1722231 (Refugee)

1722231 (Refugee) [2023] AATA 4180 (10 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Diznab Ramtin
Gold Migration Lawyers Pty Ltd (MARN 957160)

CASE NUMBER:  1722231
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Andrew McLean Williams
DATE:10 September 2023
PLACE OF DECISION:  Brisbane
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 10 September 2023 at 3:43pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – original claims on grounds of ethnicity and political opinion – indigenous campaigner for regional separatism and human rights – new claims as member of particular social group – homosexual man – original application prepared by third party from same region – applicant apprehensive that information about sexuality would be revealed to community and family – explanation reasonable and no adverse inference drawn – some separatist activity at first but now ceased and original claims discontinued – grew up in strict, conservative, religious household – covert activity while at university – partner from another country in Australia on student visa – credible evidence – country information – laws and widespread societal attitudes – moderate risk of official and societal discrimination – modification of behaviour not expected – no right to enter and reside in partner’s country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(c), (5), 36(2)(a), (2A), (3), 65, 90R(2), 91R(1)(c), 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar [2002] HCA 14
WAGH v MIMIA (2003) 131 FCR 269
1405632 [2015] RRTA 84
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 on 11 September 2017 by a Delegate of the Minister for Immigration and Border Protection thereby refusing to grant [the applicant] a protection visa, pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant who is a citizen of Malaysia, originally applied for the visa on 19 May 2017. The Delegate refused to grant the visa on the basis of her having concluded that the Applicant was not a person to whom Australia owed any protection obligations as outlined in either s.36(2)(a) or s.36(2)(aa) of the Act, and was not ‘a member of the same family unit’ is a non-citizen in respect of whom the Minister is satisfied Australia owes protection obligations and who holds a protection visa of the same class as that now being applied for by the Applicant (s.36(2)b) & (c)).
The Applicant appeared before the Tribunal on 27 July 2023 to give evidence. The Tribunal also received oral evidence from the Applicant’s partner, [Mr A] who is in Australia on a student visa from [Country], and from a mutual friend of both the Applicant and his partner, a [Mr B], who is an Australian citizen.
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages, although ultimately the vast preponderance of the evidence was received by the Tribunal in English.
The Applicant was represented in relation to these review proceedings by Gold Migration Lawyers, who accompanied the Applicant during the hearing conducted on 27 July 2023 by means of video-link from their offices in Melbourne. Gold Migration also provided pre-submission hearings (dated 19 August 2022 and 25 July 2023), as well as post-hearing submissions, after these were invited by the Tribunal, which are now dated 3 August 2023.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are as set out in s.36 of the Act and in Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).
An Applicant for a protection visa must meet one of the alternative criteria set out in either ss.36(2)(a), 36(2)(aa), 36(2)(b), or 36(2)(c). That is, he or she must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s.36(2)(a)); or on ‘complementary protection’ grounds (s.36(2)(aa)); or they are ‘a member of the same family unit’ as such a person, in circumstances wherein that other person holds a protection visa of the same class as that now being sought by the Applicant.
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 qualifies as a “refugee”.
A person qualifies for refugee status 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 their country: s.5H(1)(a).
In the case of a person without a nationality, they may qualify as 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 on grounds of their race, religion, nationality, membership of a particular social group (‘PSG’), or because of their political opinion (which may be actual or imputed); if 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”, as well as those circumstances in which a person will be taken as not to have such a fear are then set out, in ss.5J(2)-(6) and ss.5K-LA of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion under s.36(2)(a), he or she may nevertheless still meet the criteria for the grant of a protection 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 in consequence 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 then set out, in s.36(2A) and s.36(2B) of the Act, which are also extracted, in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, as made under s.499 of the Act, and at least to the extent that these are relevant to the decision now under consideration, the Tribunal has had regard for the Refugee Law Guidelines and Complementary Protection Guidelines as prepared by the Department of Home Affairs (‘DHA’), and Country Information Assessments, as prepared by the Department of Foreign Affairs and Trade (‘DFAT’), expressly for protection status determination purposes.
The issue in this case is only whether the Applicant is owed protection under either of section 36(2)(a), or section 36(2)(aa) of the Act. On the available evidence there is no basis for any contention that the Applicant is a member of the same family unit as a person whom already holds a protection visa under either of s.36(2)(b) or s.36(2)(c).
For the following reasons, the Tribunal has concluded that the Applicant is eligible for refugee status under s.36(2)(a), such that the matter should now be remitted to the Department for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the outset the Tribunal records that it is satisfied as to the identity of the Applicant as a citizen of Malaysia. For the purposes of this protection eligibility assessment Malaysia becomes the ‘receiving country’, and the Applicant’s protection claims are to be assessed as against the known factual circumstances in Malaysia as these relate to the Applicant’s protection claims.
The Applicant first arrived in Australia [in] February 2017, travelling on a UD–601 (electronic travel authority) tourist visa. Subsequently, on 19 May 2017, the Applicant applied for an XA–866 protection visa, and an associated bridging visa was granted.
The Applicant has remained in Australia continuously since his first arrival and has not made any return trips to Malaysia.
Applicant’s original protection claims:
The following affords a summation of the grounds advanced by the Applicant in his original protection visa application:
·the Applicant was involved in the Borneo nationalist movement, campaigning for Sabah Sarawak independence, or at least greater recognition within the state of Malaysia.
·Human rights activists have been threatened by the Malaysian government for collecting petition signatures. They have been charged and accused under various laws.
·The Applicant and his family are under financial hardship, due to the Malaysian government’s neglect of indigenous people.
·Crime in Sabah has been on the rise, particularly since the Malaysian government has extended citizenship to illegal immigrants, on condition that these immigrants are Islamic, and are willing to vote in support of the incumbent government. Criminal incidents committed by illegal immigrants have been reported to police, however the police do not take any action.
·There is racism in Malaysia. The native people live in poverty despite valuable resources in the region. The Applicant would experience financial hardship due to the priority given to the Malay race, and to Muslims if he were to be required to return home to Malaysia.
These claims were considered and rejected by the Delegate, who determined that the Applicant was not owed either refugee status under section 36(2)(a), or protection under the complementary protection criteria specified in s.36(2)(aa) of the Act. In part, the Delegate stated:
“…/
While providing a lengthy submission, the content is short on relevant detail, containing speculative, generalised and vague information, without any reliable supporting evidence that the Applicant was involved in any separatist movement, anti-government activities, and campaigns or encouraged others to support such movement.
…/
There is no information before me to support the conclusion that the Applicant has acquired a political profile, which would lead to his apprehension by the authorities. The fact that the Applicant was able to depart his country on a valid passport without hindrance, would suggest that the Applicant is not the person of interest to the Malaysian authorities…../
Accordingly, I do not accept that the Applicant experienced any harm amounting to persecution in the past for reasons of his political opinion. I also do not accept that the Applicant’s already very low engagement and interest in the Malaysian politics generally will increase if he returns to that country.
…/
Based on the information before me the Applicant was unable to demonstrate how issues related to his race, or political opinion have adversely impacted him or exposed him to serious harm.
…/
Overall, the information before me does not indicate that the Applicant will be subject to societal or official discrimination or experience mistreatment amounting to serious harm on account of his race and political opinion, or [for] any other reason”.
The Applicant filed this Application for Review on 19 September 2017, and it has now taken - lamentably - nearly six years for the matter to work its way through the review system to the stage of a hearing before a member of this Tribunal, which finally took place on 28 July 2023.
New Protection Claims
After lodgement of the Application for Review, yet before the date of hearing and by way of a statutory declaration made by the Applicant on 19 August 2022, together with accompanying legal submissions from Gold Lawyers (which are also dated 19 August 2022) the Applicant materially changed the basis of his claims for protection. The basis for this change was described in the Applicant’s statutory declaration in the following terms:
“…./
4.I left Malaysia and came to Australia so I could express my true sexual identity and not have to hide such an important part of my identity.
5.I applied for a protection visa on 19 May 2017.
6.As part of my protection visa application, I claimed that I have a genuine fear of returning to my home country due to my political opinion and ethnicity. However, I did not include in my original protection visa application a very important part of my identity.
7.I am a gay man from Malaysia. I didn’t mention my sexual identity in my protection visa application because I was in a vulnerable position when I first arrived in Australia; I had limited English language skills, was trying to adjust to a new life in Australia and I did not know about protection visas. I was introduced to [Ms C], who came from the same district as me in Malaysia. At that time, she was a [Subject 1] student in Australia. She helped me lodge my protection visa application. Knowing that she came from the same district as me in Malaysia, I was scared to disclose my sexual identity to her. I thought that she would tell her friends and family members and eventually the news about my sexual identity will reach my family in Malaysia. I was embarrassed of myself. I was not comfortable expressing my sexual identity because of the verbal abuse and discrimination I experienced since I was a young boy.
8.I was born in a conservative Catholic and Muslim family that really despised the LGBT QI+ community. It was tough living with my family as a secluded gay man.
At the outset of the hearing, the Tribunal sought clarification from the Applicant regarding the basis for his claims for protection, and sought to clarify whether these now included both the original “political activity and ethnicity” claims as advanced by the Applicant before the Delegate as well as the new claims in relation the Applicant’s status as a homosexual in Malaysia; or whether the homosexuality claims were now intended to supersede the original claims. After some discussion with the Applicant during the giving of his evidence, the Tribunal ultimately ascertained that the Applicant intended that his new claims going towards his status as a homosexual were intended in substitution of those claims previously made in the original protection visa application.
In relation to the circumstances for this change, the Applicant explained that he had grown up in a strict household with a devoutly Catholic mother and that homosexuality was strictly socially taboo throughout Malaysia. The Applicant had become aware of his homosexuality by his early teens and had then worked very hard to keep this a secret, given that he had been constantly bullied as a child and accused of being effeminate, and was aware that he would be rejected by both his parents and by his siblings in the event that the truth came out.
After completing high school the Applicant studied [Subject 2] at university in Malaysia and left home to live on campus during his degree. During this period the Applicant also says that he began to covertly experiment in homosexuality, yet subject at all times to the very great risk of detection. The Applicant says that during his undergraduate years there were instances of other male students within the university dormitories who were caught similarly engaging in homosexual activities, and these persons were arrested and expelled from the University. The Applicant said that he was constantly fearful of this also happening to himself, and his needing to live ‘in the closet’ in this manner caused him a enormous deal of stress and anxiety.
In parallel, whilst at university, in either second or third year, the Applicant together with other students had been approached by activists who were seeking to champion independence for Sabah and Sarawak from the remainder of Malaysia. The Applicant says that he was interested in this issue and consequently did join this Borneo independence movement, which was similarly prohibited on campus. On weekends and during university holidays the Applicant says that he would attend independence rallies and also collect public signatures as part of an independence petition. In total, the Applicant thinks that he may have attended on approximately 20 occasions to assist in the task of collecting signatures for the petition. Throughout all of this time, the Applicant says that he was never a key organiser or independence movement leader, and he never attracted any adverse attention from the police or from any other government officials in consequence of his collecting signatures for the Borneo independence movement or because of his attending public rallies.
Towards the end of his university studies, and because of the considerable mental anguish that the Applicant says that he was experiencing in consequence of his living as a clandestine homosexual, he says that he elected to travel to Australia on a holiday in order that he could express his sexuality more openly, at least for a period.
Originally, the Applicant says that he did not intend anything more than to come to Australia as a short stay visitor. Initially, the Applicant arrived in Perth where he stayed for approximately a further 2 ½ months. During that initial period the Applicant made contact online via Facebook with [Ms C], who the Applicant says was a [Subject 1] student in Melbourne, who was also the primary organiser of the same Borneo independence movement in Australia of which the Applicant had been a member whilst at University in Malaysia. [Ms C] came to Perth, and the Applicant says that it was she who had told the Applicant whilst she was in Perth that he should apply for a protection visa in Australia. The Applicant says that, up until that point, he had no real understanding of refugee protection and that it was [Ms C] who had said that the Applicant should now rely upon the fact of his having been involved in the Borneo independence movement when still at university in Malaysia as his grounds for seeking protection. The Applicant also says that his protection visa application was completed for him by [Ms C], and that he paid her $300 for doing that, on the basis that [Ms C] had said she required this sum for the application fee.
During the hearing the Applicant told the Tribunal that although he had been passionate about the notion of independence from Malaysia for Borneo while at University, his ardour for that cause had waned over time and that he had more or less ceased any participation in that movement by the time of his graduation from university in Malaysia, and that the his only participation in the movement whilst in Australia was via his attending a few social events with other Malaysians in Australia.
The Tribunal asked the Applicant why he had not sought to include matters going to his homosexuality as part of the grounds for protection included in the original protection visa application which the Applicant now says that [Ms C] had assisted the Applicant to complete. The Applicant informed the Tribunal that, at that point in time he had only been in Australia for a very short time and was still highly apprehensive about disclosing his status as a homosexual openly to anyone, including to [Ms C], by reason that she came from the same region in Malaysia as from where he came, such that the Applicant remained highly apprehensive about information regarding his homosexuality “leaking back” to his family in Malaysia inadvertently, on the basis of something now disclosed to other Malaysian citizens in Australia.

The Applicant says that shortly after completing the protection visa application he moved from Perth to Melbourne and continued to see [Ms C] socially, and to attend Borneo independence events, especially on the weekends, but really only so as to be sociable with other young Malaysians in Australia. Ultimately the Applicant says that he decided to leave Melbourne and move to Brisbane because he felt that there were too many Malaysian people from Sarawak in Melbourne who either knew the Applicant or who were connected with people in Sarawak who knew the Applicant’s family, such that this was making it too difficult for the Applicant to live as an openly gay man, without there being a risk of information about his homosexuality leaking back to Malaysia. The Applicant says that he left Melbourne and arrived in Brisbane late 2018. After leaving Melbourne the Applicant has had no further involvement with the Borneo independence movement.
Section 423A of the Migration Act provides:
How Tribunal is to deal with new claims or evidence
(1)This section applies if, in relation to an application for review of a Part 7-reviewable decision (‘the primary decision’), the Applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b)presents evidence in the application that was not presented before the primary decision was made.
(2)In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the Applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
The circumstances of this case now enliven section 423A. However, the Tribunal records that it is satisfied that the Applicant does have a reasonable explanation for the reasons why his claims in relation to his homosexuality were not raised before the Delegate made the primary decision on 11 September 2017. Accordingly the Tribunal will not here draw any inference unfavourable to the credibility of either the claim or the evidence adduced in support of it, because of s.423A.
Distilled to an essence, the Applicant is fearful about returning to Malaysia on the basis that homosexuality is unlawful in Malaysia and because of the strict social taboos surrounding homosexuality throughout Malaysia. The Applicant says that he will be ostracised and disowned by his siblings and that his mother will, in all probability, either seek to arrange a forced marriage for the Applicant to a woman, or force him to undergo ‘conversion therapy’. The Applicant claims that the situation would be the same for him in all parts of Malaysia.
Relevant Country Information
The DFAT Country Information Report for Malaysia (29 June 2021) contains the following officially accepted information regarding homosexuality in Malaysia:
3.134Malaysia 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, a 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.
…/
3.136 The former BN government was strongly opposed to the ‘promotion’ of LGBTI issues, and had committed to a five-year action plan to address ‘social ills’ that focused to a large degree on the LGBTI community. Key elements of the action plan included rehabilitation programs for LGBTI individuals (discussed in this section), prevention seminars for parents and students, and enforcement of laws and policies prohibiting the public ‘glamorisation’ of LGBT lifestyles, including through restricting the online space for LGBTI activities and individuals (see Media). Despite the general improvement in the human rights climate following the change of government in May 2018, in-country sources report that LGBTI issues remain sensitive. Notwithstanding its general reformist nature, the previous PH administration was generally unwilling to engage with LGBTI advocacy groups or to consider any substantial changes in its approach to LGBTI issues, including through its rhetoric. In September 2018, for example, then-Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’, while in March 2019 the Tourism Minister responded to a question about whether Malaysia would welcome gay foreign tourists by denying the existence of gay people in Malaysia. An aide reportedly later clarified that the minister was echoing the government’s stance that LGBTI individuals were not officially recognised in the country. The current PN coalition is even less well-disposed towards LGBTI activities and individuals.
3.137 While successive governments’ stances on LGBTI issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI behaviours constitute syariah offences as well as offences against the penal code. Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’ In-country sources report the conditions for transgender Malaysians are worsening and that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.
…/
3.141 As earlier noted, authorities at federal and state level have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs organised by JAKIM since 2011. The Minister’s comments came while launching a JAKIM e-book guide called ‘Self Transitioning From Homosexuality’, which was available for download in the Google Play Store application. In-country sources report that the JAKIM rehabilitation programs are located in residential locations within neighbourhoods, with participants segregated by sex and subject to curfews. The programs reportedly teach participants how to pray, give them spiritual coaching, and ‘re-educate’ them about their sexual identity. The federal government also reportedly runs seminars for non-LGBTI students, parents, and volunteers to equip them with knowledge on ‘the psychosocial, psychological, and psycho-spiritual needs and health of the LGBTI community’. In August 2020, JAKIM reported a local minority rights activist, Nicole Fong, to the police over her tweets criticising the Ministry’s LGBTI ‘conversion’ therapy.
3.142 A number of state governments also run re-education programs for LGBTI individuals. The Terengganu government has reportedly run a ‘re-education boot camp’ or ‘behaviour corrective program’ in Besut for teenage males since 2010, to which boys selected for effeminate behaviour were sent for physical training and religious and motivational classes; while the Negeri Sembilan Religious Affairs Department reportedly held a two-day camp as part of the state’s ‘Action Plan Against Social Ills of LGBT 2017-2021’. The Selangor State Government also reportedly offers inducement payments to members of the LGBTI community to undergo treatment by any institution, Muslim NGO or group that can ‘liberate, manage, protect, treat, and rehab [the] community’. In addition to the programs run by official bodies, a number of private centres also reportedly offer ‘treatment’ to LGBTI individuals through religious counselling. In-country sources report that some parents elect to send their children to official or private re-education centres for reasons other than identifying as LGBTI, including in cases involving sex before marriage or drug abuse.
3.143 There is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. As noted in Media, authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI.
3.146 The level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. Sources report society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah. Sources told DFAT most transgender individuals from Sarawak and Sabah relocate to Kuala Lumpur for employment (almost exclusively in the private sector) and to escape discrimination.
3.147 DFAT assesses that, in general, LGBTI individuals face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas. DFAT assesses LGBTI civil society organisations are generally able to operate unhindered but high-profile work and leaders may be targeted
[emphasis not in the original, yet included here by the Tribunal]
The Applicant’s evidence before the Tribunal was credible and plausible. The Tribunal is satisfied that the Applicant is genuinely homosexual and that he is living in a genuine de facto relationship with his partner [Mr A], who is a citizen of [Country].
In order to qualify for refugee status, the Applicant must fear “persecution” on grounds of race, religion, nationality, membership of a political social group, or political opinion. In this instance, the Applicant claims to fear persecution on the basis of his membership of a particular social group (‘PSG’), comprising ‘homosexuals in Malaysia’.
As was noted by Kirby J in MIMA v Khawar [(2002) HCA 14] a fear of persecution involves two elements: a fear of serious harm; as well as failure on the part of the State to afford adequate protection. Serious harm is set out in s.5J(5) and in s.90R(2) of the Act, which sets out a non-exhaustive list of the types and level of harm that will now comprise “serious harm”:
(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; and
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the persons capacity to subsist.
Additionally, under ss.5J(4)(c) and 91R(1)(c) of the Act, the commission of acts of serious harm must involve systematic and discriminatory conduct. Systematic is taken to mean “non-random”, and conveys a deliberate form of behaviour on the part of the persecutor rather than conduct that is merely inadvertent, accidental or random (MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95]).
On the basis of the available country information from Malaysia regarding the status of homosexuals the Tribunal is satisfied that there are deep-rooted and persistent homophobic attitudes both within government and among members of the public in Malaysia, such that the Applicant is at risk of serious harm on the basis of his sexual identity in the event that he is required to return to Malaysia. The Tribunal concludes that the Applicant could not be expected to modify his behaviour and return once more to a ‘clandestine lifestyle’ in Malaysia whether reasonably or otherwise, and that any expectation that he do that in order to now protect himself from the risk of significant harm would, in and of itself, amount to a form of persecution (consider: 1405632 [2015] RRTA 84, 18 February 2015).
The Applicant’s de-facto partner is a citizen of [Country], such that the question arises for consideration as to whether for purposes of s.36(3) of the Act the Applicant might now have a right to enter and reside in [Country] or in any other third country other than either Australia or Malaysia?
Yet, the right to which s.36(3) refers is not merely a right to enter a third country and must be conceived as one to both enter and reside (WAGH v MIMIA (2003) 131 FCR 269 at [64]). The right must also be an existing right and not merely a potential right or an expectancy (Guide to Refugee Law in Australia, Chapter 9 – third country protection, page 7). In the current matter, the Applicant does not have any existing right to enter and reside in [Country], such that the Tribunal concludes that the Applicant has no right to enter and reside in [Country]. There is no evidence before the Tribunal to show that the Applicant now has an existing right to enter and reside in any other country either.
For the reasons now 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
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfies s.36(2)(a) of the Migration Act.
Andrew McLean Williams
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 4180

10 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice