1705353 (Refugee)

1705353 (Refugee) [2019] AATA 6825 (31 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705353
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Christopher Smolicz
DATE OF DECISION:  31 October 2019
PLACE OF DECISION:  Adelaide
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 31 October 2019 at 1:14pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – original claim relating to economic harm – applicant exploited when preparing application – claim application was misrepresented – Islamic law criminalises same sex relations – evidence provided confirm claims – lack of state protection – complementary protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 12 December 2016.
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 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).
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.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Issue
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because he identifies as a homosexual male.
The applicant is a [age]-year-old male born in Pahang Malaysia. He is from the Islamic faith. He arrived in Australia [in] October 2016 on an Electronic Travel Authority visa travelling on a valid Malaysian passport.
Claims
The applicant completed a Form 866C application in which he provided the following evidence in support of his claims:
·     He left Malaysia to pursue promising career opportunities in Australia as he needs to repay educational loans and Malaysia is facing a “really bad economic situation”.
·     He is used to living in Australia where he enjoys freedom, a democratic system and a peaceful life.
·     If he was to return to Malaysia he would not be used to living there, will not be able to survive and would live in fear every day.
·     He declared that has not experienced any harm in Malaysia, does not think he will be harmed if he returns to Malaysia and did not try to relocate in Malaysia.
The delegate found that the applicant claims to fear harm in Malaysia for economic reasons and has not claimed to fear harm form one or more of the reasons mentions in s.5J(1)(a). The delegate also found that the fact a person may enjoy less favourable social, economic or cultural rights in another country does not of itself give rise to non-refoulement obligations.
New claims
On 20 March 2017 the applicant applied to the Tribunal to review the delegate’s decision.
In support of his application he provided correspondence dated 21 March 2017 in which he claims that the true reason she seeks protection in Australia is because he is homosexual.
He claims he cannot disclose his sexual identity in Malaysia because of the countries “stringent law, religion and race”. He claims gay people are not protected by the authorities in Malaysia. Before he travelled to Australia he was working in his brother’s [Business 1] in Malaysia. He claims his brother was also facing discrimination from the public because he also is a homosexual. He claims [Business 1] closed down and he travelled to Australia with his brother seeking protection. In his written claims the applicant provided no explanation why he did not disclose this new information in his protection visa application.
The applicant provided a further undated statement in support of his claims in which he details his experiences growing up as a homosexual male in Malaysia. He claims he was in a homosexual relationship for three years prior to arriving in Australia. His relationship ended and people started to suspect he was gay. This impacted on his studies and he decided to come to Australia because he wanted people to stop talking badly about him.
The applicant provided some examples of discrimination he encountered from the public in Malaysia when they found out he was a homosexual.
He claims he has always had to hide his sexual identity from his family and from society in general. His family are very religious and if they found out that he was a homosexual he would bring shame to his family, be disowned and told to leave home. The applicant claims that he travelled to Australia with his male partner ([name deleted]) so that he could live openly as a gay man.
Since arriving in Australia it has been difficult for him to enter into a new relationship. He commenced to search for a partner using [Social Media 1] and met a person called [Mr A]. They dated for about nine months until the relationship ended.
He claims his brother is also gay and has married a male Australian citizen. He provided photos of his brother’s wedding in Australia and a copy of the marriage certificate.
The applicant provided a number of photographs which he claims were of his partner [Mr A]. He claims [Mr A] did not want to disclose his identity.
The applicant also said that he has donated money to a charity called [name deleted]. He provided the Tribunal with some tax receipts as evidence of his donations.
Consideration of claims and evidence
The Tribunal finds that the applicant’s central new claim for protection relates to his sexual identity as a homosexual man. A relevant issue in this assessment is therefore whether the applicant is a homosexual.
The applicant’s credibility is clearly in issue in this matter because his claim that he is gay and fears persecution in Malaysia because was not raised in his protection visa application. The Tribunal raised these concerns with the applicant at the hearing and invited him to comment. The Tribunal also asked the applicant questions about his sexuality in order to better understand the applicant’s experiences of living as a gay man in Malaysia.
The applicant submits that he no longer wants to rely on the claims made in his protection visa application. He claims the information is not correct and seeks to rely on “new claims” which were provided to the Tribunal. In the circumstances the Tribunal finds that the claims detailed in the applicant’s protection visa application at questions 89 to 96 are not genuine.
The applicant said that he and his brother travelled to Australia together because they wanted to live openly as gay men. When they arrived in Australia they were introduced to a Malaysian female who said she would help them complete their protection visa application forms. The applicant said he was provided with a blank form and asked to sign the form and paid the person [amount]. The applicant was able to confirm at the hearing that his signature appeared on the application form but the remainder of the form was not completed by him and was not in his handwriting. The applicant claims that he did tell the women that he and his brother had financial problems which were associated with his brother running a business. He claims he told the woman that he was gay and the financial problems were associated with his sexual identity and the discrimination he and his brother faced running the business.
The applicant said that he only became aware of what was written in the form by the woman who helped him when his application was refused by the Department. He did not complain because he was fearful and confused at the time. He claims he has lost contact with the woman and is no longer able to provide her contact details.
The applicant said that the same woman completed his brother’s protection visa application and she also did not disclose that he was gay. He claims that his brother is gay and has now married an Australian citizen. His brother’s protection visa was also refused by the Department.
The applicant said he kept his sexual identity private in Malaysia and was not openly gay. He was able to avoid problems with the authorities in Malaysia by being discreet.
The applicant said that since arriving in Australia he has entered into a same sex relationship with a person called [Mr B]. He now wants to live as an openly gay man. The applicant provided a credible account to the Tribunal about how he met [Mr B] and the development of their relationship.
The Tribunal also took evidence from [Mr B] at the hearing. [Mr B] said he was previously married and divorced in 2011. He came out as a gay man in 2017. He has only known the applicant for a few months and they met on [Social Media 2] through a mutual friend. He does not live with the applicant but he does spend a lot of time at the applicant’s house. [Mr B] was able to confirm that the applicant told him about the difficulties he experienced growing up as a gay man in Malaysia.
The Tribunal took evidence from the applicant’s brother ([Mr C]). The Tribunal found [Mr C] a credible witness. [Mr C] said that his brother was gay and was in a relationship with [Mr B]. He said that [Mr B] would visit the applicant at their home and he would often see them together socialising.
The Tribunal questioned [Mr C] about the circumstances in which he completed his protection visa application. [Mr C] was able to corroborate applicant’s evidence regarding the circumstances in which he lodged his application form. He confirmed that both he and his brother obtained the assistance from the same Malaysian woman. [Mr C] said that he is gay and since he arrived in Australia he has entered into a same sex relationship and has now married his partner ([Mr D]). He said that the Malaysian woman who completed his application also did not disclose he was gay when she completed his form. [Mr C] said that he contacted the Department and provided them with the correct information about his sexual identity. He said that his application was also refused by the Department and the new claims are not referred to in the delegate’s decision.
The Tribunal took evidence from [Mr D]. [Mr D] confirmed that he was gay, he has married [Mr C] and that they live together and operate a [business]. [Mr D] said that in his opinion the applicant was a gay man who was in a relationship with [Mr B] and he has seen them spending time together and showing affection towards each other.
Findings
The Tribunal was able to observe the applicant at the hearing and it was apparent that he appeared nervous and anxious at times. The Tribunal accepts that it can be difficult for people to come to terms with and accept their sexual identity. The Tribunal accepts that this can be further complicated by cultural issues and family dynamics. The Tribunal also accepts that it can be difficult to discuss matters of a personal nature in the context of a hearing.
The Tribunal also accepts that it is not uncommon for protection visa applicants to expand on their claims when they recall new facts and evidence. The Tribunal must however exercise caution when applicants introduce new claims and evidence at this late stage of the review process.
The Tribunal has had regard to s.423A of Act which requires the Tribunal to draw an inference unfavourable to the credibility of the new claim or evidence where an applicant raises claims or presents evidence that was not put forward before the primary decision maker. If the Tribunal is satisfied the applicant does not have a reasonable explanation as to why the claims were not raised or evidence not presented before the primary decision maker s.423A of the Act requires the Tribunal to drawn an inference unfavourable to the credibility of the claims or evidence. The law effectively requires applicants to present all claims and evidence to the primary decision maker unless they have a reasonable explanation for not doing so. It is a question of fact for the Tribunal to determine whether the circumstances put forward by the applicant amount to a reasonable explanation as to why the new claims were not presented before the primary decision was made in this matter.
The Tribunal finds it concerning that the applicant would not inform the Department that he was gay when it became apparent to him that his protection visa application was misrepresented and his application was refused. The Tribunal did however find the applicant’s explanation about the circumstances in which he completed his protection visa application to be credible.
In making this finding the Tribunal has had regard to the applicant’s brother [Mr C’s] evidence and finds that he was able to independently corroborate the applicant’s claim that their application forms were completed by a third party. The Tribunal has given the applicant’s brother’s evidence significant weight. The Tribunal accepts that [Mr C] is a gay man who has married [Mr D] since he arrived in Australia. The Tribunal was also able to independently confirm that the initial claims made in [Mr C’s] protection visa application also did not disclose that he was gay and appear to be very similar to the applicant’s claims that were completed by the third party. Although the Tribunal has some concerns about what the applicant claims he told the Malaysian woman who filled out his claim form, the Tribunal finds the applicant’s evidence about his dealings with this person mostly credible.
The Tribunal finds it regrettable that many protection visa applicants are exploited and taken advantage of by unscrupulous migration agents or members of their own community who pose to act as agents. Having said that, the Tribunal is also aware that some applicants seek out advice and engage agents to facilitate migration outcomes or to simply prolong the time they can stay in Australia.
The Tribunal also notes that it is unusual that an applicant for a protection visa would fail to disclose information which is directly relevant to their claims. The Tribunal notes that the applicant has not had the benefit of migration advice since he arrived in Australia. He has not had the opportunity to take part in a departmental interview and expand on his claims. In the circumstances the Tribunal accepts that the Tribunal hearing was the first opportunity in which the applicant was able to articulate his true claims in person.
Despite the applicant’s failure to raise the new claim at an earlier stage, the Tribunal accepts that the applicant identifies as a homosexual.
Country information
In assessing the applicant’s claims the Tribunal has had regard to the following country information.
Malaysian secular law criminalises same sex sexual acts but in practice the law is rarely invoked. A former British colony, Malaysia has retained its colonial-era law against sodomy.[1] Malaysia’s Penal Code criminalises sodomy (homosexual) and oral sex (homosexual and heterosexual) acts, but authorities rarely enforce the law.[2]
[1] Anwar Ibrahim’s rebirth and Malaysia’s LBGT+ rights, Pursuit (University of Melbourne), 27 May 2018, CIS7B839411105;
[2] Amnesty International Report 2017/18, Amnesty International, 22 February 2018, p.250, NGED867A612;
Secular law that criminalises male-male sexual acts has been extended to female-female acts.[3] Sodomy laws have only been invoked seven times since 1938, four of those instances against former Deputy Prime Minister Anwar Ibrahim.[4] International observers and human rights organisations viewed sodomy charges against prominent political figure, Anwar Ibrahim, as politically motivated.[5] Those found guilty under s.377A of the Penal Code for ‘carnal intercourse against the order of nature’ are liable for imprisonment of up to 20 years and whipping.[6]
[3] State-Sponsored Homophobia 2017 – A World Survey of Sexual Orientation Laws: Criminalisation, Protection and Recognition, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 1 May 2017, CISEDB50AD4462, p.169
[4] Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia, International Gay and Lesbian Human Rights Commission, 6 May 2014, CIS2F827D91966, p.33;
[5] Anwar Ibrahim’s rebirth and Malaysia’s LBGT+ rights, Pursuit (University of Melbourne), 27 May 2018, CIS7B839411105;
[6] Penal Code, Government of Malaysia, enacted 1936, amended 31 December 2014, sections 377A, 377B, CISEDB50AD9259
Islamic laws in several states prohibit same sex sexual acts. Some Malaysian states apply their own penalties to Muslims under Sharia statutes.[7] Under Sharia law in several Malaysian states, same sex sexual acts between Muslims are illegal and can incur jail terms and mandatory whipping.[8] The caning of women is banned under civil law, but allowed under Islamic laws in some states.[9]
[7] Freedom in the World 2019 – Malaysia, Freedom House, 4 February 2019, section F4, 20190402081615
[8] State-Sponsored Homophobia 2019, Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 20 March 2019, p.450, 20190327100813
[9] Two Malaysian Muslim women caned in public for attempting to have sex in car, Australian Broadcasting Corporation News (ABC News), 4 September 2018, CXBB8A1DA39062;

Reports confirm that the Malaysian government and society largely oppose LGBTI lifestyles that are considered inconsistent with conservative values. The results of a 2013 global survey on the acceptance of homosexuality found that an ‘overwhelming majority’ of Muslim countries, including 86 per cent of persons surveyed in Malaysia, reject homosexuality.[10]
[10] The Global Divide on Homosexuality: Greater Acceptance in More Secular and Affluent Countries, Pew Research Center, 4 June 2013, p.3, CIS26344
Prime Minister Mahathir publically acknowledged that his government does not support LGBTI unions, which it sees as an element of human rights in Western society rather than aligning with Malaysian values.[11] A Deputy Minister in the Prime Minister’s Department said that the government ‘disagree with the behaviour of the LGBT’ but ‘will not allow discrimination to occur’, instead supporting rehabilitation of LGBTI individuals.[12]
[11] Mahathir Malaysia cannot accept same-sex marriage, Reuters, 22 September 2018, CXBB8A1DA35827
[12] Malaysia sticks to stand on disallowing same-sex marriage, Bernama, 23 September 2018, CXBB8A1DA35842
Reports confirm that the Malaysian authorities promote heterosexual lifestyles amongst the LGBTI community. Malaysia’s Islamic authorities have published an e-book and conduct outreach activities encouraging Muslim LGBTI persons to undergo sexuality rehabilitation.[13] The Malaysian Islamic Development Department (Jakim) facilitates an outreach program (Mukhayyam) to rehabilitate LGBTI individuals.[14] The program, a three-day camp held eight times each year, has been criticised by the Malaysian Aids Council as having become a place where LGBTI people are being ‘converted’ to the ‘right path’ instead of its original intent to ‘provide a safe, non-judgmental space’ to the transgender community.[15] The Ministries of Health and Education conduct campaigns aiming to ‘prevent, overcome, and correct’ homosexuality in children.[16]
[13] Jakim issues e-book on LGBT rehab; minister says phenomenon ‘under control’, Malay Mail online, 24 October 2018, CXBB8A1DA37286
[14] Malaysia Should Find ‘Right Path’ on LGBT Rights, Human Rights Watch, 7 August 2018, 20190206102849
[15] AIDS council slams Jakim’s ‘conversion therapy’ for LGBTs, Free Malaysia Today, 24 December 2018, 20190125114340
[16] Freedom in the World 2018 - Malaysia, Freedom House, 5 April 2018, section F4, NGED867A631
In 2018 a nightclub frequented by the LGBTI community was raided by police and government officials resulting in twenty men being detained and ordered to undergo counselling for ‘illicit behaviour’.[17]
[17] Magazine: PH govt among ‘10 biggest homophobes and transphobes of 2018’, Free Malaysia Today, 2 January 2018, 20190125103916
DFAT assess that LGBTI individuals face a moderate risk of official and societal discrimination determined by their socio-economic status, religion, geographic location and degree of openness.[18]
[18] Country Information Report – Malaysia (Version 2), Department of Foreign Affairs and Trade (Australia), 19 April 2018, section 3.120, p.28, CIS7B839419347
In assessing the applicant’s claims the Tribunal finds that although DFAT state that Malaysian authorities infrequently apply criminal penalties for people who engage in consensual homosexual conduct the Tribunal notes that the provision is still in force and that various reports suggest that there is little prospect of law reform in the reasonably foreseeable future. For example, in October 2018, Terengganu state was the first state in Malaysia to cane two lesbian Muslim women under Sharia law for musahaqah (attempting to have lesbian sex).[19] Reports confirm that the caning was carried out in the courtroom and was witnessed by up to 100 people, including the public.[20] In assessing the applicant’s claims the Tribunal finds it relevant that the sentence was delivered four months after the Malaysian general elections and reflects the country’s deeply conservative culture despite a liberalisation in some of its policies.
[19] How public caning is performed in Terengganu, Malaysiakini, 5 September 2018, CXBB8A1DA34939
[20] >
Various country information reports also indicate that homosexuality is not tolerated by the community generally in Malaysia. There are also credible accounts of men and women being abused, threatened, physically assaulted and even murdered for reasons of their sexual orientation and/or gender identity.[21]
[21] See, for example: Lamb, Kate, Women caned in Malaysia for attempting to have lesbian sex, The Guardian, 3 September 2018; Dittrich, Boris, Transgender Woman Murdered in Malaysia, Human Rights Watch, 24 February 2017; Koh, H, Hate crimes against trans people in Malaysia: A silent radicalisation?, Malay Mail, 13 December 2017; and Yi, Beh Lih, A brutal assault and rising fear in Malaysia’s LGBT community, Reuters, 24 August 2018
The 2017 US Department of State Report on Human Rights Practices stated that Malaysia’s ‘most significant’ human rights issues include ‘discrimination against lesbian, gay, bisexual, transgender, and intersex persons’.[22]
[22] US Department of State, Country Reports on Human Rights Practices for 2017, Malaysia
The 2018 HRW World Report on Malaysia states that ‘discrimination against lesbian, gay, bisexual, and transgender people is pervasive in Malaysia’ and that various laws and regulations ‘effectively criminalize LGBT people’.[23]
[23] World Report 2018 – Malaysia, Human Rights Watch
In his 2015 report, the United Nations Special Rapporteur on health stated that:
discriminatory societal attitudes towards LGBT persons prevailed in Malaysia and had been exacerbated over the past few decades by the use of a stigmatizing rhetoric by politicians, public officials and religious leaders. The criminalization of same-sex conduct and of different forms of gender identity and expression had reinforced negative societal attitudes and led to serious human rights violations [of LGBT people in Malaysia].[24]
Findings
[24] See A/HRC/WG.6/31/MYS/2, para 22 and A/HRC/29/33/Add.1, paras 83 and 86
As detailed above the Tribunal has accepted the applicant’s evidence that he identifies as a homosexual. The Tribunal has assessed the applicant’s claims against Malaysia as the receiving country.
The Tribunal finds that applicant’s evidence does not indicate that he faced any serious or significant harm in Malaysia in the past because of his sexual orientation. The Tribunal finds that this is because the applicant has chosen to behave discreetly with regard to his sexuality due to a fear he would be ridiculed and discriminated against as a gay man. The Tribunal must however assess the applicant’s claims looking to the reasonably foreseeable future.
The Tribunal accepts that the applicant now wants to be able to live openly as a gay man, to be in an open same sex relationship and to freely express his sexual identity.
The Tribunal finds that the applicant feels he cannot do this in Malaysia due to official and community attitudes toward homosexuals; the impact of laws that criminalise same sex relations; and their fear of physical and verbal abuse, harassment, discrimination and persecution perpetrated against them by the authorities and by the wider community.
The Tribunal accepts the applicant’s claim that he fears the possibility of being arrested and imprisoned if he does not conceal his sexual orientation in Malaysia. In assessing the applicant’s claims the Tribunal notes the applicant is Muslim and is therefore subject to Islamic law which criminalises same sex relations.
The Tribunal accepts that the laws criminalising homosexual acts are rarely enforced. The Tribunal finds however that Malaysia is a majority Muslim country and the laws have not been repealed. The Tribunal finds that the laws criminalising homosexual conduct and the ongoing anti-LGBTI sentiments of political and religious leaders fosters an environment permissive and conducive to discrimination, harassment and violence against homosexual people in Malaysia. The Tribunal finds that the nature of the public discourse of politicians, the police and the media in Malaysia creates a situation of impunity where verbal abuse, bullying and physical assaults on LGBTI persons are considered acceptable.
Given the available country information and the applicant’s particular circumstances, the Tribunal is not satisfied that the State is willing to offer effective protection measures to the applicant, nor is the Tribunal satisfied that the applicant would be able to access effective protection measures if he returned to Malaysia now or in the reasonably foreseeable future.
The Tribunal notes that s.5J(3) states that a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity; or conceal an innate or immutable characteristic; or alter his or her sexual orientation or gender identity; or conceal his or her true sexual orientation. The Tribunal therefore considers that modification of his behaviour to avoid a real chance of persecution would conflict with a fundamental characteristic of his identity and conceal an innate or immutable characteristic of the applicant, namely his sexual orientation.
On the evidence before it, including the country information referred to above, the Tribunal finds that the chance of the applicant suffering serious harm from the authorities or those in society motivated by the anti-LGBTI sentiments of political and religious leaders, if he lives openly as a homosexual, would not be remote or far-fetched. The Tribunal finds also – on the basis of the country information – that such threat of serious harm would be present throughout the country.
In conclusion the Tribunal finds that there is a real chance, that is, one that cannot be discounted as remote, that the applicant as a gay man will suffer serious harm if he returns to Malaysia in the reasonably foreseeable future. The Tribunal finds that the applicant’s fear of persecution because of his membership of a particular social group is well founded.
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).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Christopher Smolicz
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.
…

State-Sponsored Homophobia 2019, Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 20 March 2019, p.450, 20190327100813

Country Reports on Human Rights Practices for 2017 – Malaysia, US Department of State, 20 April 2018, section 6, p.28, OGD95BE927312;

Penal Code, Government of Malaysia, enacted 1936, amended 31 December 2014, sections 377A, 377B, CISEDB50AD9259

Freedom in the World 2019 – Malaysia, Freedom House, 4 February 2019, section F1, 20190402081615

Country Reports on Human Rights Practices for 2018 - Malaysia, US Department of State, 13 March 2019, section 1e, p.9, 20190314091511;
Freedom in the World 2019 – Malaysia, Freedom House, 4 February 2019, section F1, 20190402081615
Convictions for sodomy follow unfair trials, Amnesty International, 8 October 1998, CIS11891

Criminalisation of Homosexuality, Human Dignity Trust, 25 October 2015, CISEC96CF110372

State-Sponsored Homophobia 2019, Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 20 March 2019, p.450, 20190327100813

Criminalisation of Homosexuality, Human Dignity Trust, 25 October 2015, CISEC96CF110372

State-Sponsored Homophobia 2019, Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 20 March 2019, p.450, 20190327100813

‘Don’t force’ LGBT rights on Malaysia, Mahathir says, Agence France Presse, 25 October 2018, CXBB8A1DA37446

New M’sia should find ‘right path’ on LGBT rights, Malaysiakini, 7 August 2018, CXBB8A1DA39089

Two Malaysian women caned for lesbian sex, Agence France Presse, 4 September 2018, CXBB8A1DA34672

[2019] AATA 6825

31 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies