1708328 (Refugee)

1708328 (Refugee) [2019] AATA 4789 (27 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708328
COUNTRY OF REFERENCE:                  Malaysia
MEMBER:Christopher Smolicz
DATE OF ORAL DECISION:  27 August 2019
DATE OF WRITTEN DECISION:              10 September 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 10 September 2019 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – social group – homosexual male – forced to hide sexuality – Muslim country – threat of caning or imprisonment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65
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

The tribunal has conducted a hearing today on 27 August 2019, with [the Applicant] and the tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.
This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 March 2017, to refuse to grant the applicant, [the Applicant], a protection visa under section 65 of the Migration Act.
The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations, because he is a homosexual male.
By way of background, the applicant is now [age] years old. He was born in Sarawak, Malaysia. He arrived in Australia [in] March 2016, on an Electronic Authority Visa, travelling on a valid Malaysian passport. Prior to arriving in Australia, the applicant was living in Kuala Lumpur and he was working [in a position] in [Industry 1]. He has been working in [Industry 1] for some eight to 10 years.
After arriving in Australia, the applicant applied for a protection visa on 18 May 2016. The applicant completed a protection visa application form and stated that he claims that he is a homosexual male living in a Muslim country where homosexuality is illegal. He claims that if he returns to Malaysia, he could be caned or imprisoned for sodomy. He claims he will never have the right to get married to another male or to protect himself. He claims gay men are looked down upon and ostracised by society. He claims there is no state protection or place to relocate within Malaysia.
The applicant provided further details during the hearing about his personal experience of living as a gay man in Malaysia. The applicant has stated that he became aware that he identified as a gay male from a relatively young age. He entered into his first homosexual relationship in 1997. The relationship lasted about eight years. The applicant has had to live a discreet life as a homosexual male to avoid persecution from society, from the authorities and also to avoid causing a rift in his family relations.
The applicant has indicated that he has had to compromise his sexual identity by the way he conducts himself, because he fears coming to the attention of the authorities in Malaysia. When asked why he decided to apply for protection in Australia now, at the age of [age], the applicant indicated that he had come to a stage in his life where he wanted to stop hiding his sexuality and enter into a formal relationship with a male and live openly as a gay male. He claimed this is not possible in Malaysia because of the laws and because Malaysia is an Islamic society, where homosexuality is considered to be illegal and against Sharia law.
The applicant has said that he does not want to continue compromising his identity and he travelled to Australia to live as an openly gay male. He was aware that the laws in Australia recently changed and permit men to marry. The change in laws motivated him to come to Australia and live openly as a gay male. The applicant follows gay issues on social media and has been able to now live openly as a gay male since arriving in Australia.
The applicant has conceded that he has not actually experienced physical harm in Malaysia because of his sexual identity. The applicant explained to the tribunal that the reason this has been the case is because he has been very careful in acting in a discreet manner and keeping his sexuality private. He has not openly discussed his sexuality with his family, and he has managed to avoid coming to the adverse attention of the authorities. The applicant has expressed that this has caused him significant mental stress and anguish, as he is constantly frightened of being exposed and coming to the attention of the authorities in the future. He claims that the anxiety and mental pressure is one of the reasons why he left Malaysia. By way of example, the applicant said that when he was with his partner, they would often feel that they were being scrutinised by society, by the community and they were seen as people who were different and they were worried about being caught and sent to jail.
In making its finding, the tribunal has regard to the Department of Foreign Affairs and Trade (“DFAT”), most recent country information report, dated 19 April 2019, version 2, which provides information on sexual orientation and gender identity in Malaysia. Relevant paragraphs are 3.115 to 3.120. In particular, the tribunal notes that Article 377 of Malaysia’s Penal Code criminalises consensual homosexual conduct, which can be punished by a prison sentence for up to 20 years and/or caning. While the tribunal is aware that this law is rarely enforced, 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.
Although DFAT states that the Malaysian authorities infrequently apply penalties, there have been recent media reports in September 2018 that an Islamic court sentenced two Malaysian women to be caned on grounds that they were engaging in same sex relationship. What is concerning is that that sentence was delivered within four months after the Malaysian general elections and it reflects the country’s deeply conservative culture in Malaysia, despite a liberalisation in some of its policies. Amnesty International has also referred to this incident and referred to the caning of the women as a form of torture. The Tribunal also notes that there are further reports by Human Rights Watch, about the rise of conservatism within Malaysia.
DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day to day basis in Malaysia. DFAT states that the level and frequency of discrimination faced by LGBTI individuals differs, according to their socioeconomic status, religion, geographic location and degree of openness. They report that some well-educated urban Malaysians of high socioeconomic status can be open about their sexuality with their families and social circles. They report that many LGBTI individuals, especially Muslims, hide their identity to avoid harassment.
The reports also confirm that the Federal government of Malaysia and a few state governments have opening run programs aimed at ‘rehabilitating’ LGBTI youth, which is indicative of the government’s attitude towards gay people and the lack of acceptance. Various country information reports also indicate that homosexuality is not tolerated by the community generally, or by religious faiths. There are also credible accounts of men and women being abused, threatened, physically assaulted or even murdered for reasons of their sexual orientation and gender identity.
For example, the 2017 US Department of State report on human rights practices states that Malaysia’s most significant human rights issue include discrimination against lesbian, gay, bisexual, transgender and intersex persons. The 2018 Human Rights Watch report on Malaysia states that discrimination against lesbian, gay, bisexual, transgender people is pervasive in Malaysia and that those laws and regulations effectively criminalise LGBTI people.
In 2015, a report by the United Nations Special Rapporteur on Health states that discriminatory social attitudes towards LGBT persons prevail in Malaysia and had been exasperated and aggravated over the past two decades by the use of stigmatising rhetoric by politicians, public officials and religious leaders. The criminalisation of same sex conduct and of different forms of gender identify and expression had reinforced negative social attitudes and led to serious human rights violations of LGBT people in Malaysia.
The tribunal now turns to its findings. The delegate found the applicant’s claims were extremely brief, vague and lacking in detail. The delegate noted that no proof was provided to substantiate the claims, which rest entirely on the applicant’s written statement and therefore, the delegate was not satisfied that the applicant was a homosexual, based on the limited information. The tribunal has had the advantage of taking evidence from the applicant at a hearing. The tribunal found the applicant’s oral evidence to be frank and credible. The tribunal accepts the applicant identifies as a homosexual male.
The applicant’s evidence does not indicate that he has faced any serious or significant harm in Malaysia in the past, because of his sexual orientation. The applicant explained that this is due to the fact that he was forced to hide his sexuality when living in Malaysia. The tribunal also notes that the test to be applied by the tribunal is forward looking.
The tribunal accepts that the applicant wants to be able to live openly as a homosexual male and to freely express his sexual identity in the future. The tribunal accepts that the applicant feels he cannot do this in Malaysia, due to official and community attitudes towards homosexuals, the impact of laws that criminalise gay acts and his fear of physical and verbal abuse, harassment, discrimination and persecution perpetrated against him by the authorities and by the wider community.
The tribunal therefore finds that the applicant has a subjective fear of physical and psychological harm in the future, as well as fear of the possibility of being arrested and imprisoned if he does not conceal his sexual orientation in Malaysia. The tribunal finds that the nature of the public discourse among politicians and the police and the media in Malaysia creates a culture of impunity where verbal abuse, bullying and physical assaults on LGBTI persons are considered acceptable.
By way of example, the tribunal discussed with the applicant at the hearing, a recent report in the Guardian newspaper, dated 22 August 2018, which documented a raid on a gay nightclub called ‘[name deleted]’ in Kuala Lumpur. The applicant confirmed that he has been to that club and it is a place that is frequented by the gay community. The report documents how 20 men were detained and ordered into counselling for what has been described as ‘illicit behaviour’ by the Federal Territory Islamic Religious Department of Malaysia. It was reported that the government Minister, Khalid Samad later released a statement on the motivations behind the raid, stating: ‘Hopefully this initiative can mitigate LBGTB culture from spreading into our society.’
The tribunal refers to this article as evidence of the government’s attitude towards gay rights and the difficulties that gay people experience living openly in Malaysia.
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 accepts that the applicant has previously sought to act discreetly in Malaysia with regard to his sexuality, due to the threat of harm and discrimination and in order to avoid persecution.
As the tribunal has found that the applicant is a homosexual male, the tribunal considers that modification of his behaviour, to avoid a real chance of persecution, would conflict with the fundamental characteristic of his identity and conceal an innate and immutable characteristic of the applicant namely, his sexual orientation. Further, the tribunal finds that Article 377A of the Malaysian Penal Code, which criminalises sexual conduct between males, is enforced in a discriminatory manner, because it particularly targets homosexual males. The tribunal finds that Article 377 of the Malaysian Penal Code is therefore a discriminatory law of general application.
The tribunal has considered the applicant’s claims in the context of the country information, which was detailed above. The tribunal accepts that the country information is indicative of ongoing discrimination against LGBTI people in Malaysia. As stated above, the tribunal accepts that the laws criminalising homosexual acts are rarely enforced, but these laws have not been repealed. The tribunal considers that the laws and the ongoing anti LGBTI sentiment of politicians and religious leaders fosters an environment permissive and conducive to discrimination, harassment and violence against homosexuals in Malaysia.
In making its finding, the tribunal is conscious that discrimination in and of itself may not meet the threshold of serious or significant harm. However, the country information supports the view that Malaysia is becoming less tolerant of LGBTI people, rather than more tolerant. The laws support and foster a culture of intolerance for LGBTI persons in Malaysia and there is recent and credible evidence that the laws have been and may continue to be used to harass, extort and exploit LGBTI people.
The tribunal finds that the applicant’s membership of a particular social group, homosexual males in Malaysia, is the essential and significant reasons for the persecution and the persecution involves serious harm, as it amounts to significant physical harassment and ill treatment in the instances detailed in section 5J(5) of the Act. The persecution involves systematic and discriminatory conduct, as required by section 5J(4). There is a real chance of persecution and there is a real chance that the persecution relates to all areas of the country, as required by section 5J(1)(c).
On the country information, the tribunal finds that the authorities will not protect the applicant from further harassment, nor from any further intimidation, exploitation, extortion or hate crime he may experience. The tribunal also finds that harassment, intimidation, exploitation and hate crimes discussed in the country information may reach the level of serious harm, especially on a cumulative basis, amounting to physical harassment or physical ill treatment.
Given the applicant’s frank and credible oral evidence concerning his homosexuality and his wish to live openly as a homosexual, the tribunal finds that the applicant has a genuine and well-founded fear of persecution on the basis of his homosexuality, should he return to Malaysia. The tribunal finds that there is a real chance, that is, one that cannot be discounted as remote, that the applicant would suffer persecution for reasons of his membership of a particular social group, being homosexual males, if he returns to Malaysia now, or in the reasonably foreseeable future.
Therefore, the tribunal is satisfied that the applicant’s fear of persecution in Malaysia is well-founded and the tribunal finds that he is a refugee. For the reasons given above, the tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).
As stated above, the decision of the tribunal is to remit the matter for reconsideration, with the direction that the applicant satisfies section 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.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 4789

10 September 2019

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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