1612819 (Refugee)

1612819 (Refugee) [2017] AATA 1826 (11 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612819
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Amanda Paxton
DATE:11 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 11 October 2017 at 3:11pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Homosexual men – Ethnicity – Malay Chinese
LEGISLATION
Migration Act 1958, ss 5H-LA, 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 applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa [in] April 2016.
The delegate, who did not interview the applicant, refused to grant the visa on the basis that the applicant does not have a well-founded fear of persecution or a real risk of significant harm on his return to Malaysia arising from his homosexuality.
The applicant appeared before the Tribunal on 18 July 2017 to give evidence and present arguments. While the Tribunal hearing was conducted predominantly in English, the assistance of an interpreter in the Malay and English languages was used when required. The Tribunal also received oral evidence from the applicant’s partner, [Mr A].
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is 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 of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remited.
Country of nationality
The applicant claims to be a citizen of Malaysia, and provided a copy of his Malaysian passport to the Department, and brought his passport to the Tribunal hearing. The Tribunal is satisfied on the basis of this evidence that the applicant is a citizen of Malaysia and that his identity is as claimed. The Tribunal accepts that Malaysia is the country of reference for the purposes of assessing the applicant’s claims under ss. 36(2)(a) and (aa).
Third country protection
On the evidence before it, the Tribunal is also satisfied that, for the purposes of s.36(3) of the Act, the applicant does not have a right to enter and reside in a third country.
The applicant’s claims
In his visa application, the applicant indicates he is single, of Teo Chew (Malay Chinese) ethnicity, identifies as Buddhist and speaks Malay, Chinese and English.
In his written statement to the Tribunal, the applicant claims that as a gay (homosexual) man in Malaysia, the applicant he fears the following if returned to Malaysia:[1]
·     That he will have no choice but to remain closeted;
·     That he will be victimised if he comes out as a gay man and that bullying of gay men and lesbians is widespread in Malaysia;
·     That he will not be able to be in a same-sex relationship without the risk of being charged and may even face the prospect of imprisonment;
·     That he will receive no support from family and will be treated as an outcast,
·     That if he is found out to be gay at work, he will face the prospect of being sacked from work and reported to the police;
·     That he would have no choice but to conceal his sexuality in Malaysia which is a Muslim country; and
·     That he faces the prospect of legal penalties if he were to live out his sexuality. The applicant sets out the legal status of homosexuals in Malaysia and comments on the enforcement of the provisions of the Penal Code.
[1] 1612810, ff. 67 - 70
The applicant submits that he fears the growing influence of conservative Muslims on Malaysian society, and claims he cannot rely on governmental or legal protection in Malaysia.
The applicant provided the following personal details in his written statement to the Tribunal.[2]
·     The applicant was born in Georgetown, Penang, [Malaysia].
·     The applicant’s father is a pensioner, [and in various employment], and his mother, is a housewife. His family reside in Penang. He has [siblings]. He also has [half-brothers] by his father's second wife;
·     The applicant finished secondary education [and] worked as [an occupation] in [an industry].
·     The applicant realised he was attracted to other men when he was in primary school and began to realise he was [gay].
·     He was also abused as a child when he was about [age] years old.;
·     The applicant was not in a same-sex relationship while in Malaysia. The applicant did not experience persecution, discrimination or bullying, in Malaysia because he was not openly gay. He knows from talking with family and friends that they are very homophobic.
·     He has a circle of gay friends in Australia, and has been to various gay venues such as [location] and used apps [to] meet other men.
·     In Australia, he has had one long term gay relationship, other than with his current partner. He commenced his relationship with [Mr A] in April 2016. Their relationship is recognised by his partner’s ex-wife’s family and their friends and he has strong relationships with members of his family, including his partner’s ex-wife, adult children and grand-children.
·     The applicant left Malaysia and arrived in Australia [in] March 2015, coming to Australia with friends who attended [an event]. The applicant overstayed his visa as he wanted to remain in Australia to live out his gay life. He applied for a Protection visa [in] April 2016.
[2] AAT 1612810, ff. 67 - 70
At hearing, the applicant claimed he fears return to Malaysia because on return he will not be able to live out a gay life without living in fear of discrimination and harm from his family, the community and police. He stated that if he continued with his current homosexual conduct in Malaysia, that is, living openly with his male partner, he risked discrimination, blackmail, assault from the community and legal penalties. He claimed police would not heed his reports of abuse because he is homosexual.
Witness testimony: [Mr A]
The applicant’s witness gave evidence that was entirely consistent with that of the applicant, and he presented his evidence in a detailed, spontaneous and sincere manner. The Tribunal formed the view that [Mr A’s] evidence was highly credible. [Mr A] described his first meeting with the applicant after they met on [an app]. He described subsequent occasions with friends and described their management of a long distance relationship [until] they commenced living together in early 2017. [Mr A] confirmed details of the applicant’s discussion of their life together and their living arrangements in his home, which he owns with his former, long term gay partner, a relationship that ended in 2012, and his current [role].
[Mr A] demonstrated a close knowledge of the applicant’s personal and sexual history as well as his immigration history. He indicated that he and the applicant live together in an on-going loving relationship and the applicant supports their life together e.g. cooking and domestic matters around the home. He described his own background where he was married before coming out as homosexual a number of years ago, and that the applicant has been accepted by, and gets along very well, with his ex-wife, two adult children and grandchildren who idolise the applicant.
