1700826 (Refugee)

1700826 (Refugee) [2018] AATA 5039 (16 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700826
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Paul Noonan
DATE:16 November 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 16 November 2018 at 4:15pm

CATCHWORDS
REFUGEE – Protection visa – Malaysia – membership of particular social group – homosexual Muslim man – a gay man of Muslim faith who advocates for gay rights – effective State protection is not available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65,499
Migration Regulations 1994, Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
SZFDV v MIAC [2007] HCA 41
SZFDV v MIAC (2007) 233 CLR 51

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 January 2017 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 17 August 2016. The applicant is [an age] year old citizen of Malaysia. He seeks to invoke Australia’s protection obligations so he does not have to return to Malaysia, where he claims to fear harm from the general community on the basis of his homosexuality.
The applicant appeared before the Tribunal on 11 October 2018 in person to give evidence and present arguments and gave sworn evidence to the Tribunal. The Tribunal also received oral evidence from Mr [A] on affirmation.
The applicant was represented in relation to the review by his registered migration [agent]. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail him or herself 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 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.
The issues in this review are therefore whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Migration Act 1958 and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the receiving country of Malaysia, there is a real risk that the applicant will suffer significant harm.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant first arrived in Australia [in] May 2004 on [a temporary visa]. He departed [in] June 2004 and then returned [in] July 2007. Since then he has intermittently travelled [overseas] but has primarily been based in Australia where he has been [studying]. He has provided a Malaysian passport and identifiers and the Tribunal finds that the applicant’s claims are to be assessed on the basis that he is a Malaysian citizen.
The Tribunal considered that the applicant gave his evidence in an honest and forthright manner. The evidence before the Tribunal (in summary) is that:
·The applicant is Muslim and struggled with his homosexuality from a young age. He stated that he suffered from suicidal ideation, anxiety, depression and self-harm from [age] years of age to his late teenage years. He actively sought to hide his sexuality for others and felt panic if others teased him in respect to his sexuality. Between [year range] the applicant studied and completed tertiary studies [in] Malaysia. After completion of these studies the applicant undertook [further] studies [in City 1, Australia] as well as undertaking internships in [another country]. During his studies the applicant began to explore alternative interpretations of the Qur’an including in relation to feminism and later in respect to homosexuality.
·The applicant submitted that he suffered ongoing teasing and abuse from his [sibling] as a result of his homosexuality when he was younger. His broader family were unaware of his homosexuality and as far as he is aware remain so.
·The applicant submitted that in 2002 he was undertaking [certain] work in [another country] and suffered a sexual assault from another man. At that time he was very supressed in respect to his sexuality and was still a virgin. He suffered significant residual trauma from this assault. The Tribunal noted that he subsequently underwent counselling sessions in Australia in relation to this assault and also in respect to dealing with his long term suppression of his sexuality. Before the Tribunal was a letter dated 14 December 2017 from [a] Senior [Counsellor]. [The counsellor] states that the applicant attended 75 sessions between 12 October 2007 and 12 December 2013. The case notes indicate he presented following a traumatic incident. He reported stressors such as family, financial, housing relationship and study issues. It was noted he was depressed in 2013. Before the Tribunal was also a letter dated 18 December 2017 from Ms [A] – [Organisation 1]. Ms [A] states that in 2014 the applicant attended 5 counselling sessions where he disclosed he was a victim of sexual violence in 2002 while [working] overseas. He also spoke about his dilemmas in relation to his Islamic belief system and sexual orientation.
·The applicant submitted that during 2009 he commenced visiting, in a furtive manner (to avoid being seen by other Malaysians or his other [sibling]), venues such as [a named venue] in [City 1] for the purpose of having sex with other men.
