1705390 (Refugee)

1705390 (Refugee) [2020] AATA 1661 (11 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705390
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Christopher Smolicz
DATE:11 February 2020
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 11 February 2020 at 10:24am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – economic reasons – claims not included in primary application – fear of physical assault – fear of arrest – effective protection – concealing sexual orientation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 425
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 14 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.425(2)(a) of the Act.
Issue
The issue in this case is whether the applicant meets the refugee criterion or comes within Australia’s complementary protection obligations because he identifies as a homosexual male.
The applicant is [an 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. The applicant travelled to Australia with his brother ([named]) who also applied for a protection visa.
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 has personal debts resulting from an unsuccessful business venture.
·He is used to living in Australia where he enjoys freedom, a democratic system and a peaceful life.
·He declared that has not experienced any harm in Malaysia, does not think he will be harmed if he returns to Malaysia.
The delegate found that the applicant claims to fear harm in Malaysia for economic reasons and has not claimed to fear harm for 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 the applicant made detailed new claims for protection. The applicant now claims that the true reason he seeks protection in Australia is because he is homosexual.
The applicant stated that he was unable to develop a close relationship with males in Malaysia due to fear of discrimination and violence against the gay community. He had previously not told his family in Malaysia about his sexual orientation. He was pressured by his family to marry a woman against his wishes. His business in Malaysia was adversely targeted because people accused him of being gay.
The applicant stated that since arriving in Australia he is longer afraid of being openly gay. The applicant provided a detailed statement of how he met his partner ([Mr A]) in Australia, the development of their relationship, and marriage to each other [in] August 2018. The Tribunal was provided with a copy of the Certificate of Marriage and photos of the wedding celebrations attended by [Mr A’s] family and friends. He is now proud to identify as a married gay man, which would not be possible in Malaysia. In July 2019 he invited his parents to travel to Australia and they were able to meet his husband and he openly declared that he is gay.
The applicant and [Mr A] have now been living together for two years. They operate a [service] business and have joint financial responsibilities.[1] The applicant also provided evidence that he has changed his name from [original name] to [current name].
[1] [Deleted.]
In assessing the credibility of the applicant’s claims, the Tribunal notes that the applicant and [Mr A] gave evidence before this Tribunal in support of [the applicant’s brother’s protection visa application].[2] At that hearing, the applicant and [Mr A] confirmed that they were gay and were living together with [Mr A’s] mother. The applicant also stated that since he married [Mr A] and made it public on social media he has received harassing and offensive posts from Malaysia on his [social media] account opposing his marriage on religious grounds.
[2] AAT case number [number]
At the applicant’s brother’s hearing, the Tribunal questioned the applicant about the circumstances in which he completed his protection visa application. The applicant said when they first arrived in Australia he and his brother obtained assistance from a Malaysian woman who help them complete their protection visa application forms. She was not a migration agent. They were provided with a blank form and asked to sign the form and paid the person $500. The applicant claims that he did tell the women that he was gay. He subsequently found out that the details regarding his sexual orientation were not included in his protection visa application. On 20 March 2017 he contacted the Department and advised them that the true reason he is seeking protection is because he is gay.
The applicant referred the Tribunal to reports regarding the adverse treatment of members of the LGBTI community by the authorities in Malaysia. In particular it is noted that in November 2019 Amnesty International (AI) reported that five men were sentenced to imprisonment and caning by the Selangor Syariah High Court on grounds of attempted sexual intercourse “against the order to nature” It was reported that the director of the Malaysian religious department, JAIS confirmed that the men were being monitored on the messaging app WeChat and were caught as part of a large undercover police operation. Those arrested were not represented by a lawyer or provided with legal aid at the time of the arrest and pleaded guilty in violation of their right to a fair trial. AI reported that “Malaysia is increasingly unsafe for LGBTI people. Since this government came to power, promising human rights reforms, this is the second time the authorities have handed down this heinous punishment… As long as tis draconian and cruel legislation remains on the books, LGBTI people will face grave risk in Malaysia.”[3]
Consideration of claims and evidence
[3] >
The Tribunal finds that the applicant’s central new claim for protection relates to his sexual identity as a homosexual man. The applicant now claims that he fears persecution in Malaysia because of his sexual orientation. 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 he has raised new claims that were not made in his protection visa application.
The Tribunal finds 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. 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 agree to a third party completing his protection visa application in circumstances where he was not aware of what exactly was being submitted to the Department. The Tribunal did, however, find the applicant’s explanation about the circumstances in which he completed his protection visa application to be credible. The Tribunal also notes that the applicant’s evidence was corroborated by his brother at a separate hearing.
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 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 professional 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 the applicant had to provide detailed evidence in support of his new claims.
As detailed above, the applicant has provided detailed evidence in support of his new claims for protection. The Tribunal accepts that the applicant identifies as a homosexual male.
The Tribunal accepts that when the applicant and his brother travelled to Australia they were introduced to a Malaysian female who said she would help them complete their protection visa application forms. The Tribunal accepts that the applicant told the woman that he was gay and had financial problems. The Tribunal accepts that his evidence about his sexual orientation was not included in his protection visa application. The Tribunal accepts the applicant subsequently raised this issued with the Department.
The Tribunal has had regard to the evidence submitted by the applicant and accepts he kept his sexual identity private in Malaysia and was not openly gay. The Tribunal finds that the applicant was able to avoid problems with the authorities in Malaysia by living a discreet life.
The Tribunal finds that since the applicant has arrived in Australia he has entered into a same sex relationship and has married an Australian citizen, [Mr A]. The Tribunal finds the applicant provided a credible account about how he met [Mr A] and the development of their relationship.
The Tribunal finds the applicant now lives as an openly gay married man. The Tribunal has had regard to country information detailed below and finds that the applicant’s same sex relationship would be considered illegal and prohibited under Malaysian law.
Country information
As a former British colony, Malaysia has retained its colonial-era law against sodomy.[4] Malaysia’s Penal Code criminalises sodomy (homosexual) and oral sex (homosexual and heterosexual) acts, but authorities rarely enforce the law.[5]
[4] Anwar Ibrahim’s rebirth and Malaysia’s LBGT+ rights, Pursuit (University of Melbourne), 27 May 2018, CIS7B839411105;
[5] 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.[6] Sodomy laws have only been invoked seven times since 1938, four of those instances against former Deputy Prime Minister Anwar Ibrahim.[7] 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.[8]
[6] 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
[7] 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;
[8] 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.[9] Under Sharia law in several Malaysian states, same sex sexual acts between Muslims are illegal and can incur jail terms and mandatory whipping.[10]
[9] Freedom in the World 2019 – Malaysia, Freedom House, 4 February 2019, section F4, 20190402081615
[10] State-Sponsored Homophobia 2019, Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 20 March 2019, p.450, 20190327100813
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.[11]
[11] 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.[12]
[12] Mahathir Malaysia cannot accept same-sex marriage, Reuters, 22 September 2018, CXBB8A1DA35827
Reports also 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
Reports confirm that in 2018 a nightclub frequented by the LGBTI community was raided by police and government officials resulting in 20 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 assesses 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 notes that although DFAT states that Malaysian authorities infrequently apply criminal penalties for people who engage in consensual homosexual conduct, the provision is still in force and 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]
Well-founded fear of persecution
[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 finds that the 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 had 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 lives openly as a gay man and is in a same sex relationship, and has married [Mr A]. The Tribunal finds that the applicant would be unable to live as an openly gay man in Malaysia due to official and community attitudes toward homosexuals; the impact of laws that criminalise same sex relations; and the fear of physical and verbal abuse, harassment, discrimination and persecution perpetrated against him 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 also 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 foster 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).
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

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

‘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

[2020] AATA 1661

11 February 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Standing