1709743 (Refugee)

1709743 (Refugee) [2020] AATA 970 (7 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709743
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Booth
DATE:7 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 07 April 2020 at 4:36pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – forced marriage and abuse within marriage – effective State protection – particular social group – lesbian – societal discrimination – married a woman while living in Australia – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 April 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 19 December 2016. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
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–5LA, 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
The issue in this case is whether the applicant meets the criteria set out in either s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The facts are taken from the applicant’s protection visa application.
Application for review
This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 April 2017 to refuse to grant the applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Act.
The applicant applied for the visa on 19 December 2016.
Identity and country of reference
The applicant is a [age]-year-old female, born [date] in [Location], Malaysia.
The applicant can speak, read and write Malay and English.
The applicant states that she is of Malay ethnicity and of Muslim faith.
The applicant claims to have Malaysian citizenship by birth and a copy of the applicant’s passport, held upon the Department file, confirms that she is a citizen of Malaysia.[1]
[1] Passport, Department file [number]
The applicant stated that she is married.
The applicant listed her husband, father, mother [and siblings] in her protection visa application however she did not record the country that they currently reside in.
The applicant recorded that she is not in contact with family and friends either inside or outside of Australia.
The applicant stated that she is retired in her protection visa application and listed former employment in Malaysia between 2011 and 2016. The applicant recorded primary and secondary schooling between [year] and [year].
In summary, the applicant claimed that she left Malaysia because she was forced to marry a man when she is a lesbian.
Migration history
The applicant arrived in Australia [in] November 2016 on a UD-601 Electronic Travel Authority visa.
The applicant applied for a XA-866 Protection visa on 19 December 2016.
Claims
866 visa application
The applicant’s claims for protection are contained in her protection visa application. No Department interview was offered.
89. Why did you leave that country(s)?
I’ve been leaving my country because of I’ve been forcing to married the guy that I didn’t know about him at all. After 5 Month of our marriage life, he cannot accept for who I am and he know I was a lesbian before and this is a forcing from my parents and he torturing me. He didn’t allowed me to work, to be friend with my friends and the hardest part is sexual on the bed and I can’t even told anyone about this.
90. What do you think will happen to you if you return to that country(s)?
It will happen the same thing if I’m return back to my country as he already know I’m in Australia because he did said that he will never divorce me.
91. Did you experience harm in that country(s)?
Applicant selected ‘Yes’.
He did torturing me and he treated me like I’m in hell.
92. Did you seek help within that country(s) after the harm?
Applicant selected ‘No’.
I can’t even tell anyone because I’m afraid that he will find out, and I did try to tell my parent but they didn’t believe for what I said.
93. Did you move, or try to move, to another part of that country(s) to seek safety?
The applicant selected ‘No’
Because I’m afraid to move because he have a lot of friends that know me as his wife.
94. Do you think you will be harmed or mistreated if you return to that country(s)?
Applicant selected ‘Yes’.
Because he is smart, he did not kick me or slap me just because of he doesn’t want people will not believe him if everyone will see the bruise on my body.
95. Do you think the authorities of that country(s) can and will protect you if you go back?
The applicant selected ‘no’
Because I can’t even report to anyones about it because its link to my family reputation.
96. Do you think you would be able to relocate within that country(s)?
Applicant selected ‘No’.
I can’t move to anywhere in the city because he have lots of friends and the know me as his wife and that reasons I’m in Australia.
Evidence and findings of fact
The applicant has not provided submissions to the Tribunal or Department.
The applicant gave evidence to the Tribunal at the hearing, by telephone and with the aid of a translator, the substance of which was as follows. The applicant confirmed her personal details as set out above. The applicant completed her [number] year of secondary education. She said that she was employed in [a work sector] in Malaysia and there she derived [amount] Malaysian ringgit each month as a result of this employ.
She arrived in Australia [in] November 2016 and applied for the protection visa on 19 December 2016. The Tribunal enquired whether the grounds for her protection visa were a forced marriage and being abused by her husband to which she said “not physical but mental”. She did not elaborate. The Tribunal enquired whether homosexuality was a grounds for her application for protection to which she said “I am a member of the lesbian community, this is not known to my family”. The Tribunal enquired whether there were any other grounds for the protection visa to which she said “yes a few reasons”. When asked what these were she said “can I read them from the application”. The Tribunal enquired whether these were different grounds from those contained in the application for a protection visa to which she said “no”. She added “these are the reasons I have given, forced to get married, certain sexual acts, he threatened to reveal to everyone that I was a lesbian”.
The applicant said that when she arrived in Australia she was the holder of a “tourist” visa. She did not elaborate.
The Tribunal enquired why she left Malaysia. She said “because I wasn’t happy in the marriage, not accepted by my in-laws, under a great deal of stress”. She did not expand. The Tribunal invited her to expand upon her answer. She said “before I left Malaysia I was always abused and singled out because of my appearance, I’m not very feminine”. She did not elaborate.
The Tribunal invited her to go through each of the three grounds of her application for protection. She commenced with the ground of forced marriage in relation to which she said, “I was forced into marriage, I didn’t want to, forced by my family, also pressured by the community, they said that because of how you look, I was forced into the marriage”. The Tribunal enquired when she was married to which she said “not sure, three or four months before I decided to come to Australia”. The Tribunal enquired as to her age when this occurred to which she said “[age]”. The Tribunal enquired how old her husband was at the time to which she said “one year younger, the families knew each other”. The Tribunal enquired whether she produced a certificate of marriage to which she said “no I was never given one”. The Tribunal asked her husband’s name to which she said “[Mr A]”. The Tribunal enquired who forced her to marry this man. She said “my family, I was looked after by my grandparents and had to do whatever they said”. The Tribunal asked why she did not refuse to be married. She said “I was not able to protest or refuse, because I was looked after by my grandparents and everyone wanted the marriage to go ahead”. The Tribunal enquired why she did not leave her home and move elsewhere. She said “if I wanted to leave, I did not have it in me, my husband has many friends, and I have family in Malacca, Jahor and Bahang”.
In relation to the claim of sexual abuse she said as follows “I was in a dilemma in a marriage because of sexuality, because I’m a lesbian and I’ve never been in a relationship with a man, when I got married, once married, you must sleep with your husband, the first night was the first time I’d ever been with any male, I was not ready, I had no feelings, I was unprepared for the event, he went ahead with intercourse, from that first time I had felt I was degraded, I was regarded as raped by my own husband because I was unwilling and un-prepared, I tried to speak to friends to get advice, this did not lead to anything, they said your responsibility is as a wife, I had to bear this continuous incident for four months until I came to Australia. I had no choice, I’m a lesbian, I got no support from my family, they wanted nothing to do with me, I could not do anything, I could not tell my family”. The Tribunal enquired whether she had gone to the police. She said “no this matter concerning the good name of the family”. The Tribunal enquired why she had not left the house sooner. She said “I was in a marriage, a family pay for the wedding, I could not reveal my sexuality”.
As to her sexuality she said as follows: “I have a lesbian since high school, it was feelings which I could not control, I developed a liking for female friends, I have never been in a relationship with a man”. The Tribunal enquired whether she had homosexual relationships while she was in Malaysia. She said “I have, but I’ve done it in secret”. The Tribunal enquired whether she could elaborate on this relationship. She said “I was in a relationship in Malaysia, sure I got married, but it was a secret, had to hide this, my appearance is male, I was in a relationship for four years, I was living with her, when I was working”. The Tribunal enquired when this relationship had taken place to which she said “I was [age] or [age]”. The Tribunal enquired as to this person’s name to which she said “[Ms B]”. The Tribunal asked the applicant to explain the circumstances of living with this person. She said “I was not living with her, I stayed with her from time to time, we would go out of town to work, I would stay with her”. She did not elaborate. The Tribunal enquired whether she had been threatened or harmed because she was a homosexual whilst in Malaysia. She said “I was, because I presented as a male, always singled out and degraded”. The Tribunal invited her to expand upon this statement. She said “when I was working selling [products] at the supermarket it was difficult to close sales, the customers did not want to approach me there because of how I looked, if I would go out people will mock me, a group of men said to me girls like you should die rather than pretend to be a man. While I have been in Australia I have formed a relationship with a woman and I have married her”. The Tribunal enquired as to this person’s name to which she said “[Ms C]”. The Tribunal enquired when she had married this person to which she said “[April], I think 2018”. The Tribunal enquired where this had taken place to which she said “Melbourne”. The Tribunal enquired whether she had a marriage certificate to which she said “yes”. She agreed to provide the marriage certificate subsequent to the hearing. The Tribunal enquired whether she lived with her wife to which she said “yes”. In answer to a further question from the Tribunal she said that her wife is [age] years of age. In answer to a further question she said that her wife’s birth date is [date] and that she is Malay. When asked whether the applicant’s wife was employed she said “yes she works with me”. In answer to a further question apparently they are both employed at a “[workplace]”. The Tribunal enquired where the applicant’s wife was at the time of the hearing to which she said “she is at work today”. The Tribunal enquired why the applicant’s wife was not giving evidence. She said “we have to work because we’re not long on employment, we both cannot have a day off”.
The Tribunal enquired whether the applicant considered she would be harmed if she returned to Malaysia. She said “I think I will, because I ran away from my family, I cannot take my wife back with me, and I cannot leave her here”. She did not elaborate.
The Tribunal enquired whether there was any reason why the applicant could not live in another part of Malaysia. She said “I have a lot of family, my husband has a lot of friends all over Malaysia”. She did not elaborate.
The Tribunal proceeded to paraphrase country information on the topics of sexual orientation, forced marriages, state protection and relocation. The applicant was invited to comment as to each. In relation to sexual orientation she said “Ibrahim is a minister, I am a normal person, LGBT community is not accepted in any state in Malaysia, if I went to Kuala Lumpur Society would still look at me the same way, with contempt, this is a perception, maybe 5% of the population would accept me, we are a very small community, if I were to reveal this I would be frowned upon”. In relation to forced marriages the applicant said “Muslim women in Malaysia need permission to get married, this was done by my family, I was forced to marry, I was not able to make a report to authorities about my family because I was forced to accept it, I know the laws in Malaysia imprison someone who force a marriage, but I had no choice”. In relation to state protection she said “when I was forced to do something, I know our MP are tougher laws and punishment but I cannot do something which can embarrass and shame on the family, if I go ahead to take action it will impact badly on me, I did not want to bring shame on my grandparents and family”. In relation to relocation she said “in relation to Sryiah laws, I don’t think they would listen to a lesbian, I am a Muslim, if I may have some recourse, if I were to return, I am married to a woman unless I go to another country outside Malaysia”.
The Tribunal invited the applicant to add anything further to her application for review. She said “I have been married to my wife two years, we are living together for two years, I did not know her when I submitted the application, I have a good life here”. She did not elaborate.
Subsequent to the hearing the applicant provided a certificate of marriage in respect of herself and one [Ms C], dated [April] 2018.
The Tribunal finds that the applicant:
a.is a [age]-year-old female, born on [date] in [Location], Malaysia.
b.can speak, read and write in Malay and English.
c.belongs to the Muslim faith.
d.is a Malaysian citizen and holds a current Malaysian passport.
e.is married.
An issue for determination is whether the applicant is homosexual. The applicant said that she is a homosexual female and has been so while she was living in Malaysia. She said that she had a homosexual relationship with a woman while she was in Malaysia although they did not cohabit. She said that she has married a woman in Australia and produced a certificate of marriage. The person to whom she is married did not give evidence at the hearing. The Tribunal would expect that such evidence would be led by a partner in circumstances where the applicant was seeking to prove the veracity of the assertion. However the applicant said that the reason why her wife did not give evidence was because they had recently obtained new employment and that they could not both take leave of absence from that employment. The Tribunal also notes that the sex of the person identified in the marriage certificate is not stated. However, having regard to the testimony of the applicant the Tribunal is satisfied that she is a homosexual female and that she married in Australia [in] April 2018.
The country information

In accordance with the Ministerial Direction No.84 made pursuant to s.499 of the Act, the Tribunal also had regard to country information assessments prepared by DFAT. In particular, as follows, from DFAT Country Information Malaysia, 13 December 2019 (footnotes omitted):
Sexual Orientation and Gender Identity
3.130 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. While cross-dressing is not technically illegal under civil law, state-level police have arrested transgender women under the Minor Offenses Act (1955) for public indecency and immorality, or (where applicable) under syariah-based law for impersonating women. A case in 2005 in which a transgender individual was permitted to change their name, sex marker, and related last digit on their identity card has not acted as a precedent in subsequent cases, and the National Registration Department does not generally allow transgender people to access such changes. In 1983, the National Fatwa Council banned Muslims from undergoing sexual reassignment surgery (SRS). Neither SRS nor transition therapy are available in Malaysia.
3.131 The former government was strongly opposed to the ‘promotion’ of lesbian, gay, bisexual, transgender, and intersex (LGBTI) issues, and had committed to a five-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. Key elements of the action plan included rehabilitation programs for LGBTI individuals (discussed in this section), prevention seminars for parents and students, and enforcement of laws and policies prohibiting the ‘public glamorisation of the LGBTI lifestyle’, including through restricting the online space for LGBTI activities and individuals (see Media). Despite the general improvement in the human rights climate resulting from the change of government in May 2018, in-country sources report that LGBTI issues remain sensitive. The new administration has been unwilling to engage with LGBTI advocacy groups or to consider any substantial changes in its approach to LGBTI issues, including through its rhetoric. In September 2018, for example, Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’, while in March 2019 the Tourism Minister responded to a question about whether Malaysia would welcome gay foreign tourists by denying the existence of gay people in Malaysia. An aide reportedly later clarified that the minister was echoing the government’s stance that LGBTI individuals were not officially recognised in the country.
3.132 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 continued under the new government, has hampered the effectiveness of such advocacy. Authorities have banned homosexual, bisexual, transsexual and transgender individuals appearing on state-controlled media since 1994, while media censorship rules ban movies or songs that promote the acceptance of same-sex relationships. In 2017, authorities initially banned a Disney live action production of ‘Beauty and the Beast’ for an alleged ‘gay scene’, but backed down when Disney refused to censor the scene. In August 2018, the Minister of Religious Affairs ordered the removal of photos of Malaysia’s most prominent transgender activist and another LGBTI activist from an exhibit in Penang celebrating influential Malaysians on the grounds that the exhibition was in breach of the government’s policy to not promote LGBTI activities. In March 2019, the Minister for Religious Affairs criticised the participation of LGBTI groups at an International Women’s Day march as a misuse of democratic space.
3.133 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.
3.134 The most prominent legal case in recent times involving prosecution under Article 377A was that of prominent political figure Anwar Ibrahim, who was twice convicted of sodomy in 1999 and 2015 trials widely regarded as being politically motivated. Anwar received a royal pardon and was released from prison in May 2018. Other prosecutions in relation to LGBTI activities have not been common. When they have occurred in recent times, they have been in relation to state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to be given six strokes of the cane and pay a fine of RM 3,300 (AUD 1,100) after convicting them of allegedly attempting to have sexual intercourse. The caning, which was carried out in a courtroom in front of 100 witnesses, was reportedly the first such sentence to be ordered in relation to an LGBTI-related case since 2010. In November 2019, the Selangor Syariah High Court convicted five men under syariah-based statutes for attempting to conduct sexual relations ‘against the order of nature’ in a private apartment 12 months earlier. The court sentenced four of the men to six months’ imprisonment, six strokes of the cane, and a fine of RM4,800 (AUD1,700), while the fifth man received a sentence of seven months’ imprisonment, six strokes of the cane, and a fine of RM4,900 (AUD1,730). Human rights observers criticised the punishments as a breach of human rights, and noted that the presiding judge had made numerous prejudiced remarks during the case that were unrelated to the facts in issue.
3.135 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 remains available for download in the Google Play Store application. In-country sources report that the JAKIM rehabilitation programs are located in residential locations within neighbourhoods, with participants segregated by sex and subject to curfews. The programs reportedly teach participants how to pray, give them spiritual coaching, and ‘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’.
3.136 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 effeminate teenage males since 2010, to which boys selected for effeminate behaviour were sent for physical training and religious and motivational classes; while the Negeri Sembilan Religious Affairs Department reportedly held a two-day camp as part of the state’s ‘Action Plan Against Social Ills of LGBT 2017-2021’. The Selangor State Government also reportedly offers inducement payments to members of the LGBTI community to undergo treatment by any institution, Muslim NGO or group that can ‘liberate, manage, protect, treat, and rehab [the] community’. In addition to the programs run by official bodies, a number of private centres also reportedly offer ‘treatment’ to LGBTI individuals through religious counselling. In-country sources report that some parents elect to send their children to official or private re-education centres for reasons other than identifying as LGBTI, including in cases involving sex before marriage or drug abuse.
3.137 In-country sources have reported that authorities will only permit LGBTI individuals who have HIV/AIDS to access medical treatment if they can demonstrate that they have ‘transitioned back to heterosexuality,’ through a re-education centre or otherwise. DFAT is unable to comment on the veracity of this claim.
3.138 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. Most of the recent cases of societal violence against LGBTI individuals of which DFAT is aware relate to violent attacks on transgender women, who tend to be more readily visible. In August 2018, eight men violently abused a transgender woman in Negeri Sembilan state, resulting in broken bones, and internal, head and back injuries. In December 2018, a group of five people aged between 16 and 21 years of age violently attacked and killed a transgender woman in Klang (outside Kuala Lumpur); while in January 2019 police arrested a 55 year old man in the same location in relation to the death of a transgender woman who reportedly fell from a moving vehicle. DFAT is not aware of the status of prosecutions in either case.
3.139 In-country sources report that their increased visibility makes transgender individuals particularly vulnerable to being subjected to raids by religious authorities and subsequently placed in re-education centres. Transgender women are held in male custodial facilities, and numerous human rights organisations have reported allegations that state religious officials, corrections officers, and fellow detainees have subjected transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are also reportedly denied access to public education upon transitioning, and often avoid seeking medical treatment in public hospitals due to the requirement that they be placed in male wards. The strict segregation between sexes in mosques means transgender women who are Muslim are also often precluded from accessing places of worship.
3.140 The level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah. Most transgender individuals from Sarawak and Sabah reportedly relocate to Kuala Lumpur for employment (almost exclusively in the private sector) and to escape discrimination.
3.141 DFAT assesses that LGBTI individuals face a moderate risk of both official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. Some of these risks are higher for transgender individuals, and for those located in poorer and rural areas.
The Department of Home Affairs, “Common Claims Malaysia” dated 12 February 2020 states as follows:
PARTICULAR SOCIAL GROUPS
Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI)
Malaysian secular law criminalises same-sex sexual acts but in practice the law is rarely invoked. A former British colony, Malaysia has retained its colonial-era law against sodomy.[2] Malaysia’s Penal Code criminalises sodomy (homosexual) and oral sex (homosexual and heterosexual) acts, but authorities rarely enforce the law.[3] Secular law that criminalizes male-male sexual acts has been extended to female-female acts.[4] Sodomy laws have only been invoked seven times since 1938, four of those instances against former Deputy Prime Ministry Anwar Ibrahim.[5] International observers and human rights organisations viewed sodomy charges against Anwar Ibrahim as politically motivated.[6] Those found guilty under section 377A of the Penal Code for ‘carnal intercourse against the order of nature’ are liable for imprisonment of up to twenty years and a whipping.[7] During a parliamentary session in July 2019, the Prime Minister said the government has no plan to review existing provision in the law that deal with sodomy and fellatio, stating, “for the time being, there is no plan to review the punishment for Sections 377B and 377C of the Penal Code, because the punishments provided by both sections are sufficient”.[8]
Islamic laws in several states prohibit same-sex sexual acts. Some Malaysian states apply their own penalties to Muslims under Sharia statutes.[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] The caning of women is banned under civil law, but allowed under Islamic laws in some states.[11] In October 2018, Terengganu state was the first state in Malaysia to cane two LGBT Muslim women under Sharia law for musahaqah (attempting to have lesbian sex).[12] The Prime Minister denounced the caning of two lesbian women in Terengganu state under Sharia law, considering the punishment too harsh.[13] In November 2019, the Selangor Sharia High Court sentenced four men to six months’ jail (a fifth to six months), six strokes of the can and a RM4, 800 fine for “attempting intercourse against the order of nature” according to Malay-language daily Harian Metro. The Islamic enforcement officers detained the five with seven other men during a raid on an apartment.[14]
Also see ‘Sharia law’
The Malaysian government and society largely oppose LGBT lifestyles that are considered inconsistent with conservative values. Drawing on Gallup data, the 2019 Legatum Prosperity Index shows that Malaysia ranks 159^th out of 167 countries for its ‘perceived tolerance of LGBT individuals’, equating to its lowest ranking since 2009.[15] The 2019 ranking shows a sharp decline in compared with 2018 when tolerance of LGBT ranked 82^nd.[16] 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.[17] Prime Minister Mahathir has publically acknowledged that his government does not support LGBT unions, which it see as an element of human rights in Western society rather than aligning with Malaysian values.[18] A Deputy Minister in the Prime Minister’s Department said that the government “disagree with the behaviour of the LGBT” but “will not allow discrimination to occur”, instead supporting rehabilitation of LGBT individuals.[19] In November 2018, a Malaysian delegate to its Universal Periodic Review on human rights said in response to questioning about discrimination against the LGBT community that the government “upholds the rights and dignity of all person in Malaysia in accordance to the law” and cited article 8(2) of the Constitution that prohibits discrimination against gender.[20] LGBT activists and NGO representatives criticised the Malaysian delegation’s response to LGBT issues as weak.[21] The Human Rights Commission of Malaysia (SUKAKAM) said that although it does not support same-sex marriage, the LGBT community should not be discriminated against.[22]
Malaysian authorities promote heterosexual lifestyles amongst the LGBT community. Malaysia’s Islamic authorities have published materials and conducted outreach activities encouraging Muslim LGBT persons to undergo sexuality rehabilitation.[23] The Malaysian Islamic Development Department (JAKIM) facilitates an outreach program (Mukhayyam) to rehabilitate LGBT individuals.[24] 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 LGBT are being “converted” to the “right path” instead of its original intent of to “provide a safe, non-judgmental space” to the transgender community.[25] The Ministries of Health and Education conduct campaigns aiming to ‘prevent, overcome, and correct’ homosexuality in children.[26] In 2018 a nightclub frequented by members of the LGBT community was raided by police and government officials resulting in twenty men being detained and ordered to undergo counselling for “illicit behaviour”.[27] DFAT assess that LGBTI individuals face a moderate risk of official and societal discrimination.[28]
Transgender individuals face discrimination and occasional violence. Authorities often charge transgender persons for cross-dressing with “indecent behaviour” and also for “importuning for immoral purposes” in public.[29] Those convicted of a first offence faced a maximum fine of RM25 (USD6.25) and a maximum sentence of 14 days in jail.[30] The sentences for subsequent convictions may be maximum fines of RM100 (USD25) and a maximum three months in jail.[31] Local advocates contend that imprisoned transgender women served their sentences in prisons designated for men and that police and inmates often abused them verbally and sexually.[32] Justice for Sisters (JFS), an advocacy group for the LGBT community, said it has experienced difficulty obtaining legal representation for its clients who were charged under anti-crossdressing state Islamic laws.[33] Transgender individuals may face discrimination in public healthcare facilities, including undergoing forcible HIV/AIDS testing or being housed in male wards where they can be exposed to violence and abuse.[34] Local NGO Justice for Sisters report that between 2014 and 2019 there have been 10 known cases of transgender murders, but note that some murders are unlikely reported. Between November 2018 and October 2019 there were four known murder cases involving transgender women, including two sex workers, and one Thai national.[35] During 2017, three transgender individuals were killed according to Justice for Sisters.[36] A survey by a local transgender rights group reported more than two-thirds of transgender women experienced some form of physical or emotional abuse.[37]
Numerous organisations operate in Malaysia providing support to the LGBT community. Mainstream Christian churches and the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism have also spoken out against discrimination and violence towards gay and lesbian people.[38] Leadership Program for Gays (LPG) is based in Kuala Lumpur and aims to build a network for LGBT business people. Activities organised by the group include gatherings and sports events.[39] PLUPenang is an LGBT organisation based in Penang State designed to support, empower and foster friendship between its members arranging recreational events and provides a safe space for LGBT people to express themselves.[40] Pertubuhan Kebajkan dan Persekitaran Positif Malaysia or SEED is an officially registered community organisation that provides support services, including a drop-in centre, primarily for the transgender community.[41] Justice for Sisters is a campaign organised to raise public awareness about issues pertaining to transgender individuals and raise funds to finance court cases against transgender individuals in Sharia courts.[42] The PT Foundation provide support to the LGBTI community, including those affected with HIV/AIDS, offering services such as healthcare and drop-in services, and offers seminars, operates a telephone counselling line and offers outreach programmes at third-party venues.[43] Seksualiti Merdeka works to empower Malaysians that have been marginalised for their sexual orientation and gender identity. The group also aims to champion sexuality rights as human rights, and provide a platform for LGBT human rights issues.[44]
[2] ‘Anwar Ibrahim’s rebirth and Malaysia’s LBGT+ rights’, Pursuit (University of Melbourne), 27 May 2018, CIS7B839411105;
[3] ‘Amnesty International Report 2017/18’, Amnesty International, 22 February 2018, p.250, NGED867A612;
[4] ‘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, p.169, CISEDB50AD4462
[5] ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, International ‘Gay and Lesbian Human Rights Commission’, 6 May 2014, p.33, CIS2F827D91966;
[6] Anwar Ibrahim’s rebirth and Malaysia’s LBGT+ rights, Pursuit (University of Melbourne), 27 May 2018, CIS7B839411105;
[7] ‘Penal Code’, Government of Malaysia, enacted 1936, amended 31 December 2014, sections 377A, 377B, CISEDB50AD9259;
[8] ‘Mahathir says no plan to review laws against sodomy’, Malaysiakini, 5 July 2019, 20190705094840
[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;
[11] ‘Two Malaysian Muslim women caned in public for attempting to have sex in car’, Australian Broadcasting Corporation News (ABC News), 4 September 2018, CXBB8A1DA39062;
[12] ‘How public caning is performed in Terengganu’, Malaysiakini, 5 September 2018, CXBB8A1DA34939
[13] ‘Malaysia PM denounces caning of two women for lesbian sex’, Agence France Presse, 7 September 2018, CXBB8A1DA34969
[14] ‘Malaysia sentences five men to jail, caning and fines for gay sex’, Reuters, 8 November 2018, 20191108073528;
[15] ‘2019 Legatum Prosperity Index’, Legatum Institute, 25 November 2019, 20191206104103
[16] ‘Study: In post-GE14 Malaysia, more person freedom but tolerance took a dive’, Malay Mail Online, 27 November 2019, 20191206095708
[17] ‘The Global Divide on Homosexuality: Greater Acceptance in More Secular and Affluent Countries’, Pew Research Center, 4 June 2013, p.3, CIS26344
[18] ‘PM slams West for erosion of values, same-sex marriage’, Malaysiakini, 22 November 2019, 20191206082228;
[19] ‘Malaysia sticks to stand on disallowing same-sex marriage’, Bernama, 23 September 2018, CXBB8A1DA35842
[20] ‘Under UN review, Putrajaya defends female circumcision, insists no LGBT bias’, Malay Mail Online, 9 November 2018, CXBB8A1DA38176
[21] ‘Virtual shield useless against real violence towards LGBT, Putrajaya told’, Malay Mail Online, 9 November 2018, CXBB8A1DA38179
[22] ‘Suhakam does not support gay marriage’, Malay Mail Online, 22 September 2018, CXBB8A1DA35835
[23] ‘Malaysian authorities release video claiming homosexuality can be ‘cured”, Gay Community News (GCN), 18 December 2019, 20191220100405;
[24] ‘Malaysia Should Find ‘Right Path’ on LGBT Rights’, Human Rights Watch, 7 August 2018, 20190206102849
[25] ‘AIDS council slams Jakim’s ‘conversion therapy’ for LGBTs’, Free Malaysia Today, 24 December 2018, 20190125114340
[26] ‘Freedom in the World 2018 - Malaysia’, Freedom House, 5 April 2018, section F4, NGED867A631
[27] ‘Magazine: PH govt among ’10 biggest homophobes and transphobes of 2018’, Free Malaysia Today, 2 January 2018, 20190125103916
[28] ‘Country Information Report Malaysia’, Department of Foreign Affairs and Trade (Australia), 13 December 2019, section 3.141, p.46, 20191213141745
[29] ‘Country Reports on Human Rights Practices for 2018 - Malaysia’, US Department of State, 13 March 2019, section 6, p.29, 20190314091511
[30] ‘Country Reports on Human Rights Practices for 2018 - Malaysia’, US Department of State, 13 March 2019, section 6, p.29, 20190314091511
[31] ‘Country Reports on Human Rights Practices for 2018 - Malaysia’, US Department of State, 13 March 2019, section 6, p.29, 20190314091511
[32] ‘Country Reports on Human Rights Practices for 2018 - Malaysia’, US Department of State, 13 March 2019, section 6, p.29, 20190314091511
[33] ‘Why Muslims accused of Shariah offences lack access to justice’, Malay Mail Online, 8 October 2018, 20190606092708
[34] ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Addendum: Visit to Malaysia (19 November–2 December 2014)’, United Nations Human Rights Council, May 2015, p.16, CISEC96CF14228;
[35] ‘Gov’t must curb increasing violence against transgenders’, Malaysiakini, 20 November 2019, 20191206075644;
[36] ‘Country Reports on Human Rights Practices for 2017 – Malaysia’, US Department of State, 20 April 2018, section 6, p.28, OGD95BE927312;
[37] ‘Country Reports on Human Rights Practices for 2018 - Malaysia’, US Department of State, 13 March 2019, section 6, p.29, 20190314091511
[38] ‘LGBT Organisations in Malaysia’, Angloinfo Malaysia, n.d., accessed 29 June 2018, CISEDB50AD3776;
[39] ‘LPG Community’, Yahoo Groups, n.d., accessed 23 November 2018, CIS7B8394110273
[40] ‘PLUPenang website’, PLUPenang, n.d., accessed 23 November 2018, CIS7B8394110276
[41] ‘About SEED’, Pertubuhan Kebajkan dan Persekitaran Positif Malaysia (SEED), n.d., accessed 8 November 2018, CIS7B8394110070
[42] ‘About Justice for Sisters’, Justice for Sisters, n.d., accessed 8 November 2018, CIS7B8394110071;
[43] ‘About Us PT Foundation’, PT Foundation, n.d., accessed 8 November 2018, CIS7B8394110073
[44] ‘Seksualiti Merdeka Facebook page’, Facebook, n.d., accessed 23 November 2018, CIS7B8394110278

Insofar as State protection and forced marriages are concerned, from DFAT Country Information Malaysia, 13 December 2019 (footnotes omitted):
a.Royal Malaysia Police (RMP)
5.5 The RMP is based on the British constabulary model, and employs approximately 115,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Minister for Home Affairs. Local and international sources consider the RMP to be a professional and effective police force, although the quality of its members’ responses varies depending on levels of training, capacity and engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam conducts some human rights training and workshops for police and prison officials. Police officers are among the lowest paid members of the Malaysian civil service. The RMP is 80 – 85 per cent Bumiputera. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians.
5.6 According to Transparency International, Malaysians perceive the police as one of the most corrupt institutions in the country (see Corruption). The 2005 Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police identified a perception of widespread corruption within the RMP. In response, the government publicly acknowledged the existence of police corruption and implemented reforms including establishing compliance units within RMP. A number of police officers were subsequently tried by criminal and civil courts, with disciplinary actions including suspension, dismissal or demotion.
5.7 External investigations into allegations of police misconduct are done by the Enforcement Agency Integrity Commission, which monitors enforcement agencies for misconduct but can only make recommendations to the disciplinary authorities of the enforcement agency in question. Low levels of success in criminal prosecution have led to an increase in the number of victims’ families seeking compensation through civil courts.
5.8 The then-Inspector General of Police announced the establishment of an Integrity and Standards Compliance Department in July 2014 to enhance police integrity and image. It sits within the RMP. Suhakam also receives complaints against the RMP, and has investigated police behaviour. The government is not formally required to consider Suhakam’s reports or recommendations.
…
b.Judiciary
5.13 The Federal Court is the highest judicial authority in Malaysia, followed by the Court of Appeal, High Courts at state level, and subordinate courts. Syariah courts operate at state level with jurisdiction over Muslims in personal matters. The subordinate civil courts hear the majority of Malaysia’s criminal, civil and family law matters for non-Muslims. A Judicial Appointments Commission makes judicial appointments, subject to the Prime Minister’s final approval. Eighty-two per cent of members of the Federal Court are Malay Muslims. Judges receive relatively low salaries, limited training, and many are new graduates.
5.14 Sources report issues of judicial independence, arbitrary verdicts, selective prosecution, delays to court-ordered relief for civil plaintiffs, and preferential treatment of some litigants and lawyers persist in Malaysia. The ability of individuals to seek legal redress through Malaysian courts is variable. Sources advise that defendants generally have adequate time to prepare a defence, particularly those with the financial means to engage private counsel. Government legal aid resources are limited and generally of poor quality. Although strict rules of evidence apply in court, defence counsel reportedly does not consistently receive state-held evidence. According to a leading human rights NGO, a Court of Appeal judge claimed a senior judge had reprimanded him after writing a dissenting statement in 2018. The slow movement of cases through the under-resourced court system can lead to lengthy pre-trial detention periods: in mid-2017, 29.8 per cent of the total prison population comprised pre-trial detainees (see Detention and Prison).
…
5.17 DFAT assesses that while courts have issued contentious verdicts, particularly in instances involving high-profile politicians and human rights defenders, most cases in Malaysian civil courts comply with the rule of law and legal procedure.
The Department of Home Affairs, “Common Claims Malaysia” dated 12 February 2020 states as follows:
Islamic Family Law stipulates that Muslim women may only marry with the consent of a male guardian, but using force or threat to compel a woman to marry or to reject a proposal can lead to a fine or imprisonment. Malaysia’s Law Reform (Marriage and Divorce) Act (1976) states that all marriage must be based on mutual consent, and using force or threat to compel a woman to marry against her will or to prevent her from getting married is punishable with a fine or imprisonment.[45] Islamic Family Law stipulates that marriages are not fully recognised without the consent of the ‘wali’, the woman’s guardian^.[46] A wali or a guardian such as the father is required in Islam to give away a woman for marriage and to solemnise the marriage.[47]
[45] ‘Social Institutions and Gender Index 2014 – Malaysia’, Organisation for Economic Co-operation and Development, 2014, p.1, CISEDB50AD5657
[46] ‘Social Institutions and Gender Index 2014 – Malaysia’, Organisation for Economic Co-operation and Development, 2014, CISEDB50AD5657, p.1
[47] ‘Lawyer: Couple not trying to legitimise illegitimate child, just removing ‘bin Abdullah’ stigma’, Malay Mail Online, 8 February, CXBB8A1DA38635
Conclusions
The country information informs the Tribunal as follows. First, Muslim women may only marry with the consent of a male guardian, but using force or threat to compel a woman to marry or to reject a proposal can lead to a fine or imprisonment. Secondly, the Law Reform (Marriage and Divorce) Act states that all marriage must be based on mutual consent. Thirdly, the Malaysian authorities – including the RMP – are reasonably effective. Next, there is no indication in the country information as identified above that the applicant would not receive assistance, if requested, from the RMP in respect to any threat, actual or perceived. Lastly, there is nothing in the country information to suggest that the Malaysian authorities would be unable or unwilling to protect the applicant in her particular circumstances.
Next, adult same-sex acts are illegal in Malaysia regardless of age and consent. Despite the general improvement in the human rights climate resulting from the change of government in May 2018, in-country sources report that LGBTI issues remain sensitive. Malaysia does not have a national organisation committed to progressing LGBTI rights but a loose coalition of NGOs (non-governmental organisations) and individuals reportedly work to advocate such rights within the framework of broader human rights advocacy. The most prominent legal case in recent times involving prosecution under s.377A of the Penal Code was that of prominent political figure Anwar Ibrahim who was twice convicted of sodomy in 1999 and 2015, trials widely regarded as being politically motivated. Anwar received a royal pardon and was released from prison in May 2018. Other prosecutions in relation to LGBTI activities have not been common. When they have occurred in recent times, they have been in relation to state-based Syariah legislation rather than federal law. The level and frequency of discrimination faced by members of the LGBTI community differ according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of a high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsula Malaysia or Sarawak and Sabah. Malaysian secular law criminalises same-sex sexual acts but in practice the law is rarely invoked. Sodomy laws have only been invoked seven times since 1938, four of those instances against Deputy Prime Minister Anwar Ibrahim. The deputy minister in the Prime Minister’s Department said that the government “disagree with the behaviour of the LGBT” but “will not allow discrimination to occur”, instead supporting rehabilitation of LGBT individuals. The human rights commission of Malaysia said that although it does not support same-sex marriage, the LGBT community should not be discriminated against. Mainstream Christian churches and the Malaysian consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism have also spoken out against discrimination and violence towards gay and lesbian people.
The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to her receiving country of Malaysia, there is a real risk she will suffer significant harm.
As to the applicant’s claims that she has a well-founded fear of persecution by reason of being forced to marry and because of abuse within marriage, the Tribunal does not accept these claims. There are a number of reasons for this. First, the applicant could have refused to marry her husband but chose not to. The applicant could have left her husband when she found the conditions to be unacceptable, but chose not to although she did leave the country. The applicant could have conveyed her complaints to the authorities within Malaysia but chose not to. The applicant was employed and could have used her income to support herself, but chose not to. She did not say that she would be harmed because of this if she were to return to Malaysia. In any event there is no reason to believe that the authorities of Malaysia would not protect her in such circumstances.
The applicant also claimed to have a well-founded fear of persecution by reason of her sexuality. She said that she had considered herself to be a homosexual woman in Malaysia from an early age. She said that she kept this a secret. She said that she had a homosexual relationship with one person whilst living in Malaysia although this was a secret. She said that she faced some societal discrimination within Malaysia as a result of this. She also made reference to her physical appearance however the Tribunal was not able to assess this and she did not produce any photographic evidence. She said that she has married a woman while she has been living in Australia. She has produced a certificate of marriage in that regard. The Tribunal did not hear corroborative evidence from her wife. However the Tribunal considers, although not without some misgivings, that it is reasonable to assume in regard to the applicant’s testimony and the production of the marriage certificate that the assertion is true. Further the Tribunal considers that if the applicant and her wife were to return to Malaysia they would necessarily be required to modify their behaviour to keep the fact of their marriage a secret. Accordingly, on balance and, not without significant misgivings, the Tribunal accepts that the applicant is entitled to protection within Australia pursuant to 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.
Peter Booth
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.
…
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.
…
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

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

‘Country Reports on Human Rights Practices for 2017 – Malaysia’, US Department of State, 20 April 2018, section 6, p.28, OGD95BE927312;
‘Penal Code’, Government of Malaysia, enacted 1936, amended 31 December 2014, sections 377A, 377B, CISEDB50AD9259;

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

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

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

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

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

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

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

‘Malaysia’s LGBT community under siege as government ignores abuse’, Nikkei Asian Review, 20 November 2019, 20191121111042

‘Mahathir Malaysia cannot accept same-sex marriage’, Reuters, 22 September 2018, CXBB8A1DA35827;
‘Don't force’ LGBT rights on Malaysia, Mahathir says’, Agence France Presse, 25 October 2018, CXBB8A1DA37446;
‘World Report 2020: Events of 2019’, Human Rights Watch (HRW), 14 January 2020, p.370, 20200115082903

‘Jakim issues e-book on LGBT rehab; minister says phenomenon ‘under control’’, Malay Mail Online, 24 October 2018, CXBB8A1DA37286;
‘New M’sia should find ‘right path’ on LGBT rights, Malaysiakini, 7 August 2018, CXBB8A1DA39089

‘How life is tough for transgenders in conservative Malaysia, who face violence, religious and official bias, and abusive me’, South China Morning Post, 15 November 2017, CXC90406617584;
‘Submission by Human Rights Watch to the United Nations Committee on the Elimination of Discrimination against Women 69th pre-sessional working group’, Human Rights Watch, May 2017, CISEDB50AD4317

NGOs raise alarm over yet another murder of a transgender woman’, Free Malaysia Today, 3 January 2019, 20190125100210;
‘Klang Transgender Dies From Cracked Skull After Brutal Assault By Men’, SAYS, 14 December 2018, 20190125120728

‘Rising concern in Malaysia's LGBT community after attack on transgender woman’, Reuters, 24 August 2018, CXBB8A1DA34288

‘Beauty and the Beast censorship attempt shows the good, the bad and the ugly of LGBT rights in Malaysia’, The Conversation, 29 March 2017, CXC9040667196

‘Justice for Sisters’, Astraea Lesbian Foundation For Justice, n.d., accessed 8 November 2018, CIS7B8394110072

[2020] AATA 970

7 April 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction