1711291 (Refugee)

[2022] AATA 4724

1711291 (Refugee) [2022] AATA 4724 (23 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711291

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Christine Cody

DATE:23 September 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 September 2022 at 10:06am

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexuals – family pressure to marry a woman – vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP (2016) 243 FCR 220

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Malaysia applied for the visa on 29 September 2016.

   Departmental file

3. Application form: The applicant’s background is set out in his application form as follows:

   ·     The applicant is a [age] year old man who was born in Pahang, Malaysia. His religion is Muslim, his ethnicity is Malay. He speaks, reads and writes in Malay and English. He has never been married or in a de facto relationship.

   ·     He resided since his birth at an address in Bentong, Pahang. He moved in March 2016 to an address in Selangor, residing there for 4 months until he left Malaysia in July 2016.

   ·     He undertook his education in Malaysia[1]. He completed primary school, a Malaysian Certificate of Education, and an [Occupation 1] Vocational course [He told the Tribunal that he completed a Certificate IV and a Diploma relating to [Occupation 1]]

   ·     He is unemployed and has never worked [He told the Tribunal that he worked in his home area starting in 2012, firstly for 1.5 years as an [Occupation 1] [at a government-run site], and then he moved with the same company to Kuala Lumpur in [2013], until just before he came to Australia].

   ·     He has no convictions and is not the subject of any criminal investigation. 

   ·     His family members are his mother, sister and 2 brothers (who reside at the address in Bentong). He is in contact with his family through social media, WhatsApp, messenger.

   ·     He left Malaysia legally [in] July 2016 using his passport issued [in] 2016. He arrived in Australia on the same day with a UD-601 Electronic Travel Authority visa.

   ·     On 29 September 2016 he applied for his Protection Visa.

   ·     Prior to his arrival in Australia he has never travelled to another country. He has not had other passports or travel documents.

   [1] His form does not provide any dates.

4. Claims set out in application form: The applicant claims to fear harm in Malaysia because he is gay and it is against the law to be gay in Malaysia. There are no civil rights for gay people. He cannot claim his rights as a gay person. He soon wants to get married to his partner but he could not do this. He is not allowed to be seen in public dressed as it suits his identity.

5. He stated that he did not experience harm in Malaysia.

6. Malaysia will not defend LGBT against the Islamic State Terror group as they are the enemies of Islam. Further, he will be at high risk of being caught by law enforcement. The Malaysian law provides that homosexual acts may be punished by being whipped or imprisoned for 20 years.

7. If he returns to Malaysia, he will have to deny his true identity. There is no genuine freedom of speech, belief and association in Malaysia. He cannot relocate within the country.

8. Supporting documents: the applicant provided identity documents namely his passport, Malaysia National ID card, and his Malaysian Driving Licence.

   The Department’s consideration of his claims

9. The applicant was not invited to attend an interview. The delegate considered his written claims but was not satisfied that the applicant faces a real chance of serious harm or a real risk on. The delegate referred to considering country information relevant to LGBT persons. The delegate accepted that the applicant was Muslim, but there was no information to suggest he has suffered persecution in Malaysia, and his claims were outlined in minimal detail, with no supporting evidence. The delegate was not satisfied that he had proved his claim that he has a well-founded fear of persecution because of the membership of the particular social group of homosexuals in Malaysia, nor that he faces a real risk of significant harm under complementary protection provisions.

10. There are no non-disclosure certificates on the file.

    The Tribunal file

11. The applicant provided to the Tribunal an application for review as well as a copy of the delegate’s decision record.

12. He did not provide any further written evidence, nor did he request the Tribunal take any evidence from any witnesses.  

13. The applicant appeared before the Tribunal on 20 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant initially indicated that he did not need the interpreter, and could speak English. The Tribunal said that the most important thing was that he be able to express himself and understand. The interpreter remained for the whole hearing. Sometimes the Tribunal suggested that he should use the interpreter. The Tribunal is satisfied that the applicant was able to give evidence and present arguments in support of his claims with the assistance of the interpreter when required.

14. The applicant’s evidence to the Tribunal included:

    ·     He sometimes has contact with his family. His siblings run small businesses, his mother is not working. Following his father’s death in 2005, she receives a pension.

    ·     His family don’t care about him too much, they ask him when he is getting married, and this is hard for him. Since 2016 they put pressure on him to marry.  When asked why he doesn’t want to go back to Malaysia, he said they know what he is, he is gay but not transgender or transexual.

    ·     When asked when he knew he was gay, he said in high school. When asked how he knew, he said that when he saw movies he should be interested in women but he finds muscular men interesting.

    ·     When asked if he had had a girlfriend he said yes, in 2008 when he was in college, but they had no sexual intimacy because of his religion.

15. Further evidence is set out below.

16. The Tribunal raised concerns at the hearing with the credibility of his claims.

    Consideration of claims

    Country of reference

17. The applicant produced his passport to the Tribunal which shows that he is a Malaysian citizen. The Tribunal accepts that the applicant is a national of Malaysia, and that the appropriate country of reference for the assessment of his refugee claims and the receiving country for the purposes of his complementary protection claims, is Malaysia.

18. The issue in this case is whether the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Concerns as to the credibility of the applicant’s claims

    Relevant law as to whether the Tribunal is satisfied as to the applicant’s claims

19. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the 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.

20. Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

21. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70]).

22. As Kirby J observed in Dranichnikov v MIMA:[2]

    The Tribunal acts in a generally inquisitorial way. This does not mean that a party before it can simply present the facts and leave it to the Tribunal to search out, and find, any available basis which theoretically the Act provides for relief. [The High Court] has rejected that approach to the Tribunal’s duties. The function of the Tribunal … is to respond to the case that the applicant advances …[3]

    [2] [2003] HCA 26 at [78], (2003) 77 ALJR 1088 at [1100].

    [3] As cited in Sun v MIBP (2016) 243 FCR 220 per Flick and Rangiah JJ at [69].

23. The Tribunal has a number of concerns with the case that this applicant has advanced on the basis of inconsistent, changing and vague evidence. The Tribunal’s concerns are set out below.

24. Firstly, as put to the applicant, the claims in his protection visa application form are different to his claims to the Tribunal, including the following:

25. As noted above, the applicant made claims that as a gay Muslim in Malaysia, he feared harm through the application of the law for homosexual acts; that he could not marry his partner soon; and he could not be open about his identity. He also stated that he had suffered no harm in Malaysia.

26. However, when the Tribunal asked the applicant what had happened in Malaysia, he said that he has suffered pressure at the hands of his family to marry a woman and that his friends had not liked him because he was gay. When asked what he feared if he returned to Malaysia, he said that he had a bad childhood, his friends ignore him because they know he is gay, his family put pressure on him to get married which is hard as he is gay. He acknowledged that he will not face harm when he returns to Malaysia but said that he has a different way of thinking.

27. The Tribunal put to him that his new claims made at hearing were not made in his protection visa application form, such as his claim that he does not want to go back because of pressure to marry. In response he said that in the past 2 years there was more pressure from his family to get married, so as this is current, that was what he mentioned today to the Tribunal. The Tribunal does not find this explanation to be persuasive, given that he claimed that this pressure existed since 2016, and he had also claimed that he did not want to go back to Malaysia because he had a bad childhood as his friends knew he was gay, and experiences of his childhood were not current. He gave a further explanation: when he was giving his evidence, he didn’t think about what he had written in his protection visa application form, his friend had helped him to write the form, and there are so many reasons. The Tribunal does not accept this explanation, given his earlier evidence that he was aware of the contents of his protection visa application form and “it is all mine”. The Tribunal considers that the applicant has not explained why he did not mention his current claims (that he faced pressure to marry and that he had a bad childhood) in his protection visa application form.

28. The Tribunal also put to the applicant that claims he had made in his protection visa application form have been omitted by him when giving his evidence to the Tribunal. In this regard, after he had given his evidence and was asked if there was anything further that he had not told the Tribunal, and he had said no. The Tribunal then put to the applicant that in his protection visa application, he has stated that he can’t be dressed in Malaysia in accordance with his identity, but he made no such claim at the Tribunal. In response, the applicant agreed, and said that this is correct, in Malaysia he is not allowed to dress provocatively, as a gay person, because if he does this, he will have problems with the Malaysian police. The Tribunal put to the applicant that he did not tell the Tribunal that this is something that he wants to do but has been prevented from doing, he did not claim that he does in Australia, nor did he mention this when the Tribunal asked him to explain his concerns and worries about going back to Malaysia. The Tribunal put that it would consider that if this was a concern for him, he would have mentioned this. In response he said that he understands what the Tribunal is saying, he forgot this, he forgot what is in his paperwork as he completed a long time ago. The Tribunal put to him that if his claims were genuine, it would think that he would recall these matters from his experience, not just from what he had written in his paperwork. The applicant said he understood what the Tribunal was saying.

29. The Tribunal considers that his failure to mention this claim in his evidence at hearing undermines this claim.

30. The Tribunal also put to the applicant that his application form states that he is scared of being caught by authorities or police, as he is aware that homosexual acts may be punished by being whipped or imprisoned for up to 20 years. In his evidence to the Tribunal, however, he made no suggestion that he is fearful of the law or the authorities; he did not mention that homosexual acts can be punished in such a way. The Tribunal put to him that if he was genuinely homosexual and this was a genuine concern for him, it would think this is something he would have raised at the hearing as a concern. He responded that he forgot about the law in Malaysia, it is very hard, yes if they catch people for doing something wrong, they can be punished. The Tribunal finds it difficult to accept that, if the applicant was a homosexual man who, as claimed in his protection visa application form, was fearful of the application of the law, he would have forgotten this when giving his evidence.

31. The Tribunal also put to the applicant that in his protection visa application, he had claimed that he would not be able to marry his partner “soon”. The Tribunal noted that it was his evidence that he did not have a partner and had not had a partner except for one in Malaysia (and the relationship had broken down as discussed below); it does not understand why he made this claim in his protection visa application form. The applicant did not offer a credible explanation other than to agree that he did not and does not have a partner that he would like to marry. The Tribunal considers that this indicates that the applicant made a claim in his protection visa application form which, on his own evidence, could not have been true. This undermines his credibility and his claim.

32. The Tribunal put the provisions of s.423A of the Act to the applicant, noting for example that if he did not have a satisfactory reason for not mentioning before the Department, new claims he has made to the Tribunal (such as the claim that he fears that he will face pressure from his family and friends to marry), then the Tribunal will be required to draw an adverse inference unfavourable to the credibility of those claims.

33. The applicant said that his family had been pressuring him in the last 2 years to get married, and he discussed with his friend what he should write in the protection visa application but really, there are so many reasons. The Tribunal does not accept the explanation that the pressure for marriage was only raised in the last 2 years, as he told the Tribunal that this occurred from 2016 (before he lodged his protection visa application). The Tribunal is also not satisfied with his explanation that this reason wasn’t included because there are so many reasons, because it was the main reason that the applicant relied upon in his evidence before the Tribunal. The Tribunal is therefore satisfied that the applicant does not have a reasonable explanation as to why his claim to face pressure from his friends and family to marry was not raised before the primary decision was made. Therefore, the Tribunal draws an adverse inference about this new claim. Even if it did not, however, draw an adverse inference by operation of s.423A of the Act, the Tribunal would however have drawn an adverse inference as to the credibility of this, and the other new claim (about his bad childhood and friends excluding him) because the applicant only made these claims to the Tribunal, and not previously, despite having the opportunity to do so.

34. The Tribunal considers that the applicant’s changing claims as to what has happened to him in Malaysia and what he fears if he returns undermines his claims and credibility.

35. Secondly, the Tribunal had concerns with the applicant’s evidence about his claims. While the Tribunal accepts that sexuality and sexual orientation is personal, engaging in sexual acts is not the only manifestation of sexuality, romantic attachments and inclinations can be a manifestation of a person’s sexuality, that there are different ways of feeling and expressing one’s sexuality, and that sexuality can be difficult to discuss, the applicant’s evidence was inconsistent and confusing when discussing his claims.

36. The Tribunal asked if he had relationships/encounter with men, and he said yes in Kuala Lumper. He said in 2013 he had a friend with a man called [Mr A] who was his partner in the gym. [Mr A] was gay. He said that nothing happened, other than kisses (this started in 2014). The Tribunal asked why nothing happened other than kissing, and he said because [Mr A] did not want that, he wanted to change and get married and have a family, he was [age] in 2016, so the applicant got fed up and came to Australia in May 2016.

37. The applicant said that from 2015 he and [Mr A] rented a house and lived together; the applicant later changed and said that this occurred in 2014. The Tribunal noted that he had said that nothing happened other than kissing; it asked if he had ever had a sexual relationship with [Mr A] and he said that they only had 1 sexual encounter (in about November 2015). The Tribunal sought confirmation that he was saying that he had a relationship with [Mr A] for three years, but during those three years he only had one sexual encounter with [Mr A], even though they were living together, and he said yes. The Tribunal asked if he could explain why they didn’t have sexual encounters more than once, and he said that this was because [Mr A] had another ex-boyfriend and [Mr A] was lying to the applicant. The applicant wanted to have sex with [Mr A], but when he found out about the other man, he did not want to take the risk. The Tribunal asked when he found out about the other man and he said 2015 (after he had sex once with [Mr A], so after November 2015).

1. The Tribunal told the applicant that it found his evidence to be confusing, and gave him the opportunity to further explain. His explanations and evidence led to further confusion and inconsistencies.

2. He had firstly said that [Mr A] didn’t want to do anything more than kissing with the applicant because [Mr A] wanted to be like a “normal person” (the applicant said that this meant a heterosexual person) and get married to a woman. He then said that he wanted to have sex with [Mr A], but he didn’t have sex with [Mr A], because [Mr A] had lied to him. Later he confirmed that he wanted to be [Mr A]’s lover “from the beginning”. The Tribunal put to him that his evidence was inconsistent, as he said [Mr A]’s lies were about his continuing relationship with his ex-boyfriend, but as the applicant only found out about the lies after November 2015, this could not have impeded him from having sex with [Mr A] from “the beginning”. The applicant’s evidence changed, and he said that they could not have had sex before as they were not living together; the Tribunal put to him however that they had been living together since 2014. The Tribunal considers that his reason for not having sex with [Mr A] was inconsistent and changing.

3. The Tribunal noted that his evidence meant that before he found out about [Mr A]’s ongoing relationship with the ex-boyfriend, he still only had sex once with [Mr A], the man he was living with, despite wanting to have sex with him. The Tribunal asked if he could explain why, and he said that he only had sex one time because he was too scared, because he broke the rules of his religion. Later, he gave another reason that he didn’t have sex with [Mr A] because he was thinking he wants to donate blood so he was “thinking to stop to have sexual relationship”.

4. The applicant’s evidence was changing as to the reasons for their lack of sexual encounters early in the relationship (despite the applicant saying he wanted to have sex); he did not initially claim that his religion or wanting to donate blood was the reason he had not had sexual encounters. When the Tribunal asked the applicant whether they had been sexual or intimate before they had sex in November 2015, he said no, they just go to the gym and work out and [Mr A] made the applicant feel weird. He said that he first liked [Mr A] because he thought he was not gay, he thought he was a “normal person”, but when [Mr A] liked him in a sexual way, and tried something, the applicant felt weird and he didn’t like it when he thought [Mr A] first liked him.

5. The Tribunal noted that the applicant was now saying that he didn’t like [Mr A] in the beginning (although the applicant had previously told the Tribunal that it was the applicant who wanted them to be lovers in the beginning). The applicant said in response that he didn’t like [Mr A] in the beginning because [Mr A] was lying to him. The Tribunal put to him that he didn’t know [Mr A] was lying to him until much later (after November 2015).  The applicant did not engage with the Tribunal’s concern that he could not have known [Mr A] was lying to him at the beginning of the relationship (2013/2014) because he only found out that [Mr A] was lying in late 2015.

6. The applicant told the Tribunal that he did not know if [Mr A] and his ex- boyfriend had ever had sex (including when they were in a relationship). The Tribunal asked what he meant by saying [Mr A] had been lying to the applicant about his relationship with his ex-boyfriend. The applicant said that [Mr A] wanted the ex-boyfriend, the applicant and [Mr A] to live together as a threesome; he found this out after he and [Mr A] had sex in November 2015. This is what the applicant characterised as [Mr A]’s lies to him; as discussed above, the applicant’s evidence (that he did not like [Mr A] in the beginning because [Mr A] was lying to him, but he only found out [Mr A] was lying towards the end of the relationship in November 2015), was inconsistent and confusing.

7. This evidence, that the relationship ended because [Mr A] wanted a threesome, was also undermined by the applicant’s initial evidence that the reason why he came to Australia was because [Mr A] wanted to be “normal”, namely not homosexual, and so the applicant got fed up with this and came to Australia.

8. The Tribunal noted that [Mr A] wanted a threesome, which suggested that [Mr A] was a person who was interested in sex, but it is the applicant’s evidence that they lived together but didn’t have sex the whole time during their relationship (except for once). The applicant responded that at the beginning he thinks [Mr A] was hiding and he was acting like a normal person and it was the applicant who did want to have a lover. The Tribunal put to the applicant that his answer did not appear to make sense, because the applicant claimed that they were kissing in the beginning, so how could he claim that [Mr A] acted “like a normal person” (defined by the applicant as being heterosexual). The applicant responded that in 2013 there was no kissing, but in 2015 there was kissing. This was a change from the applicant’s earlier evidence.

9. The Tribunal noted that the applicant had said that he wanted a lover in the beginning. The applicant then changed his evidence and said that in the beginning he just wanted a relationship of talking/ friendship.

10. The Tribunal put to him that he was giving inconsistent evidence about what he wanted, as he had said “At the beginning [Mr A] was hiding and he was acting like a normal person and I did want to have a lover” but subsequently the applicant claimed that he did not want sex in the beginning, he just wanted to talk. The applicant’s response did not engage with the Tribunal’s concern about his changing evidence. He said at beginning [Mr A] was acting normal and “I was interested in him and he became my gym buddy and his work place is next door so we become good friends and in 2014 we socialised with his other best friends”.

11. The Tribunal considers that the applicant provided inconsistent and changing evidence and explanations about the commencement, development and ending of the relationship.

12. The Tribunal asked the applicant if he had ever had sex in his entire life, and he said no, only that once, with him ([Mr A]) and the rest of the time he masturbates.  He later said he didn’t just like someone for the sex but also for going out to eat. He later said that he likes talking to gay people and he wants to know how “they” are thinking.

13. When asked if he had had any relationship/encounter with anyone in Australia he said no, he has a housemate. “He knows me but he doesn’t like what I am doing”. When the Tribunal asked what that meant, he said that his flatmate knows the applicant is gay but he doesn’t like his choice of becoming gay. When the Tribunal asked how he expresses himself as a gay person, the applicant said that he keeps it private, he hides everything, here “they know me as a normal person” and sometimes his friends pressure me.

14. The Tribunal asked if he had any other problems in Malaysia, and he said no, not at all, just his family; his friends and family pressure him. The Tribunal sought confirmation of what the applicant thinks will happen to him if he goes back to Malaysia and he said that his family, cousin, friends ask him when he will get married. He said that even through Facebook they ask when he is coming back and getting married and he gets frustrated and he goes offline. When the Tribunal asked if there was anything else he worries about if he returns to Malaysia, he said nothing else, but some people know the way he thinks, some people hate how he thinks, some people like or don’t like “LGBT[4] or something like that”. The Tribunal asked if he could tell the Tribunal what this stands for and he said “lesbian, gay community, something like that…”  and the Tribunal again asked him what it stands for and he stated the letters one at a time, then slowly said “L, B, G, T…lesbian, bisexual, gay, T is something like …. Community or something?”; people with different type of thinking. While the Tribunal accepts that there is no requirement for the applicant to know what these letters stand for, it was the applicant himself who raised this acronym (both at hearing and in his protection visa application form, he described himself as within the acronym as a gay man, and initially in the hearing he told the Tribunal that he was not “trans”, but he did not appear to know what the acronym stood for.

    [4] Lesbian, gay, bisexual, transgender: see for example La Trobe University’s definition. >

    The Tribunal noted the claim was made in the protection visa application form that the applicant was fearful of being punished of homosexual acts, yet it is his evidence that he is not engaging in homosexual acts (and because he wants to give blood he may not engage in homosexual acts), and it notes that while there is the opportunity to do so in Australia, he has not done so. He said that he has tried but nothing happens, he has not found a lover, he has gone to Mardi Gras and Oxford Street. He just has friends. The Tribunal put to him that it appears that he has no intention of engaging in homosexual acts, he has said that all he does is masturbate and have friends, and it would think that he would be able to go back to Malaysia and masturbate (and have friends).

15. The Tribunal also put to him that it has concerns from the inconsistencies and changes in his evidence that he may not be a homosexual, and if it finds that he is not gay, then even if it accepted he has a different way of thinking to other people, in that he likes Australian lifestyle, this does not mean that he is a refugee or entitled to Complementary Protection. In response he said that he knows he will not be harmed, but he does not fit in with the way of thinking or the community over there, he is more in sync with the way of thinking over here. The Tribunal considers that the applicant’s assertion that he will not be harmed undermines his claims that he is a homosexual man at risk of societal and official harm if he returns to Malaysia.

16. Noting the provisos set out in paragraph 35, the Tribunal is not satisfied from the applicant’s evidence, including his changing and inconsistent evidence, that he is or has ever been, a homosexual man.

17. On the basis of the above concerns, the Tribunal does not accept that the applicant is a witness of truth in relation to his sexual orientation and future fears.

    Other matters

18. Social media: The Tribunal noted that the applicant had mentioned social media, and asked him whether there was anything on his social media which would assist in showing his homosexuality. In response he said that he does try to meet up and find someone on the weekend for example on Facebook or TikTok. The Tribunal asked him to look at his Facebook or TikTok to see whether there was any information he would like to show the Tribunal. He said there is probably nothing on Facebook, but maybe on TikTok. He scrolled through TikTok and said there is nothing to show that he is gay. He then showed a short video (no sound) to the Tribunal of a man dressed as a woman, talking with 2 men. The Tribunal put to the applicant that this does not support that he is gay. He then said that it is really hard for him to show anything on social media that shows he is gay. He said there is nothing. Then he suggested Instagram, and when the Tribunal allowed him further time to look at his Instagram, he showed a number of pictures which included a girl posing in a one-piece swimming costume, a muscular man lifting weights, and a man playing the ukulele. The Tribunal put to him that these photos do not indicate that he is gay. The applicant said that he goes to the gym and he works out. The Tribunal does not consider that these matters support that he is gay.

19. The Tribunal considers that there is no requirement for the applicant to indicate his sexual preferences on social media. It does not draw any positive or negative inference from his social media (nor his attendance at a gym).

20. Purchase of sex toys: the applicant said that he had bought something in an adult shop and he can show a receipt. He asked for time to find the receipt on his phone and the Tribunal agreed. He said it was for a dildo. The Tribunal noted that there could be many reasons why a dildo was purchased, including that it could be for use with a female (or even purchased for a friend). He found the receipt which also showed the purchase of a dildo and a masturbator. He then said that he also purchased something in 2019, and then showed a receipt on his phone for a suction cup, lubricant and an item to satisfy a man. The Tribunal noted that the purchase of sex toys doesn’t mean that he is gay. The Tribunal considers that there are many reasons why a person may purchase sex toys (including during masturbation) and it does not consider that these items are supporting evidence that he is gay.

21. Nerves: The Tribunal asked at the end of the hearings whether there was anything else that he wanted to tell the Tribunal, he said that he is nervous. The Tribunal to him that he could take a break, to see if there was anything else that he wanted to tell the Tribunal, but he declined this and said he doesn’t have anything further to say, he is who he is. While the Tribunal accepts that the applicant may have been nervous at the hearing, this does not overcome the difficulties with his evidence.

    Credibility summary  

22. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to conclude that the applicant is not a witness of truth and that the applicant has fabricated accounts of events and claimed fears, upon which he has based his protection claims.

    Findings as to the applicant’s claims

23. The Tribunal accepts that the applicant is a Muslim male.

24. On the basis of the adverse credibility finding, the Tribunal does not accept that the applicant is homosexual nor that he faces a real chance or a real risk of being imputed as homosexual. It does not accept that he has a different way of thinking (because he is gay or otherwise), nor that his way of thinking is not suitable to Malaysia but is suitable to Australia. It does not accept that he developed a homosexual orientation in Malaysia, nor that he was ignored or verbally harmed by friends during his childhood or later, or by his family, nor that he received pressure to marry, nor that he was in any relationship with a man in Malaysia. It does not accept that he ever believed that he faced adverse attention from the authorities (or anyone else) for reasons of actual or imputed sexual orientation. The Tribunal does not accept that the applicant has been looking for homosexual relationships or encounters in Australia because it does not accept that he is homosexual or has homosexual inclinations. The Tribunal does not accept any claims that flow from these claims, including that he came to Australia because of the breakdown of a relationship, nor that he has homosexual inclinations and will face harm for this reason in Malaysia. The Tribunal finds that the applicant has made up his claims in order to seek to stay in Australia. The Tribunal is not satisfied that the applicant has been honest about his reasons for staying in Australia, and it does not accept that he faces any pressure from his family or friends, nor that he had a bad childhood because of imputations about his sexuality or his way of thinking. 

25. The Tribunal noted that it has to have regard to the report from the Department of Foreign Affairs and Trade (DFAT), and if it does not accept his claims, it may not accept that he faces a real chance of serious harm or real risk of significant harm if he returns to Malaysia. The applicant said that he understands, but he does not fit in with the community in Malaysia, he fits in more with the community here in Australia, it is different, their way of thinking is different, there is news recently that the government looking for someone who is transgender. The Tribunal noted that he said he is not transgender. He agreed, and then said that the community hate gay and transgender community. The Tribunal notes that there is country information to support discrimination from society towards gay and transgender people[5], it also notes that the applicant did not raise this as a concern when asked to tell the Tribunal all the reasons why he does not want to go back to Malaysia. The Tribunal has not accepted that the applicant is gay, nor that he faces a real chance or real risk of being imputed as gay by the community or the authorities.

    [5] as set out in the delegate's decision a good provider to the Tribunal by the applicant

26. At the hearing, the Tribunal raised with the applicant the provisions of s5J(6) of the Act, namely activities undertaken in Australia for the purpose of strengthening his refugee claims. The Tribunal said that this would apply if accepted that he had done any activities in Australia. The applicant claimed that he had been looking for a man, but he has not found anyone. The Tribunal does not accept this assertion. The applicant himself did not claim to have done any other activities in Australia which could be considered as gay, except for the purchase of sex toys, which the Tribunal has accepted occurred, but it is not satisfied that these purchases are indicative that he is homosexual. He also said that he went to Oxford Street and the Mardi Gras; even if the Tribunal accepted that he had visited Oxford Street and seen the Mardi Gras, this does not mean that he is homosexual.

27. The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant will face a real chance of serious harm if he returns to his home country Malaysia. 

28. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that the applicant is not a credible witness concerning past or future harm feared, as well as the relevant country information, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that he does not have a well-founded fear of persecution for any of the reasons put forward by him.

29. The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in Malaysia. 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).

    Complementary protection

30. Having concluded that the applicant does not meet the criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

31. The Tribunal has accepted that the applicant is a [age] year-old male from Malaysia, a Muslim, who was educated and worked in Malaysia, and was resourceful enough to come to and live in a foreign country, Australia. For the reasons discussed above, the Tribunal is not satisfied that the applicant has been truthful in his claims as to his sexuality or adverse events in Malaysia. The Tribunal does not accept that the applicant has experienced any of the past harm claimed. The Tribunal considers that he is a resourceful person who has family in Malaysia. The Tribunal considers that he will return and work again in his home country. The Tribunal is not satisfied he will face a real risk of adverse attention or harm amounting to significant harm, from anyone, for any reason.

32. On the evidence before it, and for the reasons discussed above, and having considered the claims singularly and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Malaysia, that there is a real risk he will suffer significant harm.  Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    Conclusion

1. 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).

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

3. 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

4. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Christine Cody
   Member

   
   

   annexure a - Criteria for a protection visa

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6. 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.

7. 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).

8. 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 below.

9. 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 below.

   Mandatory considerations

10. 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.

    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.

    …