1711482 (Refugee)

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

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).
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.
Via an internet-enabled audio-visual platform, the applicant appeared before the Tribunal on 11 August 2022 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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 (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.
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 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.
The photographs provided show the applicant with her former partner and friends.
Protection claims
The written protection claims in the applicant’s visa application form may be summarised as follows:
·She left Malaysia because she did not feel safe there.
·Terrorists from the Philippines have attacked her village and kidnapped people.
·If she was to return to Malaysia, her life is threatened because she might be one of the terrorists’ victims.
·She has not experienced harm in Malaysia and she did not relocate to a safer place because all of her family have settled in Sabah.
·She thinks she will be harmed if she was to return to Malaysia because the terrorist are still operating today, and the government is “problem solving that problem”.
·The authorities cannot protect her because “the government corruption so happy in entering the state border terrorist attacks thus can occur any time without trial”.
·She would not be able to relocate within Malaysia because her life is threatened.
During the hearings the applicant told the Tribunal that these claims were not true, and she did not fear returning to Malaysia
The applicant claimed that she does fear returning to Malaysia but that it is because she considers herself to be a man and has lived in Australia as a male.
Applicant’s oral evidence at the hearing
The applicant indicated to the Tribunal that her preferred name was ‘[Name 1]’ and that she had chosen to be known by this name from a young age because she did not like given name of [her first name].
The applicant was born on [date] and is currently [age] years of age. She was born in the village of [Village 1] in Sandakan, in the state of Sabah in northern Borneo. Her parents are deceased, but her sisters and their families continue to live there.
The applicant and her family are members of the Muslim faith and she describes her sisters and their families as observant.
The applicant is the youngest of [several] siblings, the eldest of whom is now aged [age]. Each of her siblings are married and the applicant has approximately [number] nieces and nephews. The applicant is not close to her family and has had no contact with them since arriving in Australia.
The applicant was educated in Sandakan where she attended primary and secondary school. She left school at [age] after completing [grade] of secondary school. She was unable to continue with her education because her parents were too poor to continue pay for it. Her sisters also finished their schooling at [that age]. After she left school, the applicant spent several years assisting her father as a fisherman.
During her childhood and adolescence, the applicant’s father worked as a fisherman and her mother was not engaged in paid employment.
When she was born, the applicant’s father was very disappointed that he did not have a son and determined to raise her as a boy. Accordingly, he dressed her in boy’s clothes and involved her in his work as a fisherman. He did not treat her sisters in this way, and they conformed to traditionally female dress behaviours, including playing with other girls, wearing dresses and covering their hair.
Although the applicant was required by the principal to wear a dress to school, she refused to cover her hair and spent most of her time socialising with the male students rather than the female ones. When she came home from school each day she changed into her boy’s clothes, played soccer and went fishing with her father.
The applicant initially said that she didn’t experience any difficulties at school although she sometimes spent time on her own. When asked whether she ever experienced any bullying at school, the applicant said she was teased at times because she played with the boys instead of the girls and some of the girls didn’t want to speak to her. The applicant didn’t care about this.