·The applicant stated that since his counselling he has become more comfortable with his sexuality. He has then had his first meaningful sexual relationships and also began advocacy and community activities with a particular focus around the intersection of sexuality, race and religion. The Tribunal noted that Mr [A] gave evidence that he was in a sexual relationship with the applicant for a period of time in 2014 and that he is now a housemate of the applicant. Mr [A] also stated that he has lately witnessed the applicant become increasingly involved in LGBTI advocacy activities and also become more comfortable with is sexuality.
·The applicant noted the following relevant advocacy activities (amongst other activities specifically in respect to racism). He undertook an emerging cultural leader program in [2014]. In 2015 he was a committee member for [an LGBTI event]. In January 2018 he facilitated [panels related to ethnic LGBTI members] at [a] [conference]. The Tribunal noted that a report about proceedings at this conference noted that a session was held about queer Muslims.[1] The applicant noted that in early 2018 he was awarded a fellowship with [Organisation 2]. He intends to use this fellowship to assist him in developing his campaigning skills to become actively engaged in advocacy around the intersection of race, religion and sexuality. He has also written and performed a [play]. The play is based on his experiences as a gay Asian and his conversations with other gay Asians. The play ran at [a] Festival in 2018. The Tribunal noted this play appears on the [Festival] website.[2] The play is being further developed for performance at [another gay] Festival. The applicant also submitted that he is trying to establish an interfaith queer organisation as an alternative to [name deleted] (a [City 1] social support group for LGBTI people from Muslim backgrounds). The applicant stated that he has been reluctant to attach his name to LGBTI activities in the digital sphere as he retained a fear of the consequences of people in Malaysia knowing of his activities due to the open possibility he may have to return there.
·The Tribunal noted that the applicant also submitted several character references. [A named person] from [Organisation 2] wrote the applicant was awarded a fellowship based upon recommendations of his previous voluntary work over many years in campaigning for the rights of the LGBTQIA+ community, people of colour, recent migrants and asylum seekers. She was impressed in his interview by his commitment to community organising and campaign work. She also mentioned a workshop the applicant has developed dealing with the intersection between racism, LGBTQIA+ and gender disadvantage which showed his lived experience of being a queer Muslim. She also mentions attending the applicant’s play [which] she states clearly demonstrated the applicant’s passion and dedication for increasing the rights and inclusion of LGBTQIA+ people of colour. She noted the play is to be performed again at [another] Festival. In addition Mr [B] – Executive Director [Organisation 3] wrote a letter confirming the applicant’s was involved in their national LGBTIQ conference from July 2017 to January 2018. He then coordinated panel discussions focusing on LGBT people of colour and LGBT Muslims. The applicant is noted as speaking about being a gay Muslim. Further the applicant was recently elected as a committee member to [another oganisation]. Mr [B] also noted he was aware of the applicant’s plan to establish a queer inter-faith support group in [City 1] and that [Organisation 3] planned to assist him in this endeavour. Further [a named person] from [another organisation] wrote a letter of support for the applicant noting his history of consistent attendance of project events in respect to LGBT people of colour with a particular focus on queer Muslims and Asians.
·[The] Co-Chair – [ORGANISATION 4][3] also wrote on behalf of the applicant in a letter dated 9 October 2018 that he verifies that the applicant attended a meeting in July 2012 as a guest speaker [with] a particular focus on his experiences as a queer Malaysian Muslim male. Accompanying this letter was [an ORGANISATION 4] information bulletin from July 2012 setting out this program of discussion.
[1] [Source information deleted].
[2] [Source information deleted].
[3] [Source information deleted].
On the basis of the above evidence the Tribunal accepted that the applicant is a homosexual Muslim man who is committed to advocacy and assistance for the rights of LGBTI people of colour and Muslim LGBTI people. Further that the applicant has undertaken relevant training and study with a view to furthering his activities in this area.
The applicant fears being socially isolated, bullied and alienated from his friends and family and discriminated against by his family and harmed by society generally if he returns to Malaysia due to him being a gay man of Muslim faith who advocates for gay rights. He states that homosexuality is illegal in Malaysia and that the State Islamic Department and Royal Malaysian Police conduct raids targeting known gay locations and he fears being caught in such a raid, harassed, and potentially prosecuted, fined and whipped.
The Tribunal had regard to the information contained within the Department of Foreign Affairs and Trade Country Information Report (19 April 2018 (Version 2)).
Sexual Orientation and Gender Identity
3.115 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 and/or caning. Authorities infrequently apply the Penal Code offences to homosexuals, although they are sometimes selectively applied (see Political Opinion (Actual or imputed)).
3.116 The Malaysian government has in the past openly criticised lesbian, gay, bisexual, transgender or intersex (LGBTI) people. 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’. The National Department for Islamic Development (JAKIM) claimed it opposed discrimination against LGBTI people, but also produced a video claiming homosexuality could be ‘cured’.
3.117 The police and judiciary have banned public demonstrations of support for the LGBTI community. In 2017, authorities initially banned Walt Disney Studio’s live action version of ‘Beauty and the Beast’ for an alleged ‘gay scene’, but backed down when Disney refused to censor the scene. In September 2017, the Malaysian immigration department declared that foreign organisers or participants in ‘gay parties’ would be denied entry into Malaysia. In 2013, the Malaysian Court of Appeals upheld a ban on a sexuality rights festival that had run annually between 2008 and 2010. The grounds for the ban in 2011 were ‘public disorder’. Since 1994, authorities have banned homosexual, bisexual, transsexual and transgender individuals appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.
3.118 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. In 2017, the Ministry of Health ran a video competition on ‘Adolescent Sexual and Reproductive Health’ and sought entries on ‘gender confusion’, including the ‘prevention’ of homosexuality and transgenderism. LGBTI activists and sections of the public strongly criticised the competition. The government responded by revising competition guidelines, including relabelling the category to ‘gender and sexuality’. The LGBTI community reports increasing targeting, due to rising conservatism.
3.119 Some state governments went beyond the educational measures supported by the federal government. The Terengganu government has run a ‘re-education boot camp’ or ‘behaviour corrective program’ in Besut for effeminate teenage males since 2010, to which boys selected for effeminate behaviour were sent for physical training and religious and motivational classes. The then 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. Private centres offering ‘treatment’ through religious counselling also exist.
3.120 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 LGBTI individuals differs according to their socio-economic status, religion, geographic location and degree of openness. Some well-educated urban Malaysians of high socio-economic status can be open about their sexuality within their family and social circles. For others, previous societal acceptance of certain roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events, have largely disappeared. Many LGBTI individuals, especially Muslims, hide their identity to avoid harassment.
In 2018 Human Rights Watch reported that discrimination against lesbian, gay, bisexual, and transgender (LGBT) people is pervasive in Malaysia. Violence against LGBT people was highlighted by the murder of transgender woman Sameera Krishnanin in February 2017 and the rape and murder of T. Nhaveen, 18, whose assailants taunted her with anti-LGBT slurs, in June 2017.
In 2018 a top-selling Malay language daily newspaper published an article on how to identify gays or lesbians was published in a top-selling Malay-language daily newspaper. As reported by DFAT, various government initiatives discriminate against sexual minorities, while government ministries campaign against LGBTI through education and media outlets. In June 2017, the Ministry of Health announced a contest inviting participants to submit video clips outlining how to prevent homosexuality and transgenderism.
Sharia law (known as Syariah law) in each state criminalises sexual relations between people of the same sex and prescribes jail, fines and whipping as the punishment for sexual relations between men. The applicant is a Muslim and therefore would be subject to prosecution or penalties under these laws.
The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBT people, providing an environment for societal discrimination and harassment and violence against LGBT people in Malaysia[4]. Older articles note that the Penal Code laws, whilst rarely used, hang over the heads of the LGBTI community and are available as a tool to intimidate, harass, extort and exploit them.[5] More recently, a panel of journalists and activists discussing hate crimes against the LGBTI community has concluded that rising Islamisation in the country was leading to growing intolerance and increased hate crimes, and it was said that LGBTI people faced increasing persecution on a daily basis, and that harm on the basis of religious beliefs overstepped the Federal Constitution and its protections.[6] The UN special rapporteur on physical and mental health reported in 2015 that ‘discriminatory societal attitudes towards LGBT persons prevail in Malaysia and have been exacerbated over the past few decades by the use of a stigmatizing rhetoric by politicians, public officials and religious leaders, and that the criminalization of same-sex conduct and of different forms of gender identity and expression has reinforced negative societal attitudes and has led to serious human rights violations of the rights of this group of the population, including significant barriers in access to health care.’[7] Recently two women were caned in Terengganu in public for attempting to have sex together in violation of the Sharia laws in place in that state.[8] The Tribunal noted Malaysian Prime Minister Mahathir Mohamad stated that these women should have been shown compassion.[9]
[4] US Department of State, “Malaysia 2014 Human Rights Report”; OutRight Action International, Malaysia must recognize and stop hostilities towards LGBT people”, International Gay and Lesbian Human Rights Commission, “Violence: Through the lens of lesbians, bisexuals women and trans people in Asia”, May 2014.
[5] Lim S.H. 2007, “No sex party going on at Penang fitness centre, say those arrested‟, Fridae website, 22 November
[6] Mei Lin, M., 2016, “Growing intolerance of LGBTIQ community due to Islamisation, forum told”, Malay Mail Online, 21 August,
[7] UN Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Addendum : Visit to Malaysia (19 November–2 December 2014), 1 May 2015, A/HRC/29/33/Add.1, available at: 5 October 2017]
[8] BBC News, LGBT rights: Malaysia women caned for attempting to have lesbian sex, 3 September 2018,
[9] type="1">
The Tribunal was satisfied that laws criminalising LGBTI behaviour are discriminatory in that they only apply to and adversely impact upon LGBTI people and, as such, they are not laws of general application, and that the enforcement of these laws amounts to persecution.
In regard to recent developments the applicant’s representative drew the Tribunal’s attention to the following items of relevance after the hearing:
·On 25 October 2018, the Malaysian Prime Minister Mahathir Mohamad was reported on Channel NewsAsia as stating the following:
"At this moment, we do not accept LGBT but if they (the West) want to accept, that is their business. Don't force it on us," the 93-year-old told a packed audience at Bangkok's Chulalongkorn University during the second day of his state visit to Thailand.
"The institution of marriage, the institution of the family has now been disregarded in the West. Why should we follow that? Our value system is as good," he added.
"If they (the West) one day decided to walk around naked, do we have to follow?"[10]
[10] 23 October 2018 the New Straight Times reported that the leader of the opposition UMNO Mr Datuk Seri Ahmad Zahid Hamidi stated as follows:
KUALA LUMPUR: Umno president Datuk Seri Ahmad Zahid Hamidi said the recent earthquake that hit Palu, Indonesia was God’s punishment for the immoral activities committed by the Lesbian, Gay, Bisexual, and Transexual (LGBT) community there.
While raising a supplementary question, Zahid (BN-Umno-Bagan Datuk) said he heard claims that the calamity at Palu was due to the involvement of over 1,000 people in the immoral LGBT activities.
“The incident in Palu, it was said that over 1,000 people were involved in the (LGBT) activities and the area was hit (by the disaster). This is a punishment from God.
“I would like to ask, as part of Malaysian Islamic Development Department’s (Jakim) tasks to implement the Mukhayyam outreach programme to help the LGBT community, on steps taken by the government agencies and other states on this issue.
“How effective are such programmes, so that we can avoid similar punishment from God,” he said.
He was putting forward a supplementary question to Minister in the Prime Minister’s Department Datuk Seri Dr Mujahid Yusof Rawa during Question and Answer at the Dewan Rakyat today.
Mujahid said that the LGBT situation in Malaysia was under control thanks to the success of the Mukhayyam programme where some of its participants had made efforts to change their physical appearances to reflect their gender at birth.
“There are LGBT members, who despite appearing physically different than their gender at birth, are making efforts to leave deviant activities and adhere to the basic teachings of the religion such as performing the daily prayer,” he said.
On a supplementary question from Nik Nazmi Nik Ahmad (PH-PKR-Setiawangsa) that people should not be too hasty in passing judgments and jumping into conclusion by claiming that natural disaster was a result of a divine punishment, Mujahid agreed that people should not take the easy way out to explain such things.
While admitting that any natural disaster will not occur without the will of Allah as how it happened to Prophet Lut’s people as told in the Quran, Mujahid said he rejected the idea of passing judgements and taking the natural disaster as a form of divine punishment.
“What we need to do now is find ways to curb (LGBT activities) as part of our collective responsibility,” he said.
·A report in The Diplomat on 22 February 2017 discussed in part the activities of Malaysia’s religious police:
False and inaccurate denunciations are a recurring pattern, a particularly concerning trend given the authority of Malaysia’s religious officers, who investigate violations of the sharia code. “Their powers are similar to that of a police investigating a civil offense, i.e murder,” according to Malaysian lawyer Fahri Azzat.
The religious police are not only looking for espoused lovers in hotels and homes. Among the offenses that breach the sharia code is pre-marital sex or extra-marital sex, alcohol consumption, not fasting during Ramadan, or not attending mosque on Fridays. The agents also persecute Shiite Muslims as well as homosexuals and transsexuals, who are considered men who “dress or act” as women.
Islam in Malaysia has become more conservative in recent years and the reach of hardline religious authorities is increasing. Fatwas (the rulings of religious scholars) have taken on all the force of law. In many cases, religious officials take media with them on their morality raids and video footage, including the faces and personal information of suspects, is broadcast on national television.[11]
[11] >
The Tribunal considers that the criminalising of behaviour related to same sex relationships, and the ongoing anti-LGBTI sentiments of political, religious leaders, media outlets and throughout society in Malaysia provides an environment that effectively legitimises discrimination, harassment and intolerance against all LGBTI people in Malaysia. The Tribunal finds that the harassment, intimidation, discrimination, vilification and potential for violence raised in the country information may reach the level of serious harm, especially on a cumulative basis, amounting to significant physical harassment or significant physical ill-treatment. In the applicant’s case the Tribunal considered his history of advocating for the rights of Muslim LGBTI people increases the risk of harm to him. The applicant gave evidence that his identity and sense of self is intrinsically linked to this advocacy work. The applicant fears being socially isolated, bullied and alienated and discriminated against by society generally if he returns to Malaysia and he also fears being caught in raids, harassed, and potentially prosecuted, fined and whipped.
According to s.5J(5) of the Act, serious harm includes:
(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.
The applicant fears harm in the form of harassment, discrimination, public humiliation, social isolation and prosecution and being exposed to penalties including extended jail time, fines and whipping. The potential persecutor is society in general and the State of Malaysia, represented by the State Islamic Departments and the Royal Malaysian Police force.
If the applicant were to return to Malaysia and live as a gay man with a public history of advocacy in Australia, and who’s identity the Tribunal accepts is intrinsically linked with advocacy for the rights of Muslim LGBTi people, the Tribunal is satisfied that the applicant faces ongoing discrimination and harassment from members of his community (such as social exclusion, public humiliation, discrimination in employment and social isolation) and also from authorities of the State (such as significant physical harassment by sporadic and unpredictable police raids, possible prosecution and punishment in the form of jail, fines and whipping).
The Tribunal finds that the persecution the applicant fears, (including social isolation, alienation, bullying, public humiliation, discrimination and potential prosecution, imprisonment, fines and whipping) involves serious harm.
The Tribunal found 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 this characteristic with the identified group; and the characteristic is an innate or immutable characteristic and is so fundamental to the members’ identity or conscience, the member should not be forced to renounce it; and the characteristic distinguishes the group from society and is not a fear of persecution.
The Tribunal is satisfied that the applicant is a member of the particular social group of homosexuals in Malaysia and that the provisions of s.5L of the Act are satisfied.
The applicant’s membership of that particular social group is the essential and significant reason for the persecution he fears.
The country information suggests that gay men and women (and those who identify as transgender) are targeted for censure and discrimination throughout Malaysia, though there is some variance between the enforcement of the law itself due to socio-economic status and a range of social attitudes, particularly in more urban environments.[12] The persecution the applicant fears in the form of bullying, harassment and discrimination in the loss of his employment, prosecution and penalty including caning, fines and imprisonment, involves systematic and discriminatory conduct, targeting him because of his sexuality.
[12] DFAT Country Information Report, Malaysia 19 April 2018 at 3.120
The applicant gave evidence that if he were forced to return to Malaysia, he may try to hide his sexuality out of fear, not from any personal choice to do so. He noted that he has long struggled with mental anguish and illness trying to reconcile his sexuality with his Muslim upbringing and teachings. It is only recently that he has achieved some peace in this regard. If he held no fear he would return to Malaysia to live as a gay man and provide support services and advocacy services for other LGBTI people. The Tribunal is satisfied that he would choose to act discreetly on returning only because of the fear of being ostracised, harassed, subject to discrimination, being arrested and prosecuted if he did not. In SZFDV v MIAC[13] , the High Court emphasised that:
It would not be a “reasonable” adaptation of the behaviour of an applicant … to expect the applicant to return to the country of nationality and to abdicate, or repudiate, a fundamental right of the kind included in the list of Refugees Convention-related grounds of “persecution”. SZFDV v MIAC (2007) 233 CLR 51 at [33] per Kirby J referring to Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40] per McHugh and Kirby JJ, and at [80] per Gummow and Hayne JJ.
[13] [2007] HCA 41; 233 CLR 51; 81 ALJR 1679; 237 ALR 660; 97 ALD 27
The Tribunal also notes the provisions of s.5J(3) of the Act, which states that 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 his or her receiving country. The applicant has indicated that he may take steps to hide his sexuality if he was forced to return to Malaysia given his long history of mental anguish in regard to his sexuality and the fear of harm he harbours. However, s.5J(3) specifically excludes as unreasonable any modification that would (amongst others) conflict with a characteristic that is fundamental to the person’s identity or conscience, conceal an innate or immutable characteristic of the person, or require the person to alter his or her sexual orientation or gender identity or to conceal his or her true sexual orientation, gender identity or intersex status.
The Tribunal finds that, although the applicant would choose to modify his behaviour if he returns to Malaysia, he would be doing so only to avoid persecution and in doing so, would be required to conceal an innate characteristic and his true sexual orientation.
The Tribunal accepts the country information indicating social stigma and discrimination based on sexual orientation is widespread in Malaysia and prevents open discussion about sexuality, and that many LGBTI individuals still hide their identity to avoid physical harm and harassment, including from family members. Taking account of the country information and the circumstances of the applicant, the Tribunal is not satisfied that the State is willing to offer effective protection measures to the applicant, nor is the Tribunal satisfied that he would be able to access effective protection measures if returned to Malaysia now or in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution exists throughout Malaysia, and that adequate and effective State protection is not available to the applicant anywhere in Malaysia.
The Tribunal finds that the applicant faces a real chance of being persecuted as a gay Muslim man, with a history of advocacy for the rights of Muslim LGBTI people, if he were to return to Malaysia, regardless of where he was to live. The risk relates to all areas of the country, because laws prohibiting anal and oral sex and Syariah laws prohibiting sexual relationships between men apply throughout the country; and the State of Malaysia, represented by its State Religious Departments and Royal Malaysian Police Force, is one of the principal perpetrators of persecution.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Paul Noonan
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.

[2018] AATA 5039

16 November 2018

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