1713345 (Refugee)

1713345 (Refugee) [2022] AATA 3917 (16 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713345
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Sheridan Lee
DATE:16 September 2022
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 16 September 2022 at 1:57pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – sexuality – applicant is a gay female of Chinese-Malay ethnicity – membership of a particular social group – being lesbians -– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old woman of Chinese-Malay ethnicity and Buddhist faith. The applicant was born in Kuala Lumpur, where she lived until travelling to Australia. She completed high school and then worked as a [Occupation 1] and then as a [Occupation 2] in a [store].
The applicant arrived in Australia on [date] October 2016 on a Subclass 601 Electronic Travel Authority visa, which ceased on [date] January 2017. The applicant applied for a protection visa on 23 January 2017, claiming that she would be persecuted in Malaysia because of her sexuality. The delegate accepted that the applicant is gay but found that she would not face a real chance or risk of serious or significant harm.
Claims and evidence
Application for protection
The applicant lodged an application for protection form with the Department of Home Affairs. Annexed to the application for protection form was a written statement, translated from Chinese to English by an accredited professional level translator. The statement outlined that the applicant:
·liked to dress in masculine clothes and play with masculine toys growing up.
·developed an interest in girls when she was about [age] years old.
·has been in several relationships with girls.
·lived in a Muslim country. Homosexuals are not accepted in Malaysia. She expressed fear that if she were caught being a lesbian, she would be punished or flogged.
·was pushed and verbally abused by a security guard when she was on a date with her girlfriend in 2013. The applicant was on a date in [location] when she and her girlfriend were ordered to leave. A large crowd witnessed the incident and looked at her disapprovingly.
·was scolded by another woman who believed that she was a male in the female toilet. A male security guard searched the applicant without looking at her identification. She suffered serious psychological damage.
·was ridiculed by Muslim colleagues when they witnessed her holding her girlfriend’s hand in public. One colleague accused her of breaching Muslim laws. She felt ostracised at work.
·was insulted and harassed by two male colleagues in the workplace. When the applicant told her boss, she was asked to resign and discouraged from reporting the matter to the police.
·witnessed two male former colleagues outside her home three months after her resignation. The applicant was able to enter the elevator without the men noticing. She was not sure why they were there but the incident scared her.
·moved to a friend’s house, but felt that she would be discriminated anywhere in Malaysia for being gay.
Also included with the application were scanned photographs of the applicant with another woman that appears to be her girlfriend and some articles about the treatment of the LGBTIQ+ community in Malaysia. The applicant was not invited to an interview with the delegate.
The delegate accepted that the applicant is a member of the LGBTIQ+ community and that she has had same-sex relationships in the past. While the delegate accepted that the applicant may face discriminatory treatment and harassment, they did not accept that the applicant would face a real chance or risk of serious or significant harm on the basis of her sexuality.
Application for merits review
On 22 June 2017, the applicant applied to the Tribunal for merits review of the delegate’s decision. A copy of the delegate’s decision and reasons was provided to the Tribunal with the application for review.
On 16 August 2022, the applicant was invited to attend a hearing at the Tribunal. In response, she provided some documents to be relied on at the hearing. Those documents were a certificate of marriage issued by the Victorian Registry of Births, Deaths and Marriages on [date] June 2019 and various photographs of the applicant with another woman. The certificate records the marriage of [the applicant] and [Ms A] on [date] May 2019.
The applicant appeared before the Tribunal on 14 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. At the Tribunal hearing, the applicant identified the woman in the photos provided to the Department as her ex-girlfriend, [Ms B]. She identified the woman in the photos provided to the Tribunal as her wife, [Ms A]. The applicant’s remaining oral evidence will be discussed below where relevant.
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, I have 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.
ANALYSIS AND FINDINGS
Having considered the evidence submitted to the Department and the Tribunal and the applicant’s evidence at the Tribunal hearing, I accept that the applicant is a gay female of Chinese-Malay ethnicity. The applicant is now married to a Malaysian citizen, who is residing in Australia on a student visa while she studies [Discipline 1]. I accept that the applicant and her wife are in a committed and ongoing relationship. Their marriage would not be recognised in Malaysia.
The applicant gave consistent and coherent evidence throughout the application process about her experience as a lesbian in Malaysia. I accept that she was pressured into resigning from her job as a result of an attempted sexual assault by a colleague and that she was touched without permission by a security guard claiming that he was confirming her gender. I further accept that the applicant would be at risk of similar assaults and discrimination if she returned to Malaysia.
The independent evidence before me indicates that members of the LGBTIQ+ community, including lesbians, in Malaysia possess common characteristics and attributes that make them distinguishable from the rest of society and these are not the shared fear of persecution. A sexual and romantic attraction to other women is the reason for the discrimination and other forms of mistreatment to which lesbians in Malaysia are subjected. Based on prevailing social, cultural and religious norms in Malaysia, I find that they constitute a particular social group within the legislative meaning. I accept therefore, that lesbians constitute a particular social group in Malaysia and that the applicant shares the characteristics shared by members of this group.
The Department of Foreign Affairs and Trade reports that Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTIQ+ identities and behaviours. Adult same-sex acts are illegal regardless of age and consent. In-country sources report that Malaysia is becoming less tolerant overall for LGBTIQ+ people. There are numerous reports of authorities targeting enforcement action at the LGBTIQ+ community and the promotion of ‘rehabilitation or re-education programs’ aimed at changing sexual orientation or gender identity. Many members of the LGBTIQ+ community reportedly hide their identity to avoid harassment, familial ostracism, and violence. Reports of violence by family members towards LGBTIQ+ individuals are common.[1]
[1] Department of Foreign Affairs and Trade, Country Information Report Malaysia, June 2021.
The United States Department of State reported in April 2022 that LGBTIQ+ persons in Malaysia report discrimination in employment, housing, and access to some government services.[2]
[2] US Department of State, Country Reports on Human Rights Practices for 2021: Malaysia, 11 April 2022, p.43.
In the circumstances of the applicant, the agents of persecution are considered to be both the State itself and Malaysian society in general. I find that the real chance of persecution is not restricted to the applicant’s home area of Kuala Lumpur; the real chance of persecution exists in all areas of Malaysia.
Having had careful regard to the independent information, I am not satisfied that lesbians are able to access effective protection from the Malaysian authorities or any other territory-controlling party or organisation. In the circumstances, the applicant faces a real chance of persecution from agents and officers of the state itself.
In this matter, I find that the applicant:
·is a national of Malaysia;
·is outside her country of nationality;
·has a well-founded fear of persecution in Malaysia for reasons of membership of a particular social group – being lesbians.
Owing to that well-founded fear of persecution, I find that the applicant is unable or unwilling to avail herself of the protection of Malaysia.
For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Sheridan Lee
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.
…

[2022] AATA 3917

16 September 2022

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