1620706 (Refugee)

[2017] AATA 2359

1620706 (Refugee) [2017] AATA 2359 (17 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620706

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Linda Holub

DATE:17 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2017 at 12:09pm

CATCHWORDS

Refugee – Protection Visa – Malaysia – Particular social group – Homosexual – Lesbian – Gender expression – Gender – Masculine dress – Societal discrimination – Lack of state protection – State persecution – Societal norms – Genuine continuing relationship

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Abebe v The Commonwealth (1999) 197 CLR 510
Appellant S395/2002 v MIMA (2003) 216 CLR 473

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.The applicant who claims to be a citizen of Malaysia, applied for the visa [in] September 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

CRITERIA FOR A PROTECTION VISA

3.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.

4.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.

5.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).

6.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.

7.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

8.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

9.The issues in this case is whether the applicant has a well-founded fear of persecution in Malaysia for one or more of the reasons set out in the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

10.As set out below, the Tribunal formed the view that the applicant was a reliable witness whose claims about her sexuality are genuine and that she is in an ongoing relationship with another woman, and, in light of the independent information discussed below about the situation in Malaysia for homosexual and transgender people, the Tribunal has accepted that she has a well-founded fear of being persecuted in Malaysia for reasons of and associated to her sexuality.

11.Although the applicant’s written claims were extremely scant, the Tribunal found the applicant’s oral evidence entirely consistent, natural, detailed and persuasive.  The applicant’s account of her feelings and life as she developed her sexual identity in Malaysia and her efforts to manage her identity in a culture of prejudice and hostility was direct and unembellished.  The Tribunal also found the applicant’s evidence about her sexuality and her lesbian relationship with her partner spontaneous, profoundly felt, without embellishment and convincing.  The Tribunal formed the view that both the applicant and her partner regard their relationship as committed and on-going.  The applicant’s evidence was internally coherent and consistent with the evidence of her partner.  The Tribunal found the applicant and her witness to be reliable and accepts the evidence of their relationship as credible.

12.The applicant’s written claims for protection are contained in the application forms submitted by the applicant to the Department of Immigration and Border Protection.  The Tribunal has before it the Department’s file relating to the applicant’s application and the Tribunal’s file relation to the review application.  The Tribunal has also given consideration to the delegate’s decision record.

13.The following is a summary of claims and information provided by the applicant in her Protection visa application:

a.She left the country because she is a lesbian and she realised that she cannot live in Malaysia because it is a Muslim country and she is therefore not acceptable.

b.If she returns to Malaysia she will be tortured mentally and physically because she will be surrounded by the Muslim culture.

14.Following the delegate’s decision [in] March 2017 the applicant applied to the Tribunal for a review of that decision. The Tribunal wrote to the applicant on 14 June 2017 inviting her to a hearing on 11 July 2017.  The applicant advised the Tribunal by email that she had a specialist medical appointment on that date.  The Tribunal requested written evidence regarding her appointment from the consulting specialist.  This was not provided, however the applicant attended the hearing and the Tribunal took evidence from the applicant on that date.  Further hearings were conducted on 28 August and 3 October 2017 with the assistance of an interpreter in the Malay and English languages. The Tribunal also took evidence from the applicant’s partner.

FINDINGS AND REASONS

Nationality

15.The Tribunal has sighted a photocopy of the applicant’s passport and accepts she is a national of Malaysia as claimed.

16.The Tribunal finds that the claims should be assessed against Malaysia for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

Material under a public interest non-disclosure certificate

17.There are no non-disclosure certificates on the applicant’s file.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does Australia have protection obligations to the applicant under the refugee criterion?

18.In considering the above issues the Tribunal has had regard to the Department of Foreign Affairs and Trade’s Country Report on Malaysia, dated 19 July 2016.  The Tribunal has also had regard to the applicant’s written application to the Department and her oral evidence before the Tribunal as well as that of her partner.

19.At hearing the Tribunal asked the applicant about the preparation of her Protection visa application.  She explained that she wrote the application herself with the assistance of a friend.  The Tribunal confirmed that she knew what was written and she had no changes to make.

20.The Tribunal discussed the applicant’s background with her. She stated that she was born and grew up in the state of Sabah in Malaysia.  She finished school in [year] and after that attended college in Kota Kinabalu undertaking training as [Profession 1]. She worked part-time while she was studying. She found it difficult to obtain work in [Profession 1] and so she worked in casual positions including in a [shop].  During that time she did some [casual] work. In 2015 she worked as [Occupation 1] in Kuala Lumpur. 

21.When asked why she came to Australia, the applicant became emotional and talked about the harassment and treatment she experienced in Malaysia. She provided details about how she was treated when she went out for example, people yelling at her and bullying her. She said on occasion she was threatened by people and felt intimidated and frightened. When asked why this occurred she said because she’s a tomboy.  The applicant went on to say that she had been in a lesbian relationship for approximately nine years.

22.Through questioning the Tribunal explored with the applicant her early years and growing awareness of her interest in females. She explained that as a child she was always more interested in what was seen to be male oriented games, and toys and because of her appearance she was treated as a boy. She described how at a young age she became aware that she was happier with girls.

23.The applicant talked about her first sexual experiences, which were with her partner in 2008. She confirmed that she had no prior sexual experiences with either females or males.  When questioned about the lateness of this, she talked in a heartfelt way about the difficulty of exploring her sexuality in Malaysia.  The applicant’s oral evidence was that she has had no other partners and has no interest in other relationships.

24.The applicant explained that although she and her partner went to the same school, they reconnected much later when they both were working in a [shop]. She explained that they started to see each other casually and then in May 2008, her partner declared her feelings for her. The applicant described that while feeling excited and happy to hear of her partner’s feelings, she was also anxious and concerned that people would find out. She referred to the societal and family pressure in Malaysia.

25.They continued to live with their own families and because of those pressures they kept their feelings secret. She said they were very fearful because in Malaysia homosexuality is not acceptable and is actually illegal. She added that as she had been harassed and tormented since she was in high school they did not want to reveal their feelings for each other. She explained that she felt like she had been treated like an animal. She would be called names such as hyena, and would be bullied in the playground when she was young, and later she would be stopped by random people when she would was out, laughed at and harassed. She referred to an area she lived where there were devout Muslim followers and most other women wore a head covering.

26.The applicant talked about the relationship with her partner becoming sexual.  Initially, they explored their sexuality in their car, but after police drove past they became very frightened and did not do so again.  They tried to would find opportunities at each other’s homes when family members were out.

27.The applicant also gave evidence about the sort of outings that she and her partner undertook. For example, she referred to them climbing [a mountain] in 2013 with her [relative] and some other friends. She described the restaurants they went to, an excursion to the zoo and an island.

28.The applicant went on to say that her partner moved to Kuala Lumper to undertake study for a [diploma]. They maintained contact by phone and messages and once a year her partner returned to Sabah and occasionally the applicant travelled to Kuala Lumpur. Her partner returned to live in Sabah to assist in the care of her mother when she became unwell. Several months later her partner’s mother passed away.  In 2014, her partner returned to work in [details of workplace] in [a town], near Kuala Lumpur.  At the same time the applicant went to work in Kuala Lumpur for as [Occupation 1]. Although they did not co-habitat, they had more opportunity to spend time together. They would see each other once a week but sometimes once every two weeks depending on her partner’s [work arrangements].

29.The applicant told to the Tribunal that she was the one who initiated the idea that the two of them should come to Australia. She said they did this because they found it very difficult given the societal and family pressure to maintain their relationship in Malaysia. They had to continuously hide it, and as they were getting older there was continuing pressure from their families to find husbands.  The applicant spoke about their inability to reveal the true nature of their relationship and the constantly struggle to act like friends when they were with other people. She talked about the mental and emotional stress that this caused.

Witness Evidence

30.At the hearing, the Tribunal heard testimony from the applicant’s partner. In her evidence the applicant’s partner provided extensive detail which confirmed the details provided by the applicant and the applicant’s account of their relationship, the timing of various events, the sort of outings they undertook and about the family attitudes and societal stresses they endured. The applicant’s witness testified that she also identifies as lesbian, and that they live together as a lesbian couple and have done so since for around nine years.

31.The Tribunal was satisfied the evidence provided by the applicant’s witness and partner was entirely consistent, presented in a straightforward manner, direct and compelling.

Independent country information

32.The Tribunal outlined aspects of the DFAT Country Information Report on Malaysia[1] to the applicant, referring to the fact that while homosexuality is illegal the report states that “the Penal Code offences have infrequently been applied to homosexuals except words application has been politically motivated”.  The Tribunal also referred to DFAT’s assessment that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis but that the level and frequency of discrimination differs depending on socio-economic status, religion and the geographic location of the individual.

[1] DFAT Country Information Report, Malaysia 19 July 2016, page 20.

33.The applicant referred to the deep conservatism of her partner’s family and that aside from the other pressures they had to contend with, this would prevent them from living in a lesbian relationship in Malaysia.  She stated that they would lose their family and friends and would be totally isolated from those they are closest to.

34.The applicant also talked about the fact that she has a very “tomboy” appearance and therefore she would continue to be harassed and bullied and discriminated against in employment. She believes this is one of the reasons she found it difficult to find work in her own professional field.

35.The Tribunal put it to the applicant that living in Australia she already is quite isolated from her family and friends. The applicant expressed her ability to live in a loving and committed relationship with the person she loves in Australia without fear of harm.  She also described the strong feeling of relief that she will not be harmed in Australia because she looks like a tomboy.  She reiterated earlier evidence that as a tomboy she was harassed abused almost on a daily basis and even if she and her partner were in each other’s company, it would be assumed that they were lesbians which made it impossible for them to continue their relationship.

Is there a real chance the applicant would suffer ‘serious harm’ on return?

36.In considering the claims and evidence, the Tribunal must consider whether the applicant’s fears of being harmed on return are ‘well-founded’.  The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason.  In the leading case on the issue, the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’

“… If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin”^:[2].

[2] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

37.The High Court’s decision in Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is ‘well-founded’ and it can be reached even if the event feared is ‘unlikely to occur’ and has only a ‘10 per cent chance’ of occurring, however, the chance of it occurring must be more than ‘far-fetched’ or ‘remote’,[3]  and the evidence must indicate ‘a real ground for believing that the applicant … is at risk of persecution’; a fear ‘is not well-founded if it is merely assumed or if it is mere speculation’[4].

[3] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.

[4] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.

38.The courts have made it clear that ‘proving persecution in the past is not an essential step in an applicant demonstrating that he or she has a well-founded fear of persecution’[5].In the present case, the evidence before the Tribunal does not indicate that the applicant has experienced actual physical harm in Malaysia; however, it accepts that she was forced by legal, religious and cultural reasons to suppress and conceal her sexual orientation in order to avoid harm and, in that sense, she has experienced persecution[6].  In any event, the issue for present determination is whether or not, in all the circumstances, her fears of future harm are well-founded, as understood in the terms set out above.  In this context, the Tribunal has carefully considered the available independent information about the situation for and treatment of homosexuals in Malaysia.  The Tribunal has also had regard to the available information about the situation for transgender people, considering it a relevant factor in the assessment of the applicant’s claim noting her physical appearance and dress, which is masculine, and, in the Tribunal’s view, it is reasonable to assume that she would be viewed by members of the community as a ‘tomboy’, which, together with the Malay word ‘pengkid’, is what the information discussed below refers to as the vernacular in Malaysia.

[5] See Abebe v The Commonwealth (1999) 197 CLR 510 at [192] per Gummow and Hayne JJ.

[6] See Appellant S395/2002 v MIMA (2003) 216 CLR 473.

39.Reports from credible sources including DFAT, the US State Department, Human Rights Watch and Amnesty International, clearly indicate that engaging in ‘homosexual acts’ is a criminal offence in Malaysia punishable by imprisonment and corporal punishment. In respect to relevant law in Malaysia, the Tribunal notes, as put to the applicant at the hearing, that 377D of the Penal Code states that ‘Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years’[7].  This could be used against a woman. However, these provisions of section 377 are not enforced by the authorities, there being seven recorded instances in the past 70 years and 4 of these specifically against Anwar Ibrahim[8].  It has been described that the use of these provisions are highly political in nature and not used in the ordinary course of matters against individuals[9].

[7] Brownell C 2009, ‘Rethinking Malaysia’s sodomy laws’, The Nut Graph, 24 July <CISE1310071713 Also note  References in DIBP Decision, pp 13-15, AAT Folios 2-3

[9] DFAT Country Report, Malaysia, December 2014, 3.67; US Department of State 2015, Country Reports on Human Rights Practices 2014 – Malaysia, 25 June, Discrimination, Societal Abuses, and Trafficking in Persons’ subsection ‘Acts of Violence, Discrimination, and Other Abuses Based on Sexual Orientation and Gender Identity ’

40.Reports also indicate that ‘being homosexual’ is not tolerated by the community generally or any of the religious faiths, and there are reports of men and women being abused, threatened and assaulted for reasons of their sexual orientation.  The US Department of State report on human rights practices in Malaysia for 2015 indicates that Malaysia’s human rights problems include ‘discrimination against lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons’, and that ‘[r]eligious and cultural taboos against same-sex sexual conduct were widespread’[10]  Malaysia’s ‘penal code states that sodomy and oral sex acts are ‘carnal intercourse against the order of nature’, but authorities rarely enforced it.  It was, however, the basis for the controversial case against parliamentary opposition leader Anwar Ibrahim, who has served about six years in prison for ‘engaging in homosexual acts’.  According to information on the DFAT ‘Travel Smart’ website ‘[h]omosexual acts are illegal.  Malaysian law currently provides for whipping and up to a 20-year prison sentence for homosexual acts involving either men or women’[11] .

[10] Country Reports on Human Rights Practices 2015 – Malaysia’, US Department of State, 13 April 2016, available at

[11] Available at  

41.According to DFAT in their July 2016 assessment of protection issued in Malaysia,

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 …

3.94  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.[12]

[12] DFAT Country Information Report, Malaysia, 19 July, 2016.

42.The Human Rights Watch 2016 world report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia, and that discrimination reaches the highest levels of government.’[13] A May 2014 report by the International Gay and Lesbian Human Rights Commission indicates that:[14]

Lesbians, bisexual women, queer and transgender persons (transwomen and transmen), and other gender non-conforming people and communities currently face rising hostility, discrimination and abuses in Malaysia.  They are unprotected by a political system, which is geared towards promoting and imposing a specific vision of Malaysia.

[13] ‘World Report 2016 – Malaysia’, Human Rights Watch, 28 January 2016, available at

[14] ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014, available at

43.That report also refers to lesbians facing physical and emotional violence from family members, verbal abuse or warnings from strangers in public places, and job discrimination, with some employers openly expressing ‘that they did not hire lesbians because they are “trouble”’.  The same report indicates that in Malaysia, ‘[s]yariah laws criminalise Muslims for lesbian sexual relations (musahaqah)’:

“While Malaysia may have inherited the British colonial laws that prudishly criminalise consensual anal and oral sex acts (carnal intercourse) between adults, it is the current State’s identity politics and the institutional strengthening of Malaysia’s Islamization that has witnessed the increasing importance and influence of state-administered syariah (sharia) or Islamic law.  Syariah laws criminalise Muslims for lesbian sexual relations (musahaqah), sex between men (sodomy), sex that is considered “against the order of nature” (liwat), and for “posing” or “impersonating” as the opposite sex (e.g., cross-dressing).  Government representatives actively reject sexual orientation and gender identity issues as human rights issues in various national, sub-regional (such as, at the Association of Southeast Asian Nations/ASEAN Intergovernmental Human Rights Commission) and international fora”

44.In September 2014, a Malaysian lesbian couple were arrested by religious officers during a raid on a budget hotel in in Johor Bahru[15]  Nine officers from the Johor Islamic Religious Department reportedly raided the women’s room as part of a morality raid ahead of the country’s national day.  According to reports, ‘the women were arrested for lesbian sex under section 26 of the state’s Shariah law and taken to a police station for booking, then to the religious department’s office for further action’.  The women ‘could face up to three months in jail, six cane strokes and a fine of RM5,000’.

