 2016 indicates that Malaysia’s human rights problems include ‘discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons’, and that ‘[r]eligious and cultural taboos against same-sex sexual conduct were widespread’.[10] The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBTI people, providing an environment for societal discrimination and harassment and violence against LGBTI people in Malaysia.[11] The Human Rights Watch 2017 World Report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia.[12]
[10] Country Reports on Human Rights Practices 2016 – Malaysia, US Department of State.
[11] US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International, Malaysia must recognize and stop hostilities towards LGBT people”, International Gay and Lesbian Human Rights Commission, “Violence: Through the lens of lesbians, bisexuals women and trans people in Asia”, May 2014.
[12] World Report 2017 – Malaysia’, Human Rights Watch.
Material provided by the applicants’ representative confirms that all states in Malaysia as well as the Federal Territory of Kuala Lumpur have Sharia law provisions which criminalise Muslims for lesbian sexual relations (musahaqah), providing for fines of up to RM5,000, or a term of imprisonment of up to three years, or whipping not exceeding six strokes or to any combination thereof. While the representative did not produce evidence indicating these provisions are used frequently, he did provide press reports regarding a lesbian couple arrested in Johor in 2014, ‘believed to be the first lesbians to be arrested by police who enforce Islam in the thriving Muslim nation’, and press reports regarding a lesbian couple arrested along with a Bangladeshi man in Terengganu state for the Syariah law offence of ‘khalwat’ (being in close proximity when unmarried).
The Tribunal considers that applicant one has demonstrated instances of harm in the past in that it accepts that she was forced to marry by her parents at a relatively young age because they were concerned that she was associating with tomboys, and that she was beaten and slapped by her husband when he suspected she was having a same-sex affair. The Tribunal also accepts that applicant one was counselled on one occasion by religious affairs officers because she was found in a car sitting close to a tomboy. The Tribunal had some concerns about claims raised by applicant one at the hearing that on another occasion in 2011 she was whipped by her husband with [an object] and that she had also been forced by religious affairs officers to attend a [religious] instruction camp after again being caught with a tomboy. The Tribunal queried the applicant that she had not raised these matters previously in her statutory declaration or elsewhere. She indicated that she had overlooked these incidents previously. The Tribunal accepts that this is possible and affords the applicant the benefit of the doubt, noting that she indicated in her statement that she and her estranged husband had continued to quarrel. The Tribunal considers that applicant one’s particular circumstances as a Muslim woman who remains legally married and who has [children], and whose parents do not support her lesbian sexual orientation, increase her vulnerability in a socially conservative society such as Malaysia. In this context DFAT advises that domestic violence against women is a serious problem in Malaysia, and that state Sharia-based law impacts on the levels of state protection afforded to victims of domestic violence as wives are prohibited from disobeying the ‘lawful orders’ of their husbands. DFAT assesses that, while the situation is improving, confusion between federal and state laws and a lack of capacity within the police and judiciary, make it difficult for women to gain adequate state protection and to safety leave violent relationships[13]. The Tribunal considers that this advice supports applicant one’s expressed fears that, particularly as a Muslim and a lesbian, she was unable to force her husband to agree to a divorce for fear of what consequences might ensue in terms of domestic violence, custody of her children and possible legal action against her due to her lesbian sexual activities.
[13] DFAT Country Information report, Malaysia, 19 July 2016, sections 3.81-3.85.
While applicant two indicated that she had not experienced harm in Malaysia in the past she commented that she was afraid when people looked at her that they don’t like her, and is afraid she could be jailed. In this regard the Tribunal notes the applicants’ submissions which indicate that Malaysian religious authorities have issued and/or gazetted Fatwas (religious instructions) regarding Pengkids or tomboys indicating that Islam forbids women adopting the appearance and behaviour of men as well as the sexual instincts of men and urging Muslim parents to give guidance and education to their girl children in relation to dressing, behaviour and appearance. In three states (Pahang, Perlis and Sabah) the law prohibits ‘a woman posing as a man’.
The Tribunal is also mindful that an applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.[14] On the evidence before it, including the country information referred to above, the Tribunal finds that the chance of the applicants suffering serious harm for reasons of their sexual orientation, in the form of significant physical harassment or extreme humiliation from their families (including applicant one’s estranged husband), those in authority, and the broader Malaysian community, if they lived openly as lesbian women from a Muslim background, would not be a remote, fanciful or far-fetched possibility. The Tribunal finds that the applicants face a real chance of serious harm throughout Malaysia. While the Tribunal notes the delegate’s concerns that the applicants did not seek protection in Australia until approximately 12 months after they arrived, given its findings above, and considering that the applicants were able to live together safely and openly in a same sex-relationship in Australia over that period, the Tribunal does not consider that this delay indicates that the applicant’s did not have a subjective fear of harm or face a real chance of persecution involving serious harm in Malaysia when they arrived in Australia.
[14] In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that ‘[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past’.

Furthermore the Tribunal accepts the applicants sought to remain discreet or circumspect in some significant respects in Malaysia due to the threat of harm and discrimination and in order to avoid persecution. While the Tribunal accepts that the applicants have modified their behaviour in the past to avoid harm, 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 gender identity or conceal his or her true sexual orientation. The Tribunal finds that the applicants are both lesbians and that applicant two is a Pengkid or tomboy and a modification of their behaviour to avoid a real chance of persecution would conflict with fundamental characteristics of their identities and conceal an innate or immutable characteristic and their true sexual orientation and gender identities.
While the Tribunal notes that to-date the Syariah laws criminalising lesbian acts and women ‘posing as men’ appear to be relatively rarely enforced, the Tribunal also notes that there is little prospect of law reform in the reasonably foreseeable future and indeed, given the statements by senior government figures criticising LGBTI activities and the Fatwas issued by religious leaders, it may be more likely that Syariah laws relating to sexual orientation and gender identity, and the application of such laws, will be strengthened. The Tribunal also considers the effect of the law and the government’s ongoing public vilification of LGBTI people contributes to an environment where LGBTI persons in Malaysia experience societal discrimination and violence and official harassment by police and others in Malaysia. Given the country information and the applicants’ particular circumstances, as noted above, the Tribunal is not satisfied the State is willing to offer effective protection measures to the applicants, nor is the Tribunal satisfied the applicants would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.
The Tribunal finds that Muslim lesbians and Pengkids/tomboys In Malaysia are particular social groups as defined by s.5L of the Act as the characteristic of lesbianism or male gender identity is shared by each member of the group; and applicant one shares the characteristic of lesbianism while applicant two shares the characteristics of lesbianism and of being a Pengkid/tomboy; and each characteristic is an innate or immutable characteristic and is so fundamental to the members identity or conscience, the member should not be forced to renounce it; and the characteristic distinguishes the group from society and is not a fear of persecution.
The Tribunal finds that both applicants’ membership of a particular social group, Muslim lesbians in Malaysia, as well as applicant two’s membership of a particular social group Pengkids 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 extreme humiliation as instanced in subsection s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).
Considering the applicants’ individual circumstances and the country information as a whole, the Tribunal finds there is a real chance both applicants will suffer persecution for reasons of their membership of the particular social group, Muslim lesbians in Malaysia, and applicant two’s membership of the particular social group Pengkids in Malaysia, if they return to Malaysia, now or in the reasonably foreseeable future. Therefore the Tribunal is satisfied the applicants’ fear of persecution in Malaysia is well-founded, and that both applicants are refugees as defined by s.5H of the Act.
The Tribunal finds that neither applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and therefore finds that this section does not apply in their cases.
Conclusions
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy 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
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1310

1 August 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction