1717268 (Refugee)

[2018] AATA 5044

1717268 (Refugee) [2018] AATA 5044 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717268

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:K. Chapman

DATE:22 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 22 October 2018 at 3:00pm

CATCHWORDS

REFUGEE – Protection visa– Federal Circuit Court remittal – Malaysia – race – ethnic Malay– homosexuality– gay Muslim Malay man – Delay in applying for protection visa – Relocation available – Inconsistent evidence –  Credibility concerns – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65,424,438, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicant, [who] claims to be a citizen of Malaysia, applied for the visa on 10 December 2015. His written claims for protection concern him fearing harm in Malaysia due to his homosexuality. The delegate refused to grant the visa on the basis that there was not a real chance that he would face serious or significant harm if he returned to Malaysia.

3. On 1 September 2016, the Tribunal (differently constituted) affirmed the decision to refuse the grant of the visa: AAT reference 1606375. The applicant subsequently applied to the Federal Circuit Court of Australia for judicial review of that decision. On 31 July 2017, the Court made orders by consent remitting the matter to the Tribunal on the basis that it was unreasonable to have proceeded to a decision without the applicant being present at a hearing.

4. On 27 August 2018, the Tribunal wrote to the applicant pursuant to sections 424A and 424(2) of the Act inviting him to respond to information contained in the delegate’s decision (which was enclosed) suggesting he did not satisfy the refugee or complementary protection criteria and also to provide further information in support of his claims that he requires a protection visa. The applicant did not respond to this correspondence.

5. The applicant appeared before the Tribunal via video link from the Sydney Registry on               3 October 2018 to give evidence and present arguments. The review hearing was conducted using the assistance of an interpreter in the Malay and English languages. The applicant confirmed that he understood the interpreter, he was feeling well enough to give evidence and there were no other witnesses to be called.   

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  

   CRITERIA FOR A PROTECTION VISA

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

8. 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.

9. 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 themself 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).

10. 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.  

11. 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

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

    Country of reference

13. According to the protection visa application, the applicant claims to be a citizen of Malaysia. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

14. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Issues

15. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.

    Documentary evidence before the Tribunal

16. The Tribunal has its own file, and the Department file, relating to the applicant before it. These files contain information including, but not limited to, the following:

    a.the applicant’s protection visa application forms lodged on 10 December 2015 (including an extract from his passport, and a copy of his Malaysian Identity Card);

    b.the Departmental delegate’s visa refusal decision dated 4 April 2016 which in part refers to an interview with the applicant (a copy of the decision was provided to the applicant by the Tribunal in the s.424A/424(2) invitation of 27 August 2018);

    c.the application for review submitted on 5 May 2016;

    d.a certificate pursuant to s.438 of the Act dated 10 May 2016; and

    e.Departmental administrative records.

    Claims for protection  

17. The applicant’s initial written claims for protection may be summarised as follows:

    a.he is a gay Muslim Malay man, who grew up as an orphan, living in a country which does not accept homosexuality;

    b.he has suffered harm in the form of threats and insults from friends and colleagues regarding his sexuality, including having an egg thrown at him;

    c.he will find it difficult to find employment and a partner on account of his sexuality;

    d.he fears harm if he returns to Malaysia because people in society hate him and he will be threatened; and

    e.he cannot seek State protection, or relocate within Malaysia, given the societal unacceptance of homosexuality.

    Section 438 Certificate

18. During the review hearing, the Tribunal raised with the applicant that a certificate pursuant to s.438 of the Act is contained in the Departmental file. The Tribunal noted that a certificate pursuant to s.438 of the Act dated 10 May 2016 is contained in Departmental file [with] respect to folios 81 and 93 of that file. The certificate is signed by a delegate of the Minister. The certificate indicates that release of the aforementioned material would be contrary to the public interest as it contains ‘information relating to an internal working document and business affairs’. The Tribunal read the contents of the certificate to the applicant and he was invited to make a submission upon its validity. He declined to do so.

19. The Tribunal noted that the material at folios 81 and 93 concerns Departmental identification and processing checklists. The Tribunal advised its preliminary view was that the s.438 Certificate is not valid as it provides only a mere description of the material and does not properly identify a public interest ground. However, the Tribunal advised that given the administrative nature of the material, it proposed to place no weight upon it. The applicant was invited to make a submission on this proposal but declined to do so.

20. Following careful consideration, the Tribunal finds that the s.438 certificate dated 10 May 2016 is invalid with respect to all of the material as no public interest ground is properly cited, rather a mere description of the material is provided in the certificate. For the sake of completeness, the Tribunal confirms that it has placed no weight upon the material said to be covered by the certificate as it is not relevant to the review.

    Evidence at the review hearing

21. The applicant’s oral evidence may be summarised as follows. He advised the Tribunal that his protection visa application is important to him and that he received help from a friend to complete it. When asked by the Tribunal who helped him with his application, following a lengthy pause, the applicant stated that he forgot his name. When asked again, the applicant said the name of the man who assisted him was call ‘[Mr A]’. The applicant apparently met [Mr A] at [Town 1] in New South Wales.

22. The applicant confirmed that all of his claims for protection are contained in his protection visa application. He told the Tribunal that he paid [Mr A] around $[amount] to assist him with his application. The applicant paid cash, did not receive a receipt and confirmed that [Mr A] was not a lawyer or migration agent. Initially the applicant advised that [Mr A] helped him to write his claims as he could not write in the English language, then later he advised that he wrote his claims himself and [Mr A] checked them. The applicant confirmed that he understands his written claims for protection, that they are accurate and truthful, and that he signed his application for protection. The Tribunal observed the applicant to display an evasive demeanour when describing how his application for protection was completed.  

23. The applicant grew up in Johor Bahru. He initially advised that he lived at the same address from the time of his birth until departing Malaysia. He advised that he lived with his mother and [siblings] until he became an adult. The applicant then informed the Tribunal that he moved to Kuala Lumpur for work in around 2009 for two years before returning to Johor Bahru in around 2011. He continued to reside with his family members until travelling to Australia. The applicant confirmed that he still speaks to his mother and siblings and does so between two and four times per month. His family are doing well in Malaysia and he has a good relationship with them.

24. The applicant advised that his life was stressful in Malaysia because he was a member of a community which is not really accepted there. He confirmed that he worked as [an Occupation 1] in Johor Bahru for around two to three years. In Kuala Lumpur he worked [for] two years at [a workplace]. The applicant returned to Johor Bahru because it is his birthplace and he couldn’t make a good life for himself in Kuala Lumpur because of the way he is. The applicant added that he couldn’t make a good life anywhere in Malaysia. He confirmed that when he returned to Johor Bahru he obtained work as [an Occupation 1].

25. The applicant completed school in Malaysia and has been to [Country 1] for a holiday. He arrived in Australia [in] August 2015 and came to this country in order to claim protection. The applicant learned he could obtain protection from his friends who helped him apply for the visa. The applicant advised that he had this information prior to leaving Malaysia for Australia. He departed Malaysia legally through the airport using his own passport. The applicant advised the Tribunal that he wants to remain in Australia for as long as his visa is valid. He does not wish to return to Malaysia.

26. The applicant is currently working part [time]. He works two to three times per week and stays at home the rest of the week. He likes reading, cooking at home and he sometimes calls his family. The applicant initially advised that he has only worked in the factory, then changed tack with his evidence to indicate that he first worked [in another field]  in [Town 1]. The applicant explained that he followed a friend to [Town 1] then [Mr A] helped him apply for the protection visa. When asked the name of his friend that he travelled to [Town 1] with, the applicant initially advised that he went with two friends but could not remember their names. When asked again if he knew their names he stated [two names]. The applicant advised that they were new friends and that is why he had difficulty recalling their names. He confirmed that these individuals had not applied for protection in Australia.

27. When asked by the Tribunal what he feared if he returned to Malaysia, the applicant advised that he is a member of a group on the ‘weird side’, being gay, and that he wants freedom. When asked by the Tribunal if he experienced any harm in Malaysia as a result of being a gay man, the applicant replied that he had not personally but members of the wider community tend to look down on members of his community. The Tribunal drew to the applicant’s attention that in his written claims, and in oral evidence, he indicated he is gay and faced difficulties in Malaysia as a result, inviting him to provide further detail. The applicant responded that because Malaysia is an Islamic country they don’t allow this behaviour. When asked by the Tribunal if anyone in the Government or anyone else had tried to stop him being gay, the applicant responded ‘no’.

28. The applicant explained that as a young boy he tended to play with girls. Since he was young he felt feminine and more like a woman. The applicant tried to suppress his feelings towards other men but couldn’t bring himself to love a woman. When asked by the Tribunal if he knew any gay or lesbian people when he lived in Malaysia, the applicant responded that he had a friend like [him].  They met when they worked together in the [workplace] in Kuala Lumpur. The applicant did not have a relationship with [him], rather they were gay friends. The applicant had other gay friends in Malaysia but they were not that close. He had three male sexual partners in Malaysia. The names of these partners are [names]. They remain in Malaysia and the applicant is not in contact with them now. The applicant met [the first partner] in Kuala Lumpur and they saw each other for around four months. He met [the other two partners] in Johor Bahru and they saw each other for around six and three months respectively. The applicant explained that his first sexual encounter took place in Kuala Lumpur at [home].

29. The applicant only advised his circle of friends that he is gay and did not inform his family members. He did not tell anyone in authority that he is gay as they would probably take him to be counselled. When asked by the Tribunal if he ever had any problems with the police or other authorities in Malaysia because of his homosexuality, the applicant confirmed that he never had such problems. The applicant advised that he is no longer in contact with his gay friends in Malaysia and only chats with [social media] friends now. When asked by the Tribunal where gay people tend to socialise in Malaysia, the applicant explained that he never frequented these places although he is aware of [Venue 1] but they don’t allow Muslims to enter. The Tribunal drew to the applicant’s attention that the delegate’s decision refers to him advising at interview that he attended gay [Venue 1]’s in Malaysia and this appeared inconsistent with his oral evidence, inviting his comment. Following a lengthy pause, the applicant stated “I have no answer to that.” The Tribunal raised with the applicant that this inconsistency might cause it to have difficulty with his credibility, inviting his comment. The applicant responded that he did say in Johor Bahru he did not enter these places but he did attend them in other places. The Tribunal referred the applicant to page five of the delegate’s decision which refers to him indicating he attended exclusively gay [Venue 1] in the town where he lived and advised that this appeared to be inconsistent with his oral evidence. The applicant replied that he did tell the delegate this information but he seldom frequented such venues. The Tribunal raised with the applicant that the inconsistencies between his oral evidence at the review hearing and the information he told the delegate might cause it to have difficulty with his credibility, inviting his comment. The applicant responded that perhaps he had forgotten what he said as the delegate’s interview took place a while ago.

30. When asked by the Tribunal if certain parts of Malaysia were easier to live in as a gay man than others, the applicant indicated that everywhere in Malaysia is not conducive to gay men. He added that they don’t like their personality and cannot accept them. When asked if he had met gay or lesbian people in Australia, the applicant indicated that he had. The applicant explained that he meets other gay men on [aps]. He also indicated there is a gay [Venue 1] in Sydney that he visits occasionally.

31. When asked by the Tribunal why he waited over three months after arrival in Australia [in] August 2015 before applying for protection, the applicant indicated that he didn’t have enough money to submit an application as it cost $[amount] to pay [Mr A] to help him. The Tribunal indicated that it might have difficulty accepting that he delayed making his claim due to requiring $[amount] when the actual application fee is minimal, as he said he came to Australia seeking protection and as he knew he could claim protection upon his arrival. The applicant replied that he didn’t know how to apply. The Tribunal indicated that as he had paid $[amount] to a person who is not a professional, it might have difficulty with the genuineness of his claims, inviting the applicant’s comment. The applicant replied, “I have no answer to that.” He then added that he didn’t know where to look for someone to help him fill in the application form. The Tribunal raised with the applicant that his delay in claiming protection following arrival in Australia might suggest that his claims are not genuine, inviting his comment. The applicant responded, “I have no answer to that. I don’t know what to say. I have no idea how to answer it.”  

1. The Tribunal indicated to the applicant that his initial oral evidence was that he didn’t attend places such as gay [Venue 1] and further that there was inconsistency between the information he provided to the delegate and his oral evidence at the review hearing on this topic. In addition, the Tribunal indicated that in earlier oral evidence the applicant advised that he faced no harm in Malaysia and had no problems with the police or authorities in that country. The Tribunal then drew to the applicant’s attention that according to the delegate’s visa refusal decision he told the Departmental officer at interview that he met other gay men in Malaysia through social media, attended [Venue 1] in his home town which were exclusively for gay men, he did not experience any problems with his health or with the Malaysian authorities and he only experienced one instance of anti-gay behaviour from a former friend. The Tribunal indicated that the aforementioned information he provided to the delegate, and in his oral evidence at the review hearing, might tend to suggest there is not a real chance that he will face serious or significant harm for any reason if he returns to Malaysia, inviting the applicant’s comment. The applicant replied that he feels more like a woman and wants to live life freely. He wishes to remain in Australia, to be free and to have his own family.

2. The applicant confirmed to the Tribunal that he has not ever been involved in politics or protested against the Malaysian government. He confirmed his religion is Islam. The applicant explained that Islam does not allow or condone people like him and he cannot return to a normal life. The Tribunal raised with the applicant that in earlier oral evidence he advised that he faced no harm in Malaysia from the police, authorities or anyone else which might tend to suggest he does not face a real chance of serious or significant harm if he returns to Malaysia, inviting his comment. The applicant replied that it is true he has never been subjected to any harm or been given any sentence, however given his personality he wants to live life the way he is.

3. The applicant confirmed to the Tribunal that he is an ethnic Malay. When asked if he faced any harm or problems in Malaysia because of his ethnicity, the applicant advised that Malays are against gay people. The Tribunal raised with the applicant that in earlier oral evidence he advised that he faced no harm in Malaysia from the police, authorities or anyone else which might tend to suggest he does not face a real chance of serious or significant harm if he returns to Malaysia, inviting his comment. The applicant replied that it is true he has never had any problems with the police, but the community doesn’t like his behaviour.

4. The Tribunal raised with the applicant that in his initial written claims for protection he indicated he is an orphan and asked if he wished to provide further information about this. The applicant explained that he meant his parents are separated. When asked if he faced any harm or problems as a result, the applicant indicated that he did because he was not given proper personal guidance as he was living with his mother. The Tribunal raised with the applicant that in earlier oral evidence he advised that he faced no harm in Malaysia from the police, authorities or anyone else which might tend to suggest he does not face a real chance of serious or significant harm if he returns to Malaysia, inviting his comment. The applicant replied that the community cannot accept his kind of behaviour.

5. When asked by the Tribunal if he thinks he will be harmed in the future if he returns to Malaysia, the applicant replied that he does because maybe if he is caught in a sexual act there he might be given a lengthy gaol sentence and caned. When asked if he was aware of any other people receiving a gaol sentence or caning for such matters in recent times, the applicant indicated that he didn’t know anyone in this circumstance although he knows this is the law in Malaysia. The Tribunal raised with the applicant that this might tend to suggest that there is not a real chance he will face serious or significant harm if he returns to Malaysia, inviting his comment. The applicant replied that he only wishes to have his rights as a gay man, he doesn’t want to hide anything and he wants to have a partner in Australia with whom he can live.

6. When asked by the Tribunal if he can seek assistance from the police or other authorities in Malaysia if he returns there, the applicant advised that he cannot because they oppose same sex relationships. The Tribunal drew to the applicant’s attention that his earlier oral evidence was that he had no problems with the police or other authorities in Malaysia and this might tend to suggest that there is not a real chance he will face serious or significant harm if he returns to Malaysia, inviting his comment. The applicant replied that he agreed but if he wants to marry another man he cannot do that in Malaysia. He added that of course there is no harm if gays conduct their relationships discreetly.

7. When asked by the Tribunal if he can move to another part of Malaysia which is more gay friendly if he needed to, the applicant replied that he didn’t know where that would be because he hasn’t explored Malaysia thoroughly, he doesn’t know if other places are more gay friendly but he didn’t think that they were. The Tribunal raised to the applicant’s attention that his earlier oral evidence, and that before the delegate, was that there are places for gay men to socialise in Malaysia and this might tend to suggest there are acceptable places for him to live, inviting his comment. The applicant responded that there are [Venue 1]. When asked if he wished to provide further information he replied, “I’m not sure.”

8. The Tribunal raised country information from the Department of Foreign Affairs and Trade (DFAT) with the applicant indicating that ‘Malaysia has retained the colonial-era article 377 of the Penal Code, which provides that anal or oral sex is illegal in Malaysia, as is ‘carnal intercourse against the order of nature’. Such activities attract a prison sentence of up to 20 years and/or caning. Authorities infrequently apply the Penal Code offences to homosexuals, although they are sometimes selectively applied (see Political Opinion (Actual or imputed).’[1] The Tribunal also noted reports that there are only seven recorded instances of Article 377 being enforced in the past 70 years and four of these related to Anwar Ibrahim and that the DFAT country information suggests this law is infrequently applied and if so it is primarily in the context of political opinion.

   [1] Paragraph 3.115 DFAT Country Report Malaysia of 19 April 2018.  

9. The Tribunal raised that the DFAT country information also indicates, ‘DFAT assesses that LGBTI individuals, particularly Muslims, face a moderate risk of official and societal discrimination on a day-to-day basis in Malaysia. The level and frequency of discrimination faced by LGBTI individuals differs according to their socio-economic status, religion, geographic location and degree of openness. Some well-educated urban Malaysians of high socio-economic status can be open about their sexuality within their family and social circles. For others, previous societal acceptance of certain roles carved out in Malaysian society for ‘flamboyant individuals’, such as planning weddings and events, have largely disappeared. Many LGBTI individuals, especially Muslims, hide their identity to avoid harassment.’[2]  

   [2] Paragraph 3.120 DFAT Country Report Malaysia of 19 April 2018.  

10. The Tribunal raised with the applicant that the above country information tends to suggest, that in his circumstances, there is not a real chance he will face serious or significant harm on account of his sexuality if he returns to Malaysia, inviting his comment. The applicant replied, “I have no answer to that, I really don’t know what to say.” The Tribunal raised country information from DFAT with the applicant indicating that people often move to large urban centres to avoid attention or to different parts of Malaysia for economic reasons.’[3] The Tribunal indicated that this country information does not tend to support his claims that he cannot relocate to a more suitable location in Malaysia if he needed to. The Tribunal noted that his ability to relocate to another country and his personal attributes also suggest he would be able to relocate within Malaysia. The applicant was invited to comment upon the aforementioned. The applicant responded, “I have no answer.”

    [3] Paragraph 5.21 DFAT Country Report Malaysia of 19 April 2018.  

11. The Tribunal raised country information from DFAT with the applicant indicating that generally the Royal Malaysian Police are a professional and effective police force, noting that some deficiencies still remain. Further, the Malaysian Government has implemented reforms to increase accountability and reduce corruption in the police.[4] The Tribunal indicated to the applicant that the country information, in conjunction with his oral evidence concerning his own circumstances, tends to suggest that he could obtain protection from the Malaysian authorities if required, inviting his comment. The applicant replied, “Yes, but I know nothing about this.” The applicant was invited to provide any further oral evidence that he wished. He responded that he wants to live his life freely and be true to himself.

    [4] Paragraphs 5.5 & 5.8 DFAT Country Report Malaysia of 19 April 2018.  

12. The Tribunal raised with the applicant that although it had not made a decision on his claims, it had concerns with his claims for protection which included the following matters. He paid money for assistance in preparing his written claims for protection, there were inconsistencies between his evidence to the delegate and during the review hearing regarding social venues for gay men in Malaysia, he provided vague oral evidence at times in particular with regards to the names of his associates and he delayed making his claim for protection after arrival in Australia. The Tribunal also raised with the applicant that in earlier oral evidence he advised that he faced no harm in Malaysia from the police, authorities or anyone else which might tend to suggest there is not a real chance of serious or significant harm for him if he returns to Malaysia. The Tribunal also advised that at times it had concerns with his credibility as outlined during the review hearing. The applicant was invited to comment upon these concerns however he declined to do so. Prior to the review hearing concluding, the applicant confirmed to the Tribunal that he had no further evidence to provide.   

    Analysis  

13. That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

14. The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. The Tribunal accepts that the applicant is a homosexual man who has had three male sexual partners in Malaysia. However, his written claims for protection on the basis of his homosexuality are vague and lack detail concerning specific instances of harm. Whilst the Tribunal accepts the applicant’s evidence that he completed his application for protection with the assistance of ‘[Mr A]’ (for a fee of $[amount]), and draws no adverse inference from the timing of the lodgement of that application after his arrival in Australia, it does not accept that these matters account for the vagary and lack of specificity in the claims made when considering his case holistically. For completeness, the Tribunal also records that the applicant has not made claims of being transgender.

15. The Tribunal notes the applicant gave oral evidence that he has not personally experienced any harm in Malaysia as a result of being a gay man or for any other reason. He advised the Tribunal that he has never had any problems with the police or other authorities in Malaysia because of his homosexuality or for any other reason. The applicant informed the Tribunal that nobody in the Government or anyone else had tried to stop him being gay. As previously outlined, there are inconsistencies in the applicant’s information provided at Departmental interview and in his oral evidence to the Tribunal regarding his attendance at gay friendly venues in his home town in Malaysia. Indeed the applicant advised the Departmental officer at interview that he met other gay men in Malaysia through social media, attended [Venue 1] in his home town which were exclusively for gay men, he did not experience any problems with his health or with the Malaysian authorities and he only experienced one instance of anti-gay behaviour from a former friend. The Tribunal prefers the earlier evidence of the applicant indicating his ability to participate in such activities to his later attempt to offer a contrary narrative. On balance, the aforementioned matters indicate there is not a real chance that the applicant will face serious or significant harm if he returns to Malaysia on account of his sexuality or for any other reason. The Tribunal so finds.

16. The Tribunal accepts the applicant’s evidence that sections of the Malaysian community, portions of Islamic teaching and elements of the ethnic Malay community have unfavourable views towards homosexuality. However, the applicant in oral evidence indicated that he has not personally experienced harm on account of his sexuality or for any other reason. In his initial written claims he refers vaguely to threats and that he experienced verbal abuse and had an egg thrown at him on account of being homosexual. The Tribunal accepts this evidence. However, the Tribunal does not accept that if he returns to Malaysia he has a well-founded fear of persecution, or that there is a real risk that he will suffer significant harm, on account of his sexuality or for any other reason, given his own oral evidence that he has not faced harm, that he has attended gay friendly social venues in Malaysia and he has been able to freely engage in relationships with other men in his country of origin. The Tribunal finds that the applicant would not suffer either serious harm in relation to the refugee criterion (none of the considerations in s.5J(5) of the Act being present in his circumstances), or significant harm in relation to complementary protection (none of the considerations in s.36(2A) of the Act being present in his circumstances).

17. The Tribunal notes that the applicant claims his ethnicity and religion place him at additional risk of harm on account of his sexuality. However, given his oral evidence that he has not faced any harm, in conjunction with his initial written claims that he experienced limited verbal abuse and an egg throwing incident, the Tribunal finds that the applicant would not suffer either serious harm in relation to the refugee criterion (none of the considerations in s.5J(5) of the Act being present in his circumstances), or significant harm in relation to complementary protection (none of the considerations in s.36(2A) of the Act being present in his circumstances).

18. The Tribunal notes that the applicant claimed he cannot secure employment or a partner if he resides in Malaysia on account of his sexuality. However, the Tribunal does not accept these claims because the applicant has managed to maintain employment in the [workplace] and [other] sectors (in both Kuala Lumpur and in his home town of Johor Bahru) and additionally he has been able to have multiple sexual partners in Malaysia. Therefore, the Tribunal does not accept that the applicant will be unable to obtain employment, or be unable to subsist, or be unable to obtain a male partner, if he returns to Malaysia. The Tribunal also notes that there is no documentary evidence from a health professional to suggest the applicant has suffered, or is suffering, from a physical or psychological ailment arising from his treatment as a homosexual or for any other reason. For completeness, the aforementioned reasons lead the Tribunal to conclude that the applicant does not have a well-founded fear of persecution, nor is there is a real risk that he will suffer significant harm, on account of his Muslim Malay homosexual status, or for any other reason, if he returns to his country of origin.  

19. The Tribunal notes that the applicant raised claims of harm arising from being an orphan. As previously outlined, he clarified this claim at the review hearing to indicate that his parents are separated. The applicant maintained that he suffered harm by not receiving proper personal guidance as he was living with his mother. The Tribunal notes the applicant described having a good relationship with his mother and siblings. The Tribunal does not accept that by having separated parents, including in the context of being a homosexual Muslim Malay man, that there is a real chance he will suffer either serious harm in relation to the refugee criterion (none of the considerations in s.5J(5) of the Act being present in his circumstances), or significant harm in relation to complementary protection (none of the considerations in s.36(2A) of the Act being present in his circumstances).

20. For completeness, the Tribunal notes the applicant advised in oral evidence that he has not experienced any harm from the Malaysian police or authorities. He also indicated that he has not been involved in politics or protests in Malaysia. Accordingly, in the particular circumstances of the applicant, the Tribunal finds that the country information does not support his claims that he will face harm in Malaysia from the authorities on account of his sexuality, or for any other reason. Notwithstanding the Tribunal’s findings that the applicant does not face a real chance of serious harm or a real risk of significant harm if he returns to Malaysia, the Tribunal is satisfied that it would be reasonable for him to relocate within Malaysia, as indicated by the relevant country information and his personal attributes, in order to avoid those whom he initially indicated have caused him harm (none of whom the Tribunal accepts have caused any previous serious or significant harm, or pose any future serious or significant harm, to the applicant).

21. The Tribunal accepts that the situation for homosexual men residing in Malaysia is not as attractive as the situation for such men residing in Australia. However, whilst the DFAT country information referred to previously points to some limitations in the acceptance of homosexual men in Malaysia, it does not support the contentions of the applicant that he has a well-founded fear of persecution, or that there is a real risk that he will suffer significant harm, if he returns to Malaysia as a Muslim Malay homosexual man or for any other reason. Whilst the Tribunal understands that the preference of the applicant is to remain in Australia where the prevailing social and economic circumstances are more favourable than in Malaysia, it does not accept that he satisfies either the refugee criterion, or that he is a person entitled to complementary protection, as a result of such circumstances.

    CONCLUSION

1. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

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

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   K. Chapman
   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.

   …

   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 them 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.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (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.

   …