Assessment of claims
The applicant and his witness/partner provided detailed, consistent and convincing evidence at hearing. The Tribunal considered the applicant’s evidence to be genuine and unembellished. On this basis the Tribunal found the applicant to be a highly credible witness. Similarly, as above, the Tribunal considered the credible evidence of the applicant’s witness supported the applicant’s claims.
On the basis of the applicant’s credible oral evidence, the Tribunal accepts the applicant was born in [year] in a suburb of Penang, as a son of his father’s first marriage. The Tribunal accepts the applicant’s evidence that he remains in touch with his family but is seldom in contact with his father who stays most of the time with his second wife two children.
The Tribunal accepts the applicant completed Year [grade] and has no tertiary education, but learned skills and knowledge as an [occupation] from friends and installed security alarms. The Tribunal accepts the applicant travelled to other countries [to] attend trade exhibitions and gain knowledge for his employer and for holiday. The Tribunal accepts the applicant came to Australia in 2015 together with friends who were participating in a badminton tournament.
The Tribunal accepts that the applicant’s credible oral evidence that his first sexual experiences occurred when he was about [age] or [age] when he was indecently assaulted, and forced to provide oral sex for a man, more than once. The Tribunal accepts when the applicant was around [age], [age] and [age], he realised that he was sexually interested in men, particularly middle aged men, when he developed crushes on older men. The Tribunal accepts the applicant was not interested in his fellow classmates, but mature, masculine men.
The Tribunal accepts the applicant’s oral evidence that as he became interested in men, he also realised through media reports and comments from peers and family, that this interest was not considered acceptable in Malaysian culture. The Tribunal accepts the applicant’s evidence that he hid his sexuality because he was afraid of being subject to the discrimination he saw against gay men, and that the restrictions he felt led him to pornography on the internet.
The Tribunal accepts that the applicant suppressed his sexuality because he feared adverse repercussions if he did otherwise, and that the applicant had no relationships with anyone in Malaysia, not men or women, even up till he was older than 30 years. The Tribunal accepts the applicant’s statement that he had no relationships because he was homosexual and concealed his homosexuality for his self-protection, and acknowledges that these circumstances carried a heavy emotional cost to him.
The Tribunal accepts the applicant’s evidence that his family are unaware he is gay because he has always concealed his sexuality. On the basis of the applicant’s evidence and the country information, put to the applicant, cited below, the Tribunal accepts the applicant’s experience that homosexuality is a taboo subject in his community in Malaysia, and that his family members and friends would feel it is immoral behaviour. On the same basis, the Tribunal accepts the applicant’s evidence that no-one ever talked about homosexuality openly for fear of being discriminated against and because they know it is banned behaviour. The Tribunal accepts that when the applicant was at work he observed that his colleagues discriminated against homosexuals and he learnt about their attitudes when they talked with each other and if they talked about television serious, they would ridicule LGBTI people. The Tribunal accepts that for this reason, the applicant did not reveal his sexuality to anyone at work.
On the basis of the applicant’s evidence, in line with the country information, put to the applicant, cited below, the Tribunal accepts the applicant’s claim tried to brush off enquiries from family, friends and work colleagues why he did not have a girlfriend and whether he wished to marry because he understood that homosexuality is forbidden in Malaysian society.
The Tribunal accepts the applicant came to Australia with intention of having a holiday (and that he did have a holiday), and that while he was in Australia he learnt about mobile phone [apps] through facebook and once he started using these apps, other related apps would pop up and subsequently he came to make friends with gay people, usually Caucasian, as well as have sex with other men.
On the evidence of the applicant, the Tribunal accepts the applicant met his first long term [lover] in early 2015 and this relationship finished after about 6 months. The Tribunal accepts the applicant met [Mr A] in April 2016 from [an app]. At their first meeting, they went to [Mr A’s] residence, and then [Mr A] took the applicant out with to a restaurant where they met up with [Mr A’s] [City 1] friends. The Tribunal accepts that in early March 2017, the applicant and [Mr A] flew to [City 1] for a holiday, staying at these friends’ place. The Tribunal accepts the applicant moved from his [home] to [Mr A’s] home in late march 2017. The Tribunal formed the view that the applicant and [Mr A] have an open, loving, supportive relationship.
The Tribunal notes the applicant arrived in Australia in March 2015 and that he delayed making an application for protection until April 2016, more than 12 months after his arrival. The Tribunal has considered whether the delay in lodging this application is indicative that the applicant does not have a well-founded fear of persecution if he returns to Malaysia. The applicant told the Tribunal that on his arrival he started feeling more comfortable with his sexuality and was confused, did not know what to do and did not want to attract trouble for himself. He stated that it was only when he discussed his situation with a lesbian friend in Australia who suggested the applicant could apply for protection that he realised he had been wrong to remain unlawfully in the community and took action to resolve his situation. The Tribunal considered the applicant’s evidence in this respect to be sincere and is satisfied that his delay in making a protection visa application is not indicative that he does not have a well-founded fear of return to Malaysia.
On the basis of the credible evidence of the applicant, the Tribunal accepts the applicant is a gay man from Malaysia. In considering whether the applicant has a well-founded fear of persecution on return to Malaysia, the Tribunal has taken into account the following advice in the 2016 Department of Foreign Affairs and Trade (DFAT) Country Information report in respect to LGBTI persons:
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.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 19 July 2016.

The Tribunal has also considered reports, put to the applicant, indicating 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 United States Department of State (USDOS) 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’.[4] The USDOS 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.[5] The Human Rights Watch 2017 World Report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia.[6]
[4] Country Reports on Human Rights Practices 2016 – Malaysia, US Department of State.
[5] 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.
[6] World Report 2017 – Malaysia’, Human Rights Watch.
As discussed with the applicant, a recent Freedom House publication has provided the following information.
LGBT (lesbian, gay, bisexual, and transgender) Malaysians face widespread discrimination and harassment. Same-sex sexual relations are punishable by up to 20 years in prison under the penal code, and some states apply their own penalties to Muslims under Sharia statutes. The Ministries of Health and Education conduct campaigns to "prevent, overcome, and correct" symptoms of homosexuality in children, while the Ministry of Information has banned television and radio shows depicting gay characters...[7]
[7] Freedom House, Freedom in the World 2017 – Malaysia, 12 July 2017, available at;
As discussed with the applicant, a body of evidence also exists that shows LGBTI individuals experience varying degrees of tolerance. A May 2012 report on the Gay Star News website refers to the comments of Lee Kam Wye, a retired secondary school teacher in Malaysia, who said that ‘LGBT may appear to be spreading not because more people are being recruited into LGBT lifestyle but because this community is braver and more open now’.[8] A February 2012 Hindustan Times article, sourced from Agence France-Presse, indicates that ‘The gay and lesbian community in socially conservative Malaysia has slowly gained a higher profile in recent years, and transsexuals live openly in cities’. The article also indicates, however that ‘many complain they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country.’ [9] In this respect, as put to the applicant, the Tribunal notes that the applicant’s home area of Penang is a large, diverse metropolitan area where the Tribunal’s own research indicated that gay bars and entertainment venues are widely advertised on the internet.
[8] Malaysia training helpers to curb homosexuals’ 2012, Gay Star News, 23 March < <CX288268
[9] Malaysia transsexuals targeted in attacks: report’ 2012, Hindustan Times, 16 February, source: Agence France-Presse < <CX0D38E8E20065>
In considering the applicant’s circumstances, the Tribunal has also taken into account internet news reports submitted by the applicant that in March 2017, the Malaysian health ministry offered cash rewards to young people for producing videos about the prevention of homosexuality.[10] The Tribunal also took into account reports provided to it concerning the death in 2017 in Penang of a teenage Indian boy following sexual assault and bashing by homophobic class-mates.[11]
[10] >
In response to the country information cited above, the applicant stated that he remembers Anwar’s case in 1998. He explained that he was young at the time and that this was the first time he came to know about the Penal Code which prohibited anal and oral sex and it was from that time that he started to experience fear arising from his sexuality because he became aware there were severe penalties attached to his sexual inclination. After this period, he tried more to conceal his sexual preference and he developed such a belief that he needed to protect himself that he did not dare not reveal his inclination as an adult at work, or to have any relationships. The applicant also stated that he heard stories about homosexuals being beaten and ridiculed similar to that referred to in the case of the death of an Indian boy mentioned above, that left him fearful of disclosing his sexuality to anyone. The applicant agreed that there are few reports of use of the Penal Code offences against homosexuals and that the people mentioned in reports are frequently higher profile people, but he, and his representative, expressed the view that the law was used more frequently than reported and that its existence led to fear in the LGBTI community and left them vulnerable to abuse.
The Tribunal notes that the applicant was able to maintain employment in [a certain] industry and in that role he was able to travel. The Tribunal has taken into account that the applicant did not seek to embellish his claims at the hearing but his evidence indicated that he acted in a very discreet manner in Malaysia and did not disclose to family and work colleagues and the broader community his homosexuality, and concealed his homosexuality by abstaining from any relationships.
In response to the country information cited above, the applicant’s representative submitted that the country information indicates that the atmosphere in Malaysia is generally homophobic, and that the Malaysian LGBTI, community are constantly told that their behaviour is unacceptable which has created an atmosphere of impunity. Laws create an atmosphere of homophobia that affects everybody and Malaysia clearly shifting towards Islamic conservatism. The applicant’s representative also commented that the extent of socialisation of homosexuals in Malaysia means that often homosexual boys do not even associate themselves as homosexual. The applicant indicated that in Penang, there are people in the LGBTI community who expose themselves to risk of discrimination, but in his case, as a person without family support for his sexuality, working in a low-socio-economic group in the conservative employment environment of a trade in construction, and in the Chinese community where there is strong opposition to homosexuals, he has not ever dared to speak with anyone about his circumstances.
The Tribunal is mindful that an applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.[12] On the evidence before it in respect of the applicant’s individual circumstances, and including the country information referred to above, the Tribunal finds that the chance of the applicant suffering serious harm for reasons of his sexual orientation, in the form of significant physical harassment or significant physical ill-treatment from those in authority and the broader Malaysian community, if he lived openly as homosexual man in Malaysia would not be a remote, fanciful or far-fetched possibility. The Tribunal finds that the applicant faces a real chance of serious harm throughout Malaysia.
[12] 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 applicant remained discreet or circumspect about his sexuality due to the threat of harm and discrimination and in order to avoid persecution. While the Tribunal accepts that the applicant has modified his 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 applicant is homosexual and a modification of his behaviour to avoid a real chance of persecution would conflict with a fundamental characteristic of his identity and conceal an innate or immutable characteristic and his true sexual orientation.
While the Tribunal notes DFAT advice that the law criminalising homosexual acts is infrequently enforced, the Tribunal also notes the law has not been repealed and that there is little prospect of law reform in the foreseeable future. The Tribunal considers the effect of the law and the government’s ongoing public harassment of LGBTI people contributes to an environment where homosexuals experience societal discrimination and violence and official harassment by police and others in Malaysia. Given the country information and the applicant’s particular circumstances, as noted above, the Tribunal is not satisfied the State is willing to offer effective protection measures to the applicant, nor is the Tribunal satisfied the applicant would be able to access effective protection measures if returned to Malaysia now or in the foreseeable future.
The Tribunal finds that gay men in Malaysia are a particular social group as defined by s.5L of the Act as the characteristic of homosexuality is shared by each member of the group; and the applicant shares the characteristic; and the characteristic is an innate or immutable characteristic and is so fundamental to the members identity or conscience, the member should not be forced to renounce it; and the characteristic distinguishes the group from society and is not a fear of persecution.
The Tribunal finds that the applicant’s membership of a particular social group, ‘gay men in Malaysia’, is the essential and significant reason for the persecution, and that the persecution involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment as instanced in subsection s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).
Considering the applicant’s individual circumstances and the country information as a whole, the Tribunal finds there is a real chance he will suffer persecution for reasons of his membership of this particular social group, gay men in Malaysia, if he returns to Malaysia, now or in the foreseeable future. Therefore the Tribunal is satisfied the applicant’s fear of persecution in Malaysia is well-founded, and that the applicant is a refugee as defined by s.5H of the Act.
The Tribunal finds that the applicant does not have the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and the Tribunal finds that this section does not apply in his case.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Amanda Paxton
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 1826

11 October 2017

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Immigration

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Jurisdiction

Natural Justice

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