1615725 (Refugee)

1615725 (Refugee) [2018] AATA 1255 (2 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1615725
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Rosa Gagliardi
DATE:2 May 2018
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 02 May 2018 at 5:01pm
CATCHWORDS
Refugee – Protection visa – Malaysia – Social group – Homosexual men in Malaysia – Victim of taunts and humiliation – Victim of isolation and alienation – Fear of systematic discrimination – Credible witness
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 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] July 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements to be granted a Protection visa.
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
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Country of Reference
In his application the applicant claims to be a citizen of Malaysia. The Department of Immigration and Border Protection (‘the department’) contains a copy of the applicant’s valid Malaysian passport. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, the Tribunal finds that the applicant is a citizen of Malaysia and as such, his protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
The applicant’s claims at time of application
·He is gay and has realised so since he was in primary school;
·Since he entered college life he fully realised he was gay through surfing social media and he kept trying to change himself but he was unable to do so. He realised that he preferred to have relationships with boys rather than girls;
·When he had a boyfriend he would chat to him daily and his family members asked him who he was speaking to. One day they found a photo in which he was close to the boy and he had no choice but to tell them the truth. His family advised him to change his character (sexuality) and his mindset;
·Since he told his friends about his sexuality they started to avoid him and he felt alone and uncomfortable. He told his friends he was unable to change;
·He wanted to live his life in his own way and not live a dual life;
·Staying in Australia is safer for him;
·If he returns to his country he will not be able to live as himself. He wants the freedom to live the life he desires; and
·It would make no difference where he went in Malaysia as a same-sex relationship would not be welcomed; he will be avoided.
The hearing
The applicant is [age] years of age. He was born in Selangor. He is a [details deleted]. The applicant reiterated the claims put forward at the time of his application. He explained that he had not spoken to anyone about his emerging sense of self as a gay person as a youth because he did not have the confidence to talk to family or anyone. When his brother visited he would stay in his room because he was frightened that the manner in which he spoke would betray his sexuality.
Asked to explain how he first became aware of his sexuality he provided a credible account of having been away on a camp and having had a sexual encounter with a boy. In discussing the encounter the applicant gave realistic details about his confusion at the time and his fear about the police finding out.
At college the applicant stated that he was very isolated. He kept to himself and people did not want to be friends with him. He then started a relationship with another young man. The applicant provided aspects of this man’s characteristics such as, that he lived on campus and worked part-time to support himself. Asked to provide details about how they lived their relationship together, the applicant explained that the applicant would meet him at the train station and they would walk together to college and spend as they could, having lunch together, for example. At night his partner would also see him off at the station. They presented as friends rather than as a couple. They hid their relationship.
They managed to keep their relationship secret but there was a photo of the applicant embracing and kissing his partner on his phone. His brother saw the photos. He started hitting the applicant and was violent and broke the phone. The applicant told his brother that “this was the way he was”. The applicant told his brother about his sexuality and his parents told him that he was a disgrace and was not worth living. They degraded him. He would have been [age] years of age when his family discovered the truth. His parents told him he was not allowed out; he could not study and could just stay inside and rot, saying “you woman, you”.
The applicant eventually returned to his studies but he was being closely watched by his family and his relationship ended. He would go into the exam hall and come out and his brother would be waiting for him. He was watching him all the time. It was like house arrest. The family excluded him from social outings as they were ashamed of him. He told his mother that it was simply the way he was created; he thought death was better than the way he was living. He was no longer enjoying living and escaped. He left home. He was wondering the city like a lost soul. He had no money. His family were glad they were rid of him and told people that if they spotted him they should kill him.
He knew he had to get out of Malaysia to go to Australia where he had learnt that gay persons did not experience the same degree of alienation and oppression. He borrowed money from a friend who helped him and he sold many of his goods such as his laptop.
He had tried to call his family after he came to Australia but they refused to speak to him. After a while his father became very ill and asked after him but he was not able to go and visit him.
In Australia he has lived as a gay person and had encounters but he was not in a relationship at the present time.
The Tribunal noted that the evidence provided was social media excerpts of encounters with men in Australia and asked him to comment on whether the evidence had been put together for the sole purpose of enhancing his claims. The applicant stated that he brought the evidence along as a window into his life in Australia. The applicant stated that while he had encounters he did not have many friends. He specified the clubs he attended in Australia where he chatted with people; otherwise he was somewhat isolated.
Country information
The Tribunal has had regards to the country information regarding the treatment of lesbian, gay, bisexual, transgender, intersex persons (LGBTI), including 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.[1]
Transgender Individuals
3.95 Cross-dressing is not technically illegal, however transgender individuals are arrested under the Minor Offenses Act for public indecency and immorality, and, where Muslim, under sharia-based law for impersonating women. These laws are predominantly applied to biological men dressing as women. The National Fatwa Council banned gender reassignment surgery in 1983 and the Registration Department stopped the practice of changing names and gender for transgender individuals on national identity cards.
3.96 Where transgender women were identifiable as Muslim, and as male, as demonstrated on their national identity card, they were occasionally arrested by state religious authorities or the Royal Malaysian Police. While the majority of arrests occurred in public places, state religious officials occasionally conducted raids on private premises. Members of the Royal Malaysian Police had on occasion accompanied such officials.
3.97 In October 2015, regarding the case of three Muslim transgender women from Negeri Sembilan, the Federal Court reversed a lower court ruling that had found Negeri Sembilan’s state-level prohibition on men dressing as women to be unconstitutional. The Federal Court advised the defendants to exhaust their case in the sharia court, where it had originated. In June 2015, nine transgender women were convicted by a sharia court in Kelantan state under cross-dressing prohibitions. In 2011, a transgender woman was arrested for cross-dressing.
3.98 State religious officials have been known to subject transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are held in male prisons and have occasionally been subjected to sexual assault by wardens or fellow detainees. Societal violence also occurs. On 10 September 2015, Malaysia’s most prominent transgender activist, Nisha Ayub, was brutally beaten by two Indian Malaysian men with iron bars outside her apartment building. She reported the hate crime to police but no suspects have been identified.
3.99 DFAT assesses transgender individuals, especially Muslim men who either cross-dress as women or identify as transgender would face a high level of official and societal discrimination and are at moderate risk of societal violence. [2]
[1]
[2] Ibid.
Below is a summary of the information gleaned from other reports about the treatment of LGBTI persons in Malaysia:
Reports also indicate that LGBTI identification 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’.[3] 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.[4] The Human Rights Watch 2017 World Report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia.[5]
[3] Country Reports on Human Rights Practices 2016 – Malaysia, US Department of State.
[4] 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.
[5] World Report 2017 – Malaysia’, Human Rights Watch.
A previous Human Rights Watch report dated 2014 shows the extent to which LGBTI and transgender people specifically face discrimination and abuse from state officials and agents, including from public sector health workers, teachers, and local government administrators.[6] The report indicates that a 73-page report, “I’m Scared to be a Woman: Human Rights Abuses against Transgender People in Malaysia”, documents abuses against transgender people, including by the government. As a result of research conducted in January 2014 in four Malaysian states, being Selangor, Negeri Semblian, Penang and Pahang and in the Federal Territory of Kuala Lumpur, Human Rights Watch found that State Religious Department officials and police regularly arrest transgender women and subject them to various abuses, including assault, extortion, and violations of their privacy. Further, religious departmental officials have physically and sexually assaulted transgender women and humiliated them by parading them before the media.[7] According to LGBTI advocacy director at Human Rights Watch, Boris Dittrich, “Transgender people in Malaysia risk arrest every day they step out of their door simply because of the way they express themselves”.[8]
[6] Human Rights Watch, “Malaysia: Transgender People under Threat: Eliminate Discriminatory Laws, Practices; End Violence”, Javad Tizmaghz for Human Rights Watch, 2014, accessed on 17 January 2018.
[7] Ibid;
[8] ibid;

Human Rights Watch further found that official discrimination is compounded by other forms of discrimination for which the government provides little or no protection. Transgender people have been fired from their jobs, evicted from their homes and denied access to health care because of their gender identity.[9]
[9] Ibid.
While the applicant at hearing stated that he identified as being gay rather than transgender, the Tribunal considers that the above information illustrates the authorities’ and societal approach to what is perceived as non-normative sexuality.
The applicant has also provided recent country information illustrative of the violence and prejudice to which men considered to be effeminate may be subject. Articles in the Malaysian press indicate that the death of a teenager, T. Nhaveen, was finally going to be considered by the state as a crime of murder after he was injured and later died in an assault by a group of men. 18 year old Nhaveen was found unconscious and believed to have been sexually assaulted as well as having been subject of physical assault. He also suffered internal bleeding in his head and abdomen. The medical examination at Penang Hospital revealed Nhaveen had injuries to the anus and burn marks on his back. It is believed that in the group of assailants were two of Nhaveen’s former classmates, who taunted him, calling him names, including “effeminate”. While Nhaveen pleaded with the two to stop taunting him, they instead called their other friends to the scene and began assaulting both Nhaveen and the person who was accompanying him. That person, 19 years of age, was later able to flee to inform his uncle of the assaults. Initially the police were only investigating the gruesome case for rioting with weapons under Section 148 of the Penal Code. [10]
[10] Taunted, Tortured, And Sodomised: Nhaveen’s Case is now Reclassified as Murder, by Sadho Ram, 16 June 2017, Accessed on 17 January 2017.
Other information indicates that in 2011, sixty-six Muslim schoolboys in Malaysia identified by teachers as “effeminate” were sent to a special camp for counselling on masculine behaviour [11]:
They are undergoing four days of religious and physical education. An education official said the camp was meant to guide the boys back “to a proper path in life”. Gay rights groups have criticised the measure, saying it promotes homophobia in the Muslim-majority country where gay sex is still illegal.
The schoolboys allegedly displayed “feminine mannerisms” – though educators in the conservative state of Terengganu did not detail what they were, says BBC’s Jennifer Pak in Kuala Lumpur.
State officials say that, if left unchecked, the students – aged between 13-17 – could end up gay or transsexual.
The state’s education director, Razali Daud, said the students were invited to join the camp and were not compelled to do so.
“As educators, we have to do something about it before the young ones misunderstand people and reach the point of no return”, he was quoted as saying by the New Straits Times.
Mr Razali says although homosexuals and transvestites exist in Malaysia, the authorities want to limit their number.
……
The Joint Action Group for Gender Equality said “corrective boot camps” violate the rights of people who are perceived as different…
[11] BBC News, ‘Sixty-six Muslim schoolboys in Malaysia identified by teachers as effeminate have been sent to a special camp for counselling on masculine behaviour’, accessed on 2 May 2018.
While this article is outdated now, a more recent article in the Telegraph, UK, dated 2 June 2017 discusses how the Malaysian health authorities were holding a contest on how to “prevent” homosexuality and transgenderism, drawing criticism from campaigners that it was fanning hatred and violence towards LGBT people.[12] The article reports that intolerance of LGBT people has spiked in recent years in Malaysia. The Health ministry’s contest invited participants to submit video clips for categories including one called “gender identity disorder”, according to details on the ministry’s website. The contest guidelines added that the videos must include elements showing the “consequences” of being LGBT, as well as how to “prevent, control and seek help” for them.[13] The contest was seen by activists as encouraging discrimination, hatred and violence towards minorities.[14]
[12] Telegraph, ‘Malaysian health authorities are holding a contest on how to “prevent” people being gay or transgender’, accessed on 2 May 2018.
[13] ibid;
[14] Ibid.
The applicant has also submitted a good deal of country information showing that, among other things, Human Rights Watch had reported in its 2016 report that the rights of LGBT people remained under threat in the country and that a decision of the Federal Court in October 2015 to uphold an anti-transgender state law that prohibits “a male person posing as a woman” was a major dent on human rights.
The applicant also submitted screenshots of intimate interaction with men in Australia.
Credibility
At hearing the applicant recounted instances where he had been taunted, humiliated and forced to conceal his sexuality. It could be argued that his mistreatment might constitute persecution and on the other hand could be seen to fall short of the applicant having suffered serious harm. Regardless, (the Tribunal finds the applicant has suffered serious harm in Malaysia), the Migration Act does not require an applicant to have suffered persecution in the past in order to have a well-founded fear of persecution into the future. It would be anomalous if protection were offered only to those who could demonstrate they had suffered persecution in the past, but persons with similar profiles were excluded even though their characteristics and the country information pointed to a real chance that an applicant would be persecuted into the future.
It was evident to at the hearing that the applicant had experienced significant psychological turmoil about his sexuality, particularly on his family discovering he was physically close to other men. His narrative was detailed and the Tribunal is convinced that the applicant’s account was reflective of his experiences in Malaysia. This decision rests largely on the applicant’s credibility and the country information which supports his claims LGBTI people in Malaysia are systematically discriminated against, face a real chance of violence, and that their very identity is considered undesirable by the authorities. In this case the Tribunal is satisfied that the applicant is homosexual as he claims.
The Tribunal finds that gay men in Malaysia belong to a particular social group as defined by s.5L of the Act. The Tribunal finds that 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’ amounting to significant physical harassment as instanced in s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).
In this case, the Tribunal considers that there is a real chance that the applicant on return to Malaysia will be shunned and further encouraged to live in isolation to avoid his homosexuality from becoming apparent, due to fear of experiencing such serious harm.
The applicant’s source of psychological distress in Malaysia was derived from his need to conceal his identity in public so as to avoid persecution and serious harm, and it is this concealment that the Tribunal finds would constitute serious psychological harm if the applicant was returned to his receiving country, Malaysia. The applicant intimated at hearing that the sense of isolation and alienation continued in Australia even though he was now free to live as a homosexual man. The persistent identification of him as “different”; a “disgrace” and having to conform, had made it difficult for him to engage and socialise with people and to foster a supportive social network which in itself in some contexts can be seen as “serious harm”.
In the Migration Act pursuant to s,5J(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, among other things.
In the applicant’s case the Tribunal finds that his homosexuality is his identity and that to avoid a real chance of persecution he would be required to modify his behaviour to the point of concealing an innate or immutable characteristic.
The Tribunal has considered the screen shots showing the applicant corresponding with other gay males and whether this communication and interaction (conduct) engaged in in Australia should be disregarded because it is not satisfied that the applicant engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee (s.5J(6)). The Tribunal is satisfied that the applicant has not engaged in contact with other males in Australia for the purpose of strengthening his claims. The verbal evidence provided at hearing in terms of the context in which such interaction occurred satisfies the Tribunal that the conduct the applicant engaged in is because he is homosexual and is attempting to live his life openly as a gay man in Australia.
Having considered the applicant’s individual circumstances and the country information, the Tribunal finds there is a real chance that the applicant will suffer persecution by way of isolation, violence and systematic discrimination in Malaysia for reasons of the particular social group, gay man in Malaysia, if he were to return to Malaysia now or in the foreseeable future. Therefore, the Tribunal is satisfied that the applicant’s fear of persecution is well-founded and that the applicant is a refugee as defined by s.5H of the Act.
Given the country information and the applicant’s particular circumstances the Tribunal is not satisfied that the state is willing to offer effective protection measures to the applicant. Similarly, the country information points to state actors being involved in the persecution of those belonging to the particular social group, gay men in Malaysia. From the country information it is evident that the state continues to want to conduct “corrective” measures against LGBTI persons – a matter of some distress to the applicant as he considered he should try to change the way he was, but found he was unable to. In these circumstances, Tribunal is not satisfied the applicant would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future.
Further, 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 therefore finds that this section does not apply in the applicant’s case.
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.
Rosa Gagliardi
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.
…

Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia,
19 July 2016.

[2018] AATA 1255

2 May 2018

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