1711482 (Refugee)

Case [2023] AATA 976


1711482 (Refugee) [2023] AATA 976 (20 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711482

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Amanda Mendes Da Costa

DATE:20 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 20 February 2023 at 11.15am

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – transgender man – Pengkid – religion – Muslim – fear of terrorist activities – rehabilitation and re-education – Sharia Courts – fear of detention – fatwas – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Applicant S v MIMA [2004] HCA 25

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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 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 the federation of Malaysia (Malaysia), applied for the visa on 30 December 2016. The delegate refused to grant the visa on the basis that they did not accept that Australia owed the applicant.

  3. Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on  11 August 2022 to give evidence and present arguments.

  4. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

    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…

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1711482 (Refugee) [2023] AATA 976
Case
[2023] AATA 976
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa. The applicant initially claimed a fear of harm based on terrorist activities in Malaysia but later amended her claims to fear returning due to her sexual orientation and masculine appearance. The Tribunal was required to determine whether the applicant faced a real chance of serious harm or a real risk of significant harm if returned to Malaysia, as defined by sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958.

The Tribunal's reasoning focused on the applicant's identity as a transgender man, identifying as "Pengkid," and her fear of societal and official discrimination in Malaysia. It acknowledged the applicant's subjective fear, supported by country information detailing rising hostility towards LGBTI individuals, particularly gender non-conforming women, in Malaysia. The Tribunal found that modifying her behaviour to avoid persecution would conflict with fundamental aspects of her identity and sexual orientation, and that safe relocation within Malaysia was not a viable option. It concluded that the essential and significant reason for the feared harm was the applicant's membership in the particular social group of gender non-conforming lesbians, referred to as "Pengkids."

The Tribunal determined that the applicant had a well-founded fear of persecution due to her membership in this particular social group, satisfying the criteria under section 36(2)(a) of the Migration Act. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 raised by the protection claims raised in the protection application form in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm based on terrorist activities, if returned to Malaysia, as required by s.36(2)(a) or s.36(2)(aa). However, the Tribunal notes that at the hearing, the applicant changed her claims and told the Tribunal that she feared returning to Malaysia because of her sexual orientation and masculine appearance. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Documentation provided The documents provided by the applicant prior to the hearing includes the following:·Personal statement by applicant.·Bundle of photographs of the applicant. The applicant’s statement may be summarised as follows:·She is [age] years of age, having been born on [date] in Sandakan, in the state of Sabah in North Borneo. Her family village is [Village 1].·Her father was a fisherman, and she is the last born of [several] siblings (all daughters). When she was born her father was very disappointed because he wanted a son.·She only completed [grade] of primary school because her family was poor and unable to afford to pay for any further schooling.·From birth her father always dressed her as a boy and treated her as his son and she considered herself to be a transgender man from the age of [age] years.·Her sisters started to look at her strangely, but her father was very supportive and told her sisters not to embarrass her about her male appearance. He told them that he was treating her as a boy as their mother was not able to have another child and he would not otherwise have a son. ·The head of their village did not want to report her to the Shariah court but warned her father that he should change her attitude to behaving like a boy. This was possible because she had been taught by her father to be a boy and it is now ingrained behaviour.·By the time each of her sisters had married, they had begun to distance themselves from her. All of her sisters’ husbands are religious and on one occasion, one brother-in-law humiliated her in front of her father. This resulted in a “big fight” with other family members and her father decided to move from the village with her to a nearby palm plantation. She lived with her parents at this plantation with members of a community comprised of members from a number of countries. They never lived in [Village 1] again. She worked collecting palm oil to earn money which paid for their expenses and helped to financially support her father.·When her parents died, she commenced living alone. At this stage she was aged [age] years. When she heard a friend talking about the employment opportunities available in Kuala Lumpur, she decided to move there. She flew to Kuala Lumpur with her friend in 1992.·Although she initially found it difficult to accustom herself to living in a large and busy city, she gained employment and settled in Kuala Lumpur. She worked in many jobs including factory work. However, her favourite work was as [an occupation 1] which made her feel like a real man.·She followed a friend to Australia in August 2017 for a holiday. At that stage she didn’t intend to remain in Australia on a permanent basis and had little understanding of Australian culture. However, she found many members of the LGBTI community in Australia and met some transgender people from Malaysia. She felt excited to be in Australia where she had the freedoms not available to her in Malaysia and could be a real man.·She waited until her tourist visa expired before applying for her protection visa, because she was not sure not sure until then that she wanted to remain in Australia.·She gained employment working on a [farm] in [Town 1] where she enjoyed working. It was there in August 2017 that she met her partner [named] who accepted her for who she was and treated her like a man. This enabled her to reveal herself as a transgender man. At the invitation of her partner, she went to live with her in a rented room in [Town 2]. ·Before this relationship, she had never been in live with a woman because she was afraid to reveal her feelings and it was against Islamic and Sharia law in Malaysia. ·She applied to the Department for work rights to be attached to her bridging visa, but she could not provide the evidence required to support her application.·The owner of the house in which she was renting a room was not willing to help her to pay for the rent and household bills.·During 2020 she was unable to work because employers requested her to show that she had the right to work in Australia. She had some savings but became stressed about her situation because she was providing financial support to her partner and paying for food and the rent and household bills.·During the lockdown the applicant gained some casual work as [specified roles] because she need money to support herself and her partner.·During the second government lockdown in 2021 her partner’s daughter invited them to live with her in her home. They lived there for 15 months until her partner’s son-in-law came back from somewhere else. He didn’t agree with her staying there because he was not tolerant of members of the LGBTI community. She moved out of the home because she cared for her partner and didn’t want to become involved in arguments and fighting. She accepted that the relationship was over and as she was getting older, did not expect to find another life partner.·She now wants her freedom to live peacefully and as a transgender man.·In June 2022 she moved in with a female friend from her village in Sandakan. Her friend asked her to stay while she was looking for work. Although she sought advice from her friend about applying for work rights, her friend doesn’t know how to do this. ·She is still working as [specified roles] although she is aware that this is illegal because she has no work rights in Australia.·She hopes she can apply for the right to work in Australia, to gain a better job and live-in peace as “who I am”. She has been happy in Australia and has met members of the LGBTI community. She cannot do this in Malaysia because of Sharia and Islamic law.

Decision

Reasons for decision

In September 2018, a Sharia (or Syariah) court sentenced two women to caning for purportedly attempting to engage in homosexual relations. The punishment was carried out in a courtroom and witnessed by up to 100 people.[1] This deplorable incident is often cited, including by this applicant, as part of a growing trend against lesbians in Malaysia. However, the Tribunal notes that this law was enforced against Muslim women in the conservative northern state of Terengganu. That state, along with Kelantan, is a stronghold of Malay- orientated Islamic party, PAS. There are no reports of corresponding incidents of Malaysia’s secular federal laws against homosexual behaviour being used against women. Noting the applicant is from a part Chinese and non-Muslim background, the Tribunal does not find these and some related developments critically relevant to assessing the applicant’s circumstances under s 36(2)(a), not least because she will not be subjected to religious law and courts administered for Malaysian Muslims and not non-Muslims.[1] ‘Women caned in Malaysia for attempting to have lesbian sex’, by Kate Lamb, The Guardian, 3 September 2018, >In this present case, however, the Tribunal has narrowed its focus on the applicant’s membership of a particular social group to a subset of the broader membership of bisexual women and lesbians from non-Muslim backgrounds.For the reasons set out below, the Tribunal is satisfied that the applicant has a well-founded fear of persecution if she returned to Malaysia in the reasonably foreseeable future for reasons of her membership of the particular social group ‘lesbians identified as gender non-conforming Pengkids or tomboys’.The applicant fears serious harm from societal and official discrimination and degrading humiliation on the basis of being a ‘Pengkid’ if she returns to Malaysia. The Tribunal accepts that the applicant is visibly identifiable as ‘masculine’ in dress and demeanour which does not conform to Malaysia’s gender norms for women. It accepts that the applicant identifies as a lesbian and considers herself to be a Pengkid. The Tribunal accepts that the applicant has been exposed to hurtful and derogatory comments about her appearance in the past, especially by family members. However, the applicant has not been targeted for official arrest, prosecution or punishment, significant physical ill-treatment or threats to arbitrarily deprive her of life or liberty, based on her accepted sexual orientation and identity.Nonetheless, it is accepted based on the applicant’s past experiences in Malaysia as a Pengkid, the applicant holds a genuine subjective fear of serious harm in Malaysia from her family, community and the authorities on the basis of her sexual identity. Having accepted that she has a subjective fear, the Tribunal must also be satisfied that there is an objective basis for that fear in assessing whether she faces a real chance of serious harm upon her return, voluntarily or otherwise. In this regard, the Tribunal has examined the available country information, specifically pertaining to bisexual and homosexual women who are identified as ‘Pengkid’.In September 2014, Human Rights Watch reported that from 2008 to 2010, seven states in Malaysia ‘issued fatwas against Pengkid which roughly translates as “tomboy or “masculine woman”. The fatwas, which have been gazetted in four states, specifically sates that women who have a “masculine appearance or gestures” or a “male sexual instinct” are forbidden in Islam. The fatwas were reported to ‘exist in Johor, Kedah, Kelantan, Malacca, Pahang, Perak and Sarawak. They have been gazetted in Johor, Kedah, Malacca and Perak. A May 2014 report by the International Gay and Lesbian Human Rights Commission, ‘Violence: Through the Lens of Lesbians, Bisexual Women and Trans People in Asia’, describes the country context in Malaysia as follows:i.Lesbians, bisexual women, queer and transgender persons (transwomen and transmen), and other gender non-conforming people and communities currently face rising hostility, discrimination and abuses in Malaysia. They are unprotected by a political system, which is geared towards promoting and imposing a specific vision of Malaysia.[2][2] International gay and Lesbian Human Rights Commission 2014, ‘Malaysia: On the Record: Violence Against lesbians, Bisexual Women and Transgender Persons in Malaysia’, in Violence: Through the lens of lesbians, Bisexual Women and Trans People in Asia, 6 May, p.9. The report indicates that fatwas had been introduced in Malaysia ‘to prohibit Muslim women from masculine gender expression (i.e., Pengkid, butch women or tomboys)’. According to the report:i.With the state endorsing Islamic dominance in Malaysia, fatwa also plays a very important role in shaping non-religious public policies and enactment of secular laws. In 1983, the Council of Rulers imposed a ban on SRS for Muslims through a fatwa. Since then, many additional fatwas have been introduced to prohibit Muslims from changing their assigned gender on the national identification card and to prohibit Muslim women from masculine gender expression (i.e., Pengkid, butch women or tomboys). Fatwas are enforceable only after they have been gazetted but many are treated as if they are law regardless of their gazetted status.[3][3] Ibid p.33The report also indicates that:i.In October 2008, the National Fatwa Council announced a fatwa (Islamic edict or opinion) against Pengkid, a term that loosely translates as tomboys for individuals in the Malay Muslim community who fall within the spectrum of lesbian butch and transman (see Glossary for more details). The announcement of the fatwa against tomboys sparked protests from people, notably non-Malay Muslims. Many Malay Muslim conservatives, such as members of the National Fatwa Council, nationalist pressure groups, politicians, bloggers, and some members of the public, saw these protests of non-Muslims against the Pengkid fatwa as interference in an Islamic matter. Presently, fatwas have been gazetted (officially announced to the public and published in a journal or state-controlled newspaper) in the state of Malacca and the federal capital, Kuala Lumpur, to prohibit tomboy or tomboy behaviour.[4][4] Ibid p.11The report refers to Pengkid facing verbal abuse or warnings from strangers in public places, inappropriate physical contact and job discrimination[5].[5] Ibid pp. 20, 27 and 30Under manifestations of violence, the report states, LBT people whose gender expression was more visible, meaning they are not able to pass as ‘straight’ (heterosexual) or as ‘cisgender’ (people whose gender identity and gender expression conform with the gender they were born with) were more likely to be targeted for violence and discrimination. It observes, ‘Severity of violence directly correlated with the interviewee’s socio-economic class, actual or perceived ethnic heritage, and religion’.[6] And noted, ‘Generally, LBT persons fear reporting abuse, since they do not want their identity exposed and want to avoid further ridicule or harassment by the authorities. No laws are in place that explicitly protect them and their human rights.’[7][6] Ibid p. 14[7] Ibid p. 28The November 2012 report on discrimination and inequality in Malaysia by The Equal Rights Trust also refers to the National Fatwa Council issuing a fatwa prohibiting girls from acting and dressing like boys.[8][8] The Equal Rights Trust 2012, Washing the Tigers; Addressing Discrimination and Inequality in Malaysia, November, p.87< Accessed 8 July 2014 <CIS28954>The April 2012 alternative report by Malaysian NGOs assessing the government’s progress in implementing CEDAW indicates that ‘the National Fatwa Council ruled that “Pengkids, women whose appearance, behaviour and sexual inclination are like men is forbidden in Islam”’ in October 2008. Among the reasons given for the fatwa was that Pengkids were ‘likely to become lesbians. According to the report, ‘The Malay term used for tomboy in the fatwa is Pengkid, which targets Muslim Malay women and girls with a masculine appearance and/or mannerisms. The report also states that ‘Similar to the fatwa on female circumcision, the fatwa on Pengkids has not yet been gazetted by states in Malaysia so is not considered law. However, the sentiment is nevertheless concerning, and especially so because it comes from the authority of the National Fatwa Council, which advises Malaysian states’[9].[9] Women’s Aid Organisation 2012, CEDAW & Malaysia: Malaysian Non-Government Organisations’ Alternative Report assessing the Government’s progress in implementing the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), April, p.82 <>An October 2008 article in The Sydney Morning Herald refers to Malaysia’s National Fatwa Council issuing a ruling which ‘banned females from dressing or behaving like men and engaging in lesbian sex, saying it is forbidden by the religion’, and also indicates that ‘The Fatwa Council does not have jurisdiction in civil law, but the ruling appears to be an attempt to push female homosexuality towards illegality.[10][10] ‘Malaysian Fatwa council bans lesbian sex’ 2008, The Sydney Morning Hhttp:// In 2015 the UN special rapporteur on physical and mental health reported that ‘discriminatory societal attitudes towards LGBTI persons prevail in Malaysia and have been exacerbated over the past few decades by the use of stigmatizing rhetoric by politicians, public officials and religious leaders, and that the criminalisation of same-sex conduct and of different forms of gender identity and expression has reinforced negative societal attitudes and had led to serious human rights violations of the rights of this group of the population, including significant barriers in access to health care’.[11][11] Un Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Addendum: Visit to Malaysia (19 November-2 December 2014), 1 May 2015, available at: >A more recent article describing a contest calling for videos on how to prevent homosexuality and transgenderism promoted by the Malaysian Health Ministry, and references to gay, lesbian and transsexual people, as well as tomboys as examples of a ‘disorder’ indicates that discrimination and adverse stigma continue.[12][12] Malaysia calls gays, tomboys a “disorder”, 4 June 2017, The Independent, independent.sg/Malaysia-calls-gays-tomboys-a-disorder/A 2018 article in The Guardian refers to several recent incidents suggesting that the LGBT community is again under attack, with a raid on a nightclub known to be popular with the LGBT community, in respect of which a government minister is quoted as stating ‘Hopefully this initiative can mitigate the LGBT culture from spreading into our society,’ a report of a brutal beating of a transwoman on the streets, and a sharia court ordering a lesbian couple to be caned for having sex in a car.[13][13] ‘Malaysia accused of “state-sponsored homophobia” after LGBT crackdown’, 22 August 2018, The Guardian, guardian.com/world/2018/aug/22/Malaysia-accused-of-state-sponsorded homophobia-after-lgbt-crackdownThe 2019 Human Rights Watch Country Report on Malaysia[14] states the following about sexual orientation and gender identity:i.Discrimination against LGBT people remains pervasive in Malaysia. Federal law punishes “carnal knowledge against the order of nature” with up to 20 years in prison, while numerous state Sharia laws prohibit both same-sex relations and non-normative gender expression, resulting in frequent arrests of transgender people. While the new minister for religious affairs called for an end to workplace discrimination against LGBT people, he also made clear any visible expression of an alternative sexuality or gender identity will be prosecuted under existing laws, and that he supports programs, broadly discredited, designed to change personal sexual orientation.ii.In August, the religious affairs minister ordered the removal of portraits of transgender activist Nisha Ayub and LGBT activist Pang Khee Teik from an exhibit in Penang celebrating influential Malaysians, claiming the government’s policy is to not promote LGBT activities. The controversy unleashed a wave of verbal abuse against transgender people. On August 18, eight men brutally beat a transgender woman in Negeri Sembilan, causing internal injuries, broken ribs, and injuries to her head and back.iii.In September, a Sharia court in Terengganu state ordered two women be given six strokes of the cane for alleged same-sex conduct. The sentence was carried out in a courtroom in front of 100 witnesses, prompting global criticism.iv.On September 21, Prime Minister Mahathir stated that Malaysia “cannot accept LGBT culture,” raising concern about the government’s commitment to protect the rights of LGBT people.[14] Human Rights watch World Report, Malaysia, type="1">Despite the historic election result in May 2018, where the incumbent United Malay National Organization (UMNO) party that had been in power since independence in 1957 was massively defeated, there is no sign of any change in favour of LGBT rights by the new government, with the Prime Minister Mahathir Mohamad describing ‘LGBT’ as among ‘things we cannot accept,’ and Pakatan Harapan leader Anwar Ibrahim calling for mobilisation against ‘LGBT tendencies and their ideas’.[15][15] IbidIn its 2019 Country Information Report Malaysia, DFAT assessed that LGBTI individuals, particularly Muslims, face a moderate risk of both official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. Some of these risks are higher for transgender individual, and for those located in poorer and rural areas.[16][16] DFAT Country Information Report Malaysia 13 December 2019, paragraph 3.141, p.46This DFAT assessment does not lead the Tribunal to accept that all LGBTI individuals face a real chance of serious harm or a real risk of significant harm. Even in this case, the Tribunal finds that the applicant’s chances or risk of prosecution, punishment, re-education and/or familial or societal physical ill-treatment will be remote and insubstantial. While the applicant has a real chance of facing discrimination in employment opportunities, she has never been denied education or employment or access to basic services in the past. This invites the Tribunal to consider the harm from such official and societal discrimination not amounting to either serious harm or significant harm, if returned to Malaysia.However, in returning to Malaysia, the applicant as a Pengkid or those perceived to be Pengkid would be encountering a national context of rising hostility, discrimination and abuse against LGBTI persons by official and political actors and the widespread societal antagonism towards lesbians who are identifiably gender non-conforming Pengkid, butch, tomboys or masculine. With particular emphasis on the abovementioned country information in which a prolonged hostility towards gender non-conforming individuals by official actors is evident, the Tribunal is unable to find with confidence that the chance of the applicant suffering serious harm for reasons of her sexual orientation, based on the cumulative impact of significant physical harassment and degrading treatment from the broader Malaysian community, if she lived openly as a lesbian or as a lesbian who is identifiable as a ‘Pengkid’, would be a remote or a far-fetched possibility. In this regard, the Tribunal also accepts that this threat of serious harm is heightened based on her own past experiences as well as the applicant’s psychological vulnerabilities, and that this harm exists throughout Malaysia.The Tribunal is satisfied there is a real chance, in the sense of one that is not remote or insubstantial, that the applicant will face serious physical harassment and serious mental torment, as a lesbian who is identifiable as a Pengkid, if she returns to Malaysia now or in the foreseeable future.The Tribunal accepts that in remaining an outwardly gender non-conforming Pengkid, the applicant endured a vicious degree of frequent verbal harassment in the past and that she is likely to encounter such degrading behaviour into the future if she returns to Malaysia.The Tribunal notes that s 5J(3) of the Act states 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 the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation. The Tribunal finds the applicant is a lesbian woman who is distinctly Pengkid or masculine and a modification of her behaviour to avoid a real chance of persecution would conflict with a fundamental characteristic of her identity and conceal an innate or immutable characteristic and her true sexual orientation. Furthermore, it finds that the applicant will not be able to return to Malaysia and live without modifying her behaviour where she can express outwardly her commitment to another woman which the Tribunal accepts is a reasonable expectation for her to hold as it is fundamental to the applicant’s identity and conscience.On the evidence before it, including the above country information and information cited in the applicant’s submissions, the Tribunal is satisfied that a real risk of persecution exists in the country as a whole, and safe relocation within Malaysia is not open to the applicant.100. The Tribunal finds that the essential and significant reason for the harm feared is the applicant’s membership of the abovementioned particular social group(s). It is satisfied that the harm feared includes significant physical harassment from state actors and significant degrees of humiliation and degradation amounting to serious mental torment, and this amounts to serious harm and systematic and discriminatory conduct for the purposes of s 5J(4) and within the meaning contemplated by s 5J(5).101. The Tribunal has considered whether the applicant has the ability to avail herself of state protection. The Tribunal notes in its considerations that the actors causing the harm in this instance include state actors, such as the Royal Malaysian Police and the federal courts, who can be said to have a real chance of seriously harming the applicant in the future. Therefore, the Tribunal finds that the applicant would be unable to access effective state protection should she be persecuted by non-state actors.102. Accordingly, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of her membership of the abovementioned particular social group(s). Given these findings, it is unnecessary for the Tribunal to consider the applicant’s claims relating to ethnicity and religion.103. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations because she is recognised as a refugee. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).Conclusion104. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).DECISION105. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Amanda Mendes Da CostaMemberAttachment - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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 raised by the protection claims raised in the protection application form in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm based on terrorist activities, if returned to Malaysia, as required by s.36(2)(a) or s.36(2)(aa). However, the Tribunal notes that at the hearing, the applicant changed her claims and told the Tribunal that she feared returning to Malaysia because of her sexual orientation and masculine appearance. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Documentation provided The documents provided by the applicant prior to the hearing includes the following:·Personal statement by applicant.·Bundle of photographs of the applicant. The applicant’s statement may be summarised as follows:·She is [age] years of age, having been born on [date] in Sandakan, in the state of Sabah in North Borneo. Her family village is [Village 1].·Her father was a fisherman, and she is the last born of [several] siblings (all daughters). When she was born her father was very disappointed because he wanted a son.·She only completed [grade] of primary school because her family was poor and unable to afford to pay for any further schooling.·From birth her father always dressed her as a boy and treated her as his son and she considered herself to be a transgender man from the age of [age] years.·Her sisters started to look at her strangely, but her father was very supportive and told her sisters not to embarrass her about her male appearance. He told them that he was treating her as a boy as their mother was not able to have another child and he would not otherwise have a son. ·The head of their village did not want to report her to the Shariah court but warned her father that he should change her attitude to behaving like a boy. This was possible because she had been taught by her father to be a boy and it is now ingrained behaviour.·By the time each of her sisters had married, they had begun to distance themselves from her. All of her sisters’ husbands are religious and on one occasion, one brother-in-law humiliated her in front of her father. This resulted in a “big fight” with other family members and her father decided to move from the village with her to a nearby palm plantation. She lived with her parents at this plantation with members of a community comprised of members from a number of countries. They never lived in [Village 1] again. She worked collecting palm oil to earn money which paid for their expenses and helped to financially support her father.·When her parents died, she commenced living alone. At this stage she was aged [age] years. When she heard a friend talking about the employment opportunities available in Kuala Lumpur, she decided to move there. She flew to Kuala Lumpur with her friend in 1992.·Although she initially found it difficult to accustom herself to living in a large and busy city, she gained employment and settled in Kuala Lumpur. She worked in many jobs including factory work. However, her favourite work was as [an occupation 1] which made her feel like a real man.·She followed a friend to Australia in August 2017 for a holiday. At that stage she didn’t intend to remain in Australia on a permanent basis and had little understanding of Australian culture. However, she found many members of the LGBTI community in Australia and met some transgender people from Malaysia. She felt excited to be in Australia where she had the freedoms not available to her in Malaysia and could be a real man.·She waited until her tourist visa expired before applying for her protection visa, because she was not sure not sure until then that she wanted to remain in Australia.·She gained employment working on a [farm] in [Town 1] where she enjoyed working. It was there in August 2017 that she met her partner [named] who accepted her for who she was and treated her like a man. This enabled her to reveal herself as a transgender man. At the invitation of her partner, she went to live with her in a rented room in [Town 2]. ·Before this relationship, she had never been in live with a woman because she was afraid to reveal her feelings and it was against Islamic and Sharia law in Malaysia. ·She applied to the Department for work rights to be attached to her bridging visa, but she could not provide the evidence required to support her application.·The owner of the house in which she was renting a room was not willing to help her to pay for the rent and household bills.·During 2020 she was unable to work because employers requested her to show that she had the right to work in Australia. She had some savings but became stressed about her situation because she was providing financial support to her partner and paying for food and the rent and household bills.·During the lockdown the applicant gained some casual work as [specified roles] because she need money to support herself and her partner.·During the second government lockdown in 2021 her partner’s daughter invited them to live with her in her home. They lived there for 15 months until her partner’s son-in-law came back from somewhere else. He didn’t agree with her staying there because he was not tolerant of members of the LGBTI community. She moved out of the home because she cared for her partner and didn’t want to become involved in arguments and fighting. She accepted that the relationship was over and as she was getting older, did not expect to find another life partner.·She now wants her freedom to live peacefully and as a transgender man.·In June 2022 she moved in with a female friend from her village in Sandakan. Her friend asked her to stay while she was looking for work. Although she sought advice from her friend about applying for work rights, her friend doesn’t know how to do this. ·She is still working as [specified roles] although she is aware that this is illegal because she has no work rights in Australia.·She hopes she can apply for the right to work in Australia, to gain a better job and live-in peace as “who I am”. She has been happy in Australia and has met members of the LGBTI community. She cannot do this in Malaysia because of Sharia and Islamic law.