The applicant did not have a close relationship with her siblings because they are not tolerant of her dressing and behaving as a male. When the applicant turned [age], her sisters spoke to their father about her appearance. They were critical of the applicant for dressing and behaving as a male and also blamed their father for allowing this to happen. They complained that they were embarrassed in front of of their neighbours and villagers and were worried that the family would be forced out of the village and no-one would want to marry them. However, the applicant parents were always supportive of her choice to live as a male and her father told them he would not force the applicant to change her appearance or behaviour.
Although her sisters attended the local mosque on a regular basis, the applicant did not as she was not prepared to wear female attire and cover her hair.
The applicant explained that for as long as she could remember, she wanted to wear boy’s clothes and behave as a boy. She said that “in my soul I felt I was a boy” and that even now she feels that way. In adolescence, she was attracted to women and not men and when she was [age], she approached another girl of a similar age to chat and become friends. The girl told her mother who complained to the head of the village about this incident. He then talked to her father and suggested to him that he force his daughter to dress and act as a female. The applicant considers that it was fortunate that the village head did not report her behaviour to the local Sharia Court.
Her sisters all married deeply religious men who disapproved of the applicant’s dress and appearance. On one occasion, one of her brothers in law humiliated her by slapping her on the face in front of her father. This was a result of his anger at the applicant for refusing to conform to societal expectations of female dress and behaviour.
After this incident, the applicant’s parents decided to move away from the village and relocate to a more remote rural location where her father’s family had lived. This village was located in a palm oil plantation approximately eight hours drive from their former home. At this stage the applicant was approximately [age].
After their move, the applicant and her father worked as labourers in the palm oil plantation whilst her mother cared for their home. The applicant continued to dress and work as a man with the support of her parents. The workers on the plantation came from a number of countries [and] were generally accepting of the applicant’s decision to live as a man.
When she was in [age range] the applicant’s parents died. Although the applicant could recall that her mother died first, she was unable to say in what year this occurred as it happened a long time ago. Similarly, she was unable to remember exactly when her father died. After the death of her parents, the applicant continued to live on her own and work in the palm oil plantation for “a few years”.
In 1992 the applicant moved to Kuala Lumpur when a friend informed her about the job opportunities available in that city. The applicant worked in many jobs in Kuala Lumpur including in factories and as [an occupation 1]. She lived there until she departed for Australia in 2018.
The applicant told the Tribunal that whilst living in Kuala Lumpur, she continued to dress, work and act as a man. When the Tribunal asked the applicant to elaborate on how she lived as a man, the applicant explained that it was difficult for her because she didn’t wear female clothes or cover her hair. The people he lived with were all female tomboys – lesbians who dressed like men and had girlfriends. The applicant further explained that the Malaysian term for such people is Pengkid. The applicant said that she used this word to describe herself and when working represented herself as a boy to others.
The Tribunal discussed with the applicant her use of the name [Name 1]. The applicant explained that she had chosen this name because it was the stage name of [a] male [celebrity], of which she was a fan. When the Tribunal suggested that [Name 1] was a girl’s name, the applicant explained that it also a name used by boys in Malaysia.
When asked to describe her treatment by others in Kuala Lumpur, given that she had said she was living as a man, the applicant said that she just dressed as she did now (in a windcheater and pants) but didn’t obviously present as a man. This was because the religious laws in Kuala Lumpur are harsh and stern, with no flexibility.

The Tribunal informed the applicant that country information (including the Department of Foreign Affairs and Trade Country Information Report 2021) suggested that people in large urban areas such as Kuala Lumpur are generally more tolerant of members of the LGBTQI community and they are more likely to live without intervention by the authorities, than in rural areas. In response, the applicant said that although this might be possible for people who are not members of the Islamic faith, for Muslims (like herself) the treatment of LGBTQI people is harsh and run the risk of being detained for their activities. Although the applicant wasn’t detained in Malaysia for her appearance and lifestyle, she knew others who were detained and then sent to centres for rehabilitation and re-education.
The applicant was not involved in any LGBTQI community groups or activities as she didn’t know much about them and was also scared that she would be caught by Malaysian authorities. In contrast, the culture and lifestyle in Australia gives people more freedom.
The applicant decided to come to Australia in 2018 after a person she was working with told her about Australia and suggested there were a lot of good things here. The applicant decided to travel to Australia with two friends, for a three-month holiday and arrived in Australia on a tourist visa. After arriving in this country, the applicant noticed that there were many people like her – women who dressed like men. She subsequently realised that members of the LGBTQI community were accepted in Australia.
The applicant said that she did not fill out her visa application form because her ability to read and write English was limited. The form was completed and submitted to the Department by a Malaysian man named [Mr A] whose surname was unknown to her. The applicant met him through one of her tomboy friends here, who is also a Malaysian. [Friend A] explained that [Mr A] could assist her in applying for another visa which would enable her to stay in Australia. Before this the applicant had not thought about applying for a protection visa because her tourist visa was still valid. However, [Friend A] advised the applicant that as her tourist visa was only valid for another three days, she should apply for another visa and that it was not a good thing for her to remain in Australia without a valid visa.
The applicant gave [Mr A] her personal and passport details. He completed the visa application form without asking for any information about her reasons for not wanting to return to Malaysia. All she knew was that she was subsequently granted a Bridging C visa. The applicant only met [Mr A] on one occasion, and he has since returned to Malaysia.
When the Tribunal noted that the applicant had declared in her visa application form that she could read and write English, the applicant said this was not correct and that [Mr A] must have put that in the application form.
The Tribunal also questioned the applicant about her protection claims as set out in her visa application form. The applicant said that the claims made on her behalf by [Mr A] in that form were not true and that she did not fear returning to Malaysia because she believed she would be the victim of a terrorist attack in that country. When the Tribunal questioned the applicant about her reason for not asking [Mr A] to look at the completed visa application form before she signed it, the applicant initially said that when she asked him about what he had written he just showed her a blank page and told her to sign it. He then said he sent the visa application to the Department. The Tribunal then questioned the applicant about why she had signed a blank form if [Mr A] had already sent her visa application form to the Department. The applicant responded by explaining that [Mr A] gave her a blank form and told her to sign it. He then told her that in case she was busy she should sign it and he would fill in the form at a later date. When the Tribunal questioned why she entrusted the lodging of an application (which she hadn’t completed or even seen) to the government by a person she had just met, she explained that as [Friend A] and [Mr A] had been in Australia a while, she assumed that they knew what they were doing. It was only when she had been in Australia for a while that she realised how to fill out a visa application form.
[Friend A] also gave her the telephone number of a man ([named]) who arranged employment for her on the [farm] where she met her current partner.
The applicant did not pay [Mr A] any money to complete the visa application form and speculated that perhaps [Friend A] gave him some money on her behalf. She explained that [Friend A] pushed her to apply for the protection visa while her tourist visa was still valid and explained to her that it would be difficult for to apply for another visa when her previous visa had expired. The applicant did not mention her life as a tomboy to [Mr A] because she didn’t know much at that stage about applying for a visa in Australia.
The Tribunal questioned the applicant about who had written the statement supplied to the Tribunal before the hearing. The applicant explained that she had completed the statement using an online translation application.
When the Tribunal asked the applicant about what she thought would happen to her is she returned to Malaysia, the applicant explained that her parents were deceased, and her sisters and their families did not accept her appearance and lifestyle. She said that she had her own dreams and wanted to have a visa which enabled her to be able to work like everyone else and have a girlfriend. If she returned to Malaysia, her sister wouldn’t accept her and might face imprisonment because she was a Pengkid. She told the Tribunal that the thing she feared most in returning to Malaysia was the Sharia Courts and what they might do to her.
The applicant has been involved in one intimate relationship whilst living in Australia. Her partner is a [Nationality 1] woman who the applicant met when they were working together on a [farm] in [Town 1], Victoria. The couple met in 2017 and have been together for the past five years. The applicant said that her partner who is [Nationality 1] is named [Partner A] and she described their relationship as being a sexual one.
The applicant initially told the Tribunal that she had never lived with her partner although she had stayed for 15 months at the home of [Partner A’s] daughter. However, [Partner A’s] family did not want her to see the applicant too much. The applicant told the Tribunal that she and [Partner A] planned to live together in the future but at the moment [Partner A] is living with her daughter. The applicant further explained that prior to the Covid-19 pandemic her partner has suggested that they live together and that they were staying together in the same room. During this period, the applicant paid for their rent and household bills.
When the Tribunal pointed out that in her written statement, she claimed that she had lived with [Partner A] at her daughter’s home for 15 months, which was different from her oral evidence during the hearing. The applicant explained that she had become confused with the question and that although they had previously lived together at the home of [Partner A’s] daughter, the applicant was no longer living there. This was due to the attitude of [Partner A’s] son-in-law who does not approve of the relationship between the two women.
The Tribunal further notes that in her written statement the applicant inferred that her relationship with [Partner A] had ended when in her oral evidence she said they were still together. In response, the applicant said that although she and [Partner A] were no longer living together in the same house, they continued to be involved in an intimate relationship together. The applicant further explained that when she described her relationship (in her written statement) as a sweet memory, she didn’t mean to suggest that their relationship had ended and that she had used an online translation platform to assist her in drafting the statement.
The Tribunal questioned the applicant about whether she had consulted a doctor or psychiatrist in Australia about her feelings that she was a man or attended a gender clinic. In response, the applicant said that it had never occurred to her to seek advice about her feelings and that she thought a doctor would only tell her to act like a woman. The applicant said that I think my soul is male. She described her dream as being with her partner who she really loved, rather than returning to Malaysia where she feared she would be imprisoned for the rest of her life while everyone else was living a good life.
The Tribunal also questioned the applicant about her relationship with her [Friend B]. The applicant explained that she and [Friend B] had been born in the same village although [Friend B] was about 12 years her junior. Although they had known each other when the applicant was living in the village, they were not close. The applicant said that [Friend B] was currently assisting her by allowing her to stay at her home.
Country Information: Malaysia
Malaysia: sexual orientation and gender identity
Below are key paragraphs regarding sexual orientation and gender identity from the most recent DFAT country information report on Malaysia dated 29 June 2021.
Sexual orientation and gender identity
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. In February 2021, nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional, with the power to make laws with respect to such offences being reserved to the Malaysian Parliament.
3.135 While cross-dressing is not technically illegal under civil law, state-level police have arrested transgender women under the Minor Offenses Act (1955) for public indecency and immorality, or (where applicable) under syariah-based law for impersonating women. A case in 2005 in which a transgender individual was permitted to change their name, sex marker, and related last digit on their identity card has not acted as a precedent in subsequent cases, and the National Registration Department does not generally allow transgender people to access such changes. In 1983, the National Fatwa Council banned Muslims from undergoing sexual reassignment surgery (SRS). Neither SRS nor transition therapy are available in Malaysia (see Transgender People).
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. 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. Authorities have banned homosexual, bisexual, transsexual and transgender individuals appearing on state-controlled media since 1994, while media censorship rules ban movies or songs that promote the acceptance of same-sex relationships. In 2017, authorities initially banned a Disney live action production of ‘Beauty and the Beast’ for an alleged ‘gay scene’ but backed down when Disney refused to censor the scene. In August 2018, the Minister of Religious Affairs ordered the removal of photos of Malaysia’s most prominent transgender activist and another LGBTI activist from an exhibit in Penang celebrating influential Malaysians on the grounds that the exhibition was in breach of the government’s policy to not promote LGBTI activities. In March 2019, the Minister for Religious Affairs criticised the participation of LGBT groups at an International Women’s Day march as a misuse of democratic space. In July 2020, Zulkifli Mohamad Al-Bakri, Malaysia’s Minister in charge of religious affairs, announced in a social media post that he had given the Federal Territories Islamic Religious Department authorities ‘full licence to carry out its enforcement actions’ against transgender persons in Malaysia, not just arresting them, but also providing them ‘religious education’ so that they would ‘return to the right path’.
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.
…
Transgender People
3.140 In-country sources report that their increased visibility makes transgender individuals particularly vulnerable to raids by religious authorities and subsequent placement in re- education centres. Transgender women are held in male custodial facilities, and numerous human rights organisations have reported allegations that state religious officials, corrections officers, and fellow detainees have subjected transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are also reportedly denied access to public education upon transitioning, and often avoid seeking medical treatment in public hospitals due to the requirement that they be placed in male wards. The strict segregation between sexes in mosques means transgender women who are Muslim are also often precluded from accessing places of worship.
3.141 In December 2018, a group of five people aged between 16 and 21 years violently attacked and killed a transgender woman in Klang (outside Kuala Lumpur); while in January 2019 police arrested a 55-year-old man in the same location in relation to the death of a transgender woman who reportedly fell from a moving vehicle. DFAT is not aware of the status of prosecutions in either case. On 27 October 2020, officers from the Kedah Islamic Religious Department (JAIK) raided a private birthday event attended by 30 transgender Malaysians. A JAIK spokesperson said all 30 attendees would be investigated under Section 36 of the Kedah Syariah Criminal Enactment 2014 and may face fines up to MYR1,000 (AUD320) and/or jail for six months. In 2021, Nur Sajat, a high-profile cosmetics entrepreneur and transwoman, was charged in the Shah Alam Syariah High Court with dressing up as a woman at a religious event three years earlier and bringing Islam into contempt. She pleaded not guilty to an offence that carries a penalty of up to three years’ imprisonment. She was arrested by the Selangor Islamic Religious Department (JAIS) in an allegedly violent fashion; those who arrested her have been called in to give statements following her complaint of being ‘roughed up’. In February 2021, she went into hiding following her failure to appear in court. Nur Sajat’s case has been especially prominent, due to her profile and to the particular challenge to Islam represented by her donning Islamic garb during a religious ceremony.
3.142 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.
3.143 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.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
The Tribunal is satisfied, on the basis of the submitted passport and personal particulars provided that the applicant is a citizen of the Federation of Malaysia, and that Malaysia is the country of nationality and the receiving country for the purposes of the refugee and complementary protection provisions.
Third country protection

There is no other evidence before the Tribunal to suggest or indicate the applicant has a right to enter or reside in a country other than Malaysia and therefore s 36(3) does not apply.
Accepted personal circumstances
Based primarily on the applicant’s oral evidence from the scheduled hearing, the Tribunal accepts a number of uncontroversial aspects of the applicant’s personal particulars.
It accepts that the applicant was born in [year] in Sandakan in the Malaysian state of Sabah, as claimed. The Tribunal accepts the applicant’s parents have died but her siblings continue to live in Sandakan.
It is accepted that the applicant has [older] siblings, all sisters. They are married and have their own families. The applicant has not had any contact with her siblings for several years and not since she arrived in Australia.
The applicant was raised as a Muslim and speaks both Bahasa Malaysia and English. She claimed to have limited education and has no tertiary or trade qualifications.
Findings regarding applicant’s credibility
The Tribunal does have some concerns about the circumstances in which the applicant’s protection application form was lodged, including her decision to allow another person to complete the form on her behalf and without checking the information provide before the application was submitted to the Department. The Tribunal accepts that the claims originally made – that she fears that she fears returning to Malaysia because of the activities of terrorist in the State of Sabah and other parts of Malaysia and that the government cannot protect her from such threats, are not correct and the applicant now resiles from them.
However, despite these concerns the Tribunal does accept the protection claims made by her oral evidence during the hearing which were clear and consistent.
The Tribunal accepts the applicant’s claims that she was raised as a boy by her father and that she dressed as a boy when young despite the objections of her siblings who were worried that people in her village were critical of her for not conforming to traditional views of female dress and behaviour. From a young age, the applicant did not wish to wear feminine or conventionally male clothing, such as wearing shirts and jeans and did not cover her hair. As a Muslim girl she was expected by her schoolteachers to cover her hair and the other villagers criticise her when she didn’t.
The Tribunal further accepts that the applicant was physically punished by a family member and admonished by family members and the head of her parents’ village. The Tribunal accepts that the applicant’s unconventional behaviour and demeanour led to her feeling oppressed and marginalised, and she considered herself fortunate that that the Head of the village did not report her to the local Sharia Court.
As a result, the applicant’s father took her away from their village to a more rural village where she lived and worked with her father for several years. Whilst she was living there, she was able to live, dress and work as a male.
The Tribunal accepts that after the death of her parents, the applicant moved to Kuala Lumpur where, she lived, dressed and worked as a man. She described the slang or local term used for woman like her in Malaysia is Pengkid. The applicant explained that in Kuala Lumpur she socialised with other women who shared her lifestyle. The Tribunal accepts that although she never came to the attention of the authorities in Kuala Lumpur, the applicant was aware of other women who had been detained by the authorities and sent away for compulsory rehabilitation to force them into behaving and dressing in a more traditionally female manner.
The Tribunal accepts that the applicant was aware whilst living in Kuala Lumpur that if she came to the attention of authorities, she was likely to suffer a similar fate and that as a Muslim woman, the authorities would be not be prepared to allow her to continue living as a Pengkid.
The Tribunal further accepts that whilst living in Australia, the applicant has been sexually active and involved in a same-sex relationship with a partner with whom she lived. The Tribunal is satisfied that if she returns to Malaysia, the applicant will continue to dress and live in a masculine manner and continue to have a same-sex attraction.
Sections 5J(1)(a) and 5L – membership of a particular social group
The persecution an applicant fears must be for one or more of the reasons enumerated in s 5J(1)(a), specifically: race, religion, nationality, membership of a particular social group or political opinion. A particular social group is one that is identifiable by a characteristic or attribute common to all members of the group, which is not the shared fear of persecution, and which must distinguish the group from society at large: Applicant S v MIMA [2004] HCA 25, Applicant A v MIEA (1997) 190 CLR 225. Section 5L says the person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic is shared by each member of the group; and that person shares, or is perceived as sharing, the characteristic, including a characteristic that is innate or immutable or so fundamental to the person’s identity or conscience, the member should not be forced to renounce it.
In the present case, the Tribunal is satisfied that the applicant is a member of the particular social group of ‘bisexual women or lesbians from non-Muslim backgrounds’, identifiable by a characteristic or attribute common to all members, which is not the shared fear of persecution. More relevantly, the Tribunal is also satisfied that the applicant falls within the following subset of this particular social group, being ‘bisexual women or lesbians identified as gender non-conforming Pengkids or tomboys’, in light of the applicant’s written and oral evidence. Furthermore, the possession of that characteristic distinguishes the group from society at large, for the purposes of ss 5J(1)(a) and 5L.
Real chance of serious harm in the reasonably foreseeable future
It is noted that the Tribunal has not always been satisfied that applicants whose country of reference is Malaysia are found to have a well-founded fear of persecution, if removed from Australia to Malaysia, on the basis of their membership of a particular social group being ‘bisexual women or lesbians from non-Muslim backgrounds’ or for broadly related reasons mentioned under s 5J(1)(a). This is based partially on the chances of serious harm or risk of significant harm to such women having been assessed as real when their personal circumstances include being from Malay and/or Muslim backgrounds.
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.33
The 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.11
The 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 30
Under 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. 28
The 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-crackdown
The 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] Ibid
In 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.46
This 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).
Conclusion
104. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
105. 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 Costa

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.
…

[2023] AATA 976

20 February 2023

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

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Statutory Construction