1618514 (Refugee)

[2017] AATA 2682

1618514 (Refugee) [2017] AATA 2682 (19 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618514

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:James Silva

DATE:19 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 September 2017 at 11:00am

CATCHWORDS
Refugee – Protection visa – Malaysia – Particular social group – Lesbians – Pengkids – Fear of physical violence – Came to Australia mainly to work

LEGISLATION
Migration Act 1958, ss 5J-5LA, 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

1. The applicant is a woman in her [age range] from Malaysia.

2. The applicant arrived in Australia [in] December 2015, as the holder of [a temporary] visa. She applied for a Protection (Class XA) visa [in] March 2016. [In] October 2016, the delegate refused the application pursuant to s.65 of the Act.

3. This is an application for review of that decision.

4. The applicant attended a Tribunal hearing on 4 August 2017.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed. In brief,

   Criteria for a protection visa

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims to be a lesbian who has a ‘lifestyle as a boy’. She claims that her family, the community in general and the Malaysian authorities have criticised and discriminated against her, resulting in stress. She fears continued disapproval and pressure if she returns to Malaysia. She claims to fear that Malaysia’s anti-LGBT laws, with political and religious backing, and declining social acceptance, put her at risk of persecution or significant harm if she returns to Malaysia.

   Background

8. The applicant is [an age] year old woman from Klang, Selangor. She is of Malay ethnicity, and a Muslim. She speaks Malay and English.

9. The applicant stated that she lived in Klang until December 2015. However, at the hearing she stated that this was her registered address. In fact, she moved out of the family home in late 2012, initially staying with friends and then renting her own room in Puchong, which is some 30 to 45 minutes from Klang. This was also closer to her place of [work].

10. The applicant attended school in Klang until late [year], completing high school at age [age]. From that time, she held various jobs, mainly in [specified businesses] and as [an occupation]. These typically involved [specified duties]; most of her colleagues were men. From October 2013, she worked as [a different occupation] for [Company 1]. The applicant’s work involved [details deleted]. It was on a periodic contract basis. The applicant said that she decided to leave the job, as the managers were unethical (playing favourites with relatives and friends), and it was generally an unhappy workplace. She did not suggest that she was targeted on account of her sexuality.   

11. The applicant’s widowed mother lives in Malaysia, and she [has siblings]. The applicant initially claimed that all of her family members live in Malaysia, and that she no longer has contact with them. While living in Puchong, she used to briefly visit home to pick up mail, but not further engage with them, as they were barely on speaking terms. The applicant was evasive about her siblings, saying that she does not know their whereabouts. It was only in response to the Tribunal’s further questioning that she conceded that she travelled to [an Australian city] to see her [sister], [named], who came to Australia earlier. She said that her sister is ‘a bit like me’ in her appearance (and, by implication, also a lesbian). They have had a big argument, which the applicant suggested was driven at least in part by competition and jealousy; they are no longer in contact. 

12. The applicant brought her current Malaysian passport, issued [in] 2015, to the hearing. She said that she held a previous passport, but claimed that she could not recall any past travel. Pressed for details, she said that she might have visited [Country 1], on one occasion, with some [friends]. She said that this was a group of men and women, some of whom were straight and some gay. In response to further questions, she indicated that this was a mixed group of young people for whom sexuality was not a major issue.   

    Evidence

13. The evidence before the Tribunal includes the following relevant material: -

    §  The applicant’s protection visa application form, lodged [in] March 2016.

    §  Identity documents: - the applicant attached to her application form a partial photocopy of her Malaysian passport (biodata page only), and photocopies of her Malaysian ID card and driver’s licence.

    §  The applicant’s protection claims are set out in handwritten comments on the application form.

    §  Country information: -

    -   The applicant presented general country information from Wikipedia (articles on LGBT rights in Malaysia, and Human rights in Malaysia), and an excerpt from Wordpress.com on anti-LGBT laws in Malaysia.

    §  The applicant attended a protection visa interview (‘Department interview’) [in] October 2016, a recording of which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of [a date in] October 2016.

14. The applicant appeared before the Tribunal on 4 August 2017, to give evidence and present arguments. The hearing was conducted via video link between the Tribunal’s Sydney office and a video facility in [Town 1], with the assistance of a telephone interpreter in the Malay and English languages. The applicant is not represented in this matter. She did not present any witnesses.

15. On 18 September 2017, the applicant sent an email to the Tribunal asking whether it would be possible to ‘cancel [her] visa and leave Australia’. A Tribunal officer contacted the applicant to explain the process for withdrawing an application for review. The applicant then sent a brief email requesting the Tribunal to ignore her previous email.

    Receiving country

16. The applicant claims that she is a Malaysian national. She speaks Malay; she has provided copies of her Malaysian passport, national ID card and driver’s licence; and she is familiar with that country. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing her claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

17. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

18. The applicant gave a generally consistent, unembellished account of her experiences and concerns in Malaysia. The Tribunal accepts as credible the majority of her claims and evidence relating to Malaysia. However, it found her evidence about her activities and priorities in Australia to be less than forthcoming. It has broad concerns about the applicant’s reasons for coming to Australia, and her need for protection. The Tribunal’s detailed assessment follows.

    The applicant’s sexual orientation

19. The applicant claims to be a lesbian, and emphasises her masculine appearance and lifestyle. She has at various times stated that she has always felt like she is a man, that she enjoys socialising with men, and that people perceive her as acting like a tomboy. The Tribunal appreciates the difficulty in applying labels in questions of sexual orientation and gender identity. Based on the applicant’s claims and evidence as a whole, it understands the applicant to be stating that she identifies as a lesbian and a tomboy (pengkid in Malay). It does not understand her to be claiming that she identifies as a transgender person, or transman.

20. The applicant’s claims have been consistent, and the Tribunal found her evidence at the hearing about her sexuality and her experiences in Malaysia to be unembellished and persuasive, although she declined to be drawn on some issues. It accepts that she is a lesbian, and that she is readily perceived to be a lesbian or ‘tomboy’ as a result of her clothing, appearance and conduct. The applicant has indicated that she is open about her sexuality, and her family, former schoolmates and many friends know. Some former workmates were also aware. Overall, the applicant indicated that she lives fairly openly as a lesbian in Malaysia, and that many people presume that she is one (based on her appearance and conduct).

21. The applicant said that she had had some relationships in Malaysia. She said that her longest relationship was for some five or six years, and suggested that they had broken up just three months earlier.[1] She said that she could not remember this person’s name (which the Tribunal takes to mean that she either declined to name this person, or that the applicant had in fact had a brief relationship that had ended some years earlier). The applicant said that she and her girlfriend split up for personal reasons, although she suggested that their inability to be open about the relationship in Malaysia had been a contributory factor. Generally, she meets LGBT people at places like shopping centres, football matches and similar venues. She does not go to nightclubs or seek contacts via social media.  

    The applicant’s (negative) experiences in Malaysia

    [1] The applicant’s subsequent inability to name her former girlfriend suggests, on the other hand, that she may have meant that she went out with this woman for about three months, and that it had been some five or six years ago.

22. The applicant claimed that she faced disapproval from her family, neighbours and others, due to her sexuality.

    §  At the Department interview, she said that [a sibling] had suspected that she was lesbian, and her mother had been ‘cranky’ when she found out about it. On one occasion, when the applicant was about [age], her mother hit her with a broom. The applicant did not mention any physical abuse at the Tribunal hearing  

    §  Her mother and older siblings are unhappy about her sexuality, and she now has limited contact with them.

    §  In relation to her sister in Australia, who is also lesbian, the applicant said that the pair had met up in [Australia], and had a big argument. They are not on speaking terms now. She said that she believes that her sister is jealous of her.

    §  The applicant said that some of her other relatives and the family’s neighbours had also been unable to accept her sexuality, and were unhappy with her. In practice, this meant that they gave her unfriendly looks, avoided talking to her, or if they did, tried to preach Islam. 

    §  The applicant said that, on those occasions when she has been dating women, they have not been able to hold hands in public, to have romantic dinners together, or spend nights together. It is, she said, ‘not easy’.

    §  More generally, she observed that people in Malaysia don’t allow women to act like ‘tomboys’ – they don’t like it.

23. In her written claims, the applicant wrote that she had suffered ‘mental and physical harm’, and gave as an example that her family tried to stop her socialising with boys when she was growing up.

24. In more expansive comments at the Department interview, she said her mother once beat her with a broom when she was [age] years old (this appears to have been the occasion when she found out that the applicant was a lesbian, and was ‘cranky’). The parents of one of her girlfriends discovered their relationship, and blamed the applicant. More generally, she tired of people pressuring her to dress like a woman and to not socialise with men. She feels abandoned by Malaysian society. The applicant said that there is broad discrimination – for instance, she feels that prospective employers sometimes promised to follow up from job interviews, but had no intention of doing so.  In terms of socialising, the applicant said that she does not go to LGBT venues, as she considers them ‘too dangerous’.

    Departure from Malaysia

25. The applicant said that she left Malaysia in December 2015, with the plan to ‘just visit’ Australia. She had earlier stated that she was dissatisfied with her job with [Company 1], for reasons that were not directly related to her sexuality. Meanwhile, she had found out, by speaking with friends and doing some research on-line, that Australia supports the LGBT community. She said that she consulted Google, but was unable to shed further light on what research she undertook prior to her trip.

    The applicant’s activities in Australia

26. The applicant arrived in Australia [in] December 2015, but did not apply for protection until [March] 2015. She told the Tribunal that she knew that her [temporary] visa was valid for [number of] months, and she did not have information about how to seek protection. In the Tribunal’s view, the delay is not overly significant. However, it does reinforce the impression that the applicant did not depart Malaysia due to any past harm (including any that amounted to persecution or significant harm), or immediate fear of such harm. Rather it suggests that her protection visa application has been an afterthought.

27. The Tribunal explored with the applicant her activities in Australia, in particular whether she had taken the opportunity to express her sexuality or socialise in any way that was not possible in Malaysia (and that would therefore lend support to her claim that she found it oppressive there).

    §  The applicant claimed that she had already undertaken some research in Malaysia on the situation for LGBT people in Australia. However, as noted above, she could not give details of this research. She told the Tribunal that she had not made any enquiries about LGBT groups in Australia before her travel, or since arriving in Australia. Similarly, she has not undertaken any further research or made enquiries about any related matters.

    §  The applicant said that she flew from Malaysia to [City 1], as she found a cheap ticket to that destination. On arrival, she went to a backpackers’ hostel, where she met some people and travelled with them. In response to further questions, she said that the flight from [City 1] to [Town 1] had taken two hours. The applicant was unable or unwilling to provide further details of the reason for her travel to that location, other than to state that she travelled there with her sister.

    §  The applicant said that, in [Town 1], she has no work. She sometimes cuts grass, in return for meals (and, by implication, accommodation).

    §  The applicant said that during her stay in Australia (one and a half years so far), she has ‘not yet’ made contacts with any LGBT groups or individuals, as there is not much opportunity in [Town 1]. Asked why she remains there, rather than explore options in [other cities], she replied that she first went to [Town 1] with her sister, and was left there after they had a falling out. She has no money to travel to other places; she knows no one in the major cities; and she is concerned that there would be no one to help her subsist there.

    §  The Tribunal signalled its surprise that the applicant had not made enquiries about her options in other Australian cities, or at least tried to find out more about LGBT groups and whether they might provide some kind of support for her. It posited that her evidence suggested that her real reason for coming to Australia, and her priority, was to work. The applicant denied this, restating that she has no right to work.

28. The Tribunal found the applicant’s evidence about her activities in Australia to be guarded and unforthcoming. It does not accept as reliable her evidence that, after flying from Kuala Lumpur to [City 1], she went to [Town 1] in the company of other backpackers and/or her sister, simply on a whim. Nor does it accept that she relies on the goodwill of others, doing some casual gardening or agricultural work in return for meals and accommodation. The relevance of the Tribunal’s findings are twofold:

    §  First, the Tribunal considers that she travelled to [Town 1] for the purpose of work, and that she has denied this in order to avoid adverse consequences for her and others (such as employers and/or labour hire agents). This raises some questions about her credibility as a witness, although the Tribunal acknowledges that it does not necessarily undermine her protection claims in their entirety.

    §  Second, the applicant’s circumstances in Australia strongly suggest that her priority during her stay has been to work. The Tribunal accepts that there may be financial or similar pressures for her to do so. Nonetheless, her demonstrated interest in meeting LGBT people and addressing the constraints she felt in Malaysia (such as the limited scope to meet lesbians, the social disapproval, and the inability to express oneself as a lesbian) is negligible. This further suggests that the applicant’s experiences in Malaysia, as a lesbian, did not involve persecution or significant harm, and moreover, did not weigh heavily on her.   

    Summary of findings

29. The Tribunal makes the following findings of fact:

    §  The applicant is a lesbian who identifies as a person with the ‘lifestyle [of] a boy’, due to her clothing, appearance and conduct. The applicant is generally open about her sexuality, and in Klang and Kuala Lumpur, many people presume that she is lesbian by her appearance.

    §  In Malaysia, the applicant has experienced some criticism and pressure from her family, neighbours and members of the public, from time to time, as a lesbian and particularly as a Muslim lesbian. There is no suggestion that she has concealed her sexuality, or considered it necessary to change her appearance or her conduct The Tribunal is not satisfied that such experiences, individually or cumulatively (including through any psychological impact) involved serious harm amounting to persecution, or significant harm.

    §  The applicant came to Australia mainly to work, and also because she had heard that it is a more tolerant society.

    §  The applicant has not experienced, and does not have an immediate fear of persecution or significant harm in Malaysia. However, she is somewhat apprehensive about the future treatment of lesbians and LGBT people in that country.

    ASSESSMENT: REFUGEE CRITERION

30. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors – in particular, country information about the treatment of lesbians and other LGBT individuals in Malaysia, as well as the applicant’s future conduct – there is a real chance of her experiencing serious harm amounting to persecution if she returns to Malaysia (for reason of her membership of the particular social group of lesbians in Malaysia, or ‘tomboys’ or for any similar reason enumerated in s.5J(1)). The applicant told the Tribunal at the hearing that she is not sure what will happen if she returns to Malaysia, but she is apprehensive about returning due to her sexuality and personal circumstances.

31. The Tribunal has found above that the applicant did not suffer serious harm amounting to persecution in Malaysia, and did not leave Malaysia fearing that she was at imminent risk of such harm. As noted above, the applicant’s vague account of the circumstances in which she decided to lodge a protection visa application further suggests that she was seeking to prolong her stay in Australia, rather than fearing protection from future harm. The applicant’s advice to the Tribunal on 18 September 2017 that she might ‘cancel’ (or withdraw) her application and return to Malaysia adds to the Tribunal’s doubts about her need for protection (even though the applicant changed her mind and asked the Tribunal to ignore her query).  

1. Looking ahead to the reasonably foreseeable future, the Tribunal has taken into account a large amount of country information about the treatment of lesbians (and other LGBTI people) in Malaysia, and in particular pengkid, which is variously translated as ‘tomboy’ or ‘masculine women’. Recent material indicates that the overall outlook for LGBTI rights in Malaysia is poor. The key components to this are the nationwide ban on homosexual activity (‘carnal intercourse against the order of nature); the Malaysian Government’s open criticism of LGBTI individuals, and restrictions on rights; the issuance of State religious laws directed at LGBTI people (including pengkid); and declining official and social tolerance of the LGBTI community and individuals. The Tribunal is mindful of the issuance of State religious laws, or fatwas, apply to Muslims, and therefore put them at greater risk than other groups in Malaysia.

2. A May 2014 report by the International Gay and Lesbian Human Rights Commission[2], records pengkid facing verbal abuse or warnings from strangers in public places, inappropriate physical contact, and job discrimination. In relation to religious laws directed against Muslims, it goes on to state:  

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

   [2] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, in Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia, 6 May, p.33: see <CIS2F827D91966>

3. In considering the applicant’s prospects on her return to Malaysia, the Tribunal notes that there appears to be a gulf between the broad thrust of country information on the one hand – which paints a fairly bleak picture of the situation for LGBTI community in general – and the applicant’s own experiences in Malaysia. In the Tribunal’s view, the Department of Foreign Affairs’ most recent report provides important, and reliable context (with the Tribunal’s emphasis, see Appendix B for the full excerpt):  

   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.

4. Relevantly, the applicant has grown up and lived in urban areas of Klang and Kuala Lumpur. She openly acknowledges her lesbianism, and is readily perceived as such due to her appearance and conduct. Although – even as a (nominal) Muslim woman - she has experienced some disapproval from family members, neighbours and others, she has nonetheless maintained a strong network of social and sporting friends, and readily found employment in fields where her sexuality or appearance were not an issue. Based on the available material, the Tribunal considers that the applicant will return to Kuala Lumpur or the surrounding area, and that she will resume a similar lifestyle, including social contacts and employment.

5. The applicant expressed some concern about the potential for future anti-LGBTI violence in Malaysia. While acknowledging that she had never been subject to serious harm or threats in the past, she said that she is afraid and does not want to wait until something happens to her. In this context, she recalled vaguely that some men had killed ‘one of the boys’ in Malaysia just recently, during July 2017. She thought this involved a group of men having murdered a gay man, but she was not sure and she did not have further details (such as the location or circumstances of the incident). The Tribunal appreciates that any such reports are unnerving for the LGBTI community in Malaysia generally, especially against a background of official and social pressure, especially against transgender women and gay men. However, the Tribunal is not satisfied that this report relates directly to the applicant; that they have caused her to fear directly for her own safety; or that they indicate that she personally faces a real chance of serious harm amounting to persecution (including being killed). In sum, the Tribunal accepts that the applicant has a generalised concern about falling victim to anti-LGBTI violence in Malaysia. However, it considers that she has exaggerated this fear. Having regard to her personal situation, the Tribunal finds that the applicant does not face a real chance of violence or other serious harm amounting to persecution.

6. The applicant has claimed that she nonetheless faces constraints in Malaysia – such as being unable to express her sexuality openly, for instance by holding hands, being publicly affectionate with other women, or spending nights together. The Tribunal accepts that LGBTI individuals from Malaysia face a less liberal environment compared to Australia. However, it notes that the difference reflects in part the more conservative nature of Malaysian society generally, rather than restrictions that apply only to lesbians or LGBTI individuals. Moreover, looking at the particular circumstances of the applicant – including her social contacts and work in Malaysia, and her lifestyle in Australia – the Tribunal is not satisfied that the different social environment and attitudes towards lesbians in Malaysia result in serious harm for her.

7. The applicant mentioned towards the end of the hearing that, living in a Muslim country, she is not permitted to wear men’s clothing, or, for that matter, change her religion.

   §  For the reasons stated above, the Tribunal finds that the applicant did in fact wear men’s clothing while growing up and living in Malaysia, and that the consequences did not extend beyond some disapproval. It accepts that she will do so on her return to Malaysia. Despite some degree of social disapproval, and the presence of religious rules prohibiting ‘cross-dressing, the Tribunal finds that there is no real chance of the applicant being subject to serious harm (amounting to persecution) if she continues in this way on her return to Malaysia.

   §  On the question of changing her religion, the Tribunal noted that the applicant had not previously mentioned this, and invited her to comment further. She replied that she has not changed religion so far, and has not been thinking about it recently. In light of these comments, the Tribunal finds no suggestion that the applicant is seriously considering changing her faith, or that she will be perceived as having abandoned Islam. The available evidence suggests that she is a nominal Muslim only, but she did not present any claims based on this, expressly or implicitly.

8. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It accepts that she is a lesbian and pengkid (tomboy). Having regard to all of her circumstances, however, it is not satisfied that she faces a real risk of discrimination (including social or employment), psychological, physical or other harm that involves serious harm amounting to persecution. It is also not satisfied – again having regard especially to her past conduct – that the applicant ever has, or will need to in the future, modify her conduct (or appearance) or otherwise take measures in order to avoid persecutory harm. 

9. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if she returns to Malaysia.

10. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

11. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.

12. The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about the treatment of LGBTI individuals (especially lesbians and pengkid) in Malaysia. It is mindful of the psychological and long-term impacts of social discrimination. Nonetheless, it concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on her, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that she will suffer arbitrary deprivation of their life or the death penalty. In other words, the Tribunal finds no other grounds that suggest she will be subject to significant harm, for any reason, if she returns to Malaysia.    

13. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm: s.36(2)(aa).

    CONCLUSION

14. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a protection visa.

    James Silva
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    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.

    ATTACHMENT B – DFAT REPORT (EXCERPT)

    Sexual Orientation and Gender Identity

    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. 

    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 and was sexually assaulted by religious department officials in Negeri Sembilan. In 2012, religious department officials forcibly entered the home of a transgender woman in Seremban. The woman, a non-Muslim—as confirmed by a check of her national identity card—was not arrested. However, her Muslim transgender friends were arrested for cross-dressing.

    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.