1704734 (Refugee)

[2020] AATA 1214

1704734 (Refugee) [2020] AATA 1214 (14 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704734

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Paul Noonan

DATE:14 January 2020

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 14 January 2020 at 12:13pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – married ethnic Malay Muslim women with children in extra-marital LGBTI relationship in Malaysia – anti-LGBTI sentiments in Malaysia – sexuality hidden from family and friends – fears harassment, discrimination, public humiliation, social isolation, prosecution – Sharia law – state protection not available – relocation in home country not feasible – credible witness – decision under review remitted

LEGISLATION          
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
SZFDV v MIAC [2007] HCA 41

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 and Border Protection on 9 March 2017 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 on 28 October 2016. The delegate refused to grant the visa on the basis there was no information to suggest the applicant would be targeted on her return to Malaysia for one or more of the reasons mentioned in s.5J(1)(a) of the Act. In relation to the complementary protection criterion, the delegate found that being depressed and facing “emotional uncertainty” due to being tricked by a migration agent did not constitute a real risk the applicant would suffer significant harm.

   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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether she is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit of such a person. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Country of nationality

10. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. The applicant has always represented herself to be a Malaysian citizen in her dealings with the Department. The Tribunal finds that the applicant’s claims are to be assessed on the basis that she is a Malaysian citizen.

    The applicant’s personal background

11. In her protection visa application, the applicant stated she is a citizen of Malaysia, born in Pahang on [a certain date]. She stated that she is of the Malay ethnic group, belongs to the Islamic faith, and speaks, reads and writes Malay and English. She indicated she has never been married or been in a de facto relationship. The applicant declared she worked as an [Occupation 1] from 1999 to 2007 and a [Occupation 2] from 2007 to 2016, both in [location], Malaysia. She indicated she first arrived in Australia [in] September 2016 on a [temporary] visa, having departed Malaysia legally. She did not declare any family members in or outside Australia in her application.

    Claims for protection

12. The applicant’s claims from her protection visa application are summarised as follows:

    ·    She is the eldest child and does not “have enough money to cover my family in Malaysia”.

    ·    She was tricked into applying for a [temporary] visa by a migration agent.

    ·    She now owes a bank a lot of money and has been “blacklisted”.

    ·    She explains that the harm she has received involves feelings of depression and “emotional uncertainty”.

13. The applicant was not offered a Protection visa interview with the Department and did not raise any further written claims for protection at the Department or Tribunal level.

14. The applicant attended a hearing at the Tribunal on 3 December 2019. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. The Tribunal also heard evidence from the applicant’s partner, [Name]. The applicant was not represented at the hearing. During the course of the hearing the Tribunal also took evidence from the applicant’s children in respect to each of their own separate claims for protection. Each of these claims has been decided upon separate to the applicant’s claim.

15. The Tribunal raised the applicant’s written claims for protection with her at the outset of the Tribunal hearing. The applicant confirmed that she has abandoned her written claims for protection. She noted that her written claim had been done by a friend on her behalf and she had not seen what was written. She just paid some money to the person and signed where she was told. She wanted to stay in Australia longer legally so she just signed it. 

16. The applicant stated that she is married to a man who lives in Malaysia. She has had an affair and is afraid of the reaction to this in Malaysia. Until it was directly put to her (after the Tribunal had spoken to her witness partner) the applicant continued to maintain the impression that her partner was a man. It became apparent upon taking separate evidence from her declared partner that her declared partner is a woman.

17. Subsequently the applicant and her partner separately confirmed that they are conducting a sexual relationship in Australia. The Tribunal spoke to the applicant and her partner separately and was satisfied that the history of their relationship correlated. In respect to her children the applicant gave evidence that her husband had brought them to Australia where he believed she was working and left them with her.

