1729844 (Refugee)

1729844 (Refugee) [2022] AATA 4120 (22 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729844
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:James Lambie
DATE:22 August 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 August 2022 at 10:18am
CATCHWORDS
REFUGEE – Protection visa – Malaysia – homosexuality – no real chance that the applicant will suffer persecution as a consequence of his sexuality –delay in lodging the visa application –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2, cl 866.211
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Nagalingam v MILGEA (1992) 38 FCR 191
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 20 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The applicant is a [age]-year-old national of Malaysia.
The applicant first arrived in Australia on [date] February 2016 pursuant to a visitor visa. He has remained onshore since.
The applicant was an unlawful non-citizen from [date] August 2016 when his Bridging Visa A expired to 20 June 2017 when he was granted a Bridging Visa C in connection with his protection visa application, which was lodged on the same date.
The applicant’s protection visa application was refused by a delegate of the Minister for Home Affairs in a decision made on 14 November 2017.
The applicant applied for merits review of the delegate’s decision on 27 November 2017.
Claims:
The applicant’s claims are summarised in his protection visa application form and the delegate’s decision.
The applicant claims he is gay. He claims Malaysia is a Muslim country which applies Muslim and Islamic laws, and therefore he would be punished if he was found to be gay. He claims homosexuality is seen as a crime and a sin in Malaysia.
The applicant claims he will be punished by being “executed and rejected” from the country if he returns to Malaysia. He further claims his family will not accept him as a member of the family and his friends will avoid him due to his homosexuality.
The applicant claims he did not try to relocate to another part of Malaysia, because every state applies the same Islamic law and rules in relation to the LGBTI community.
The applicant claims Malaysian authorities would be unable to protect him if he returns, because Malaysia is a Muslim country.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)the applicant’s protection visa application form, which was lodged on 20 June 2017;
(b)the applicant’s identity documents provided to the Department, being his passport, Malaysian national identity card and Malaysian driver licence;
(c)the protection visa decision record dated 14 November 2017 (delegate’s decision);
(d)the application for review form, which was lodged on 27 November 2017;
(e)Department file [concerning] the applicant’s protection visa application;
(f)Pre-hearing submissions received on 25 November 2021, comprising the applicant’s undated statement, screenshots of an “[Website 1]” account, screenshots of a “[Website 2]” account, screenshots of text messages, bank statements, a picture of his [debit] [card], and untranslated screenshots of media reports in Bahasa Malaysia.
(g)Post-hearing submissions received from the applicant, including copies of screenshots from his social media and other internet accounts; and
(h)country information on Malaysia, referred to below.
Country of reference / receiving country:
The applicant claims to be a citizen of Malaysia. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Malaysia is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 2 December 2021 to give evidence and present arguments at an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Malaysia. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Malaysia. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Malaysia.
The Tribunal discussed his claims as summarised in the applicant’s protection visa application, written claims and the delegate’s decision. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
The Tribunal took the applicant to his statement. In the statement, the applicant requested the Tribunal to take note of
·His [Website 1] account, to which he claimed to have signed up in August 2020, and his bank statement, which shows that he made a payment to this account with his debit card, a picture of which was attached to the statement;
·His [Website 2] account, which he described as “a website where I can hire a guy to entertain me. It can mean in a form of hiring a boyfriend, a friend or even paid to have sex with me.” Included with a screenshot of his account page was a statement showing payment with his debit card on 22 December 2020;
·Screenshots of text messages with a man he hired through [Website 2] on 27 December 2020 when he was visiting Brisbane, together with extracts from his bank statement to show that he was in Brisbane at the time;
·Screenshots of media reports from Malaysia (in Bahasa Malaysia), which he said were evidence that Malaysia would never accept LGBTI rights; and
·Some video recordings he had prepared in which he speaks about his decision to come out as gay.
In relation to the video recordings, the Tribunal indicated that it could view them, should the applicant wish that, but that some means would need to be determined whereby the videos became part of the record of evidence. The applicant said he understood.
The Tribunal noted that the applicant had provided the name of a [Ms A] in Malaysia as a witness. The Tribunal explained that it was usual that a statutory declaration be given by such a witness so the Tribunal could be confident about the identity of the witness, rather than just a voice on the telephone. It further noted that Tribunal staff had been unable to contact the witness on the number provided and invited the submission of a statutory declaration from her.
The Tribunal took the applicant to his protection visa application. The applicant confirmed that he had [degree], having graduated in 2012. He confirmed that he had then worked for [employers] in Kuala Lumpur before coming to Australia on[date] February 2016. The Tribunal noted that he had applied for a protection visa on 11 May 2016, but that application was rejected as invalid in August 2016 and he did not lodge a valid application until 19 June 2017. He confirmed that was correct.
The Tribunal asked the applicant why he did not lodge a valid application for more than 9 months, during which time he was in Australia unlawfully. He said he was confused because, when he learned his application was invalid, he knew he was unlawful and he was afraid to speak to anyone because of the prospect of being deported. The Tribunal said that almost ten months was a long time and that a delay of this length may affect its assessment of the credibility of his claims. The Tribunal put it to the applicant that he was not an unsophisticated man, having achieved a [ degree] and having worked for [companies]. He said that, at the time, he lacked the courage to seek the appropriate advice because he was afraid of the possible outcome. The Tribunal asked why he would not take action straight after being notified that his first application was invalid. It put it to him that the application was invalid for a very simple reason: that he had failed to provide his personal identifiers. This was very simple to fix. He said he did not know anything about the application. The Tribunal asked him what he meant by this. He said that, when he first applied, someone else had had prepared the application for him. When he learnt that the application was deemed invalid because he had failed to provide a thumbprint, he sought out the person who had helped him, but he had lost contact with him and he did not know who to refer to. The Tribunal suggested that his explanation was not plausible and that he needed to explain why he did not regularise his immigration status. He said that, at the time, he felt safe. He said that he later came to feel that he had made a mistake. The Tribunal suggested that all the Department had asked for were the personal identifiers and asked why he would not take immediate steps to correct this. It suggested that, instead he had decided to disappear and undertake work in contravention of his previous visa conditions. It suggested that it might conclude that the applicant’s claims were not honestly made but were a means by which he could obtain enough time to vanish into the community and obtain work. He said that, at that time, he was not taking responsibility for his own actions because he was uncomfortable with his position and was not thinking logically. He said that he felt safe in the place where he was living. The reason he did not respond to the Department was because a number of his friends had assured him that nothing would happen to him. He said that he now acknowledged that this was a mistake.
The applicant told the Tribunal that he had initially lived and worked in [a city]. After about three months, he moved to [another city] and then to [Town 1], where he has remained.
The applicant told the Tribunal that he first realised he was gay when he was about [age] years old. He had his first intimate relationships with other men when he was about [age] years old, meeting them through the internet. The Tribunal asked if there was a gay scene at his university. He said there was not, and that he had never heard the expression. He could only contact other gay men through websites. The Tribunal asked if he was aware, while he was living in Kuala Lumpur, of bars and nightclubs where gay men could meet each other. He said there was one club, [which] was open to gay and straight people, but that he had never heard of any club or bar for gay people, and he had never been to one. The Tribunal suggested that he had worked for [companies]. He agreed that this was correct. The Tribunal asked if there were no gay people working for these companies in Kuala Lumpur. He said that there were none that he knew of. He said he hid his sexuality. The Tribunal asked if he never knew of people going to gay nightclubs or parties. He said he had never been to a gay nightclub or party. The Tribunal asked if he had never gone to a place where gay people hung out. He said that was right. The Tribunal asked if this was right, despite the fact he could easily find them in Kuala Lumpur. He said the only place he hung out was a hotel. The Tribunal asked which hotel this was. He said there were hotels in KL Sentral that had cheap rooms. The Tribunal said that it was not asking about ‘no-tell motels’, it was asking about a social scene: places where gay people could meet and hang out together. He said there was no such thing. The Tribunal put it to him that there was country information that there was a substantial and lively gay community in Kuala Lumpur. He said he had not heard that. The Tribunal put it to him that it seemed unlikely, working in [a] sector, that he would not know of this. He said he had never heard of it. The Tribunal asked if had never, while meeting men at the hotels, spoken of places where gay men could meet each other, or been invited to such places. He said there had never been any such conversations.
The Tribunal asked if he had been on [App 1]. He said he was. The Tribunal said that he had not provided any evidence of that, and that it may take the view that his failure to produce it would justify an adverse inference. It said that what the applicant had produced for the hearing amounted to evidence that he had spent $20 on [Website 1] subscriptions. The only other evidence was a partial record of a text exchange with “[Mr B]” from [Website 2]. That material did not indicate that the proposed liaison even proceeded. The Tribunal suggested that the reason only a partial record was submitted was that the applicant knew the remainder of it did not support his case. He said he had more evidence. The Tribunal said that the purpose of the hearing was for him to present his evidence, and that the Tribunal could only act on what was made available to it. He said he did not present the rest of the conversation with [Mr B] was because it contained disgusting content. The Tribunal asked why, if that was the case, he needed to provide it all. The Tribunal told him that it may have been perfectly content with statutory declarations from people who knew the applicant socially and could attest to knowing him to be a gay man. The Tribunal suggested that what it had been given was evidence that the applicant was prepared to spend $20 on two [Website 1] subscriptions in support of his application. It said there was insufficient evidence to support any of his claims.
The applicant sought further time to provide evidence in support of his claims. The Tribunal allowed a period of two weeks.
On 16 December 2021, the applicant made a post-hearing submission with screenshots from accounts he claims to have with [Social media 1][Social media 2][Social media 3][Social media 4], [Website 1], [Website 2], and [App 1]. His submission was that:
I’m genuinely gay, but my life has not been easy because physically I’m not a handsome guy and that make it so hard for me to find my dates. This life that I’m currently living is already hard, but it can be harder if I live in Malaysia because if I get caught doing any of the above [i.e., the activities said to be evidenced by the screenshots], I would be punish accordingly by Islamic rules and legal. I have never love my life that I currently living in compared to my life Malaysia because I don’t have to hide myself of being gay.
The screenshots submitted by the applicant contain sexually explicit images and text message exchanges. It was by no means the material contemplated by the Tribunal when it granted time to submit further evidence. The material, the applicant’s explanatory submissions, and the Tribunal’s assessment follows.
[Social media 1]

The applicant’s submissions were:
Evidence based on [Social media 1], I was texting with a person used to meet and had sex with in Melbourne. I was trying to contact him because I was horny to have sex with him again by using video call sex. I was willing to pay because I was horny to have sex with him again but ended we couldn’t do it because he was busy with personal life.
This material consists of 16 screenshot pages with an [Social media 1] user by the name of [Mr C]. The communications commence on 2 November 2021 and continue until 15 December 2021 (i.e., the day before the post-hearing submission was lodged). There appear to have been some persistent attempts by the applicant to contact [Mr C] through November, without any response, until about Thursday 9 December 2021, when the applicant requested a video sex call for which he offered to pay. The applicant claimed to have had sex with [Mr C] at some unspecified time in Melbourne. [Mr C] did not seem to recall the applicant, but the applicant was insistent over two days despite [Mr C]’s obvious reluctance, and [Mr C] eventually sent an explicit photograph to him. I note that the applicant’s persistence in attempting to contact [Mr C] only escalated into direct propositions following the Tribunal’s despatch of the hearing invitation on 10 November 2021 and continued through to the deadline for the post-hearing submission. In the circumstances, I consider the applicant’s behaviour towards [Mr C] does not do him credit, and it appears that [Mr C], despite not seeming to know the applicant and finding his invitation unwelcome, humoured him in an attempt to make him stop. The Tribunal considers this series of screenshots to amount to no more than an attempt to manufacture evidence for the purposes of the application and gives it no credence.
[Social media 2]
The applicant’s submissions were:
[Social media 2] is a platform where I find nude picture and video. The profile was created since 2017, I didn’t use my real photo because scared and ashamed of getting caught with my friends. It’s because my phone number is linked with my [Social media 2] account, so they can definitely find my account.
The screenshots submitted by the applicant are of an account with the [Social media 2] handle “[name deleted].” They show that the user follows a number of gay-themed [Social media 2] accounts, the distinct preponderance of them sexually explicit. The applicant did not submit any evidence that the [Social media 2] account is linked to his telephone number, or any other evidence that the account is his. The applicant provided no explanation as to why he chose the handle “[name deleted]”. The date of birth shown in the profile ([date]) bears no relation to his own, for which no explanation was provided. Contrary to his submission, the [Social media 2] “bio” shows that the profile was created in November 2013. In the circumstances, there is insufficient evidence to satisfy me that the [Social media 2] account belongs to the applicant.
[Social media 3]
The applicant’s submissions were:
Showing chat history with the person I know from [Website 2] know by the name [Name 1]. I was trying to meet him in Brisbane but due to his work load, I chose to buy his sex video. In that chat clearly I was paying to have his jerking video for $100, and $200 for his sex video with girls.
The screenshots were submitted in five tranches. With the first tranche is a profile page with applicant’s telephone number (as previously notified to the Tribunal), but under the name of [deleted]. No explanation as to this choice of name was provided. There is also a list of recent chats. The bulk of the material submitted comprises communications with a person identified in the app as “[name]”, presumably indicating [Name 1] from [Website 2] (‘[NAME 1]’). The communications extend over the period 22 November to 25 November 2021. A conversation commenced at [time] on 23 November, which refers to an appointment arranged through the [Website 2] to meet at [a location] in Brisbane on 3 January 2022 (referenced below). In the course of the conversation, the applicant steered [NAME 1] away from discussion of the appointment and towards him participating in a video chat and, when [NAME 1] was not interested, the provision and, ultimately, sale late on 25 November of [NAME 1] performing a sex act. After the applicant complained that the video appeared to be old, the conversation ended and, presumably, the proposed appointment in Brisbane did not proceed.
For reasons that are not clear to the Tribunal, this conversation does not appear in the applicant’s chat history, despite it being more recent than some of the other chats listed. The applicant may have deleted this conversation. If so, it would have been helpful if the applicant had included this detail in his submission. In the circumstances, however, the Tribunal comes to no conclusion on that matter.
The Tribunal notes, and gives weight to, the fact that this conversation took place following the despatch of the hearing invitation and concluded on the same day that the applicant returned the hearing invitation. The Tribunal also notes, and gives weight to, the fact that the conversation has the character of the applicant seeking photographic or video support for his claims as to his sexuality, in preference to any meeting in person with [NAME 1]. In the circumstances, the Tribunal considers this material to have been created for the purposes of the application and of no evidentiary value as to the applicant’s sexuality.
[Social media 4]
The applicant described this material as:
Text messages with [Mr B] from [Website 2], or his name on [Website 2] as [Mr B]. From the text messages, I starting to know him in December 2020, where that was the first time I had sex with him. I also ask him if he could help me verify the truth and he said yes. I had recorded my scene having sex with him but unfortunately that video was deleted due to small memory I have on my iPhone.
The material consists of 14 screenshots. Unhelpfully, they were not presented in chronological order. However, on close examination, they appear to comprise four conversations. The Tribunal is satisfied that the screenshots derive from the applicant. The first conversation took place on 27 December 2020 from [time] and appears to be a negotiation between the applicant, who gives his name as ‘[deleted]’, and “[Mr B] [Website 2]” (‘[Mr B]’) for the provision of prostitution services by [Mr B] at [time] that night at a hotel in Brisbane. There is a suggestion that [Mr B] be accompanied by another man for the applicant’s friend, which is not pursued, and that [Mr B] would film the encounter for the applicant. The applicant tells [Mr B] that the video will be kept private because “my religion against gay, so u know what I mean.” The applicant seems inexperienced in conducting such transactions and describes himself as nervous. The conversation ceases after [Mr B] says he is “out front.”
The second conversation took place on 4 February 2021 and again concerned a proposed appointment. There is again some suggestion from the applicant that [Mr B] be accompanied by another man for the sender’s friend. The conversation finished on 5 February 2021 without an appointment being agreed. A third conversation took place from 14 to 17 July 2021, during which the applicant requested that [Mr B] send some photographs to him. It appears that this conversation may be incomplete. There is no indication that it led to an appointment being made or kept.
The fourth conversation commenced on 27 November 2021 with inquiries about an appointment which did not proceed. It recommenced on 4 December 2021 (two days after the hearing of this matter) from [date], as follows:
Applicant:       [Mr B] I have something big to ask.
Please.
[Mr B]:            Tell me.
What you have to ask.
Applicant:I have 2 questions, your honesty answering my questions can save my life and my future. I beg you, please be honest.
[Mr B]:            Ok
Applicant:       1^st one, do you still remember me? I paid to have sex with you before.
Please [Mr B], this is important. [crying emoji]
[Mr B]:            Yes I remember.
You took a video.
Applicant:       2^nd one, can you be my witness to prove what you said was true?
The reason I’m asking is because, I’m applying for protection visa, I ran away from my country, to seek protection in Australia, because I’m gay.
I have to prove that I’m gay, and you are the one who can help. Please.
2^nd one, can you be my witness to prove what you said was true?
[Mr B]:            I’m out atm I’ll get back to you.
Applicant:       Thanks [Mr B]. I appreciate that u came back.
[14 December 2021]
Applicant:      Hi [Mr B]
[15 December 2021]
[Mr B]:            Hello
Applicant:[Mr B], I can’t stop thinking about what we discussed before. I really hope you can help me. I know now days time is money. There’s no time which is free. I’ll what ever I can as long as you can help me. The video? I have deleted because I don’t have enough memory in my phone.
There is no response to this last entry.
This is the only tranche of evidence that appears to contain a clear acknowledgement of some type of physical encounter between the applicant and another person.
[Website 1]
The applicant’s submission is:
[Website 1] is my profile that I pay to have exclusive male sex contain [sic – content] from various people. I had this account created since August 2020 until now. As shown in the screen shot that I have taken, I have chatted with some of the porn stars where I wanted to buy their private sex [content] that had not been published to anyone or anywhere else but me.
This material comprises eight tranches of screenshots, amounting to 50 screenshots in total. The first tranche includes a screenshot of a user profile under the name of ‘[name]’, with two ‘fans’, and following six accounts. However, the screenshots provided indicate at least 34 accounts being followed, causing the Tribunal to doubt whether all of the screenshots are associated with [this] account. All of these accounts appear to offer gay pornographic material, samples of some of which have been included with the submission in a way that appears to the Tribunal to be somewhat gratuitous, given that the account descriptions leave little to be guessed at in terms of their content. The fifth and sixth tranches contain text communications which, contrary to the applicant’s submissions that he has chatted to the content creators, comprise lurid descriptions and blurbs for the accounts, on two of which the applicant has provided a comment and received no reply. There is no indication apparent to the Tribunal that the applicant has been furnished with specially created content, despite the claim in the submission.
The seventh and eighth tranches comprise transaction histories with [Website 1], dating from 20 August 2020. However, there is nothing in any of the screenshots to link the transactions to the applicant. At the hearing, however, the applicant produced a copy of part of a bank statement from August 2020 and a screenshot from his online banking app. The bank statement shows a payment of $17.32 (noted to be USD$12.00 plus a $0.50 transaction fee) via his Visa debit card to “[Website 1]” on 19 August 2020 which, I am satisfied, is his [Website 1] joining fee. The screenshot from his online banking app shows two purchases of $15.64 each (USD$11.00 plus $0.45 fee) from [Website 1] on 19 November 2021. This transaction was made 9 days after the despatch of the hearing invitation. There are no other bank statements to support the payments referenced in the [Website 1] screenshots, despite that material being readily obtainable by the applicant. Given that the Tribunal has already expressed reason to doubt whether the entirety of the [Website 1] screenshots are referable to the applicant’s account, the Tribunal cannot be confident that the transaction listing is also entirely referable to the applicant’s account. In the format submitted, the Tribunal has no means of verifying the integrity of the material.
Accordingly, while the Tribunal is satisfied that the applicant joined [Website 1] on 20 August 2020, and purchased two items from [an] account on 19 November, it cannot be satisfied about the integrity of the remainder of the material. Because the two purchases it does accept occurred in the lead-up to the hearings, and there is very little material in evidence prior to that time, it cannot be satisfied that the purchases were made other than for the purpose of creating evidence in support of the applicant’s claims.
[Website 2]
The applicant’s submission is:
[Website 2] is a website where I used to find guys for sex. One of them is known as [Mr B]. I also had included my [Social media 4]s that I had with him since December 2020 where I first time met him and had sex with him.
The [Website 2] material was submitted in two tranches comprising 27 screenshots. The first tranche consists of 15 screenshots, comprising 6 pictures of homescreens, menus and account details, and nine of a conversation with ‘[Name 1]’ (or ‘[NAME 1]’ ) who is the same person in the [Social media 3] conversations described at paragraphs 43 to 46 above. The second tranche consists of five further screenshots of conversation with [NAME 1], three of contact history, and three of conversation with [Mr B].
The menu screenshots are of little value, showing nothing to identify the applicant as the user of the account. There are, however, two pages showing account details. The credit card number on these pages is not that of the card submitted by the applicant at the hearing. However, the number matches one of the credit card numbers shown on the [Website 2] membership profile submitted at the hearing and, from the other material, the Tribunalm is satisfied that it is the applicant’s account.
The conversations with [NAME 1] are again presented out of chronological order and do not appear to be complete. The applicant attempted contact on 20 November 2021, to which [NAME 1] responded in the early hours of 21 November. The applicant advises that he will be visiting Brisbane and hopes to be able to meet [NAME 1] there. [NAME 1] advises that he is based in Canberra and will not be visiting Brisbane until early January 2022. The applicant twice requests a video call, which is ignored by [NAME 1] who repeats that he will be in Brisbane in January if the applicant wishes to make a booking for then. In the morning of 22 November, the applicant says he wants an appointment on 3 January and asks if he can pay [NAME 1] to perform a particular sexual act. [NAME 1] responds that he is not gay and offers sensual massage only. The applicant responds with a ‘disappointed’ emoji and [NAME 1] replies that he will not be disappointed with the massage. A fee is agreed. The applicant proposes that he conduct the massage and perform sex acts on [NAME 1]. [NAME 1] agrees if the applicant pays extra. The applicant attempts to embark on an explicit description of what he intends for the appointment, but [NAME 1] steers it back to the details of place, time and price. The conversation then moves to the [Social media 3] platform.
The conversation with [Mr B] on this platform is comparatively brief and takes place on 27 December 2020 before moving to the [Social media 4] platform as described in paragraph 48. There is also a brief exchange on the night of 16 July and morning of 17 July 2021. This may be related to the inconclusive ‘third conversation’ referred to in paragraph 49 above.
The exchanges on this platform are discussed in conjunction with the related [Social media 3] and [Social media 4] messages below.
[App 1]
The applicant’s submission is:
[App 1] is an apps for free that I use to find nearest guys from where I live. I have tried to find many guys to date and have sex with but unfortunately I’m ugly and not the type they want, it’s difficult to hang out with them. From the screen shot that I have given, I was trying my hardest to have sex with some of the guys but ended up they didn’t respond to my request. I was also trying to pay them to have sex with me, but no one are responded.
This material was submitted in four tranches comprising 30 screenshots. Two of the screenshots are not from [App 1], but are of the applicant’s stored videos. The videos include some of the material sent by [NAME 1] in exchange for money. The material does not include an account page or user profile, which makes it difficult to be certain that all of the material submitted is applicable to the same account. However, because the applicant includes the same photograph of himself in most of his conversations, the Tribunal is prepared to accept that the material all derives from his account.
The [App 1] material can be broken into two categories. The first category can be described as ‘inbox material’, which is mostly to be found in the first two tranches. These are screenshots of the applicant’s [App 1] inbox listing the other users with whom he has interacted and displaying the most recent interaction. The second category can be described as ‘chat material’, which is mostly to be found in the third and fourth tranches. These are screenshots of the interactions between the applicant and other users by way of text messages and exchanges of photographs. There is one example of a different category of material, a screenshot displaying user profiles for browsing purposes, but it has no analytic value.
The inbox material comprises nine screenshots. It shows contacts dating back to 16 November 2021. However, because there is chat material dating back to 10 November 2021, and the screenshots were taken on 16 December 2021, the Tribunal presumes, in the applicant’s favour, that the inbox contains only one month of records. The inbox material indicates that most communications did not proceed beyond the most cursory of greetings or, in a very few cases, an exchange of photographs.
The chat material comprises conversations with three other users. The first of these, with a user by the name of ‘[Name 2]’, commenced on 10 November 2021 but did not get underway until 16 November 2021. When [Name 2] requested the applicant’s photograph, the applicant almost immediately offered him money in exchange for sexual activity. [Name 2] expressed a complete lack of interest when the applicant begged off providing a photograph. The applicant persisted, sending a photograph of a different person. [Name 2] responded, asking the applicant where he was from, to which the applicant answered “[a country].” The applicant asked again if he could pay [Name 2] for sexual activity, at which point [Name 2] stopped replying. The applicant followed him up on 21 November and 16 December (sending a photograph of himself on the latter date) but [Name 2] did not respond.
The second batch of chat material is with a user by the name of [Name 3]. The applicant sent a greeting on 10 December 2022, receiving a response on 12 December. The applicant says he needs someone to have sex with him and [Name 3] expresses interest and sends a photograph. The applicant texts, “But I’m asian not cute not handsome. Most people will block my profile after I send picture.” [Name 3] replies, “OK.” On 13 December, the applicant texts, “But do you think u can fuck me if I pay you to?” [Name 3] does not reply.
The third batch of chat material is with a user by the name of [NAME 4], commencing on 21 November 2021. It appears that [NAME 4] was some 50km from [Town 1]. [NAME 4] requests a photograph from the applicant, which the applicant provides. The applicant asks if [NAME 4] wishes to have sex with him, receiving the reply “Nope.” The applicant then sends a photograph of the same person he had sent to [Name 3], describing him as his friend and asking if [NAME 4] would like to have sex with the friend instead. Some discussion ensues about sex with the friend, but [NAME 4] says, “He will find someone” and the conversation ends. The applicant seeks to resume contact on the afternoon of 2 December (i.e., immediately following the hearing), texting, “How are you?” and receives a reply on 3 December, “Thanks I’m good buddy. Yourself?”. The applicant does not reply until 11 December, when he texts, “Mate can u fuck me.” [NAME 4] replies, “You can do with your friends. Best way.” The applicant replies, “It’s a matter of choice. I want u”, but there is no response from [NAME 4].

For completeness, there is also a brief exchange with an unnamed user, described by the app as [name], on 1 December 2021. The applicant sends his photograph but receives no response.
The Tribunal considers it relevant that the earliest communications provided to it commence on 10 November 2021. The Tribunal also notes that none of the communications resulted in a meeting, or even a tentative meeting, in person, and that applicant offers money for sex very early in the conversation with two of the users. The other is offered sex with his friend. The Tribunal’s further views on this material are detailed below.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The reasons given by the applicant for failing to respond to the Department’s notification of the deficiency in his visa application are recounted at paragraph 32 above. In summary, he claimed that someone else filled in the original protection visa application for him and, when the Department notified him of the invalidity of the application, he found he could no longer contact that person and, in confusion, decided to do nothing. He claimed that friends had told him that everything would be fine and nothing would happen to him. He maintained that explanation despite having it put to him that the reason for the invalidity was very simple and very easily remedied. He also maintained this despite it being put to him that he had lodged the application in order to obtain work rights and then to disappear into the community. The Tribunal notes that the applicant’s signature is affixed to all relevant parts of the original application and that at Part C, question 101, he has answered “no” to the question as to whether he had received any assistance to complete the application.
The applicant waited almost two months to lodge the initial application and ignored the notice of invalidity sent to him on 28 July 2016, until lodging the current protection visa application on 19 June 2017. The Tribunal considers that there has been material delay in making the application. It also considers that the delay is material to its assessment of his claims in terms of the principles expressed in paragraph 74 above.
The Tribunal has given careful consideration to the applicant’s claim to be gay. While only a minority of the population of Australia identify as homosexual or, more broadly, as LGBTI , this characteristic or identity is not so uncommon as to, ordinarily, require detailed inquiry. As the Tribunal indicated to the applicant at the hearing, its evidentiary expectations were mild and would ordinarily be satisfied by witnesses who knew the applicant well, or could attest to his being known among the LGBTI community. It was the nature and paucity of the material tendered and his oral evidence at the hearing (see paragraphs 34 and 35), the lack of supporting witnesses, the delay in completing his protection visa application and the nature of the material tendered with the post-hearing submission that placed the Tribunal on inquiry.
What strikes the Tribunal about the material tendered with the post-hearing submission are two common elements:
(a)With one exception, it all postdates the issue of the hearing invitation and much of it postdates the hearing itself; 7and
(b)It all consists of material collected online, some of it of doubtful provenance, and all readily obtainable for the asking or purchase whatever one’s sexual orientation.
The Tribunal also considers it relevant that, in each case (with one exception) where the applicant does establish contact with someone, it appears to be for the purpose, or have as an element, the generation of an electronic record. The Tribunal notes that the screenshots of the applicant’s video library (included with the [App 1] tranches) contain apparent recordings of video calls, including an apparent recording of a video call taking place on a different device.
The exception referred to in subparagraph 78(a) relates to the applicant’s liaison with [Mr B] on the evening of 27 December 2020. There are some elements of this interaction which raise questions about the applicant’s other evidence. The first of these concerns what appears to be an unusual nervousness and inexperience about the encounter, in which the applicant peppers [Mr B] with questions about how the liaison will unfold while [Mr B] is on his way to the hotel and the applicant freely admits to awkwardness and trepidation. At this time, on the applicant’s evidence, he has been sexually active for some 12 years. On his evidence to the Tribunal, he had regularly engaged in anonymous sex in hotels in Kuala Lumpur. He had also been in Australia and, on his account, been enjoying life as a gay man for nearly five years. This may, however, have been his first encounter with a prostitute.
The second of these concerns arises from the apparent desperation with which the applicant entreats [Mr B] to provide evidence on his behalf on 4 and 15 December 2021 (see paragraph 50). This is almost a year after their encounter and occurs, tellingly, because the applicant has lost the video recording that [Mr B] recalls being made. [Mr B], perhaps understandably, has declined to give evidence. It is impossible to know what the contents of the video were. The Tribunal notes that both [Mr B] and [NAME 1] expressly informed the applicant that they were not themselves gay and that, therefore, there were certain sex acts they would not perform with him. It is quite possible that the video recording was of an interaction that was calculated to be sexual enough for evidentiary purposes, hence the engagement of a professional. Because [Mr B] has declined to give evidence, the Tribunal cannot base a conclusion on the applicant’s sexuality from this incident alone.
The exception referred to in paragraph 79 is the conversation with [NAME 4] on [App 1] (see paragraph 68), perhaps explicable by the fact that [NAME 4]’s rejection of the applicant’s approach to him is so blunt that there is no opportunity for it to arise.
The Tribunal has considered the applicant’s submission that he lacks self-confidence because he does not consider himself handsome enough for the people in whom he is interested. However, he also claims to have met and had sex with [Mr C] in Melbourne at some unspecified time, albeit that [Mr C] did not recall that event and that the Tribunal has rejected the evidence. The applicant also claimed to have been active sexually while in Kuala Lumpur.
The Tribunal reiterates that it does not consider it necessary to provide graphic descriptions and depictions of sexual activity in order to be satisfied as to a person’s sexuality. The problem it finds with this application is that all of the material submitted it considers manufactured, or is unable to be satisfied that it has not been manufactured, for the purposes of the application. The applicant’s oral evidence did not provide any comfort in that regard. Even if the applicant had been unusually shy and withdrawn, the Tribunal finds it implausible, in view of the country information and widely accepted facts, that the applicant, working in the industry and location he claims, could have remained entirely ignorant of the existence of a wider gay culture in Kuala Lumpur, and that the existence of this culture would be unknown to any of the gay men with whom he claimed to have had liaisons. Further, he did not offer any evidence as to his familiarity with the gay scene (the word ‘scene’ itself being unknown to him) in any part of Australia, outside of a few websites and apps. Had he pursued any of the other invitations he received on [App 1] to which he apparently did not respond, it seems inconceivable that he could remain ignorant of a wider LGBTI community beyond the interactions described above.
The Tribunal does not exclude the possibility that the applicant may, in fact, be gay. However, it cannot be reach that conclusion to any degree of satisfaction on the basis of the material before it.
The Tribunal has had regard to the following country information relevant to the applicant’s claims.
The Department of Foreign Affairs and Trade’s[1] latest country information report on Malaysia reports:
3.134 Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent. Article 377A of the Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration), which Article 377B penalises with imprisonment of between five and twenty years, along with whipping. Numerous state-level syariah-based laws also prohibit both same-sex relations and non-normative gender expression.
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.
3.138 Malaysia does not have a national organisation committed to progressing LGBTI rights, but a loose coalition of NGOs and individuals reportedly works to advocate such rights within the framework of broader human rights advocacy. Longstanding official opposition towards the promotion of LGBTI issues in public spaces, which has increased under the current government, has hampered the effectiveness of such advocacy…
3.139 JAKIM and other state religious authorities have occasionally conducted raids on LGBTI events (similar raids reportedly target unmarried heterosexual couples and those suspected of other ‘non-Islamic behaviour’). In August 2018, for example, authorities raided a Kuala Lumpur nightclub known to be popular among the LGBTI community, detaining twenty men. JAKIM subsequently ordered the men to undergo counselling for ‘illicit behaviour,’ while a government minister released a statement hoping that the raid would ‘mitigate the LGBTI culture from spreading in our society’. While the majority of such raids have occurred in public places, state religious officials have also reportedly conducted raids on private premises on occasion, sometimes accompanied by members of the RMP. In-country sources have suggested that authorities conduct such raids as a means of creating income through extorting or blackmailing those targeted.
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.
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Malaysia’ (29 June 2021)
Even had the Tribunal concluded that the applicant is gay, he has offered no specific evidence relating to any difficulty he has encountered with his family or the wider community. The applicant, on his own account, was well-educated and working in [corporations] in Kuala Lumpur, where society is considered more permissive and LGBTI people less likely to conceal their sexuality. The country information suggests that laws against homosexual behaviour are rarely enforced to the extent contemplated by the legislation, the case of Anwar Ibrahim being a well-known exception and having its own particular factual matrix. The applicant’s own account of his sexual history would give him a very low profile. However, as noted above, the Tribunal is not satisfied of the applicant’s claims in respect of his sexuality and considers that he faces no particular risk should he return to Malaysia in the reasonably foreseeable future.
Cumulative claims
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his sexuality, or any other reason if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Malaysia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered the applicant’s claims under complementary protection.
For the reasons stated in paragraph 88, the Tribunal is not satisfied that there is any reason that he would come to the attention of the authorities, including religious authorities, by reason of his sexuality, nor that his sexuality would mark him out for discriminatory treatment in Malaysia,
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future.
Conclusion: Refugee Criterion

Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm.
Overall Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Lambie
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4120

22 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies