1709503 (Refugee)

1709503 (Refugee) [2022] AATA 3778 (7 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709503
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:David McCulloch
DATE:7 September 2022
PLACE OF DECISION:  Sydney
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 07 September 2022 at 9:36am
CATCHWORDS
REFUGEE – protection visa – Malaysia – member of a particular social group – homosexual woman – school and adult relationships – suspension from school, punishment by mother, pressure from parents to marry and harassment in workplace – detailed and consistent evidence – online and social activity in Australian – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 dependants.
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 13 April 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 23 December 2016. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 5 September 2022 at 9.30am to give evidence and present arguments. The applicant communicated in English.
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 (Cth) (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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has before it the DFAT Country Information Report – Malaysia, 29 June 2021, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant arrived in Australia [in] October 2016 on a UD-601 Electronic Travel Authority visa. The applicant applied for the protection visa on 22 December 2016.
The following information is apparent from the application for protection forms. The applicant was born on [Date] in Malaysia. The applicant is a Muslim of Malay ethnicity who speaks, reads, and writes both Malay and English. The applicant has never married nor been in a de facto relationship. The applicant did not declare any family members. The applicant lived at one address in [Town 1], Malaysia from birth until October 2016. The applicant attended school from [Year] until [Year]. She attended [University 1] from [Year] to [Year] and [University 2] from [Year] to [Year], completing a course in [Subject 1] and [Subject 2] respectively. The applicant worked for two different employers in [Work sector 1] in Malaysia from 2006 until 2012 as [an Occupation 1]. She worked for one employer in [Work sector 2] in Malaysia from 2012 until 2016 as [an Occupation 2]. At the time of application, the applicant was not employed.
In the application forms, the applicant claimed that she left Malaysia because her parents forced her to marry a person she did not know. She did not want to marry the person because she is homosexual. The applicant fears her family might harm her, physically and mentally, if she kept disobeying them. The applicant did not move, or try to move, to another part of Malaysia because her family would always be able to find her through their network. She claimed that the authorities in Malaysia would not be concerned about her issues as they were family issues. She claimed that she could not relocate within Malaysia because her family knows her friends.
The applicant provided the following Statutory Declaration to the Tribunal dated 1 August 2022:
Background
1.       I make the following statutory declaration in support of my application for review of the decision to refuse my Protection Visa. I am lesbian and I fled to Australia because members of the LGBT community are prosecuted in Malaysia. I am unable to live there safely because of my sexuality.
Arrival in Australia and initial protection
2.       I came to Australia because I have a difficult and tough life in Malaysia. I had to run from my family who did not accept me because they suspected my sexuality and relationship. All those while back in Malaysia, I had to hide my relationship and always lived in fear if evezyone around me knew who I was.
3.       My protection visa was lodged in December 2016 and refused in April 2017. However I was not interviewed by the Department of Home Affairs about my claim so I have no chance to explain the reasons why I need protection in Australia.
Family and background
4.       I was born in [Town 2] Selangor Malaysia. I grew up in a medium family with [younger brothers] in the town of [Town 1] and was the eldest and the only daughter. I was raised in an abusive and controlling condition. My mother worked as [an Occupation 3] and my father was a [pensioner] and later worked as [an Occupation 4]. Growing up our household was very religious as my parents were very strict adherents of Islam.
5.       My mother is very stern and quite well known around my town because she has been [doing Occupation 3] since the 90's until her retirement eight years ago. My father always worked very hard and was always not at home. All my siblings now are married and have their own family in Malaysia. I am estranged from all my family because we haven't had a good relationship with each other and they suspected my sexuality.
Realisation of my sexuality and family violence
6.       Around the age of [age], I realised I was interested in girls because I had a crush towards my classmate. Growing up with [brothers] so basically I was raised and groomed like a boy like my other siblings. I did not want to wear dresses and always have short haircuts. Because I'm the eldest, I need to take care of my siblings whenever my parents go to work. Because of that, whenever any happen at home, my parents, particularly my mother, will punish me despite the mistakes done by my brothers. She will beat me up using a cane,belt or whatever she can have at that time. I just can only bear all the beating and crying without any support from my brothers. So when I got good grades in school and was offered to go to boarding school, I jumped at the opportunity because I want to be far away from my family.
7.       When I was [age] during I was at boarding [school], I entered my first same sex relationship with my first girlfriend [Ms A] and somehow our relationship have been reponed to the warden and I and my girlfriend have been suspended two weeks from school. I did not go home, instead I went to another friend's house to hide. Eventually the news about my suspension arrived to my parents and they searched and found my hiding place. I have been dragged and brought home. I have been tortured by my mother by pulling my hairs slapped my faces, swearing with harsh words,punch and kicking all over my body and the last things she did was hit me with plastic chair until the chairs broke into two and I was left half unconscious with bruises all over my body. That punishment really had a big impact on my mental health and I became depressed.
8.       After that incident, I decided to wear a hijab to hide my short hair and pretend that I like normal girls although my behaviour is still like tomboy. I also being bullied at boarding school because of my small size and I looked differently like tomboy if I don't wear hijab so wearing hijab is kind of my mask to avoid bully and discrimination.
Ongoing difficulties because of my sexuality and appearance
9.       It is very difficult to deny who you are everyday. 2002 during my college time at Gombak, I met [Ms B] and become friends and eventually we entered same sex relationship but whenever people asked about why I was so close with [Ms B], I always gave the same explanation and pretended she is my best friend to avoid further arguments. But one incident happened when we embraced each other in my rooms, some friends caught us red handed and confronted me about my relationship with [Ms B]. They threatened to report me to the warden and the punishment was to be expelled from college. I don't want the same things to happen so I break up with [Ms B] and I have to pretend that I’m dating boys and have a boyfriend. The relationship obviously not more than 3 months because I'm lesbian and have no interest and feeling towards boys but I can't be myself freely in Malaysia.
10.      Because I have an unsupportive family, I became close to my aunt [Ms C] and uncle [Mr D] because they live near my college and during that time I usually came to their house to use their computer to do my assignments. They treat me so well and we become closer, unfortunately one night while I had my sleepover at my aunt's house, my uncle came to my room and molested me. I did not scream or anything because he silenced me by putting his hand to my mouth. He threatened me not to tell my aunt and I just wait until early morning to get out of the house. I didn’t react because my uncle was a very big guy and I was afraid of my safety. After that happened, I never told anyone about this incident because I felt ashamed and dirty. After that whenever my aunt asked if I wanted to come over to her house, I always gave excuses because I didn't want to meet the uncle. My depression grew tremendously after that and I started to have suicidal thought.
Continued difficulties in Malaysia and my decision to leave my life freely
11.      After finishing my university education, I started to work [in] a private [Workplace] but somehow because of my boyish appearance, though I was wearing a hijab, I was being ridiculed by my co-worker. After five years working, I felt burnt out and my depression was out of control. I decided to resign in 2012 and after that I just do odd jobs to support my life.
12.      two years 2014 I pretended to my parents like I'm still working in the [Workplace] and then my mother received a letter from the bank about my loans I made during my working time about 100k ringgit malaysia and the bank wanted to declare me towards bankruptcy if I didn't pay my loans. My mother forced me to leave my rented house and move back with her. During my stay with my parents, I was always coerced to have a relationship with a guy that I barely knew and always forced me to get married. Whenever my brother got married, all my relatives will ask me when I want to get married and that's question always makes me stress because I never had interest with guy plus the previous trauma but I never can tell them the secret and the truth about I'm lesbian. That always pressured me while I was in Malaysia.
13.      My mother also brought me to meet religious men and ask them to pray and cleanse me because she was afraid someone had black magic on me and prevented me from getting married. They forced me to have a cold shower at midnight and drink some traditional medicine.
14.      Around early 2016 my financial problem was really critical, and I asked my mother if I could go to Australia to find a job so I could pay for the loans. She gave permission but never helped me for the ticket or other preparations. So I borrowed some money from my aunt [Ms E] and promised to pay her back once I found a job in Australia. It was a difficult decision but I was scared to live in Malaysia because of who I am and also my financial problem.
15.      During my youth time, I have a few relationship with other girls but somehow we always pretend to our family that we just friends because I always knew if I admitted that I'm lesbian I will be punished. The trauma during my early stage of revelation of my sexuality being punished by my mother always gave me nightmares and impacted my mental health.
My life and freedom in Australia
16.      Since moving to Australia, I feel safe and free to be myself for the first time in my life. I do not have to worryy about what other people think of my appearance or my sexuality.
17.      I can have relationships freely or without fear here. I don't have to pretend to have a relationship and I'm free to express myself. I just want to feel safe and accepted the way I am and not be threatened or prosecuted because of my sexuality. My depression is getting better here without the toxic environment I had in Malaysia.
Fears on return in Malaysia
18.      Throughout my whole life in Malaysia, I was forced to hide my sexual identity because homosexuality is strictly forbidden. Because of my sexuality, I lived my whole life in Malaysia in fear. Members of the LGBT are not accepted in Malaysia because Malaysia is an Islamic country. It is a very serious risk to identify as LGBT in public or engage in any behaviour that might expose your sexuality. For instance, I remember that in September 2018, two lesbian women were caned after they were caught attempting to have sex in a car. These types of stories make me very scared to go back to Malaysia. I have seen in the media and internet that attitudes towards the LGBT community are only getting worse.
19.      In Malaysia, my relationships ended because there was no acceptance of who we are, just obey to what society wants us to be. During my relationships, I always feel fear what would happen if anybody suspected we were in same sex relationship. We knew we could be severely punished by our own family, by people within the community, the religious department and the state. In the end all my ex partners had no choice but to give in to their family's demands because of fear of what would happen if they did not.
20.      All this while when I'm living in Malaysia, I had to hide my sexual identity and living in fear because homosexuality is strictly forbidden. As what happened to Sajat in October 2021, a transgender that fled to Australia because have been attack by Malaysia law based on her appearance and sexuality.
21.      Because of my sexual identity as a lesbian and my appearance like tomboy, there is no part of Malaysia where I would be safe. Malaysia is an Islamic state and LGBT community is strictly rejected. Because of this the government (including the police) does not care about protecting us. As my own experiences working in [Workplace], the harassment and assault towards LGBT community was üue [sic] and inevitable and that's make me living in fear if I express myself as lesbian.
22.      For this reason, I need protection in Australia
Independent information
The 2021 DFAT report on Malaysia provides the following information:
Sexual Orientation and Gender Identity
3.134 Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent. Article 377A of the Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration), which Article 377B penalises with imprisonment of between five and twenty years, along with whipping. Numerous state-level syariah-based laws also prohibit both same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional, with the power to make laws with respect to such offences being reserved to the Malaysian Parliament.
3.135 While cross-dressing is not technically illegal under civil law, state-level police have arrested transgender women under the Minor Offenses Act (1955) for public indecency and immorality, or (where applicable) under syariah-based law for impersonating women. A case in 2005 in which a transgender individual was permitted to change their name, sex marker, and related last digit on their identity card has not acted as a precedent in subsequent cases, and the National Registration Department does not generally allow transgender people to access such changes. In 1983, the National Fatwa Council banned Muslims from undergoing sexual reassignment surgery (SRS). Neither SRS nor transition therapy are available in Malaysia (see Transgender People).
3.136 The former BN government was strongly opposed to the ‘promotion’ of LGBTI issues, and had committed to a five-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. Key elements of the action plan included rehabilitation programs for LGBTI individuals (discussed in this section), prevention seminars for parents and students, and enforcement of laws and policies prohibiting the public ‘glamorisation’ of LGBT lifestyles, including through restricting the online space for LGBTI activities and individuals (see Media). Despite the general improvement in the human rights climate following the change of government in May 2018, in-country sources report that LGBTI issues remain sensitive. Notwithstanding its general reformist nature, the previous PH administration was generally unwilling to engage with LGBTI advocacy groups or to consider any substantial changes in its approach to LGBTI issues, including through its rhetoric. In September 2018, for example, then-Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’, while in March 2019 the Tourism Minister responded to a question about whether Malaysia would welcome gay foreign tourists by denying the existence of gay people in Malaysia. An aide reportedly later clarified that the minister was echoing the government’s stance that LGBTI individuals were not officially recognised in the country. The current PN coalition is even less well-disposed towards LGBTI activities and individuals.
3.137 While successive governments’ stances on LGBTI issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI behaviours constitute syariah offences as well as offences against the penal code. Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’ In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.
3.138 Malaysia does not have a national organisation committed to progressing LGBTI rights, but a loose coalition of NGOs and individuals reportedly works to advocate such rights within the framework of broader human rights advocacy. Longstanding official opposition towards the promotion of LGBTI issues in public spaces, which has increased under the current government, has hampered the effectiveness of such advocacy. Authorities have banned homosexual, bisexual, transsexual and transgender individuals appearing on state-controlled media since 1994, while media censorship rules ban movies or songs that promote the acceptance of same-sex relationships. In 2017, authorities initially banned a Disney live action production of ‘Beauty and the Beast’ for an alleged ‘gay scene’, but backed down when Disney refused to censor the scene. In August 2018, the Minister of Religious Affairs ordered the removal of photos of Malaysia’s most prominent transgender activist and another LGBTI activist from an exhibit in Penang celebrating influential Malaysians on the grounds that the exhibition was in breach of the government’s policy to not promote LGBTI activities. In March 2019, the Minister for Religious Affairs criticised the participation of LGBT groups at an International Women’s Day march as a misuse of democratic space. In July 2020, Zulkifli Mohamad Al-Bakri, Malaysia’s Minister in charge of religious affairs, announced in a social media post that he had given the Federal Territories Islamic Religious Department authorities ‘full licence to carry out its enforcement actions’ against transgender persons in Malaysia, not just arresting them, but also providing them ‘religious education’ so that they would ‘return to the right path’.
3.139 JAKIM and other state religious authorities have occasionally conducted raids on LGBTI events (similar raids reportedly target unmarried heterosexual couples and those suspected of other ‘non-Islamic behaviour’). In August 2018, for example, authorities raided a Kuala Lumpur nightclub known to be popular among the LGBTI community, detaining twenty men. JAKIM subsequently ordered the men to undergo counselling for ‘illicit behaviour,’ while a government minister released a statement hoping that the raid would ‘mitigate the LGBTI culture from spreading in our society’. While the majority of such raids have occurred in public places, state religious officials have also reportedly conducted raids on private premises on occasion, sometimes accompanied by members of the RMP. In-country sources have suggested that authorities conduct such raids as a means of creating income through extorting or blackmailing those targeted.
3.140 The most high-profile legal case in recent years involving prosecution under Article 377A was that of prominent political figure Anwar Ibrahim, who was twice convicted of sodomy in 1999 and 2015 trials widely regarded as being politically motivated. Anwar received a royal pardon and was released from prison in May 2018. Prosecutions in relation to LGBTI activities have typically been in relation to state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,045) after convicting them of allegedly attempting to have sexual intercourse. The caning, which was carried out in a courtroom in front of 100 witnesses, was reportedly the first such sentence to be ordered in relation to a LGBTI-related case since 2010. In November 2019, the Selangor Syariah High Court convicted five men under syariah-based statutes for attempting to conduct sexual relations ‘against the order of nature’ in a private apartment 12 months earlier. The court sentenced four of the men to six months’ imprisonment, six strokes of the cane, and a fine of MYR4,800 (AUD1,520), while the fifth man received a sentence of seven months’ imprisonment, six strokes of the cane, and a fine of MYR4,900 (AUD1,550). Human rights observers criticised the punishments as a breach of human rights, and noted that the presiding judge had made numerous prejudiced remarks during the case that were unrelated to the facts in issue.
3.141 As earlier noted, authorities at federal and state level have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs organised by JAKIM since 2011. The Minister’s comments came while launching a JAKIM e-book guide called ‘Self Transitioning From Homosexuality’, which was available for download in the Google Play Store application. In-country sources report that the JAKIM rehabilitation programs are located in residential locations within neighbourhoods, with participants segregated by sex and subject to curfews. The programs reportedly teach participants how to pray, give them spiritual coaching, and ‘re-educate’ them about their sexual identity. The federal government also reportedly runs seminars for non-LGBTI students, parents, and volunteers to equip them with knowledge on ‘the psychosocial, psychological, and psycho-spiritual needs and health of the LGBTI community’. In August 2020, JAKIM reported a local minority rights activist, Nicole Fong, to the police over her tweets criticising the Ministry’s LGBTI ‘conversion’ therapy.
3.142 A number of state governments also run re-education programs for LGBTI individuals. The Terengganu government has reportedly run a ‘re-education boot camp’ or ‘behaviour corrective program’ in Besut for teenage males since 2010, to which boys selected for effeminate behaviour were sent for physical training and religious and motivational classes; while the Negeri Sembilan Religious Affairs Department reportedly held a two-day camp as part of the state’s ‘Action Plan Against Social Ills of LGBT 2017-2021’. The Selangor State Government also reportedly offers inducement payments to members of the LGBTI community to undergo treatment by any institution, Muslim NGO or group that can ‘liberate, manage, protect, treat, and rehab [the] community’. In addition to the programs run by official bodies, a number of private centres also reportedly offer ‘treatment’ to LGBTI individuals through religious counselling. In-country sources report that some parents elect to send their children to official or private re-education centres for reasons other than identifying as LGBTI, including in cases involving sex before marriage or drug abuse.
3.143 There is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. As noted in Media, authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI.[1]
[1] DFAT, Country Information Report – People’s Republic of Malaysia, 29 June 2021, pp. 45-48.
Hearing, credibility, findings, and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Malaysia and accordingly her claims will be assessed against Malaysia.
In the hearing the applicant gave evidence broadly consistent with her written claims as to her sexuality and history of relationships and adverse treatment by family members. The applicant provided detail of being found out in a relationship with a girl at boarding school when she was [age] that resulted in her being suspended. Prior to the applicant’s parents being sent by mail the suspension notice, the applicant went to stay at the home of her girlfriend. The applicant’s mother received the suspension notice indicating the basis of the suspension as her ‘unnatural’ acts with a girl. The applicant’s mother did not show the applicant’s father this suspension notice or provide details to him of the reasons for the suspension. However, family members found the applicant at the home of the girlfriend and forced her home. The applicant indicated that her mother beat her which the Tribunal accepts. The Tribunal accepts that the applicant was in a relationship with a girl at school and suspended by the school when this relationship was discovered.
The applicant also provided consistent evidence with written claims as to a relationship entered into with a girl at college which was discovered by other students who threatened to report the relationship to school officials. As a result, albeit that the relationship continued it was conducted very secretly. The Tribunal accepts the details provided of this relationship.
The applicant referred to two other relationships with women that were not indicated in the written claims. The last of those relationships ended in 2010. The Tribunal accepts those relationships.
The applicant indicated in the hearing that apart from her mother, while there is a suspicion by other family members, including her [brothers], of the applicant’s sexuality that they do not know for sure.
The applicant gave evidence in the hearing that financial difficulties when she finished her [Occupation 1] jobs in 2012 resulted in her being forced to return to the family home because she could not pay her rent. The applicant indicated that the information in the protection visa application visa application that from 2012 to 2016 she worked as [an Occupation 2] was correct, but this was only a part-time job worked at from home in which the applicant received only commissions. She indicated that she only earned per annum from this job approximately AUS$10,000 which was not enough to support herself independently including paying rent. The applicant indicated that she undertook other jobs to supplement her income.
The applicant indicates that in Australia she dates women using online applications, although because of the damage that has been inflicted on her in terms of past relationships she is not currently in a committed relationship. The applicant indicates that she does have a social group of other lesbians, including individuals in Melbourne and Adelaide who she visits.
Given all of the evidence, the Tribunal is quite satisfied that the applicant is homosexual. The Tribunal accepts knowledge by her mother of her sexuality and a suspicion by her father and brothers albeit that they do not know for sure, and that the applicant’s mother has not revealed specifically the applicant’s sexuality to them. The Tribunal accepts adverse views and treatments when the applicant was suspended at boarding school at the age of [age] for being in a relationship with a girl. The Tribunal accepts that the applicant was beaten by her mother as a result.
The Tribunal accepts the truth of subsequent same-sex relationships indicated by the applicant which were required to be conducted with significant secrecy to avoid knowledge by others because of the adverse and discriminatory treatment this would result in. The Tribunal accepts that college other students threatened to report a same-sex relationship with the applicant and a girl to school authorities which resulted in the relationship continuing, albeit with greater secrecy.
The Tribunal accepts that if the applicant returns to Malaysia she would wish, were it not for the fear of discrimination and harm from society, to enter into same-sex relationships in an open and transparent manner and be open in terms of her sexuality. The Tribunal accepts the if the applicant did this then there is a real chance of her facing significant mistreatment and discrimination. The Tribunal is satisfied on the basis of the DFAT information extracted in this decision that there is opprobrium and adverse treatment in Malaysia directed towards LGBTI individuals compounded in the case of Muslims, of which the applicant is one.
The Tribunal is satisfied that if the applicant openly expressed her sexuality as she would wish in Malaysia then this would result in a real chance of discrimination and mistreatment which would cumulatively amount to serious harm. The Tribunal considers that the serious harm would be for the essential and significant reason of the applicant belonging to the particular social group of homosexual women. The Tribunal is satisfied that the discrimination would be systemic and discriminatory. Given the pervasive negative attitudes towards LGBTQI+ individuals in Malaysia and the criminalisation of same-sex activity, the Tribunal is not satisfied that the applicant would be able to obtain the effective protection of the state against discrimination and mistreatment.
The Tribunal is satisfied that the applicant does not have the right to enter and reside in any third country.
Given these findings, the Tribunal is satisfied that the applicant faces a real chance of serious harm. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act.
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.
David McCulloch
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.
…

[2022] AATA 3778

7 September 2022

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