1711385 (Refugee)

1711385 (Refugee) [2021] AATA 5454 (8 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711385
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Michael Hawkins AM
DATE:8 December 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 December 2021 at 6:06pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – member of particular social group – lesbian pressured or forced into marriage by family – husband’s threats to kill applicant’s sister if applicant divorced – delay in departing after divorce with no harm to applicant or sister – no ongoing contact with ex-husband – fear of social and workplace prejudice and discrimination – country information – prejudice and discrimination not serious harm – long-term relationship before coming to Australia with no harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) NG994 of 1993 (FCA)
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 25 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 13 October 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
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 the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [Age]-year-old national of Malaysia.
The applicant first arrived in Australia [in] August 2016 pursuant to a visitor visa and she has remained onshore since.
The applicant applied for a protection visa on 13 October 2016 and the application was refused by a delegate of the Minister for Home Affairs in a decision made on 25 May 2017.
The applicant applied for merits review of the delegate’s decision on 29 May 2017.
Claims:
The applicant’s claims are summarised in her protection visa application form and the delegate’s decision.
The applicant claims she is a lesbian who is in a serious relationship.
The applicant claims that previously her family had pushed her to marry a man to make them happy, but the marriage lasted only five years. She claims she cannot pretend to be straight for the rest of her life and decided to be honest and fair with her husband, so she asked for a divorce. She claims she just wants to live according to her nature and be with her lesbian partner.
The applicant claims that it is very difficult to be a LGBT in Malaysia and that the homosexual life will never be allowed. She claims she decided to leave Malaysia, as this is the only way in which she can demand her human rights and lead a life which is safe and peaceful and where she can protect her honour, mind and health.
The applicant claims her life has been challenging since she confronted her ex-husband about the truth of her sexuality. She claims her family and ex-husband are not happy and she has been forced to leave the country. She claims that if she returns to Malaysia, she will be humiliated by her family members and she will be lonely as she will not have a support system. She claims this will result in her being in a bad mood and depressed. She claims that only her lesbian partner understands her needs and lifestyle.
The applicant claims she was forced to marry a man as a form of rehabilitation, but it failed. She claims to have suffered emotional trauma as a result of the pressure to marry the opposite sex. She claims her family cannot accept who she is.
The applicant claims that if she returns to Malaysia, people will humiliate and disrespect her, and she will be bullied in the workplace. She claims she will experience an extreme level of discrimination and prejudice.
The applicant claims her family and Malaysian society are yet to accept the LGBT way of life. She claims that being a lesbian is not normal in Malaysia, and that her religion prohibits it and views it as a great sin.
The applicant claims she did not attempt to relocate, as Malaysian culture and religion prohibits LGBT relationships throughout the country and homosexuality is an extremely controversial issue.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
a)the applicant’s protection visa application form, which was lodged on 13 October 2016;
b)the applicant’s identity documents provided to the Department, being her passport;
c)the protection visa decision record dated 25 May 2017 (delegate’s decision);
d)the application for review form, which was lodged on 29 May 2017 and included a copy of the delegate’s decision;
e)Department file [Reference] concerning the applicant’s protection visa application; and
f)country information on Malaysia, referred to below.
Country of reference / receiving country:
The applicant claims to be a citizen of Malaysia. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing
The applicant appeared before the Tribunal on 6 December 2021 to give evidence and present arguments at an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee she must have a well- founded fear of persecution in Malaysia. This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if she returned to Malaysia. The harm must be directed at her for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Malaysia.
The Tribunal discussed her claims as summarised in the applicant’s protection visa application, written claims and the delegate’s decision. She confirmed that her claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that she did not need to change them.
No additional submissions or documents were provided to the Tribunal prior to the hearing.
Assessment of claims and evidence, and findings:
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 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. 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 (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal asked the applicant about her life in Malaysia. The applicant advised that she lived in Kuala Lumpur. She had attended school in Kuala Lumpur but did not attend university.
The Tribunal asked the applicant about her work experience in Malaysia. The applicant replied that she had worked in promotions, being a promoter of [products]. For instance, she would work in [places] promoting different [products]. She confirmed that she had worked in this field since the age of 17 and up to the time that she left Malaysia. She promoted [products] and other types of merchandise. She had spent all her time in Malaysia in Kuala Lumpur.
The Tribunal noted the applicant’s claim to be a lesbian and discussed aspects of that claim with her.
The applicant stated that she believed she had been a lesbian from the age of 17, stating that she had no attraction to men. She confirmed that she went out with females from about the age of 17 and that one of her friends from school was also a lesbian. She explained that she had attended an all-girls school.
The Tribunal asked the applicant when her parents found out about her lesbianism. She replied that she was 18. Asked how her parents found out, she replied that she had brought a female friend home. She explained that her mother probably knew then.
The Tribunal asked the applicant how her parents responded or reacted when they found out. The applicant said that at first they didn’t do anything. She wondered out loud whether it may have been that they didn’t understand. However, they reacted when it was time for her to marry.
The Tribunal asked the applicant how old she was when her parents decided it was time for her to marry. She replied that she was [Age]. The Tribunal inquired as to whether that was an arranged marriage. She confirmed that it was and that the groom was a friend of her fathers.
The Tribunal asked the applicant how she responded when marriage was proposed to her. She told the Tribunal that she didn’t agree and that she was forced to marry. The Tribunal asked the applicant what she meant by being forced. She replied that her father was angry and forced her. She told her father that she didn’t want to marry. She also offered that she attempted self-harm and pointed to a scar on her arm. She said that she was stressed. Again, when asked what “being forced” meant, she said that her father slapped her face.
Noting the attempt at self-harm, the Tribunal asked the applicant whether she had gone to a hospital. She replied that she did not. The Tribunal asked the applicant whether she had attended any counselling. She replied that she had not.
The Tribunal asked the applicant how long her marriage lasted. She replied five years. She went on to add that she became very unhappy towards the end of her marriage. Asked what happened towards the end of her marriage, she said that she had decided that it wasn’t right for her. She said she then told her husband that she wasn’t happy and that she was a lesbian and offered him a divorce. Asked what her husband’s reaction was, she told the Tribunal that he told her that he would kill her older sister if he saw her with a woman.
The Tribunal asked the applicant why the husband responded in that way, by suggesting he would kill her older sister rather than kill her. The applicant replied that it was because the husband knew that the applicant loved her older sister.
The Tribunal noted that the applicant did ultimately divorce and that her older sister was still very much alive.
The Tribunal asked the applicant whether she was subjected to any other harm. She replied that her husband had hit her and that she had gone to a hospital. She said that the hospital staff suggested to her that she file a police report but that she decided not to do that for fear of her sister being harmed by her husband.
The Tribunal discussed with the applicant a number of datelines. It noted that she was born in [Year]. Therefore, she must have married around 2004 to 2005. If the marriage had lasted five years, then she must have been divorced in 2009 or 2010. The applicant confirmed that that was correct.
The Tribunal noted that the applicant arrived in Australia in August 2016. It noted the lapse of over six years between her divorce and her ultimate departure for Australia. The Tribunal asked whether anything happened to her during that intervening six-year period.
The applicant replied that she kept working. She added that she was alone for about one year before taking a lesbian lover. She remained with this lover until her departure to Australia. She said that after having met her new lover, her husband reappeared and again threatened to harm the older sister if he saw the applicant with her lover.
Notwithstanding that, the applicant stayed with her new lover for five years. They broke up when the applicant decided to move to Australia and her partner could not leave her sick mother.
The Tribunal asked the applicant about her life in Australia. She advised that she had dated different people in Australia and had settled with one partner for a little while. She advised that she had no specific partner at present.

She also advised that she had a good job and was doing well.
The Tribunal asked the applicant about her relationship with her family in Malaysia.
She advised that just last month, her father had fallen sick and that he had wanted to talk to her and that the two of them had had a long video call. She maintained that she still had a good relationship with her siblings.
When asked about her mother, she advised that her mother had died when the applicant was 20 years old. She went on to add that she now had a stepmother, though didn’t speak to her much at all.
When asked again about her sisters, she replied that she had a strong relationship with them and particularly her older sister, but that her older sister would like her to stop being a lesbian.
The Tribunal asked the applicant about her ex-husband. She stated that he still asked about her.
The Tribunal asked the applicant whether she knew whether her husband had remarried or moved on with his life. She replied that she didn’t know.
The Tribunal asked the applicant whether she had received any threats from her ex-husband. She replied that she had not. The Tribunal also noted that she hadn’t heard from her ex-husband since about one year after her divorce. The applicant stated that she was still afraid of him.
The Tribunal asked the applicant why it was that she came to Australia in 2016. Was there an event that shaped her decision to depart Malaysia at that specific time? She replied that she was still concerned about her ex-husband. The Tribunal reiterated, however, that he hadn’t actually done anything to her or threatened her in any way since their divorce. She confirmed that was the case.
The Tribunal has had regard to the following country information relevant to the applicant’s claims.
The Department of Foreign Affairs and Trade’s[3] latest country information report on Malaysia reports:
3.134 Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent. Article 377A of the Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration), which Article 377B penalises with imprisonment of between five and twenty years, along with whipping. Numerous state-level syariah-based laws also prohibit both same-sex relations and non-normative gender expression.
3.136 The former BN government was strongly opposed to the ‘promotion’ of LGBTI issues, and had committed to a five-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. Key elements of the action plan included rehabilitation programs for LGBTI individuals (discussed in this section), prevention seminars for parents and students, and enforcement of laws and policies prohibiting the public ‘glamorisation’ of LGBT lifestyles, including through restricting the online space for LGBTI activities and individuals (see Media). Despite the general improvement in the human rights climate following the change of government in May 2018, in-country sources report that LGBTI issues remain sensitive. Notwithstanding its general reformist nature, the previous PH administration was generally unwilling to engage with LGBTI advocacy groups or to consider any substantial changes in its approach to LGBTI issues, including through its rhetoric. In September 2018, for example, then-Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’, while in March 2019 the Tourism Minister responded to a question about whether Malaysia would welcome gay foreign tourists by denying the existence of gay people in Malaysia. An aide reportedly later clarified that the minister was echoing the government’s stance that LGBTI individuals were not officially recognised in the country. The current PN coalition is even less well-disposed towards LGBTI activities and individuals.
3.137 While successive governments’ stances on LGBTI issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI behaviours constitute syariah offences as well as offences against the penal code. Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’ In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.
3.138 Malaysia does not have a national organisation committed to progressing LGBTI rights, but a loose coalition of NGOs and individuals reportedly works to advocate such rights within the framework of broader human rights advocacy. Longstanding official opposition towards the promotion of LGBTI issues in public spaces, which has increased under the current government, has hampered the effectiveness of such advocacy…
3.139 JAKIM and other state religious authorities have occasionally conducted raids on LGBTI events (similar raids reportedly target unmarried heterosexual couples and those suspected of other ‘non-Islamic behaviour’). In August 2018, for example, authorities raided a Kuala Lumpur nightclub known to be popular among the LGBTI community, detaining twenty men. JAKIM subsequently ordered the men to undergo counselling for ‘illicit behaviour,’ while a government minister released a statement hoping that the raid would ‘mitigate the LGBTI culture from spreading in our society’. While the majority of such raids have occurred in public places, state religious officials have also reportedly conducted raids on private premises on occasion, sometimes accompanied by members of the RMP. In-country sources have suggested that authorities conduct such raids as a means of creating income through extorting or blackmailing those targeted.
3.143 There is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. As noted in Media, authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI.
3.146 The level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah. Sources told DFAT most transgender individuals from Sarawak and Sabah relocate to Kuala Lumpur for employment (almost exclusively in the private sector) and to escape discrimination.
3.147 DFAT assesses that, in general, LGBTI individuals face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas. DFAT assesses LGBTI civil society organisations are generally able to operate unhindered but high-profile work and leaders may be targeted.
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’ (29 June 2021)
The Tribunal discussed that Country Information in general terms with the applicant.
It noted that Country Information tended to suggest that Kuala Lumpur was a very cosmopolitan city and that the people in Kuala Lumpur appeared to be generally more permissive of people who identify as LGBTI.
The Tribunal also suggested to the applicant that her previous lifestyle in Malaysia and in particular her having had a long-term lesbian relationship of over five years would tend to support that.
The applicant responded that she knew of someone who had said that Malaysia was not safe for lesbians. She said she had seen it on Facebook. When pressed further as to who that someone was, she referred to a famous transgender man called Nursajat. The Tribunal noted that no evidence of such information had been provided to the Tribunal and the Tribunal had been unable to locate information to that effect.
The Tribunal discussed with the applicant Country Information from the DFAT Report in relation to the Malaysian Police Force.
It stated that local and international sources consider the Royal Malaysian Police to be a professional and effective police force.
The Tribunal suggested to the applicant that should her ex-husband reappear and make a threat to her; she could report him to the police.
She replied that if she did that, her ex-husband would kill her sister. The Tribunal put to the applicant that she hadn’t heard from her ex-husband for a very long time and that there had been no threats or violence towards her, any of her partners or her sister in the past and that given further the effluxion of time, it was very unlikely there would be in the future.
The applicant acknowledged that but stated that she was still afraid of returning.
The Tribunal is satisfied based on country information that there is likely to be some societal discrimination and ostracism directed towards the applicant on the basis of her sexuality in Malaysia.
The Tribunal also accepts that the applicant’s father may have been violent towards her on one occasion when he slapped her face for objecting to a proposal of marriage when she had been living at home.
The Tribunal is satisfied that the applicant is apprehensive about a response from her own family some of whom have been disapproving of her sexual orientation. However, she has spoken to her strong relationship with her sisters. She also spoke of some reproachment with her father.
She has also claimed that she will be bullied in the workplace and disrespected by people generally.
The country information indicates discrimination in housing and jobs against LGBT people, as well as rejection from families and community members. However, in the absence of other evidence and considerations, the Tribunal considers that such harm does not reach the level of ‘serious harm’ envisaged by the Act. The Tribunal is not satisfied that unofficial instances of humiliation, disrespect, discrimination and bullying, while unpleasant, would reach this level of serious harm.
The Tribunal notes the applicant’s long and continuous work history in Malaysia as a promoter of [products] and other merchandise. It is not satisfied based on the country information and the applicant’s own work history in Malaysia that the applicant would not be able to find work or access services because she identifies as LGBTI, although there may be some instances of discrimination.
The Tribunal notes that humiliation or even rejection by one’s own family would not of itself usually constitute persecution for the purposes of a protection visa. In particular, the Tribunal notes that the High Court, in the case of MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324, held that familial rejection could not be regarded as persecution, within the meaning of the convention, as it is a purely private matter and the generalised standards of civilised countries do not suggest that adults, not under a disability, have a right to protection when, for private reasons, their families reject them.
The applicant complained of an incident of violence from her father in his slapping her face. Given that the applicant has managed to live in Australia on her own, in a different country and culture, the Tribunal is satisfied that the applicant would be able to live separately from her father if she chose to do so. The applicant did not claim to fear harm from her father outside the home on return to Malaysia and the Tribunal finds she does not face a real chance of serious harm on this basis.
The applicant stated that she had had a number of relationships in Malaysia and had been with several partners, including one long-term relationship of five years. She was able to live and work in Malaysia continuously in the same industry. Whilst she has made broad and general claims that her family and society are yet to accept the LGBTI way of life, and that LGBTI relationships are extremely controversial and that it is difficult being LGBTI in Malaysia, any discriminatory experiences suffered by her were not such that she felt at risk of harm during the six years after she divorced when she remained in Malaysia before traveling to Australia.
Based on the evidence and country information before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of her sexual orientation and as a member of the particular social group of LGBTI women alone.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of her identifying as LGBTI or her sexual orientation or any other reason if she returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if she returns to Malaysia. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that she will suffer significant harm?
The Tribunal has considered the applicant’s claims under complementary protection.
Having regard to the findings above, the Tribunal does not accept that the applicant left Malaysia because she feared significant harm.
In view of these findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she is removed from Australia back to Malaysia now, or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Malaysia now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that she will suffer significant harm.
Overall Conclusion
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).
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).
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.
Michael Hawkins AM
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.
…

[2021] AATA 5454

8 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction