1722505 (Refugee)

1722505 (Refugee) [2023] AATA 4435 (17 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1722505

COUNTRY OF REFERENCE: Malaysia
MEMBER:Kate Millar
DATE:17 October 2023
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 17 October 2023 at 3:29pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political opinion – Bersih movement supporters – particular social group – parents of a child with differences in sex development (DSD) – parents of a non-binary gender child – education and employment discrimination – internal relocation – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 48, 65, 91, 417, 499
Migration Regulations 1994, Schedule 2; r 2.08
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

The applicants are citizens of Malaysia who were both born in [Town 1] in Sabah State. They came to Australia [in] February 2017 on tourist visas and applied for protection visas on 8 May 2017 because [the applicant] claimed to fear harm as a supporter of the yellow shirts, or the Bersih movement in Malaysia.
On 25 August 2017 a delegate of the Minister for Immigration and Border Protection refused to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act) because the delegate was not satisfied they were at risk of harm if returned to Malaysia because of [the applicant’s] political opinion, or for any other reason.
On 23 June 2023, the Tribunal sought further information from [the applicant] and [Applicant 2] about whether their circumstances had changed. Since the application, [the applicant] and [Applicant 2] have had a child, [Child A], born [DOB], who was diagnosed with complex hypospadias and differences in sex development (DSD). [Child A] was considered female at birth. The applicants state the doctors gave them the opportunity to choose the gender of their child, and they changed their child’s gender from female to male and his birth certificate has been amended accordingly.
The applicants appeared before the Tribunal on 6 September 2023 to give evidence and present arguments. The Tribunal adjourned and resumed to hear from [Dr A], [Child A’s] paediatric surgeon and urologist, on 15 September 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
ADDITION OF THE CHILD TO THE APPLICATION
Under reg 2.08 of the Migration Regulations 1994 (Cth) (the Regulations), if a non-citizen applies for a visa and, after the application is made but before a decision is made, a child is born to the non-citizen, then the child is taken to have applied for a visa of the same class at the time of the birth.
In this case, [Child A] was born after the decision to refuse [the applicant] and [Applicant 2’s] applications for a protection visa. He is therefore not a part of this application but may apply for a protection visa in his own right.
As [Child A] is not a part of this application, the Tribunal is not considering the risk of harm to him if he returns to Malaysia. It is instead considering the risk of harm to [the applicant] and [Applicant 2] of having a child with [Child A’s] condition.
BACKGROUND
[The applicant] was born in [Town 1] in Sabah State. [The applicant] arrived in Australia [in] February 2017 and applied for a protection visa on 9 May 2017.
[The applicant] lived in [Town 1] from her birth until 2016, then for approximately a year in Johor Bahru. Her employment history prior to coming to Australia was as [specified occupations]. She has university-level education which she completed in Penang with a degree in [subjects]. Her parents and [specified family members] live in Malaysia.
[Applicant 2] was also born in [Town 1] in Sabah State. His family are mostly in Sabah, with some in peninsula Malaysia. He completed his secondary education. He has worked as [an occupation 1] in Sabah, and as [an occupation 2] from 2001–2017 in [Country 1].
[The applicant] and [Applicant 2] were married in 2010, and [the applicant] moved to Johor Bahru to be with [Applicant 2]. They had great difficulty conceiving and had treatment to try and conceive in Malaysia. When they came to Australia in 2017 [the applicant] became pregnant and [Child A] was born in [year].
The family lives in a small regional town in South Australia and both applicants work at [a business].
CLAIMS
In her application, [the applicant] claimed she is a supporter of the yellow shirts in Malaysia and protested in November 2016 in Kuala Lumpur where she was injured and arrested. She claims she was detained for three days, and the police warned her not to say anything after she was released. She claims she was not allowed to move house and lost her job. She claims she will be arrested if she returns to Malaysia.
At the hearing, [the applicant] said she participated in a rally in Kuala Lumpur and was scared as she saw the police being very rough and spraying people with water and gas. She saw other people arrested but was not arrested herself. The owner of the [agency] where she worked was a political leader and did not want employees to attend the rally. She said she was given a warning at work about attending the rally but did not lose her job. She was not arrested and was not injured, and her claim in the application form that she was arrested is incorrect.
[Applicant 2] did not make any claims in the original application.
At the hearing, [the applicant] and [Applicant 2] said they no longer feared harm due to [the applicant’s] involvement in the yellow shirts, or as a supporter of the Bersih movement. This is due to changes in the government in Malaysia.
In further information provided in 2023, [the applicant] and [Applicant 2] provided medical information about [Child A’s] condition. He has had three surgeries. They claim that while he has completed his surgical treatment, he needs long-term follow-up until he completes puberty. They state they do not have any idea how to obtain treatment or follow-up for their child in Malaysia and do not know about the Malaysian health system standards to treat a child with [Child A’s] condition. They fear he will be treated as an experiment in Malaysia.
The applicants claim that if their son has doubt about his gender in the future and does not agree with the decision to change his gender from the female assigned at birth to male, they will have to support any future decisions he makes. In Malaysia, particularly in their hometown and community, it is a curse to be non-binary in gender. They fear he will face prejudice.
[The applicant] says the treatment in Australia is more sophisticated and she wants her son to have a better future and a good education. If [Child A] is confused about his gender in the future or considers himself abnormal or decides he is gay he will face rejection by their family and society, and his condition will look like a curse in the family. She said others will look at them differently. [The applicant] said she fears [Child A] will face continuous rejection from society and family and how it will affect him. She was unsure if he would have access to medical services in Malaysia or would be denied access to services because of his condition. She said that while he could access education, she is afraid of the response of other students to his condition or whether he will be isolated because of his condition. She said it would be possible he would be refused jobs in the future because he is rejected by his colleagues.
[The applicant] said she has no fear for herself but does fear for her child and of him being rejected by his family and society which could hurt him emotionally. She said her family were aware of [Child A’s] condition and his current diagnosis and treatment and are supportive of them emotionally but are unable to assist financially or materially.
[The applicant] said their family lives a [time] flight from Kuala Lumpur and accessing treatment would be difficult. She acknowledged that they could relocate to Kuala Lumpur but said accessing treatment is costly. They do not have health insurance and private insurers will not cover pre-existing conditions, whereas in Australia they have health insurance.
[Applicant 2] said if he returned to Malaysia, he would not be able to get a job and the cost of living is high. On being asked why an employer would not give him a job, he said because his lack of qualifications makes it hard for him to get a good job. He wants his son to have a better future and better education. [Applicant 2] was worried about whether his son would see himself as normal or abnormal, and said he will face rejection from his family and society. He said the condition will look like a curse in the family and people will look at them differently.
[Applicant 2] said he is afraid of rejection from society and family and that this will disturb his son’s growth.
[Applicant 2] was not aware of a child being denied treatment or being denied an education because they have DSD. He said [Child A] would possibly be discriminated against in employment because he would be rejected by his colleagues.
EVIDENCE OF [DR A]
[Dr A] is a paediatric surgeon and urologist with a sub-specialty in DSD who is one of [Child A’s] treating doctors. She provided oral evidence about [Child A’s] condition, and after the hearing through [the applicant] provided articles on DSD. [Dr A] said [Child A] has a disorder of sexual difference, with proximal hypospadias and undescended testicles. This is due to a genetic difference, however the significance of that genetic difference is not known at this time. The hypospadias is considered very severe.
In the future [Child A] may require further [reconstructive surgery], may require hormone supplementation at puberty and require ongoing hormone supplementation. If further treatment was needed and he did not receive that treatment, he would suffer pain and may not complete puberty, depending on the severity of his lack of testosterone.
[Dr A] said there is an increased incidence of people who have [Child A’s] condition identifying as a different gender as an adult compared with the general population.
[Dr A] said she could not comment on the availability of treatment in Malaysia. When asked about information on a paediatric surgeon and urologist listed as providing services in Malaysia, and who completed a fellowship at [Hospital 1] in Adelaide, she said she could not comment on the ability of a person trained in Australia to offer treatment based on the qualifications specified because the treatment of DSD is a sub-specialty of paediatric surgery and urology.
[Dr A] provided peer-reviewed articles and one presenting current research and opinions on DSD through [the applicant] after the hearing. These were:
Liaw, A., Ziaullah, A., Wang, M. (2023) “Long-term outcomes of gender assigned at birth in differences of sex development” The Journal of Sexual Medicine 20;709–711
Babu, R. and Shah, U. (2021) “Gender identity disorder (GID) in adolescents and adults with difference of sex development (DSD): A systematic review and meta-analysis” Journal of Paediatric Urology 17: 39–47
Wisniewski, A. et al (2019) “Management of 46,XY Differences/Disorders of Sex Development (DSD) Throughout Life” Endocrine Reviews 40(6): 1547–1572
Carpenter, M. (2022) “Ambivalent attention and indeterminate outcome; constructing intersex and DSD in Australian data”
DOCUMENTS PROVIDED
The applicants provided an ultrasound test and chromosome test for [Child A], with chromosome test showing 46,XY, with a Y chromosome present in all metaphases.
A letter from a specialist [Dr B] at [Hospital 1] to the Registrar of Births, Deaths and Marriages states that the child is a male infant with undescended testes and hypospadias who was incorrectly assigned female gender at birth. [Dr B] states investigations confirmed a normal male karyotype with normal testes and testicular function, but who will require surgical correction of his undescended testes and hypospadias.
Two separation (discharge) summaries from [Hospital 1] relate to surgeries on [Child A] when he was [specified ages]. The [first surgery] was to repair [deleted]. The second stage of this repair was conducted in 2021. In 2022 [Child A] required a further surgery to correct [deleted].
A letter written by [Dr A] on 5 August 2022 states the long-term follow-up “includes regular review, [on] a regular basis throughout childhood until he reaches puberty.”
After the hearing, [the applicant] provided an article showing that surgery for hypospadias is available in Malaysia, and records of two surgeons who perform these surgeries, together with a written submission that the medical centres and hospital listed are private, expensive and are in Kuala Lumpur, which would require travel from her home area. [The applicant] also provided evidence of [Child A’s] private health insurance in Australia.
[The applicant] provided the following articles:
Kaefer, M. et al (1999) “The incidence of intersexuality in children with cryptorchidism and hypospadias: stratification based on gonadal palpability and meatal position” Journal of Urology 162; 1003–1007 (“the Kaefer article”)
Howe, A. and Hanna, S. (2017) “Management of 220 adolescents and adults with complications of hypospadias repair during childhood” Journal of Urology 4, 14–17 (“the Howe article”)
Hoag, C. et al (2008) “Long-term functional outcome and satisfaction of patients with hypospadias repaired in childhood” Can Urol Assoc J 2008 Feb;2(1) 23–31 (“the Hoag article”)
Hypospadias UK Trust (undated) “Boys and men with hypospadias develop a variety of emotional responses related to the condition” (“the UK Trust article”)
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the 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:
·a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion; or
·is a person in respect of whom Australia has protection obligations 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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Refugee criteria
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if:
(a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance they would be persecuted for one or more of those reasons; and
(c)the real chance of persecution relates to all areas of the relevant country.
Additional requirements relating to a ‘well-founded fear of persecution’ are set out in ss 5J(2)–(6) and include where effective protection measures are available to the person, and in certain circumstances, if the person can modify their behaviour.
If a person fears persecution because of their race, religion, nationality, membership of a particular social group or political opinion the reason must be the essential and significant reason or reasons for the persecution, the persecution must involve serious harm to the person and the persecution must involve systematic and discriminatory conduct.
Serious harm includes:
·a threat to the person’s life or liberty,
·significant physical harassment,
·significant physical ill-treatment,
·significant economic hardship that threatens the person’s capacity to subsist,
·denial of access to basic services where the denial threatens the person’s capacity to subsist, and
·denial of capacity to earn a livelihood of any kind.
Is the applicant owed protection obligations on other grounds?
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 meaning of significant harm is set out in s 36(2A) and includes where:
·the person will be arbitrarily deprived of their life, or
·the death penalty will be carried out on the person, or
·the person will be subjected to torture, or
·the person will be subjected to cruel or inhuman treatment or punishment, or
·the person will be subjected to degrading treatment or punishment.
The term ‘torture’ is defined in s 5 of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is imposed on a person for certain purposes.
‘Cruel and inhuman treatment or punishment’ is defined in s 5 of the Act as certain acts or omissions by which severe pain or suffering, whether physical or mental, is intentionally imposed on the person, or pain or suffering is imposed as long as in all the circumstances the act or omission could reasonably be regarded as cruel or inhuman.
‘Degrading treatment or punishment’ includes certain acts or omissions that cause, and are intended to cause, extreme humiliation which is unreasonable.
The circumstances in which a person will be taken not to face a real risk of significant harm, are set out in s 36(2B) and are where it is reasonable that the person can relocate to an area of the country where there would not be a real risk the person would suffer significant harm, the person can obtain from an authority of the country protection such that there would not be a real risk the person would suffer significant harm or the real risk is one faced by the population generally and not by the non-citizen personally.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The applicant] and [Applicant 2] have claimed that they fear the harm that may be caused to [Child A] if he returned to Malaysia. [Child A] is not an applicant for the visa, and it is the harm to his parents that must be considered. This includes any mental distress they would suffer if he is ill-treated.

[The applicant] and [Applicant 2] are understandably concerned about [Child A’s] medical care if they return to Malaysia, as his treatment has been conducted in Australia. [The applicant] is concerned [Child A] will not be treated well by classmates or may be discriminated against in the workplace. She expresses concern about what will happen if he identifies as a different gender when he is older, and whether he will blame them for the choices they have made for him as a baby.
DFAT reports that Malaysia has a well-established universal health care system, accessed by around 78% of the population and modelled on the United Kingdom system. Health services in Sabah and Sarawak are less well provisioned, with residents of these states required to travel long distances to access basic health care services.[1]
[1] At [2.22]
Treatment for children is governed by the Paediatric Protocols for Malaysian Hospital 4^th edition, 2019[2] (the Paediatric Protocols) published by the Malaysian Paediatric Association, and with a foreword by the Malaysian Director-General of Health and supported by the Ministry of Health. These protocols appear to have been produced for use in public hospitals. This includes diagnosis of and treatment protocols for DSD.
[2] Paediatric Protocols for Malaysian Hospitals, 4th Edition, 2019 [Updated] - The Malaysian Paediatric Association (mpaeds.my)
[Dr A] said [Child A] may require further surgery and hormone treatment during and after puberty. The Howe article reports that children who have hypospadias repair may have complications later in life and require follow-up as they transition to adolescence. It also states children who have hypospadias repair may experience delayed issues such as problems with urination, poor cosmetic appearance, psychological issues, sexual dysfunction and infertility.[3]
[3] Howe and Hanna op cit at p 16.
This shows that it is possible [Child A] will require future treatment for complications relating to his hypospadias repair and hormone treatment during and after puberty. Surgical management in the Paediatric Protocols state that only surgeons with the expertise in the care of children and specific training in the surgery of DSD should perform these procedures. Surgical management goals include genital appearance compatible with gender, unobstructed urinary emptying and good adult sexual and reproductive function.
The Tribunal finds treatment for [Child A’s] condition is available in Malaysia, including further surgery if this is required. In the event that [Child A] requires hormone treatment, this is also available in Malaysia.[4] It is possible that universal health care will cover the cost of treatment for this condition. However, I could not locate any conclusive information on the specific treatments that may be required by [Child A] and if it does not this may be at a significant cost to [the applicant] and [Applicant 2].
[4] Formulari Ubat KKM (FUKKM) | Pharmaceutical Services Programme (pharmacy.gov.my)
Organisations such as Queer Lapis have criticised the Paediatric Protocols and state that people with DSD are pathologised and forced to undergo unnecessary, unconsented surgeries to correct their sex.
The same argument is made in Australia, as reflected in the paper from Morgan Carpenter provided by [Dr A], which states:
A dominant clinical model regards people with intersex variation as female or male with ‘disorders of sexual development’ that need to be ‘fixed’ to ensure familial and social integration.[5]
[5] Carpenter op cit at p 3
This is also shown in the recent enactment of the Variation in Sex Characteristics (Restricted Medical Treatment) Act 2023 (ACT) which is yet to come into effect.
The Paediatric Protocols support careful consideration of sex, appropriate clinical testing and and discussion with the family. The decision that [Child A] is to have treatment consistent with a male sex has been made in Australia and this treatment is also available in Malaysia. The question of whether this condition requires any treatment at all or what that treatment should be is subject to debate in both countries. The Tribunal rejects the claim that [Child A] would be seen as an experiment or be forced to undergo treatment.
DFAT in its “DFAT Country Information Report Malaysia” dated 29 June 2021 (DFAT Report) reports at [3.134] that:
Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent.
Zainuddin and Mahdy in their 2017 paper “The Islamic Perspectives of Gender-related Issues in the Management of Patients with Disorders of Sex Development”[6] state that classical Islamic law is reported to recognise a DSD/intersex gender and allows gender reconstruction for a person who is “khunsa” or 46,XY. In this article, the authors look at the outcome of three Muslim people with DSD and consider gender-related issues from an Islamic perspective. In relation to religious rulings, the authors state:
Fatwa From Malaysia
There have been several fatwas produced by the Fatwa Committee of the National Council of Islamic Religious Affairs Malaysia regarding the permissibility of genital reconstruction surgery in patients with DSD. The most recent one from November 2006 is formulated as follows:
1.     For those with 46,XX CAH reared male, gender reassignment surgery to get back to the previous gender that is female is permitted in Islam because it can be treated by hormone treatment and surgery.
2.     For those with 46,XY AIS reared female, getting back to the male gender through surgery or hormone treatment is quite difficult. If the patient intends to undergo surgery, it is permitted, provided that the surgery does not harm the patient psychologically or biologically.
3.     For those with 46,XY AIS reared female, but diagnosed only after the person has already grown up, the person can continue a normal life and the gender is recognized from his/her [body build] and the [appearance] of the genitalia. Surgery to remove the testes (if any) is permissible to prevent the risk of cancer. The marriage of a man with a female spouse who suffers from 46,XY AIS does not need to be dissolved.
4.     Medical specialists should provide explanation and advice to Muslim individuals who are affected by CAH and AIS and their parents to undergo treatment in a way that avoids any difficulties with religious regulations
[6] Zainuddin, A. and Mahdy, Z. (2017) ““The Islamic Perspectives of Gender-related Issues in the Management of Patients with Disorders of Sex Development” Archives of Sexual Behaviour 46(2) 353–360.
It is stated in this article that due to the gender roles assigned in religion, the decision on assignment to a particular sex is very precise and no “in betweens” are tolerated, transexuals are rejected by the community and these issues are neither commonly nor freely discussed.
[Child A’s] chromosome analysis states he has 46,XY karyotype which was inconsistent with his stated female sex. [Child A’s] 46,XY karyotype reared male is not addressed in this fatwa, and it is stated in this article that the religious authority in Malaysia has yet to rule on reassignment from male to female.
As a concern expressed by [the applicant] is how [Child A] may be treated if he identifies as a different gender to his current male gender, she was asked to provide information on the relationship between [Child A’s] condition and a likelihood of him identifying as a different gender, or of being same-sex attracted. [Dr A] was also asked for any information on long-term outcomes for [Child A].
This involves difficult questions of gender identity and sexuality, and there are strongly held and differing views about these issues. However, what is required in this case is a consideration of the likelihood of risks that are identified by the parties, or that are reasonably apparent from the material before the Tribunal. In this case [the applicant] identifies her concern about [Child A] identifying as a different gender to a male gender when he is older. In addition to this claim, it is reasonably apparent what must be considered is whether, in the reasonably foreseeable future, [Child A] will be perceived to be a different gender, or transgender, or of a different sexual orientation.
If this is the case, an assessment must then be made of whether this results in serious or significant harm to [the applicant] or [Applicant 2] as a parent of a child who is, or is perceived to be, identifying as a different gender, or who is transgender or of a different sexual orientation.
As discussed in the Babu article, gender roles can have various intensities, can take different forms and might or might not be associated with distress.[7] If clinically significant distress is noted, this is considered gender dysphoria. Babu and Shah go on to discuss gender identity disorder in various subgroups of people with DSD, however there is insufficient information to identify with precision the subgroup to which [Child A] belongs in this categorisation and the Tribunal is unable to form any conclusions from this article.
[7] Babu and Shah op cit at p 42
Similarly, Liaw et al support that a group of those with DSD conditions with a normal XY karyotype and that suggest a subgroup which appears to include [Child A] often virilise at puberty to develop male secondary sexual characteristics and up to 54% of this group who are reared female have gender dysphoria.
Wisniewski et al report that sex of rearing continues to be the best predictor of gender development for people with 46,XY DSD, with patient-initiated reassignment being the exception. It is reported that data supports male rearing in all patients with 46,XY.[8] It is further reported that several patients with 46,XY DSD reared female exhibited gender dysphoria, and that men with 46,XY DSD are typically attracted to females however both homosexuality and bisexuality are reported.
[8] Wisniewski op cit at 1556
The UK Trust article states that while a man with hypospadias may be gay, it is believed many men with hypospadias think they are gay or bisexual because they have an interest in the appearance of other men’s penises.
The Hoag article reports most patients reported excellent long-term functional results and were quite satisfied with their overall outcome. Highlighted within this paper, presumably by [the applicant], is that “[m]ultiple studies have demonstrated that those with hypospadias have delayed sexual milestones (emotional intimacy, physical intimacy and sexual intercourse). However, they do not appear to differ significantly from normal men in terms of sexual functioning …” This article reports that over half the respondents wished they’d had longer follow-up through adolescence, which is reflected in other studies, which refer to delayed complications, increased adolescent anxiety, poor body image and a misunderstanding of their medical history.[9]
[9] Hoag, op cit
On the limited information before it, the Tribunal concludes that there is a small but increased risk of [Child A] identifying as a different gender when he is older, and there is insufficient information to conclude there is any increased risk of him identifying as homosexual or bisexual. If he were not to receive the treatment that he may require at puberty, as stated by [Dr A], there is a risk he will not go through puberty, which could result in an increased chance of being perceived to be transgender.
[The applicant] and [Applicant 2], while they have not articulated their claims in this way, are members of a particular social group of parents who have a child with DSD. They may also in the reasonably foreseeable future be perceived to be the parents of a child who is transgender or gay.
While it is difficult to be dispassionate in this matter, where a very young child and his parents have faced a situation not of their own making requiring difficult decisions by [the applicant] and [Applicant 2], what must be decided is whether there is a real chance of serious harm or a real risk of significant harm to [the applicant] or [Applicant 2] if they are returned to Malaysia.
If they return to Malaysia, while they may temporarily live with family in Sabah, I consider they would relocate to Kuala Lumpur or Johor Bahru where they have lived in the past, and where there are better employment opportunities and where treatment is available for [Child A]. [The applicant] acknowledged there were no barriers to them living in either of these places.
If [the applicant] and [Applicant 2] are unable to afford treatment for [Child A], if [Child A] does not receive treatment and does not go through puberty or requires further surgery and does not receive it because [the applicant] and [Applicant 2] cannot afford the treatment, he may be perceived as transgender or as being attracted to the same sex. The Tribunal finds the outcome would be that [the applicant] and [Applicant 2] may face societal disapproval or be viewed as cursed. This would cause them considerable distress but even when keeping in mind that the definition of “serious harm” allows for types of harm not specified in s 5J(5), I am not satisfied this amounts to serious harm as contemplated by the Act. I am also not satisfied it is significant harm as defined by the Act.
While I accept they may face societal disapproval in the context of the country being a conservative Islamic nation, there are no reports that could be located on family members of a person who is perceived to be transgender or of a different sexual orientation suffering harm to the degree that could be considered serious or significant harm as defined by the Act.
As I am not satisfied either [the applicant] or [Applicant 2] would suffer serious harm as defined in s 5J(5) of the Act, they do not have a well-founded fear of persecution as defined in s 5J(1) of the Act. They therefore do not meet the definition of a refugee in s 5H of the Act, and do not meet the requirements in s 36(2)(a) of the Act for the grant of the visa.
I am also not satisfied that [the applicant] or [Applicant 2] would suffer significant harm as defined in s 36(2A), therefore neither [the applicant] nor [Applicant 2] meet the requirements in s 36(2)(aa) of the Act.
As the only remaining member of the family unit is [Child A], and he has not applied for a protection visa, they are not the members of a family unit of a non-citizen who meets the requirements of s 36(2)(a) or s 36(2)(aa). [The applicant] and [Applicant 2] should seek advice on applying for a protection visa for [Child A].
As they do not meet the requirements for the grant of the visa, the decision must be affirmed.
Referral to the Minister under s 417 of the Act
The circumstances of this case are unusual given the nature of [Child A’s] condition, the effect that this condition may have on him growing up, and the conservative country to which he would return. This was clearly the primary concern of [the applicant] and [Applicant 2]. As [Child A] was born after a decision was made on his parents’ visa application, he is not considered to have applied for the visa under reg 2.08.
If [Child A] applies for a protection visa in his own right, this will be considered on its merits at that time, however for his parents to be considered a member of his family unit, they will be required to successfully appeal this decision at that time.
Even if the Minister were to exercise his discretion under s 48B to allow a further application, [the applicant] and [Applicant 2] could not be granted a protection visa as members of [Child A’s] family unit under s 91WB of the Act.
[The applicant] and [Applicant 2] have been living and working in a small town in regional South Australia, undertaking work in an area where it is difficult to attract employees.
Having regard to the applicants’ circumstances and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 417, set out in Departmental policy, ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Kate Millar
Senior Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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[2023] AATA 4435

17 October 2023

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