1731551 (Refugee)

1731551 (Refugee) [2024] AATA 2299 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr (Chee) Paul Yong (MARN: 1797819)
CASE NUMBER:  1731551
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Denny Hughes
DATE:26 February 2024
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 26 February 2024 at 9:59am

CATCHWORDS
REFUGEE – protection visa – Malaysia – social group LGBT – Muslim – interfaith same sex marriage with Christian – family unaware of same sex relationship status – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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 30 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 30 June 2017. The delegate refused to grant the visa on the basis that her economic claims did satisfy the criteria for grant of a protection visa.
The applicant (hereafter [Applicant A]) appeared before the Tribunal on 30 January 2024 to give evidence and present arguments. The hearing was combined with the applicant’s same sex partner and wife ([Applicant B]) who also has a separate review before the Tribunal (2202477).
The Tribunal also received oral evidence from two witnesses: Ms [C] and Ms [D].
The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. One of the witnesses, Ms [D], was heard through an interpreter in the Khmer and English languages.
[Applicant A] and [Applicant B] were both represented in relation to the review. The representative Mr Yong also attended the Tribunal hearing.
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
Visa application
[Applicant A]’s claims for protection in her visa application related primarily to the difficult economic and political situation in Malaysia. Her claims spoke in general terms about the cost of living challenges, including house prices, and the difficulty obtaining employment, and the threats to small business. She was critical of the government responses to these issues. Relevantly, [Applicant A] made no claim to fear harm or discrimination on the basis of her sexuality. The delegate did not interview [Applicant A].
Review application
In the course of the review, [Applicant A] appointed a representative (Mr Yong). On 19 June 2023, Mr Yong provided the following additional information regarding [Applicant A]’s claims:
·[Applicant A] is a member of the social group LGBT, and a Muslim practitioner from Malaysia (an Islamic country). She fears religious persecution by the authorities, given her sexuality, and that such practices are prohibited and criminalised under Islam.
·She legally married her female partner ([Applicant B]) [in] April 2019.
The applicant provided a copy of her certificate of her marriage, dated [April] 2019, and her Victorian marriage certificate, registered [in] June 2019.
Pre-hearing submissions
On 22 January 2024, the representative provided the Tribunal with submissions for both [Applicant A] and [Applicant B]. Those submissions mirrored each other, but for separate confirmation of hearing forms for each applicant.
The submission indicated that [Applicant A] and [Applicant B] live together in [location], Victoria.
It included a suite of country information regarding the Malaysian Government’s treatment and attitude towards members of the LGBT community. The submissions contend that over the years many in the LGBT community were unfairly discriminated against with punishment involving jail and public caning.
The submission further contends that under the law of Malaysia, [Applicant A] is not allowed to marry [Applicant B] as a non-Muslim, as this would require [Applicant B] to convert to Islam. This would mean [Applicant B] would need to renounce her faith as a Christian and be forced to embrace Islam due to her sexual orientation. Alternatively, [Applicant A] would need to resile from Islam (apostasy).
Tribunal hearing
As noted above, [Applicant A] and her partner [Applicant B] (the applicants) attended a combined hearing on 30 January 2024.
During the hearing, [Applicant A] gave evidence about her experiences in Malaysia as a Muslim and Lesbian.
[Applicant A] claimed that she had known she was attracted to women since she was a girl. She was not ashamed of her attraction to women, but she knew of the penalties that may be handed down to people in such relationship. She had not known any other same sex attracted people, but had seen these things on the news.
She had previously had a same sex partner in Malaysia for six years. The relationship was kept secret from everyone they knew, but they loved each other. They had never faced harm or discrimination. She said no on ever found out. She did not know whether anyone suspected she was a lesbian.
She had never been in a relationship with a man. Her mother often asked her when she would get married. She would try to avoid answering the question.
In 2016, her then partner was forced to marry a man by her mother. [Applicant A] explained that she lost everything. It was very difficult for her so she decided to leave. She explained that the end of the relationship nearly drove her mad and that she did not take care of herself for around a year. She came to Australia to start a new life.
Omission of sexuality from visa application
The applicant did not include any claims relating to her sexuality in her visa application. The applicant claimed that she had paid someone $400 to complete her visa application. She claims she told the person that she liked women and asked her to include that in the visa application. It was only after she had met [Applicant B] that they checked her application and realised it did not refer to her sexuality.
Claims related to [Applicant B]
[Applicant A] met her same sex partner [Applicant B] in 2017. She said when they met, they were friends and they started to get to know each other. She said that what attracted her to her wife was her personality. She stated that [Applicant B] is a quiet and serious type of person and often nags her.
They married in 2019. Only two people attended the wedding because they did not know many people.
She said that [Applicant B]’s parents do not know about her sexuality, but she believes her sister may know.
Return to Malaysia
She claims she cannot return to Malaysia. Her own family do not know about her sexuality. They would not accept it because they are Muslim. If they knew, the community would know, and then the authorities would find out. She and her partner would be punished, fined, receive lashings or be imprisoned.
She fears she will lose [Applicant B] if they return to Malaysia. She fears that people will look down on them, and she fears the police and religious authorities.
The applicant’s representative made submissions that in order for the marriage to be recognised, [Applicant B] would need to convert to Islam for the relationship to continue, and they would need to inform the authorities. Alternatively, [Applicant A] would need to resile from Islam and become an apostate.
Evidence of [Applicant B] and witnesses
The Tribunal also heard from [Applicant B]. Both applicants were heard separately in terms of their past experiences.
The Tribunal identified several concerns with [Applicant B]’s evidence. She had provided an inconsistent account of her past experiences in Malaysia when her evidence provided in the visa interview and the hearing were compared. She had also given inconsistent information about whether her sexuality and marriage to [Applicant A] was known to their respective families.
[Applicant B] otherwise provided a consistent account of the development of their relationship and marriage. She discussed what she found attractive about [Applicant A], how they interact and socialise, and their fears on return to Malaysia.
Both Ms [D] and Ms [C] identified as friends of the applicants. Neither had attended the wedding as they had come to know the applicants after they were married.
Ms [D] indicated the couple socialise with her and her friends, undertaking regular activities and preparing good. They also socialise in public and present as a same sex couple, being close and taking photographs together. She was not aware if the [Applicant B]’s family knew of her same sex relationship.
Ms [C] is a Malaysian citizen. She stated that she is a lesbian and has been granted a protection visa in Australia on that basis. She said that a person in a same sex relationship in Malaysia would be charged, fined and sentenced to prison.
Ms [C] indicated that she first met the applicants at her [workplace]. They did not introduce themselves as a couple, but she later found out when they became close. She had no concerns about the relationship, as it was apparent to her they were in love. She said they present together as a same sex couple. She socialises with them, but less so now that they work at different jobs. Ms [C] stated that they go [fishing].
Post hearing submissions
On 22 February 2024, the applicants provided further submissions to the Tribunal, specifically two volumes of photographic evidence from July 2017 to January 2024.
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
The issue in this case is whether [Applicant A] and her same sex partner [Applicant B] would face a real chance or risk of serious or significant harm on the basis of their sexuality. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity
On the basis of her passport and consistent evidence, the Tribunal is satisfied that [Applicant A] is a national of Malaysia.
There is no evidence to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Malaysia is her receiving country and has assessed her claims against that country.
Claims related to sexuality
[Applicant A] claims to fear harm on return to Malaysia in connection with her sexuality as a lesbian, and her marriage to another woman. Her fears are compounded by her faith as a Muslim, and her partner’s faith as a Christian. Her family does not know of her sexuality, and if they found out she fears they would inform her community, who would inform the Islamic authorities.
A preliminary concern for the Tribunal was [Applicant A]’s failure to raise her sexuality in her visa application. While an omission such as this may raise concerns about the genuineness of her subsequent claims, [Applicant A] provided a plausible account of the preparation of her visa application by a third party for several hundred dollars, and that she was unaware of the deficiencies in her application until she went through her application much later with [Applicant B].
While the late raising of this claim is a concern, it is also clearly the case that [Applicant A] married in 2019, several years ahead of her revised claims. A further relevant consideration here is that her partner [Applicant B] has consistently claimed to be a lesbian in her own visa application.
Of more significance for the Tribunal was [Applicant A]’s oral evidence as it pertained to her past relationship in Malaysia, and her evidence relating to her same sex partner and wife [Applicant B].
[Applicant A] provided a coherent and emotive account of her previous long term relationship in Malaysia, the demise of that relationship due to her partner being forced to marry a male, and the significant emotional impact of the breakdown of that relationship, which culminated in [Applicant A]’s later decision to travel to Australia. Her evidence was free of concern or embellishment, and it was the Tribunal’s impression that [Applicant A] was recounting a lived experience.
[Applicant A] also provided a credible account of the inception of her relationship with [Applicant B], including their social activities. [Applicant B]’s own evidence was consistent, and the Tribunal found her own account of her affection for [Applicant A] to be credible and persuasive.
The evidence of the witnesses, Ms [C] and Ms [D], was in some respects general, but the Tribunal found their evidence was credible and corroborated the applicants claims in terms of their relationship and how they interact with others. While it appears the applicants are not particularly social people, the evidence of the witnesses confirmed they present to others as a same sex couple within their social circle and in public.
The applicants both gave evidence about their respective faiths. [Applicant A] is a Muslim and [Applicant B] is a Christian, and they both practise their faith to some extent in Australia. They have both consistently claimed to be a Muslim and a Christian respectively. The Tribunal accepts these claims.
The representative gave evidence that the applicants would need to convert to Islam or Christianity in order to have their marriage recognised in Malaysia. Neither applicant indicated that they intended to convert from their current faith. Nevertheless, the Tribunal has considered that issue below.
On 22 February 2024, following the hearing, the applicants provided further submissions to the Tribunal, specifically a range of photographic evidence in support of their claims to be in a same sex relationship. The evidence spans the period July 2017 to January 2024. This included evidence of their first meeting in 2017 and their marriage. The photographs also evidence their social activities, including fishing, hiking and interstate holidays. The evidence provides strong corroboration of their claims.
As discussed with both applicants in the hearing, the Tribunal has some concerns with [Applicant B]’s evidence as it relates to her past experiences in Malaysia. Her evidence at the hearing was in key respects inconsistent with her evidence in her departmental visa interview. The Tribunal has considered [Applicant B]’s evidence that she was panicked during the visa interview, but the Tribunal believes that is not apparent from the recording of that interview. The Departmental officer that interviewed her was courteous and calm in questioning [Applicant B] about her claims. [Applicant B] was able to give quite clear evidence about the discrimination and isolation she claims she experienced from colleagues at work. In the Tribunal’s view, her evidence about the issues with her extended family were clearly separate from the discrimination she claimed to have experienced in the workplace. She also made no reference to her car tyres being slashed. She also appeared to indicate her and her partner’s families were aware of their sexuality and relationships.
While the Tribunal has some concerns about the inconsistent evidence regarding whether [Applicant B]’s family know of her sexuality or their relationship, as well as her inconsistent evidence about her past experiences in Malaysia, the Tribunal found her evidence of her relationship with [Applicant A] to be very persuasive. Her account of her feelings for [Applicant A] and the aspects of her character that she found attractive appeared to the Tribunal to be genuine and credible.
The Tribunal also found [Applicant A]’s account of her own sexuality, the demise of her previous relationship, and her evidence about her relationship with [Applicant B] to be genuine, credible and persuasive.
Based on the totality of information before it, the Tribunal accepts that [Applicant A] and [Applicant B] are lesbians, that they are in a long term same-sex relationship, and that they legally married in Australia in 2019. The Tribunal accepts their relationship is genuine, credible and ongoing. The Tribunal considers that their relationship would also be an inter-faith relationship. Were they to return to Malaysia, the Tribunal finds that they would seek to live together as a married, open and same-sex relationship. The Tribunal has assessed their claims on that basis.
Assessment of profile on return to Malaysia
Country advice from the Australian Department of Foreign Affairs states that Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent.[1] Same sex marriage or civil union is not permitted.[2]
[1] DFAT, Country Information report – Malaysia, 29 June 2021.
[2] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.

According to DFAT, the situation in Malaysia is more acute for the country’s Islamic population. It states that while government stances on (LGBTIQ+) issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI[3] behaviours constitute syariah offences as well as offences against the penal code.[4] Penalties that may apply to lesbians in Malaysia include imprisonment (up to 3 years), caning (up to six strokes) and fines (up to 5000 Malaysian Ringgit).[5]
[3] The Tribunal notes that the country reports use LGB, LGBT, LGBTI and other terms interchangeably. Where referencing a particular report, the Tribunal has adopted the acronym used in the relevant analysis, but otherwise uses the more includes LGBTIQ+ in terms of its own assessment.
[4] DFAT, Country Information report – Malaysia, 29 June 2021.
[5] Ashgar Ali Ali Muhammed and Yusuff Jelili Amuda, 'LGBT: An Evaluation of Shariah Provisions and The Laws of Malaysia and Nigeria', Global Journal Al-Thaqafah, June 2018.
In general, Syariah 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 Syariah law.[6]
[6] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
The UK Home Office provides a number of examples of members of Malaysia’s LGBTIQ+ community being arrested and subjected to imprisonment, fines and mistreatment. In 2019, five men were sentenced to jail, fines and caning by the Selangor Syariah High Court for attempted sexual intercourse. In 2018, a Syariah court in Malaysia ordered a lesbian couple to be caned after they were caught having sex in a car. The sentence was carried out in a courtroom in front of witnesses.[7] DFAT stated that this was reportedly the first such sentence to be ordered in relation to a LGBTI-related case since 2010. DFAT further observed that the Penal Code has only been invoked 7 times since 1938 with 4 of those instances thought to be politically motivated.[8]
[7] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020; NBC News (AP), 'Malaysian Muslim lesbian couple caned in
[8] DFAT, Country Information report – Malaysia, 29 June 2021.
The UK Home Office assesses that ‘in general’ ‘LGB’ persons are unlikely to be of particular interest to the authorities and unlikely to be prosecuted under the Penal Code, although it concedes that if the law was applied it would be disproportionate and discriminatory. It states further that LGB people from Muslim backgrounds are likely to be liable to prosecution under Syariah law.[9]
[9] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
DFAT states that authorities at federal and state levels also have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs organised by JAKIM since 2011.[10]
[10] DFAT, Country Information report – Malaysia, 29 June 2021.
There appears to be little to suggest any future easing of the official response to the LGBTIQ+ community in Malaysia. Indeed, there is some indication in the country advice that the situation for the LGBTIQ+ community in Malaysia has become less tolerant, as political parties adopt stronger ‘anti-LGBT positions’ to appeal to more conservative voters in the country.[11] As a recent example, the Tribunal notes the applicants’ submission that in August 2023 the Malaysian government banned all Swatch products that contain ‘lesbian, gay, bisexual, transgender or queer elements – including watches, wrappers and boxes’ and warned that anyone found with one could be jailed for up to three years.[12]
[11] DFAT, Country Information report – Malaysia, 29 June 2021; Reuters, 'Malaysia seeks stricter sharia laws for "promoting LGBT lifestyle"', 24 June 2021.
[12] NBC News (AP), 'Malaysia makes owning an LGBTQ Swatch punishable by up to 3 years in jail', 10 August 2023.
On a societal level, DFAT states that there is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. The 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.[13]
[13] DFAT, Country Information report – Malaysia, 29 June 2021.
It should be acknowledged that anti-LGBTIQ+ sentiment is not static throughout Malaysia. According to DFAT, the level and frequency of discrimination faced by members of the LGBTI community differs according to a person’s socio-economic status, religion, geographic location and degree of openness. DFAT indicates that ‘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. DFAT also refers to sources that state that 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.[14]
[14] DFAT, Country Information report – Malaysia, 29 June 2021.
The UK Home Office indicates that ‘LGB clubs’ have been able to operate and were, until recently, left alone by the authorities. In August 2018 Malaysia’s oldest gay bar in Kuala Lumpur, the Blue Boy nightclub, which had operated without incident for 30 years, was raided and 20 men were detained and ordered to have counselling for ‘illicit behaviour’ by the Federal Territory Islamic Religious Department of Malaysia. The report states that there have been no further reported raids on the blue boy and it remains open to this date.[15]
[15] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
DFAT’s overall assessment is 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.[16]
[16] DFAT, Country Information report – Malaysia, 29 June 2021.
According to the UK Home Office, the Malaysian authorities have been responsible for arrests, violence, detentions, harassment and discrimination towards LGBTI persons with reports of the police physically and sexually assaulting them. While there is some evidence of the authorities prosecuting perpetrators of violence and murders against the LGBTI community, in many instances the police ruled out hate crime as a motive. The UK Home Office assesses that the state appears able but unwilling to offer protection to the LGBTI community in Malaysia.[17]
Overall assessment
[17] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
The Tribunal has accepted that [Applicant A] is a lesbian, in a long term same-sex relationship, and married to another woman ([Applicant B]). She is also a Muslim, which the country advice indicates elevates her risk profile, in terms of punishment under Syariah law, as well as familial and societal discrimination and violence.
If [Applicant A] and [Applicant B] were to return to Malaysia, the Tribunal is satisfied they would continue to live openly as a same-sex couple, as they have in Australia. [Applicant A] is from [Location 1], and [Applicant B] is from Sabah. It is not clear where they would choose to live on return to Malaysia, but the Tribunal considers there are inherent risks for LGBTIQ+ people in both areas.
As a Malay Muslim, the Tribunal considers the situation for [Applicant A] is more acute, and the risks more elevated. There is no contention that her family is aware of her sexuality, or same-sex relationship, let alone marriage to a non-Muslim woman. It is not clear how [Applicant A]’s family would respond to these factors, but it was her evidence that she did not tell her family about her six year relationship with another woman, nor her current relationship, and that she feared if her family found out, the Islamic community and authorities would also find out, which would result in further consequences for her.
The Tribunal considers her fears to be a fair indication that her family would not support her sexuality or her same sex relationship, and therefore credible risks of the community and the Islamic authorities being informed about her sexuality.
The Tribunal has noted the additional risks to [Applicant A] both as a lesbian and a Muslim. However, the situation for [Applicant A] and [Applicant B] is compounded by the fact that [Applicant B] is a Christian, adding an interfaith component to their relationship. The representative made submissions to the Tribunal that [Applicant B] would need to convert to Islam to have their marriage recognised. It was evident from the hearing that both applicants did not intend to convert from their respective faiths, but the Tribunal acknowledges the representative’s point. The country advice indicates that Muslims in Malaysia are not permitted to marry non-Muslims.[18]
[18] DFAT, Country Information report – Malaysia, 29 June 2021.
Just as there could be no recognition of their same sex union, it also appears there could be no recognition of their interfaith union. Regardless of whether the applicants were willing to convert, it appears they could not have their marriage recognised on any level. Indeed, the Tribunal accepts that any attempts to have their relationship recognised at any level would put them at additional risk of punishment, investigation or identification, particularly if [Applicant A] sought to abandon Islam, or [Applicant B].[19]
[19] US State Department, Malaysia - 2022 International Religious Freedom Report, May 2023.
If [Applicant A] and her partner ([Applicant B]) were to return to Malaysia and live openly as a same-sex and interfaith couple, the Tribunal considers there is a more than remote chance that they would be at risk of societal discrimination and violence, as well as rehabilitation.
The Tribunal also considers the applicants would face a risk of punishment under laws prohibiting same sex activities, and while federal or penal code prosecutions do not appear to be particularly common, the Tribunal is concerned about the frequency of punishments under Syariah law. Although not at a high level, the Tribunal considers that there is a more than remote chance that [Applicant A] would be at risk of prosecution and punishment under Syariah law, particularly given her and [Applicant B]’s unique profile and union.
While Syariah law appears not to apply to [Applicant B] as a non-Muslim, it is not clear whether there is no risk of her being punished if she was considered to be in a same sex relationship with [Applicant A], who is a Muslim. Whether she was also prosecuted or not, the Tribunal considers the exposure of any proceedings would add to the risk of [Applicant B] being publicly identified and facing official or societal discrimination or violence herself.
Based on the evidence and analysis before it, the Tribunal is satisfied that [Applicant A] and her partner ([Applicant B]) would face a real chance of serious harm if they returned to Malaysia, now or in the reasonably foreseeable future. The serious harm could include significant societal discrimination or harassment or violence, rehabilitation or conversion therapy, fines, corporal punishment or imprisonment, threats to their liberty, and/or violence. Both on an official and societal level, the Tribunal is satisfied the persecution feared would involve systematic and discriminatory conduct.
The Tribunal finds [Applicant A] would be persecuted for the essential and significant reasons of her religious profile and interfaith same sex relationship, and her membership of the particular social group of lesbians, and/or the LGBTIQ+ community in Malaysia.
The Tribunal has considered the fact that there are LGBTIQ+ communities, clubs and groups within the major centres, such as Kuala Lumpur, which are to some degree insulated from the harm that face the LGBTIQ+ community elsewhere in Malaysia. This is evident from advice from DFAT and the UK Home Office discussed above, that well-educated urban LGBTIQ+ 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, and that people in Kuala Lumpur are generally more permissive of people who identify as LGBTIQ+.
In this context, the Tribunal considers relevant that [Applicant A] and her partner share a particularly acute profile because of their same sex marriage and interfaith relationship. They are also quiet people from what appear to be humble backgrounds outside of the major cities. [Applicant B] is from the more conservative region in Sabah,[20] whereas [Applicant A] is from a Muslim community in [Location 1]. The Tribunal is not satisfied they share the profile of individuals living in Kuala Lumpur, or that they would seek or be able to engage in those communities. Moreover, given their particular profile, the Tribunal considers the risks would present wherever they would choose to live in Malaysia – particularly if [Applicant A]’s family or community where to find out about her sexuality and relationship. Those risks may be reduced in a city such as Kuala Lumpur, but given their individual circumstances, the Tribunal is not satisfied the chance of harm for [Applicant A] and her partner would be remote. It follows that the Tribunal is satisfied the real chance of persecution relates to all areas of Malaysia.
[20] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
The Tribunal is not satisfied effective protection measures are available to [Applicant A] or her partner. The Tribunal considers the state, and in particular the religious and Islamic authorities, would either be the perpetrators (in terms of punishment under the law, or rehabilitation), complicit in the persecution, or otherwise unwilling to protect the applicants from the persecution they fear.
The Tribunal has found that [Applicant A] is a lesbian, is married to another woman, is in an open same sex relationship, and is a practising Muslim. The Tribunal considers her sexuality, her relationship and her faith are not matters that can be concealed, altered or renounced. In all the circumstances, the Tribunal does not consider she could take reasonable steps to modify her behaviour to avoid persecution under s.5J(3).
Based on the information before it, the Tribunal finds that [Applicant A] has a well-founded fear of persecution in respect of Malaysia. The Tribunal is satisfied that the applicant ([Applicant A]) is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having found [Applicant A] satisfies s 36(2)(a) it is not necessary to consider whether she would satisfy s 36(2)(b)(i), but the Tribunal observes that she would equally satisfy the alternative criterion on the basis that she is a member of the same family unit as her wife ([Applicant B]), a person who also satisfied the criterion in 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.
Denny Hughes
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.
…

public punishment', 4 September 2018.

[2024] AATA 2299

26 February 2024

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