1730513 (Refugee)

1730513 (Refugee) [2022] AATA 5093 (20 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1730513

COUNTRY OF REFERENCE: Malaysia
MEMBER:C. Packer
DATE:20 December 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 20 December 2022 at 4:33pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – LGB persons in Malaysia – lesbian identity – relationship and marriage with a transgender man – same sex marriage in Australia – fear of physical harassment and ill treatment – denial of capacity to earn a livelihood – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 24 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a woman aged [age], born in Malaysia and a citizen of Malaysia. The applicant arrived in Australia [in] May 2017, as a holder of a tourist visa. The applicant travelled on a Malaysian passport issued [in] 2017, and that expired [in] 2022.
On 8 August 2017 the applicant applied for a protection visa. On 24 November 2017 the delegate refused to grant the visa.
The applicant appeared before the Tribunal on 2 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The Tribunal also received oral evidence from [Partner A1].
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in attachments. The applicant’s claims are centred on her lesbian identity and ongoing relationship and marriage with a transgender man. After considering her evidence and the material before the Tribunal, I find that her lesbian identity and ongoing relationship and marriage with a transgender man leads her to meet the refugee criterion. My assessment follows.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, 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
Background
The applicant’s protection visa application provided some basic background information, and the applicant later supplemented this with further details including at the hearing.
In the written application, the applicant stated that she was born in Sabah, Sabah state, Malaysia. She showed she had never married. She showed no religion. She speaks Malay. She gave no details concerning: family; addresses in Malaysia; employment; schooling.
In the review, the applicant stated she is now married to a transgender man. She provided documents to support the marriage to [Partner A2] (the partner’s former name), and to support claims of the partner’s progression from lesbian to transgender man.
Country information[1] shows that Malaysia is a federation of an estimated population of 32.7 million. Malaysia’s ethnic groups include the Bumiputera (62 per cent, includes Malays and indigenous persons of the Peninsula, Sabah and Sarawak), Chinese (20.6 per cent), Indian (6.2 per cent), non-citizens (10.3 per cent) and others (0.9 per cent). The official language is Bahasa Malaysia (Malay), but English is widely used, along with a variety of Chinese dialects, Tamil and, to a lesser degree, indigenous languages. The World Bank classifies Malaysia as an upper middle-income, export-oriented economy.
[1] Department of Foreign Affairs and Trade (DFAT) report, DFAT Country Information Report Malaysia, 29 June 2021
Summary of claims
The applicant claims to fear persecution in Malaysia from the Malaysian authorities and people in the community. A summary of key claims made in the application are:
·‘Political issue and economic issue’
·‘No job, cannot support my family and myself’
·‘Malaysia has bad economy and political issue’
A summary of key claims made in the review are:
·The applicant married a woman, then named [Partner A2], [in] June 2018. The partner is now a transgender man. His new name was registered [in] August 2019, and his new gender was registered [in] December 2021. He suffers gender dysphoria and seeks to undergo surgery for gender congruence. She provided a copy of a doctor’s letter to support this claim.
·The applicant is a lesbian.
·LGBT is deemed a sin in Malaysia. She fears criminal charges and convictions.
·Her partner would be considered a woman in Malaysia. Their marriage would not be recognised.
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged on 8 August 2017, which includes brief reasons for seeking protection in Australia
·Malaysian passport pages
·the Protection visa decision record (‘delegate’s decision’) dated 24 November 2017, which is the subject of this review, and the applicant provided a copy to the Tribunal
·the application for review, that included a copy of the delegate’s decision
·statements and submissions
·Marriage certificate showing marriage [in] June 2018 of [Partner A2] and [the applicant]. Marriage registered [in] July 2018 and the certificate dated [in] August 2018.
·Change of Name certificate dated [in] July 2020 showing a name change from [Partner A2] to [Partner A1], registered [in] August 2019
·Victoria Recognised Details certificate dated [in] December 2021 showing [Partner A1] and Sex: Male.
·Copy of a letter dated 2 December 2021 from a doctor to a specialist about prospective surgery
Country information
The applicant provided country information to the Tribunal concerning conditions for, and the treatment of, LGBT people in Malaysia. The Tribunal has carefully considered the reports and information.
The DFAT report Malaysia states in part:
Sexual Orientation and Gender Identity
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. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional, with the power to make laws with respect to such offences being reserved to the Malaysian Parliament.
3.135 While cross-dressing is not technically illegal under civil law, state-level police have arrested transgender women under the Minor Offenses Act (1955) for public indecency and immorality, or (where applicable) under syariah-based law for impersonating women. A case in 2005 in which a transgender individual was permitted to change their name, sex marker, and related last digit on their identity card has not acted as a precedent in subsequent cases, and the National Registration Department does not generally allow transgender people to access such changes. In 1983, the National Fatwa Council banned Muslims from undergoing sexual reassignment surgery (SRS). Neither SRS nor transition therapy are available in Malaysia.
…
Transgender People
3.144 In-country sources report that their increased visibility makes transgender individuals particularly vulnerable to raids by religious authorities and subsequent placement in re-education centres. Transgender women are held in male custodial facilities, and numerous human rights organisations have reported allegations that state religious officials, corrections officers, and fellow detainees have subjected transgender women to physical or sexual violence and degrading treatment while in custody. Transgender women are also reportedly denied access to public education upon transitioning, and often avoid seeking medical treatment in public hospitals due to the requirement that they be placed in male wards. The strict segregation between sexes in mosques means transgender women who are Muslim are also often precluded from accessing places of worship.
3.145 In December 2018, a group of five people aged between 16 and 21 years violently attacked and killed a transgender woman in Klang (outside Kuala Lumpur); while in January 2019 police arrested a 55 year-old man in the same location in relation to the death of a transgender woman who reportedly fell from a moving vehicle. DFAT is not aware of the status of prosecutions in either case. On 27 October 2020, officers from the Kedah Islamic Religious Department (JAIK) raided a private birthday event attended by 30 transgender Malaysians. A JAIK spokesperson said all 30 attendees would be investigated under Section 36 of the Kedah Syariah Criminal Enactment 2014 and may face fines up to MYR1,000 (AUD320) and/or jail for six months. In 2021, Nur Sajat, a high-profile cosmetics entrepreneur and transwoman, was charged in the Shah Alam Syariah High Court with dressing up as a woman at a religious event three years earlier, and bringing Islam into contempt. She pleaded not guilty to an offence that carries a penalty of up to three years’ imprisonment. She was arrested by the Selangor Islamic Religious Department (JAIS) in an allegedly violent fashion; those who arrested her have been called in to give statements following her complaint of being ‘roughed up’. In February 2021, she went into hiding following her failure to appear in court. Nur Sajat’s case has been especially prominent, due to her profile and to the particular challenge to Islam represented by her donning Islamic garb during a religious ceremony.
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. Welleducated 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.
The UK Home Office Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression[2] states in part:
[2] [ Convention reason(s)
2.3.1 A person’s actual or imputed membership of a particular social group (PSG).
2.3.2 LGBTI persons in Malaysia form a particular social group (PSG) within the meaning of the Refugee Convention because they share an innate characteristic or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it, and have a distinct identity which is perceived as being different by the surrounding society.
2.3.3 Although LGBTI persons in Malaysia form a PSG, establishing such membership is not sufficient to be recognised as a refugee. The question to be addressed is whether the particular person will face a real risk of persecution on account of their membership of such a group.
…
2.4.3 The Penal Code does not specifically refer to homosexuality but addresses ‘carnal intercourse against the order of nature’. This interpretation includes sex between men and between women and is punishable with a term of imprisonment of up to 20 years and is also punished with whipping.
2.4.4 Laws relating to LGB issues are frequently devolved to Sharia law which applies to Muslims across all 13 states and 3 federal territories. All of them criminalise same sex sexual acts with fines or up to three years’ imprisonment and whipping. In general, Sharia law does not apply to non-Muslims although they can be affected by the decisions made in a sharia court, for example in custody and religious conversion cases. Generally non-Muslims are not at risk from prosecution or affected by the imposition of Sharia law.
…
c. State treatment of transgender persons
2.4.18 Article 8 of the Constitution states that all persons are equal under the law and there should be no discrimination against citizens on the grounds of gender, although there is insufficient clarity on how transgender issues are interpreted in the context of gender equality. The Malaysian Court of Appeal had stated in November 2014 that Sharia law discriminating on the grounds of gender means that harassment of transgender persons is unconstitutional. However, in October 2015, the Federal Court of Malaysia ruled that the state Sharia law was not unconstitutional.
2.4.19 Sharia law applies to Muslims across 13 states and all of the Muslim states have laws which prohibit posing as someone of a different sex, resulting in transgender persons being subject to arrest. Although Sharia law applies to Muslims only, non-Muslims have also been arrested for cross-dressing Authorities often charged transgender persons with ‘indecent behaviour’ and ‘importuning for immoral purposes’ in public, which is punishable with a fine and up to three months in prison.
2.4.20 According to a number of sources Muslim and non-Muslim transgender persons face ‘systemic’ human rights violations and are subject to arrests, harassment and violence from state authorities, including physical and sexual assault during raids and arrests and subsequent placement in re-education centres.
2.4.21 Sharia law applies to Muslims across 13 states and almost all of the Muslim states have laws which prohibit posing as someone of a different sex, resulting in transgender individuals being subject to arrest. Although Sharia law applies to Muslims only, non-Muslims have also been arrested for cross-dressing.
2.4.22 Transgender persons are generally unable to change their name and sex marker on their identity card.
2.4.23 Owing to their increased visibility, transgender persons are often charged with ‘indecent behaviour’ and ‘importuning for immoral purposes’ in public. They are fined and can be imprisoned for up to three months. Cross dressing is technically not illegal under civil law, but state police have arrested transgender women for public indecency and immorality or under Sharia law for impersonating a women. Transgender persons are particularly vulnerable to being subjected to raids by religious authorities and encouraged into ‘re-education’ centres. As with other members of the LGB community, it is generally reported that attendance is ‘encouraged’, which in itself is unlikely to amount to persecutory treatment, however if a person can show that they would be forced to attend then it is likely that a grant of asylum would be appropriate.
2.4.24 Transgender persons are often held in detention facilities designated for men leading to both verbal and sexual abuse by other prisoners and staff. State religious officials and police officers have also physically, and sexually assaulted transgender women arrested during raids.
2.4.25 Several transgender women have reported that abusive arrests have diminished since the court cases and have said that advocacy and awareness raising has restrained some officials, but state officials continue to propagate discriminatory beliefs and fail to denounce violence when it takes place.
2.4.26 Government views and attitudes towards the transgender community are varied with, for example the minister in charge of Islamic affairs suggesting on the one hand that Islamic authorities should ‘abandon their preoccupation with trans people’s attire’, whilst on the other hand expressing concern about the ‘worrying spread’ of the LGBT lifestyle. Reports suggest that the new government that came into power in 2018 continues its predecessor’s anti-LGBT rhetoric and policies.
2.4.27 The risk of arrest for transgender individuals is generally higher than the rest of the LGB community owing to their increased visibility. In general, a transsexual person who is open about their gender identity is more likely to be at risk of treatment which by its nature and repetition amounts to persecution.
…
d. Societal treatment of LGB persons
2.4.31 Malaysia is a culturally and religiously conservative country and in general there is a negative view of same-sex relations. There is a strong social taboo against LGB issues among Muslims.
2.4.32 LGB person have faced threats, stigma, violence- including sexual violence, and discrimination from society. Some members of the LGB community hide their identity to avoid discrimination and ostracism by their family, who are often the perpetrators of violence against them. Some families have opted to send their children, who identify as LGB, to official or private ‘re-education’ centres.
2.4.33 According to sources online LGB hate speech has increased since the 2018 elections.
2.4.34 Sources report that there are some organisations operating in Malaysia providing various forms of assistance and support to LGB persons, but that they are finding it difficult to work towards meaningful change. Whilst some human rights groups have publicly condemned discriminatory statements made by government officials some have also faced multiple forms of reprisals themselves as activists. There have also been some prominent Malaysian Muslim activists who have spoken out against the persecution of the LGBT community.
2.4.35 There are a number of gay bars and LGB friendly venues in Malaysia although evidence suggests that these are predominantly in Kuala Lumpur and geared towards foreign tourists. An interview with an openly gay musician acknowledged that the situation for everyday gay Malaysians was regressing but described his experience of being gay in Kuala Lumpur as a positive one and that the ‘queer scene’ is thriving.
2.4.36 The level and frequency of discrimination and violence faced by members of the LGB community differs according to their socio-economic status, religion, geographic location and degree of openness. LGB persons who come from poorer rural areas are more likely to have to hide their sexuality within their social groups than those from urban areas who are well educated and of a high socio-economic status. In general, society is more tolerant to LGB people in Kuala Lumpur than in areas along the east coast peninsular or Sarawak and Sabah.
2.4.37 Although LGB persons may face some societal discrimination in employment opportunities and negative media coverage, there are few reports of societal violence against them and it is unlikely that they would face a real risk of serious harm or persecution sufficient to qualify for protection. If a person does not openly express their sexual orientation or gender identity, consideration must be given to the reasons why they do not.
…
e. Societal treatment of transgender persons
2.4.40 Transgender persons face violence, blackmail, verbal and physical abuse, discrimination from their families and members of society, particularly those from a Muslim background where there is a strong social taboo against LGBT issues. Violence against transgender persons is under reported and often dismissed in reported cases although there have been a few cases covered by the media and two thirds of transgender women are said to have faced some form of physical or emotional abuse.
2.4.41 Transgender persons face a negative representation in the media and even though they are employed in a range of professions transgender individuals are widely perceived and portrayed as sex workers, which carries a stigma in Malaysia. They are sometimes required by employers to use toilets based on the gender assigned at their birth.
2.4.42 Transgender persons also face discrimination and derogatory language when accessing healthcare, especially when it is linked to HIV/AIDS treatment, which is prevalent in the trans community. In 2019 a transgender activist was selected by the Ministry of Health to represent the trans community on a board that sets policy for the strategy to reduce HIV in Malaysia. This appointment sparked backlash from the general community who were reassured by the Minister of Health that the appointment didn’t mean the government recognised LGBT culture or lifestyle but that efforts needed to be made to make healthcare inclusive and accessible to those in need. Transgender individuals have also reported discrimination and stigma when accessing employment and educational facilities.
2.4.43 The level and frequency of discrimination and violence faced by transgender persons may differ according to their socio-economic status, religion, geographic location and degree of openness. Transgender persons who come from poorer rural areas may be more likely to hide their gender identity than those living in more urban areas who are well educated and of a higher socio-economic status.
2.4.44 In general, transgender people in Malaysia face a risk of societal discrimination and violence and those who are open about gender identity may be at risk of treatment which by its nature and repetition amounts to persecution. However, this may differ depending on an individual’s socioeconomic status, religion and geographic location.

A Malay Mail article, Study: In post-GE14 Malaysia, more personal freedom but tolerance took a dive, 27 November 2019, discussed the 2019 Legatum Prosperity Index. The article states in part:[3]
[3] [ LUMPUR, Nov 27 ― Malaysia saw a marked drop in social tolerance this year compared to last year even as personal freedom rose, according to the global Prosperity Index 2019 released by London-based think-tank Legatum Institute.
Malaysia was ranked 119th out of 167 societies across the world in “personal freedom”, which was the country’s worst pillar out of the 12 that makes up the Index.
In comparison, Malaysia performed strongly in “economic quality” and “enterprise conditions” at 27th place for both. As a whole, Malaysia was ranked 41st out 167 in the Prosperity Index.
Even as Malaysia performed poorly in the “personal freedom” pillar, it was the country’s best result so far. It ranked 127th last year, and a dismal 131st back in 2009.
Despite that, Malaysia’s “social tolerance” - one of the elements in “personal freedom” - fell sharply in 2019, ranking 145th among all the societies with a score of 2.9. Just a year ago in 2018, Malaysia was ranked 99th with a score of 5.3.
Between 2015 and 2018, Malaysia had never reached a rank below 100th place in “social tolerance”.
Three indicators makes up “social tolerance”: perceived tolerance of lesbian, gay, bisexual and transgender (LGBT) individuals, of ethnic minorities, and of immigrants.
In all three indicators, Malaysia’s rank drastically fell in 2019.
In tolerance of LGBT, Malaysia fell from 82nd place in 2018 to 159th.
When it comes to ethnic minorities, from 46th to 90th; and for immigrants, from 139th to 156th over the same period.
This comes as the Index showed that tolerance of the LGBT community has risen in almost every region of the world over the last decade.
In Malaysia, it has pretty much stayed the same - the country was ranked 158th when it comes to tolerance of the LGBT back in 2009, although it ranked at 79th in 2016 and 2017.
Earlier this week, transgender activist Nisha Ayub said many voted in the new Pakatan Harapan administration last year for reforms and inclusivity, but it had so far dismissed any hope of recognising even the basic rights of a transgender person, or anyone from the LGBT community.
The founder of transgender rights group Justice for Sisters said government should start viewing the LGBT community through a human rights lens rather than a religious one.
The Index had named Iceland as the most tolerant country towards the LGBT, while Tajikistan placed the last.
Other reports:
·News article: Malaysian transgender entrepreneur Nur Sajat fled her home, family and business in fear for her life. Now she's safe in Australia, ABC News, 23 October 2021[4]
·News article: Malaysia cannot accept same-sex marriage, says Mahathir, Reuters, 21 September 2018[5]
·Malaysia: Government Steps Up Attacks on LGBT People, Human Rights Watch, 25 January 2021[6]
[4] [ [ [ of claims
The applicant claims to be a national of Malaysia. I sighted pages of the applicant’s Malaysia passport, and the available evidence, including the applicant’s oral evidence and familiarity with Malaysia, supports her claim to be a Malaysian national. Malaysia is therefore the receiving country for the purpose of assessing both the applicant’s protection claims, and her claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept she has the identity claimed.
The applicant provided documents and information to the Tribunal to support the claims concerning her partner [Partner A1]. At hearing the applicant was credible and her partner [Partner A1] was credible. In light of all the material before the Tribunal, including the evidence at hearing, I accept that the applicant is a lesbian woman who married a woman in Australia. I accept that her partner [Partner A1] identifies as a man and since arriving in Australia is transitioning to the male sex. I am satisfied the partner presents and is known as a male in daily life and at his workplace. I am satisfied that the applicant and partner married as women in a same sex marriage at the time, and that they continue to be in a marriage relationship during the applicant’s transition.
Conclusion
I have assessed whether, on the basis of the foregoing findings of fact, the applicant’s future conduct if she returns to Malaysia, and relevant country information, the applicant has a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future.
The applicant is a mature lesbian who is married to a partner in Australia and at the time it was a same sex marriage. The partner [Partner A1] is planning to undergo surgery for gender congruence. I accept that in Malaysia as a lesbian married to a woman at the time of the marriage and now married to a transgender man, she would suffer discrimination and harm.
The DFAT report Malaysia states in part that:
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.
The UK Home Office Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression states in part that:
2.4.31 Malaysia is a culturally and religiously conservative country and in general there is a negative view of same-sex relations. There is a strong social taboo against LGB issues among Muslims.
2.4.32 LGB person have faced threats, stigma, violence- including sexual violence, and discrimination from society. Some members of the LGB community hide their identity to avoid discrimination and ostracism by their family, who are often the perpetrators of violence against them. Some families have opted to send their children, who identify as LGB, to official or private ‘re-education’ centres.
2.4.33 According to sources online LGB hate speech has increased since the 2018 elections.
…
2.4.27 The risk of arrest for transgender individuals is generally higher than the rest of the LGB community owing to their increased visibility. In general, a transsexual person who is open about their gender identity is more likely to be at risk of treatment which by its nature and repetition amounts to persecution.
Having considered her personal circumstances including her lesbian identity, marriage and ongoing marital relationship and the presentation of her partner as an open and visible transman, and in light of country information, I find there is a real chance she would face serious harm from familial and societal sources and authorities in Malaysia. I am satisfied the harm feared includes significant physical harassment and ill treatment, significant humiliation and degradation, denial of access to basic services and/or denial of capacity to earn a livelihood and I am satisfied that this amounts to serious harm and systematic and discriminatory conduct for the purposes of s5J(4) and within the meaning contemplated by s5J(5). I am satisfied the real chance of persecution exists in the country as a whole, and safe relocation within Malaysia is not open to the applicant. I am satisfied that in light of country information, the applicant would be unable to access effective state protection should she be persecuted by non-state actors.
I am satisfied that lesbian women in Malaysia are identifiable by a characteristic or attribute common to all members, which is not the shared fear of persecution. Furthermore, the possession of that characteristic distinguishes the group from society at large. I am satisfied the applicant is a member of the particular social group of ‘LGB persons in Malaysia’. Accordingly, I am satisfied the applicant has a well-founded fear of persecution for reasons of her membership of that particular social group.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
C. Packer
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 5093

20 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness