1710404 (Refugee)

1710404 (Refugee) [2020] AATA 2916 (11 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710404
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Peter Vlahos
DATE:11 June 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 June 2020 at 7:23am
CATCHWORDS
REFUGEE – protection visa – Malaysia – member of particular social group – tomboy and lesbian – disapproval and pressure from family – community attitudes and discrimination – no actual harm – credibility – gay and lesbian rights and marriage – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 4 May 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 29 December 2016. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.
The applicant made an application to the Tribunal to review the delegate’s decision on 16 May 2017.
A hearing of the applicant’s application for review of the delegate’s decision was scheduled by the Tribunal on 9 April 2020.
The applicant was not represented at the hearing by either a registered migration agent or legal representative.
There was no interpreter provided as the applicant was well conversant in the English language.
No witnesses’ names were provided to the Tribunal for examination and no witnesses’ statements were submitted.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade 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 Australia has protection obligations in respect of [the applicant]. For the reasons provided herein this decision, the Tribunal has concluded that the decision under review should be affirmed.
Based on a copy of the applicant’s passport, which was provided to the Department of Immigration and Border Protection (the ‘Department’) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and has her claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Migration Act (the ‘Act’).
Therefore on the above-mentioned evidence, the Tribunal further accepts the applicant’s identity as claimed.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record to the Tribunal with the review application.
Background – Migration history of the applicant
The applicant arrived in Australia [in] October 2016 on a UD – 601 Electronic Travel Authority visa (or ‘ETA’). On 25 October 2016 the applicant applied for an XA- 866 Protection visa but the application was found to be invalid. On 29 December 2016 the applicant applied for a XA-866 Permanent Protection visa which was refused by the Department but was issued with the required Bridging visa.
EVIDENCE AT THE SCHEDULED HEARING
Background of the Applicant
The applicant originates from the town, Klang in Selangor and is [Age] years of age. She is of ‘Sunni’ Muslim faith and not married. She has family living in Malaysia which consists of her elderly mother and her two brothers (of varying ages). Her father is deceased. Her employment prior to her arrival in Australia was (according to her evidence at the hearing) [an Occupation 1] – working in Kuala Lumpur. She is currently employed at [City], Victoria – as [an Occupation 2].
The applicant’s claims for Protection
The Tribuanl noted that the applicant made the following written claims in her application for Protection visa which was submitted to the Department:
§The applicant has been a ‘tomboy’ since she was a child.
§The applicant’s mother has ‘bombarded her’ with questions about why the applicant is not married and why she dresses like a ‘boy’ and ‘whether or not she is a homosexual’.
§A ‘family friend’ told the applicant’s mother she had seen the applicant with many different women who could have been her partner.
§The applicant’s mother started questioning the applicant’s life and faith. The applicant was born a Muslim so homosexuality is forbidden.
§The applicant’s brothers caused a big fuss. The applicant was depressed and decided to start a new life in Australia.
§If the applicant returns to Malaysia, she will be discriminated against and will have to continue to live on her own. People will judge her based on her looks rather than her capabilities.
The Applicant was asked by the Tribunal whether the claims made by him to the Department required any amendment, change or variation. In response the applicant told the Tribunal that he did not have any changes to make to his original claims for protection and wished the Tribunal to consider them as they represent the basis of his Protection visa application.
The circumstances and events which led the applicant to leave Malaysia for Australia
The applicant said that she was a ‘tomboy’ all of her life. She attributed this to the influence of her two brothers with whom she shared her life with. She told the Tribunal that this environment – growing up with two males – influenced her in developing a very male-centric attitude to her way of life and attitudes.
However, as the applicant grew up, she told the Tribunal that her mother began to question her appearance and attitudes to life and tried on a number of occasions to impose on her a different attitude and ways of dressing. The applicant stated that she repeatedly refused her mother’s instructions to adopt a more feminine appearance and attitude and this brought the two into conflict on a number of occasions.
The Tribunal was told by the applicant that she ‘…just wanted to be who she wanted to be …’ and not something she was not.
The applicant was asked – did you have relationships with other women during your life? Her response was that she had a number of relationships ‘…which did not last long…’ The applicant went on to explain, that when she formed a ‘relationship’ with another woman, it would somehow come to the attention of ‘her brothers’ and ‘her mother’ in particular, and after the application of considerable ‘mental’ ‘pressures’ these ‘relationships with other women’ would suddenly end. Indeed, there was one relationship the applicant had with another woman who she considered close to being ‘…her partner…’ but did not proceed with the relationship because her mother and brothers would accuse her of being in a ‘sexual relationship’ with ‘…a woman…’
The applicant admitted to the Tribunal that she had been and is ‘…a lesbian…’ since the age of – 13. The applicant stated that all of ‘…her friends…’ at school were ‘females…’ She went on to say that she felt comfortable in the company of ‘women.’ It was in this time (growing up into adult hood), that she had a ‘relationship’ with one female who became very close for a period of time. This relationship ended when this girlfriend went to live in Singapore but the applicant has maintained contact with her (as a friend).
The applicant went on to tell the Tribunal that she had other relationships with ‘other women’ after this relationship but they were not long-term and the applicant generally remained alone because these relationships ‘…did not last long…’ The reason why these relationships were brief in their duration – the applicant attributed to the mental pressures that were applied on her by her brothers and her mother in particular. The applicant stated that her mother would (even as an adult) ask her – when would she get married and settle down to having a life with a husband and children.
The Tribunal asked the applicant – if your family was always interfering in your life, why did you not expel them from your life and live your life as you wanted? The applicant’s response was to tell the Tribunal that this was ‘…not possible in Malaysia…’ Her reason was that in Malaysia the wishes of the family come first. Persons, like the applicant cannot ‘…be themselves…’ The applicant went on to tell the Tribunal that she ‘tried to keep her life private…’ but this was difficult to do.
The applicant also said that her ‘…appearance…’ as a ‘tomboy…’ dressing as ‘a male…’ and having ‘…short hair…’ caused her to attract on a constant basis disapproving glares from people in the community she came into contact with. Especially, when attempting to go to a ‘…public toilet…’ persons would ‘abuse her…’
The applicant expressed the belief that her attitude and manner of dress – her approach to life as a ‘lesbian…’ created issues for her always in Malaysia.
However, the applicant admitted to the Tribunal that she never encountered any problems from the religious authorities as far as it concerned her ‘tomboy appearance’.
The applicant admitted that she did not suffer any ‘discrimination’ at her place of employment and in her employment generally while in Malaysia but people ‘around the applicant…’ were very ‘discriminatory’ towards her because of her lifestyle attitudes and dress.
The applicant stated that she was ‘emotionally depressed…’ by constantly being pressured to ‘fit in with [Malaysian] society – a society, which did ‘…not accept who…’ the applicant was.
While in Australia, the applicant had not experienced any problems of the kind she had been forced to live with when in Malaysia:
“…most people in Australia I know have no problem…”
“…they do not question me…”
“…in Australia, people do not judge me for who I am…”
“…there are no questions asked about my appearance…”
The applicant admitted [when asked] that since her arrival in Australia, she had no contact with any LGBTI community support group but was aware that they existed.
The applicant admitted that she was not in a same-sex relationship. Though, she has an active social life with friends while here in Australia.
The applicant in her final comment to the Tribunal admitted that what caused her to come to Australia was the pressures her mother and other relatives placed on her to marry even when she had made it clear to them [her mother included] that she did not want to get married to a man.
However, the applicant admitted that despite the ‘relatives’ and ‘maternal’ pressures to marry, the applicant had not suffered any violence or physical abuse or had her personal freedoms restricted.
Even while in Australia, the applicant maintains a contact with her mother and brothers via WhatsApp but stated that there is still disagreement with her mother over the issue of marriage.
COUNTRY INFORMATION – MALAYSIA LGBTI COMMUNITY – THE STATE AND SOCIETY
Australia’s Department of Foreign Affairs and Trade (DFAT) reports:[1]
The Malaysian Government openly criticises lesbian, gay, bisexual, transgender or intersex {LGBTI} individuals. In August 2015 Prime Minister Najib claimed that ‘groups like the Islamic State and lesbian, gay, bisexuals, and transgender both target the younger generation and seem successful in influencing certain groups in society.’
In May 2014, Prime Minister Najib said the government would ‘not allow Muslims to engage in LGBTI activities’. In April 2014, Deputy Prime Minister Muhyiddin Yassin said LGBTI rights advocates in Malaysia were ‘poisoning the minds of Muslims with deviant practices.’
[1] CIS38A80121311: DFAT Malaysia Country Information Report – July 2016, Department of Foreign Affairs and Trade (DFAT), 19 July 2016, at p.20
A June 2014 report by the International Gay and Lesbian Human Rights Commission states:[2]
Lesbians, bisexual women, queer and transgender persons (transwomen and transmen) and other gender non-conforming people and communities currently face rising hostility, discrimination and abuses in Malaysia. They are unprotected by a political system, which is geared towards promoting and imposing a specific vision of Malaysia.
[2] CIS2F827D91966: ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia’, International Gay and Lesbian Human Rights Commission, 5 June 2014, at p. 9
Human Rights Watch describes discrimination against LGBTI persons in Malaysia as “pervasive”[3] while Amnesty International states that LGBTI individuals experience “harassment and intimidation” in Malaysia.[4]
[3] NG5A1E6BC48: ‘Human Rights Watch World Report – Malaysia’, Human Rights Watch, at p. 360.
[4] CXBD6A0DE13338: ‘Amnesty International Report 2014-2015 – Malaysia’, Amnesty International, 25 February 2015.
The International Gay and Lesbian Human Rights Commission noted that workplace discrimination with LGBT visibility:[5]
According to butch lesbians, transmen and transwomen in Japan, Malaysia and the Philippines, prospective employers blatantly told job candidates during and after job interviews that they were not feminine or masculine enough or were impersonating the “wrong gender.”
[5] CIS2FCB23F6876: ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia’, International Gay and Lesbian Human Rights Commission, 13 May 2015 at p.37.
Some employers openly expressed that they did not hire lesbians because they were “trouble”. The report also referred to lesbians facing physical and emotional violence from family members, verbal abuse or warnings from strangers in public places.[6]
[6] CISEFCB23F6876: ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia’, International Gay and Lesbian Human Rights Commission, 13 May 2015 at p.37.
The same report outlined problems faced by lesbian women in Malaysia, with one stating her mother recorded her phone conversations and followed her when she left home. Another said her immediate family and relatives constantly pressured her to marry a man.[7] The report stated that “…Like most cultures, procreation and heterosexual marriage is valued in Malaysia. Being lesbian or transgender is sometimes treated as bad luck for other members of the family.[8]
[7] CISEFCB23F6876: ‘Violence. Through the Lens of Lesbians, Bisexual Women and Trans People in Asia’, The International Gay and Lesbian Human Rights Commission, 13 May 2014, at p.21.
[8] Ibid, 13 May 2014, at p. 121-22
A 2012 report from Equal Rights Trust stated:[9]
[T]he National Fatwa Council issued in 2009 a fatwa prohibiting girls from acting and dressing like boys, alleging it encouraged homosexuality and violated Islamic teachings. Under the so-called ‘tomboy’ fatwa, girls cannot have short hair, or dress, walk, or act like boys. A fatwa is legally binding, although enforcement depends on the Islamic authorities of each state. There were no reports of enforcement actions taken under this fatwa.
[9] CISEFCB23F6876: ‘Violence. Through the Lens of Lesbians, Bisexual Women and Trans People in Asia’, The International Gay and Lesbian Human Rights Commission, 13 May 2014, at p.21.
In September 2014, it was reported that a lesbian couple was arrested by religious officers during a raid on a hotel in Johor Bahru. Nine officers from the Islamic Religious Department reportedly raided the women’s room as part of a morality raid. According to the article, “The women were arrested for lesbian sex under section 26 of the state’s Shariah Law and taken to a police station for booking, then to the religious department for further action.” The women could face up to three months’ jail, six cane strokes and a fine of RM5000.[10]
[10] CX1B9ECAB9843: D Wee, ‘Malaysia lesbian couple arrested by religious officers in hotel raid.’ Gay Star News, 2 September 2014
In 2016 Freedom House outlines various government led initiatives that discriminate against sexual minorities:
The Ministries of Health and Education conduct campaigns to "prevent, overcome, and correct" symptoms of homosexuality in children, while the Ministry of Information has banned television and radio shows depicting gay characters.[11]
[11] Freedom House 2016, Freedom in the World 2016: Malaysia, May, section F, p.6 < Accessed 16 August 2016 <NGE43874C422>

In its May 2014 report by the International Gay and Lesbian Human Rights Commission comments in relation to the Malaysian Penal Code that ‘Sections 377A and 377B criminalise “carnal intercourse against the order of nature” (anal sex, oral sex) between consenting adults regardless of the sexual partner’s gender, as well as gross indecency.’ According to the report:
“Section 377 comes under Unnatural Offences in the Malaysian Penal Code (Act 574). Sections 377A and 377B criminalise “carnal intercourse against the order of nature” (anal sex, oral sex) between consenting adults regardless of the sexual partner’s gender, as well as gross indecency. These sections of the Penal Code have reportedly been invoked only seven times since 1938, four of which were against Anwar Ibrahim, the former Deputy Prime Minister. Punishment for “carnal intercourse against the order of nature” is prison up to 20 years with liability for whipping. Section 377C criminalises rape – non-consensual sexual intercourse that involves oral and anal sex acts carried out under threat of death or hurt to the victim. Punishment for these acts of rape is a prison term of not less than five years and not more than twenty years with liability for whipping. The prevalent notion as expressed in 377C is that oral and anal rape is a lesser crime than anal and oral sex between consenting adults. Section 377D covers “outrage on decency” and criminalises the commission of, attempt to, or conspiracy to commit any act of gross indecency. Punishment is two years in prison…”[12]
[12] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, in Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia, 6 May, p.33 < Accessed 28 January 2015 <CIS2F827D91966>
An outline of the ‘Unnatural Offences’ and associated punishments within the Penal Code can be located within the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s 2015 publication State-Sponsored Homophobia.[13]
[13] International Lesbian, Gay, Bisexual, Trans and Intersex Association 2015, State-Sponsored Homophobia 2015 - A World Survey of Laws: criminalisation, protection and recognition of same-sex love, pp 77-8 < Accessed 31 May 2015 <CISEC96CF1945>
The International Gay and Lesbian Human Rights Commission reported in May 2014 that ‘[i]n Malaysia, secular laws – Criminal and Civil – and Islamic or Syariah laws co-exist to govern its citizens. Syariah laws are administered at a state level by religious departments, Syariah courts and muftis. These laws apply only to Muslims regarding issues such as marriage, divorce, and the creation and punishment of offences in relation to Islam’.[14] In January 2015, Malaysia’s Court of Appeal was reported to have recently ruled that ‘the Federal Constitution restricts Islamic legislation to marriage, divorce and inheritance based on the Supreme Court’s ruling in the landmark 1988 Che Omar Che Soh case’.[15]
[14] International Gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia’, in Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia, 6 May, p.33 < Accessed 28 January 2015 <CIS2F827D91966>
[15] ‘Islamic law restricted to familial matters, Court of Appeal says in transgender case’ 2015, Malay Mail Online, 21 January < Accessed 23 January 2015 <CXBD6A0DE575>
Malaysian government ministries openly campaign against LGBTI through education and media outlets:
…..In 2014, the government continued attacks on LGBT individuals. The Ministries of Health and Education initiated campaigns for parents, teachers, counselors, and young people to "prevent, overcome, and correct" symptoms of homosexuality in children, while the Ministry of Information banned television and radio shows depicting gay characters.[16]
In its Country Information Report – Malaysia, DFAT notes that from 2011 onwards, various government initiatives have aimed at ‘rehabilitating’ suspected LGBTI youth:
3.92 The federal government, and a few state governments, have openly run programs aimed at ‘rehabilitating’ suspected LGBTI youth. Throughout 2013, the government ran a musical called ‘Abnormal Desire’ across all Malaysian states, portraying the ‘negative lifestyle’ of LGBTI people. LGBTI individuals in the play were struck by lightning and turned straight (heterosexual). The play was supported by the Malaysian Education Department and state Islamic authorities.
3.93 Some state governments went beyond the educational measures supported by the federal government. The State Education Department in Besut was found to be running a ‘re-education boot camp’ or ‘behaviour corrective program’ for effeminate teenage males in 2011. The Department selected boys who behaved effeminately and sent them to a camp for physical training and religious and motivational classes. Sixty-six boys were sent to a camp in Besut in 2011. The federal Minister of Women, Family and Community Development spoke out against this practice and said the Government ‘viewed with alarm and great concern the act of sending schoolboys with effeminate tendencies to a camp with the aim of ‘correcting’ their behaviour’ and called for the abolition of the camps. DFAT understands that many of these camps continue to operate.[17]
[16] Freedom House 2015, Freedom in the World 2015: Malaysia, May, Section F < <NG5A1E6BC218>
[17] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, sections 3.92-3.93, p.20 <CIS38A80121311>
According to DFAT’s 2016 Country Information Report – Malaysia, in 2011 Malaysian authorities banned an annual sexuality rights festival under the Police Act following complaints by some Muslim organisations:
3.91 The police and judiciary have banned public demonstrations of support for the LGBTI community. An annual sexuality rights festival known as Seksualiti Merdeka, which had been held in Kuala Lumpur since 2008, was banned in 2011 in response to complaints made by a number of Muslim non-governmental groups including Perkasa and the Allied Coordinating Committee of Islamic NGOs. The Royal Malaysian Police banned the festival under the Police Act on the grounds that it would cause public disorder. The ban was upheld by the High Court and eventually the Court of Appeals in August 2013. Since 1994, homosexual, bisexual, transsexual and transgender individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.[18]
[18] Department of Foreign Affairs and Trade (Australia) 2016, Country Information Report – Malaysia,19 July, section 3.91, p.20 <CIS38A80121311>
FINDINGS AND REASONS
Credibility – Preliminary comments
The Tribunal does accept that the applicant was faced with personal problems while in Malaysia as far as it concerned her family – immediate and extended and their desire to see her married and refused to allow her to live her own life as she desired. The Tribunal accepts that the applicant because of her wish to live her life according to her values and beliefs has had a difficult and acrimonious relationship with immediate family (her ‘mother’) and extended family (her ‘uncle’). However, the applicant’s version of events as submitted to the Tribunal at the hearing raises certain issues of credibility.
It should be noted, that the mere fact a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is “well-founded”. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm.” It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all the particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars or to establish or assist in establishing the claim. Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant: see, MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155, at 169-70.
First, the applicant told the Tribunal that she was a ‘lesbian’ and she preferred to dress herself as a ‘tomboy’. This preference of life style caused deep concerns to her mother and to her extended family. The applicant‘s family, the Tribunal was told was a traditional Muslim family who held strong traditional views about life in general and marriage. The applicant’s more liberal and liberationist attitudes with her dress and sexuality found little approval or acceptance. This angered the applicant – who continued her life – away from her family working and living as she desired. The Tribunal accepts the applicant’s claim that she is a lesbian or is a ‘tomboy’ as she described herself at the hearing. The applicant told the Tribunal briefly but in detail, that since she was as young girl (as far as she could remember) she always preferred females to males. She had experienced a number of relationships in her life – up and until she decided to leave Malaysia for Australia. However, the applicant told the Tribunal that these relationships with other females were not long in duration and usually ended early because of either intervention by her mother or other family members.
The country information incorporated in this decision indicates that Malaysians who identify as LGBTI may face discrimination and harassment in the community and in their relationship with the Malaysian authorities. In particular, LGBTI individuals who are also of the Muslim faith face a moderate risk of official discrimination on a daily basis. Nevertheless, discrimination and harassment, even when considered cumulatively and overtime, may not reach the threshold of persecution as is defined in s. 5J of the Act. The key issue in which the Tribunal must consider is whether or not there is a real chance of persecution in the applicant’s particular circumstances.
The applicant claims to fear harm in Malaysia because she has a ‘tomboy appearance’ and is a ‘lesbian’. She is also a ‘Muslim’ by faith and therefore Sharia law applies to her. Moreover, the applicant may be discriminated (in and by the ‘wider’ community) because of her appearance.
The applicant in her evidence told the Tribunal that her ‘appearance’ as a ‘tomboy’ and ‘dressing as a male…’ and having ‘short hair…’ caused her to attract on a constant basis disapproving glares from persons in the community when she came in contact with them in public. However, the applicant admitted in her evidence before the Tribunal that she may have encountered attitude issues concerning her dress but she never encountered any problems (concerning her appearance) from the religious authorities while in Malaysia. The applicant also admitted that she never altered or changed her appearance in order to escape public attention or ridicule. The applicant right-up and until she chose to leave Malaysia for Australia had no issues concerning her appearance and life-style (as a tom-boy or lesbian) from the state or religious authorities.
Secondly, was the applicant a victim of discrimination, systematically and openly discriminated against because of her sexuality and appearance? Again, the applicant admitted to the Tribunal that she may have had to endure the taunts of some of her work colleagues – that were ‘homophobic’ and displeasing for to hear but she did not encounter discrimination when being employed or seeking employment while in Malaysia. The applicant the Tribunal noted has a comprehensive employment history which indicates (as she admitted to the Tribunal) that she has not been denied employment in the past because of her sexuality or appearance. Therefore the Tribunal finds that it is not satisfied that the applicant has established her claims for protection. On the evidence before the Tribunal, the Tribunal does not find that the applicant has a well-founded fear of persecution because of her membership of a particular social group “tomboys in Malaysia” or as a “lesbian”. Also the Tribunal finds that there is no real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act if she was to return to Malaysia in the reasonably foreseeable future.
Third, the applicant claimed issues with her mother and extended family as creating for her a difficult state of affairs which forced her to leave Malaysia for Australia. The issue which the applicant identified to the Tribunal was the pressures applied to her by her mother ‘to marry’ and these pressures also came from members of her extended family. The applicant admitted to the Tribunal that she did not encounter any violence or denial of her liberties and freedom of movement caused from any family member. She merely told the Tribunal that her mother and other members would on a constant basis tell her to change her ways and to get married. Again, as previously mentioned, the key issue in assessing this claim is whether or not there is a real chance of persecution in the applicant’s particular circumstances – namely, her family (and mother’s) constant demands for her to marry and to live a traditional Muslim family life (with husband and with children).
The administration of marriage for Muslims in the Federal Territories (applicable to ‘Kuala Lumpur’ and ‘Labuan’)[19] is sanctioned by the Act of 303 Islamic Family Law (Federal Territories) Act 1984.[20] Marriage in Islam is regulated by the Syariah Laws:
[19] This Act is also extended to the Federal Territory of Putrajaya vide the Federal Territory of Putrajaya (Extension and Modification of Islamic Family Law (Federal Territory Act) 1984 Order 2002 – see P.U. (A) 247/2002.
[20]
Minimum age for Marriage
No marriage may be solemnized under this Act where either the man is under the age of eighteen or the woman is under the age of 16 except where the Syariah Judge has granted his permission in writing in certain circumstances.[21]
[21] Section 18
Consent required
A marriage shall not be recognized and shall not be registered under this Act unless both parties to the marriage have consented thereto, and either -
(a) the wali of the woman has consented thereto in accordance with Hukum Syara'; or

(b) the Syar'iah Judge having jurisdiction in the place where the woman resides or any person generally or specially authorized in that behalf by the Syariah Judge has, after due inquiry in the presence of all parties concerned, granted his consent thereto as wali Raja in accordance with Hukum Syara'; such consent may be given wherever there is no wali by nasab in accordance with Hukum Syara' available to act or if the wali cannot be found or where the wali refuses his consent without sufficient reason.[22]
[22] Section 13
Marriage of a woman
(1) No woman shall, during the subsistence of her marriage to a man, be married to any other man.

(2) Where the woman is a janda -

(a) subject to paragraph (c), she shall not, at any time prior to the expiry of the period of 'iddah, which shall be calculated in accordance with Hukum Syara', be married to any person other than to the man from whom she was last divorced;

(b) she shall not be married unless she has produced -
(i) a certificate of divorce lawfully issued under the law for the time being in force; or

(ii) a certified copy of the entry relating to her divorce in the appropriate register of divorce; or

(iii) a certificate, which may, upon her application, be granted after due inquiry by the Syariah Judge having jurisdiction in the place where the application is made, to the effect that she is a janda;
(c) if the divorce was by ba-in kubra, that is to say, three talaq, she shall not be remarried to her previous husband, unless she has been lawfully married to some other person and the marriage has been consummated and later lawfully dissolved, and the period of 'iddah has expired.[23]
[23] Section 14
(3) If the woman alleges she was divorced before the marriage had been consummated, she shall not, during the ordinary period of 'iddah for a divorce be married to any person other than her previous husband, except with the permission of the Syariah Judge having jurisdiction in the place where she resides.
(4) Where the woman is a widow -
(a) she shall not be married to any person at any time prior to the expiration of the period of 'iddah, which shall be calculated in accordance with Hukum Syara';

(b) she shall not be married unless she has produced a certificate of the death of her late husband or otherwise proved his death.
Issue of Permission to marry
Subject to section 18, the Registrar, on being satisfied of the truth of the matters stated in the application, of the legality of the intended marriage, and, where the man is already married, that the permission required by section 23 has been granted, shall, at any time after the application and upon payment of the prescribed fee, issue to the applicants his permission to marry in the prescribed form.[24]
Prohibited Relationship
Marriages between certain prohibited close family relationships, including grandparents, parents, children, and siblings are prohibited.[25]
[24] Section 17
[25] Section 9
From the extract the Tribunal has incorporated within this decision indicates that even with the application of Shariah Law in Malaysia there is no legislative compulsion place upon the applicant to marry. It should also be pointed out that the legislation does not make mention of the influence or approval of parents or family except in certain defined situations concerning ‘age’ and ‘divorced’ persons. The applicant is not under age – she is (as she admitted to the Tribunal) [Age] years old – an adult – free to choose her life’s destiny. The applicant did not specifically describe her mother’s and other family member’s interventions in her life as ‘threats’ or ‘fears’ but unnecessary interferences which at worse had caused her mental anguish and anxiety which has led to Australia – but that being the case, the applicant continues her contacts (as she admitted) with her mother on a regular basis. Therefore the Tribunal finds that the applicant does not have a well-found fear of persecution if she was to return to Malaysia in the reasonably foreseeable future from her mother or other family members who want to force her to marry as a traditional Muslim woman would marry of for any other one or more reasons provided for in s.5J(1)(a) of the Act.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2)(a).
The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion of complementary protection in s.36(2)(aa) of the Act. For the reasons given above in paragraphs [53] to [60], the Tribunal does not accept that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia , there is a real risk that she will suffer significant harm on account of her membership of the particular social group “tomboys in Malaysia” or that she is a ‘lesbian’ or because she has refused and still refuses to agree to her mother’s and extended family’s demands that she marries as a woman of the Muslim faith.

Also for the reasons outlined above, the Tribunal finds that there is no real risk of the applicant facing significant harm, as is defined in s.36(2A) of the Act, if she returns to Malaysia in the foreseeable future.
Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Peter Vlahos
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.
…

[9] Ibid, 13 May 2014, at p. 122

[2020] AATA 2916

11 June 2020

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