[15] Wee, D, ‘Malaysia lesbian couple arrested by religious officers in hotel raid’, Gay Star News, 2 September 2014, available at

45.An earlier May 2014 report by the International Gay and Lesbian Human Rights Commission, which uses data collected on violence and discrimination experienced by lesbians, bisexual women and transgender persons in Malaysia between November 2010 and November 2011, provides information on lesbians facing verbal abuse or warnings from strangers in public places, receiving threats and experiencing bullying on the internet, and facing verbal and emotional pressure and physical violence from family members.[16]  The report also includes information in relation to the influence of religion on the treatment of LGBTI persons.  According to the report, ‘the politicization of homosexuality and transgenderism and the use of religion to propagate gender stereotypes in Malaysia have influenced not only the way LBT people view themselves but also the perceptions others have about the LBT community’. 

[16] ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014, at p.33. 

46.With regard to ‘tomboys’ in Malaysia, in September 2014, Human Rights Watch reported that from 2008 to 2010, seven states in Malaysia ‘issued fatwas against “pengkid,” which roughly translates as ‘tomboy’ or ‘masculine woman’.  The fatwas, which have been gazetted in four states, specifically state that women who have a ‘masculine appearance or gestures’ or a ‘male sexual instinct’ are forbidden in Islam’.  The fatwas were reported to ‘exist in Johor, Kedah, Kelantan, Malacca, Pahang, Perak, and Sarawak.  They have been gazetted in Johor, Kedah, Malacca, and Perak’.[17]  The May 2014 report by the International Gay and Lesbian Human Rights Commission also indicates that fatwas had been introduced in Malaysia ‘to prohibit Muslim women from masculine gender expression (i.e. pengkid, butch women or tomboys)’.  According to the report:[18]

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

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”.

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

[18] ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014, at p.33. 

47.The report refers to pengkid facing verbal abuse or warnings from strangers in public places, inappropriate physical contact, and job discrimination.[19]  The November 2012 report on discrimination and inequality in Malaysia by The Equal Rights Trust states that the National Fatwa Council issued a fatwa prohibiting girls from acting and dressing like boys in 2009:[20]

”Similarly, women are in theory free to dress as they wish, but the National Fatwa Council issued in 2009 a fatwa (religious edict) prohibiting girls from acting and dressing like boys, alleging it encouraged homosexuality and violated Islamic teachings.  Under the so-called “tomboy” fatwa, girls cannot have short hair, or dress, walk, or act like boys.  A fatwa is legally binding, although enforcement depends on the Islamic authorities of each state”.

[19] ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Malaysia’, International Gay and Lesbian Human Rights Commission, 6 May 2014 at pp.20, 27 & 30.

[20] ‘Washing the Tigers: Addressing Discrimination and Inequality in Malaysia’, The Equal Rights Trust, November 2012, at p.87, available at

48.The April 2012 alternative report by Malaysian NGOs assessing the government’s progress in implementing CEDAW, indicates that ‘the National Fatwa Council ruled that ‘pengkids, women whose appearance, behaviour and sexual inclination are like men is forbidden in Islam’’ in October 2008.  Among the reasons given for the fatwa was that pengkids were ‘likely to become lesbians’.  According to the report, ‘the Malay term used for tomboy in the fatwa is pengkid, which targets Muslim Malay women and girls with a masculine appearance and/or mannerisms’.  The report also states that ‘similar to the fatwa on female circumcision, the fatwa on pengkids has not yet been gazetted by states in Malaysia so is not considered law.  However, the sentiment is nevertheless concerning, and especially so because it comes from the authority of the National Fatwa Council, which advises Malaysian states’.[21]  An October 2008 article in The Sydney Morning Herald, refers to Malaysia’s National Fatwa Council issuing a ruling which ‘banned females from dressing or behaving like men and engaging in lesbian sex, saying it is forbidden by the religion’, and while ‘The Fatwa Council does not have jurisdiction in civil law … the ruling appears to be an attempt to push female homosexuality towards illegality’[22].

[21] ‘CEDAW & Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s progress in implementing the United Nations Convention on the Elimination of All Forms of Discrimination against Women’, Women’s Aid Organisation, April 2012, p.82, available at ‘Malaysian Fatwa council bans lesbian sex’, The Sydney Morning Herald, 24 October 2008, available at Tribunal also notes, as discussed with the applicant, that a body of evidence exists that shows LGBTI individuals experience varying degrees of tolerance.

1)While the Tribunal notes the law criminalising homosexual acts is rarely enforced, the Tribunal also notes the law has not been repealed and the Tribunal considers the effect of the law and the government’s ongoing public vilification of LGBT people contributes to an environment where homosexuals experience discrimination and harassment and violence 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 reasonably foreseeable future.  Relocation will not alleviate concerns regarding the applicant’s identity and fears.

50.The Tribunal has carefully considered all the information above, and considers that it reflects a changing situation, and a situation which is not uniform across different ethnic or social groups, in particular that the situation for ethnic Malays is different to other ethnic groups of the Malay community, as stricter provisions of Islam were implemented by Islamic police. In this respect, the Tribunal notes that the applicant as a Christian Malay is not subject to Sharia law. The Tribunal also notes that in Malaysia, the applicant last lived in more liberal Kuala Lumpur for a short period, a very mixed city.  However, the Tribunal considers that that information above indicates that the situation for other ethnic groups is not without challenge. The Tribunal noted that political statements have vilified the homosexual community. Overall, in the Tribunal’s view, the above information is consistent with the evidence and argument of the applicant and her experiences in Malaysia and the endemic cultural and societal attitudes towards LGBTI people and related issues.

Findings

51.In the light of the evidence and independent information available to the Tribunal, the Tribunal:

a.accepts the applicant identifies wholly as lesbian that she has not had any relationships with men.

b.accepts the applicant is in an ongoing, genuine relationship with a female partner, and that have lived together in Malaysia and in Australia as a couple.

c.also accepts the applicant lived with her partner in a discreet manner and that she did not disclose the nature of these relationships to anyone.

d.accepts the applicant remained discreet about her sexuality in Malaysia not by choice, or due to the nature of her personality. The Tribunal accepts the applicant feared being harmed if her sexual orientation was discovered, and the therefore the Tribunal accepts the applicant remained discreet due to the threat of harm and in order to avoid persecution.

e.accepts the applicant presents in a ‘tomboy’ manner, dressing in a masculine manner, with short cropped hair.  The Tribunal finds that a modification of her behaviour to avoid a real chance of persecution would conflict with fundamental characteristics of her identities and conceal an innate or immutable characteristic and the true sexual orientation and gender identity.

f.accepts the applicant has experienced abuse and harassment and discrimination from the community arising from her sexuality.

g.accepts that the applicant is expected to marry and is under pressure from her family to do so.

h.having carefully considered the information and evidence before accepts that the applicant is homosexual/lesbian and is in an ongoing, intimate and loving relationship with a woman, and that she wishes to live openly as a lesbian with the woman she loves without having to conceal their relationship or her true identity. 

i.The Tribunal accepts that homosexuals 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.

j.finds that the applicant’s membership of a particular social group, homosexuals, 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 listed in subsection s.5J(5), and that the persecution involves systematic and discriminatory conduct, as required by paragraph s.5J(4).

52.The Tribunal finds there is a real chance the applicant will suffer persecution for reasons of her membership of the particular social group, homosexuals, if she returned to Malaysia, now or in the foreseeable future.

53.Therefore the Tribunal is satisfied the applicant’s fear of persecution in Malaysia is well-founded, and the Tribunal finds the applicant is a refugee as defined by s.5H of the Act.

CONCLUSION

54.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) because the applicant is a refugee, as defined by the Act. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

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

Linda Holub
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.