18. The Tribunal found the applicant’s reticence to identify and discuss the true reasons for her concerns in respect to potential harm to her in Malaysia to be consistent with her conservative background as an ethnic Malay Muslim woman. The Tribunal found her story of how she, by chance encounter, started a lesbian, gay, bisexual, transgender or intersex (LGBTI) - affair to be convincing and accepted that she was likely always homosexually orientated but never had a prior opportunity to express her sexuality. She gave evidence that the affair ceased for a while and her partner had moved to Australia. She had eventually been unable to bear her life in Malaysia and had left her family in Malaysia to seek out her partner in Australia. Her partner had subsequently been amenable to resuming their relationship. She gave evidence that they now live a quiet life in [Town 1] and are conservative in how they present themselves to the local community, however, they suspect people know their status as a couple. She gave evidence that she believed she would not be able to maintain this relationship if she returned to Malaysia because Malaysian society and her family and friends would not accept it. No one knows about her sexuality in Malaysia. If they found out her family may wish to kill her. She is very scared of anyone finding out. She would be very unhappy in this situation. She would not resume living with her husband. Her husband would not accept the children and life would be very hard for her. She is financially dependent on her partner for support.

19. Overall the Tribunal found the applicant and her partner’s evidence and their general presentation to be delivered in a highly credible manner, such that the Tribunal accepts that the applicant is a married ethnic Malay Muslim woman in an extra-marital LGBTI relationship. The applicant fears being socially isolated, bullied and alienated from her friends and family and discriminated against or physically harmed by her family and harmed by society generally if she returns to Malaysia due to her being a married ethnic Malay Muslim woman in an extra-marital-LGBTI relationship.

20. The Tribunal had regard to the information contained within the latest Department of Foreign Affairs and Trade Country Information Report for Malaysia (13 December 2019).

    Sexual Orientation and Gender Identity

    3.130Adult same-sex acts are illegal regardless of age and consent. Article 377A of the Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration), which Article 377B penalises with imprisonment of between five and twenty years, along with whipping. Numerous state-level syariah-based laws also prohibit both same-sex relations and non-normative gender expression. While cross-dressing is not technically illegal under civil law, state-level police have arrested transgender women under the Minor Offenses Act (1955) for public indecency and immorality, or (where applicable) under syariah-based law for impersonating women. A case in 2005 in which a transgender individual was permitted to change their name, sex marker, and related last digit on their identity card has not acted as a precedent in subsequent cases, and the National Registration Department does not generally allow transgender people to access such changes. In 1983, the National Fatwa Council banned Muslims from undergoing sexual reassignment surgery (SRS). Neither SRS nor transition therapy are available in Malaysia.

    3.131The former government was strongly opposed to the ‘promotion’ of lesbian, gay, bisexual, transgender, and intersex (LGBTI) issues, and had committed to a five-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. Key elements of the action plan included rehabilitation programs for LGBTI individuals (discussed in this section), prevention seminars for parents and students, and enforcement of laws and policies prohibiting the ‘public glamorisation of the LGBTI lifestyle’, including through restricting the online space for LGBTI activities and individuals (see Media). Despite the general improvement in the human rights climate resulting from the change of government in May 2018, in country sources report that LGBTI issues remain sensitive. The new administration has been unwilling to engage with LGBTI advocacy groups or to consider any substantial changes in its approach to LGBTI issues, including through its rhetoric. In September 2018, for example, Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’, while in March 2019 the Tourism Minister responded to a question about whether Malaysia would welcome gay foreign tourists by denying the existence of gay people in Malaysia. An aide reportedly later clarified that the minister was echoing the government’s stance that LGBTI individuals were not officially recognised in the country.

    3.132Malaysia does not have a national organisation committed to progressing LGBTI rights, but a loose coalition of NGOs and individuals reportedly works to advocate such rights within the framework of broader human rights advocacy. Longstanding official opposition towards the promotion of LGBTI issues in public spaces, which has continued under the new government, has hampered the effectiveness of such advocacy. Authorities have banned homosexual, bisexual, transsexual and transgender individuals appearing on state controlled media since 1994, while media censorship rules ban movies or songs that promote the acceptance of same-sex relationships. In 2017, authorities initially banned a Disney live action production of ‘Beauty and the Beast’ for an alleged ‘gay scene’, but backed down when Disney refused to censor the scene. In August 2018, the Minister of Religious Affairs ordered the removal of photos of Malaysia’s most prominent transgender activist and another LGBTI activist from an exhibit in Penang celebrating influential Malaysians on the grounds that the exhibition was in breach of the government’s policy to not promote LGBTI activities. In March 2019, the Minister for Religious Affairs criticised the participation of LGBTI groups at an International Women’s Day march as a misuse of democratic space.

    3.133JAKIM and other state religious authorities have occasionally conducted raids on LGBTI events (similar raids reportedly target unmarried heterosexual couples and those suspected of other ‘non-Islamic behaviour’). In August 2018, for example, authorities raided a Kuala Lumpur nightclub known to be popular among the LGBTI community, detaining twenty men. JAKIM subsequently ordered the men to undergo counselling for ‘illicit behaviour,’ while a government minister released a statement hoping that, the raid would ‘mitigate the LGBTI culture from spreading in our society’. While the majority of such raids have occurred in public places, state religious officials have also reportedly conducted raids on private premises on occasion, sometimes accompanied by members of the RMP. In-country sources have suggested that authorities conduct such raids as a means of creating income through extorting or blackmailing those targeted.

    3.134The most prominent legal case in recent times involving prosecution under Article 377A was that of prominent political figure Anwar Ibrahim, who was twice convicted of sodomy in 1999 and 2015 trials widely regarded as being politically motivated. Anwar received a royal pardon and was released from prison in May 2018. Other prosecutions in relation to LGBTI activities have not been common. When they have occurred in recent times, they have been in relation to state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to be given six strokes of the cane and pay a fine of RM 3,300 (AUD 1,100) after convicting them of allegedly attempting to have sexual intercourse. The caning, which was carried out in a courtroom in front of 100 witnesses, was reportedly the first such sentence to be ordered in relation to an LGBTI-related case since 2010. In November 2019, the Selangor Syariah High Court convicted five men under syariah-based statutes for attempting to conduct sexual relations ‘against the order of nature’ in a private apartment 12 months earlier. The court sentenced four of the men to six months’ imprisonment, six strokes of the cane, and a fine of RM4,800 (AUD1,700), while the fifth man received a sentence of seven months’ imprisonment, six strokes of the cane, and a fine of RM4,900 (AUD1,730). Human rights observers criticised the punishments as a breach of human rights, and noted that the presiding judge had made numerous prejudiced remarks during the case that were unrelated to the facts in issue.

    3.135As earlier noted, authorities at federal and state level have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs organised by JAKIM since 2011. The Minister’s comments came while launching a JAKIM e-book guide called ‘Self Transitioning from Homosexuality’, which remains available for download in the Google Play Store application. In-country sources report that the JAKIM rehabilitation programs are located in residential locations within neighbourhoods, with participants segregated by sex and subject to curfews. The programs reportedly teach participants how to pray, give them spiritual coaching, and ‘reeducate’ them about their sexual identity. The federal government also reportedly runs seminars for non- LGBTI students, parents, and volunteers to equip them with knowledge on ‘the psychosocial, psychological, and psycho-spiritual needs and health of the LGBTI community’.

    3.136A number of state governments also run re-education programs for LGBTI individuals. The Terengganu government has reportedly 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; while the Negeri Sembilan Religious Affairs Department reportedly held a two-day camp as part of the state’s ‘Action Plan Against Social Ills of LGBT 2017-2021’. The Selangor State Government also reportedly offers inducement payments to members of the LGBTI community to undergo treatment by any institution, Muslim NGO or group that can ‘liberate, manage, protect, treat, and rehab [the] community’. In addition to the programs run by official bodies, a number of private centres also reportedly offer ‘treatment’ to LGBTI individuals through religious counselling. In country sources report that some parents elect to send their children to official or private re-education centres for reasons other than identifying as LGBTI, including in cases involving sex before marriage or drug abuse.

    3.137In-country sources have reported that authorities will only permit LGBTI individuals who have HIV/AIDS to access medical treatment if they can demonstrate that they have ‘transitioned back to heterosexuality,’ through a re-education centre or otherwise. DFAT is unable to comment on the veracity of this claim.

    3.138There is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. As noted in Media, authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI. Most of the recent cases of societal violence against LGBTI individuals of which DFAT is aware relate to violent attacks on transgender women, who tend to be more readily visible. In August 2018, eight men violently abused a transgender woman in Negeri Sembilan state, resulting in broken bones, and internal, head and back injuries. In December 2018, a group of five people aged between 16 and 21 years of age violently attacked and killed a transgender woman in Klang (outside Kuala Lumpur); while in January 2019 police arrested a 55 year old man in the same location in relation to the death of a transgender woman who reportedly fell from a moving vehicle. DFAT is not aware of the status of prosecutions in either case.

    3.139In-country sources report that their increased visibility makes transgender individuals particularly vulnerable to being subjected to raids by religious authorities and subsequently placed in re-education centres. Transgender women are held in male custodial facilities, and numerous human rights organisations have reported allegations that state religious officials, corrections officers, and fellow detainees have subjected transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are also reportedly denied access to public education upon transitioning, and often avoid seeking medical treatment in public hospitals due to the requirement that they be placed in male wards. The strict segregation between sexes in mosques means transgender women who are Muslim are also often precluded from accessing places of worship.

    3.140The level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah. Most transgender individuals from Sarawak and Sabah reportedly relocate to Kuala Lumpur for employment (almost exclusively in the private sector) and to escape discrimination.

    3.141DFAT assesses that LGBTI individuals face a moderate risk of both official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. Some of these risks are higher for transgender individuals, and for those located in poorer and rural areas.

1. DFAT also reports at in respect to State Islamic Religious Departments that:

   5.9 Religious enforcement officers, known locally as religious police, have a range of powers that vary depending on the particular syariah-based laws that apply in each state. Section 72(2) of the Constitution grants states the authority to define crimes and punishments for Muslims in matters that are not covered by federal law. Religious enforcement officers can detain and charge individuals to go before syariah courts for a range of reasons, including indecent dress, alcohol consumption, the sale of restricted books, or close proximity to members of the opposite sex. State-level syariah-based law imposes a range of penalties (see Judiciary). Although state religious officers have no jurisdiction over non-Muslims, their considerable range of powers mean their actions can directly impact on non-Muslims, who may (for example) feel compelled to comply with Islamic dress codes.

   5.10    Relevant state religious departments or the RMP can investigate misconduct by religious enforcement officers, but the RMP is reportedly generally unwilling to involve itself in state religious matters. Most complaints against religious enforcement officers relate to mistreatment of people who identify as transgender, domestic violence victims  in June 2017.

2. In 2018 an article on how to identify gays or lesbians was published in a top-selling Malay-language daily newspaper.[1] As reported by DFAT, various government initiatives discriminate against sexual minorities, while government ministries campaign against LGBTI  transgenderism.

   [1] >

   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 women. The applicant is a Muslim and therefore would be subject to prosecution or penalties under these laws.

3. The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBT people, providing an environment for societal discrimination and harassment and violence against LGBT people in Malaysia[2]. 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.[3] 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.[4] The UN special rapporteur on physical and mental health reported in 2015 that ‘discriminatory societal attitudes towards LGBTI 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.’[5] 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.[6] The Tribunal notes Malaysian Prime Minister Mahathir Mohamad stated that these women should have been shown compassion.[7] 

   [2] 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.

   [3] Lim S.H. 2007, “No sex party going on at Penang fitness centre, say those arrested‟, Fridae website, 22 November

   [4] Mei Lin, M., 2016, “Growing intolerance of LGBTIQ community due to Islamisation, forum told”, Malay Mail Online, 21 August,

   [5] 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]

   [6] BBC News, LGBT rights: Malaysia women caned for attempting to have lesbian sex, 3 September 2018,

   [7] >

   In respect to the recent change in government, the Tribunal notes that 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?"[8]

   [8] >

   On 23 October 2018 the New Straits 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.[9]

   [9] >

   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.[10]

   [10] >

   The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

4. 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. 

5. If the applicant were to return to Malaysia and live as a married ethnic Malay Muslim woman with children in a LGBTI relationship with her partner and against the wishes of her husband and family the Tribunal considers that her case is likely to become widely known within Malaysian society for breaches of Syariah law. Accordingly the Tribunal is satisfied that the applicant has a well-founded fear of persecution, as she faces ongoing discrimination and harassment from members of her community and family (such as social exclusion, public humiliation, discrimination in employment and social isolation) and also from authorities of the State, including the religious police (such as significant physical harassment by sporadic and unpredictable police raids, possible prosecution and punishment in the form of jail, fines and whipping). 

6. The Tribunal considers that the criminalising of behaviour related to same sex relationships and extra-marital affairs conducted by ethnic Malay Muslim women, and the general level of 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 reaches the level of serious harm, especially on a cumulative basis, amounting to significant physical harassment or significant physical ill-treatment.

7. 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 and there is a real chance, (as opposed to one that is remote) that she will suffer such persecution.

8. For the purposes of s.5J(1)(a), a person must fear persecution for reason of race, religion, nationality, membership of a particular group, or political opinion. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L.

9. The Tribunal finds that ethnic Malay Muslim woman who have married, and have then conducted an ongoing extra-marital LGBTI affair, are a particular social group as defined by s.5L of the Act as the characteristics of being married, Muslim, LGBTI and having conducted an extra-marital affair are shared by each member of the group; and the applicant shares these characteristics with the identified group; and the characteristics are 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 characteristics distinguish the group from society and they are not a fear of persecution.

10. The Tribunal is satisfied that the applicant is a member of the particular social group of a married ethnic Malay Muslim women with children who has conducting an extra-marital LGBTI relationship in Malaysia and that the provisions of s.5L of the Act are satisfied. 

11. The applicant’s membership of that particular social group is the essential and significant reason for the persecution she fears.

12. The applicant gave evidence that no one in Malaysia knows about her sexuality and she acts discreetly in this regard. The Tribunal accepted this behaviour is reflective of her conservative cultural and religious background. She gave evidence that she would not maintain her relationship with her partner in Malaysia purely out of fear. The Tribunal is satisfied that she would choose to act discreetly on returning only because of the fear of being ostracised, harassed, subject to discrimination and being arrested and prosecuted if she did not. 

13. 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 she would take steps to hide her sexuality if she was forced to return to Malaysia. 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. 

14. In SZFDV v MIAC[11] , 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. 

    [11] [2007] HCA 41; 233 CLR 51; 81 ALJR 1679; 237 ALR 660; 97 ALD 27

15. The Tribunal finds that, although the applicant would choose to modify her behaviour if she returns to Malaysia, she would be doing so only to avoid persecution and in doing so, would  

16. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c).

17. The country information suggests that LGBTI people 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, physical harm from her family, prosecution and penalty including caning, fines and imprisonment, involves systematic and discriminatory conduct, targeting her because of her sexuality and associated actions.

    [12] DFAT Country Information Report, Malaysia 19 April 2018 at 3.120

18. The Tribunal was satisfied that laws criminalising LGBTI behaviour are systematic and 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.

19. 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.

20. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

21. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

22. 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 she 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.

23. Finally the Tribunal is satisfied that the applicant was conducting her LGBTI extra-marital affair prior to leaving Malaysia and that she came to Australia for the express purpose of continuing that affair. The Tribunal is satisfied, on this basis, that she has not conducted this affair in Australia for the purpose of strengthening her claim to be a refugee: s.5J(6).

24. In summary, the Tribunal finds that the applicant faces a real chance of being persecuted as a married ethnic Malay Muslim woman who is in an extra-marital LGBTI relationship, if she were to return to Malaysia, regardless of where she lives. This is because the real chance of persecution relates to all areas of the country, because laws prohibiting oral sex and Syariah laws prohibiting a married Muslim woman conducting an extra-marital LGBTI relationship 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.  

1. 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.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   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 the 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.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (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.

   …