1800140 (Refugee)

1800140 (Refugee) [2024] AATA 1230 (12 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Walt Calis (LPN: 5556006)
CASE NUMBER:  1800140
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Rupert Timms
DATE:12 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s36(2)(a) of the Migration Act.
Statement made on 12 January 2024 at 4:45pm

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – sexuality – homosexual – membership of the particular social group – homosexual and other LGBT individuals – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 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 13 December 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 9 November 2017. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 11 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review. The representative Mr Walt Calis attended the Tribunal hearing and made submissions appreciated by the Tribunal.
CRITERIA FOR A PROTECTION VISA
The main criteria for a protection visa are set out in s 36 of the Act and Schedules 1 and 2 of 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.
Pursuant to s 5AAA of the Migration Act, it is for the review applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of the claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
The Tribunal applied this provision when considering the applicant's claims and evidence.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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 of such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Country of nationality
The applicant arrived in Australia on [date] August 2017 on an apparently genuine Malaysian passport, a copy of which is contained on the departmental file. He stated in his protection visa application that he was a citizen of Malaysia, and was assessed on that basis by the Department. At hearing, the applicant confirmed that he holds Malaysia citizenship, and only Malaysian citizenship.
The Tribunal finds that the applicant is a Malaysian citizen, and the Tribunal has assessed his claims against Malaysia as the country of nationality and the receiving country.
The applicant’s personal background
The applicant is a [age]-year-old male who was born in Selangor, Malaysia. He is of Malay ethnicity and Muslim religion, is unmarried, and has no children. At the hearing, and also through a statutory declaration which was declared by the applicant on 28 November 2023, the applicant gave evidence that he has two parents and four siblings, including an older sister, an older brother and two younger sisters. As far as he is aware, his parents and siblings are all still alive and living together at the family home in the state of Selangor, Malaysia, except that his older sister is married and living away with her husband.
The applicant’s evidence was that apart from a single phone call with his mother sometime after his arrival to Australia in 2017, he has not had any contact with any of his family since prior to coming to Australia.
The applicant’s evidence was that his family have been a middle-income family, with both parents having been working, but he believes that they are now both retired and not working.
The applicant’s evidence was that he completed secondary school in Selangor State in around 2009, before several years of unemployment and odd jobs. Then in around 2014 he commenced a [course] at [a] college in a city nearby the city of his family home and he lived at the college in a student hostel. He completed only three semesters before ceasing his studies and leaving the college during the fourth semester.
The applicant gave further evidence that he moved to Kuala Lumpur immediately upon ceasing his studies, where he worked for several months at a [food] outlet, before then resigning and moving back again to the city where he had been previously undertaking his [studies]. The applicant rented a room in that college city with seven other male housemates and he commenced work at a restaurant in that same city in a shopping mall. He worked at that restaurant, initially ushering customers to their tables and then later as a waiter, for approximately two years from around mid-2015 until approximately a week before his departure to Australia in August 2017. He used savings from his restaurant position in the shopping mall to fund his air ticket to Australia.
Since coming to Australia, the applicant has worked in a number of different roles including [details deleted]. He currently works [in] [a] business.
The applicant’s further evidence was that his family believes that their family line is descended from the Prophet Muhammed, and that Islam and their good family name is extremely important to his parents and also to his wider family. He himself is an observant Muslim, praying five times every day, and attending Friday prayers.
The applicant’s further evidence was that his protection visa application was prepared by a person he met through the local Malaysian community. He said that he and that person communicated by telephone and text messaging only, with him providing her the basic details of his claim and her completing his protection visa application form on his behalf. He said that he did not review the application form before it was lodged with the department because his English was not good enough at that time for him to review and understand the application form.
Tribunal accepts the above matters to be true.
The applicant’s claims for protection
In his protection visa application, the applicant stated a number reasons for seeking Australia’s protection which the Tribunal summarises as follows:
His situation at the time of leaving Malaysia
·     he left Malaysia because he is gay, and Malaysia does not allow LGBT people. This attitude towards gay people is shaped by Islam the official religion of Malaysia. He cannot live in Malaysia because he has no freedom, which is why he decided to seek the protection of the Australian government.
·     he did not experience harm in Malaysia.
·     he did not try to move to a different part of Malaysia to seek safety, due to homosexuality being prohibited throughout Malaysia and accordingly there being no use in him moving.
If he is to return to Malaysia
·     If he is to return to Malaysia now or in the foreseeable future, he thinks that:
·he will be harmed or mistreated. He will face punishment including fines, prison sentences of up to 20 years, and even corporal punishment. In addition, as a Muslim he may be charged in special administrative courts.
·authorities in Malaysia cannot and will not protect him if he goes back to Malaysia because being gay is prohibited and illegal in Malaysia.
·he would not be able to relocate within Malaysia because being gay is prohibited throughout Malaysia.
The decision maker (‘the delegate’) at the Department of Home Affairs refused to grant the applicant a protection visa on refugee grounds, not being satisfied that the harm he would face on his return to Malaysia would amount to serious harm as defined under the Act. The delegate also considered the applicant’s claims under the complimentary protection criteria, but was not satisfied that there was a real risk that the applicant would face any form of significant harm as defined under the Act.
At hearing, the applicant gave evidence that these original claims were mostly correct as they had been written, except that:
·     his primary fear of harm relates and has related to what his family and wider family might do to him because of his being gay, and because of their wish to protect Islam and their important Islamic family name. He fears they might refer him to authorities for punishment by the authorities, or force him to try to be attracted to women, or hit him, or they might do much worse to him including trying to get rid of him and even killing him. There are just so many possibilities of what might happen to him.
·     he did actually suffer harm while he was in Malaysia. This was through his constant fear of being harmed due to his being gay
·     his did actually try to move within Malaysia to avoid harm, by leaving his college hostel and family home and moving to Kuala Lumpur for a few months (where he worked at [a] restaurant), and then by moving back to his college city (where he then worked at [another] restaurant).
·     he was not specifically aware of all the punishments by authorities listed in his application form, and these would not have been his words but instead the words of the person who completed the form for him. While he did not know precisely all the types of punishments that might be carried out against him if he was sanctioned by the authorities, he knew they would be bad.
At hearing, and though his statutory declaration which was declared by the applicant on 28 November 2023, the applicant provided the following further evidence relevant to his protection visa claims:
·     he is homosexual and has only ever had intimate relations with males. He has never had any girlfriends.
·     he first became aware of his homosexuality at primary school, becoming aware at that time that he was attracted to boys at his school rather than girls. As he grew older he found his feelings towards males remained the same and he knew he was homosexual.
·     knowing that he was homosexual was very difficult for him because he knew it was not normal in the community around him or accepted by that community. He was in a state of constant fear, stress and anxiety about his sexuality and about the possibility of being discovered to be homosexual. He did not share his sexuality with anyone apart from with one close gay friend with whom there was mutual recognition of them both being gay. Instead, he pretended to his family and to everyone, including even his closest friends, that he was heterosexual. For some of the time, he pretended also to have a girlfriend.
·     his first and only serious relationship with a person was in around 2015 when he was [age] years old and studying [at] the [College] in Selangor. That relationship was with a male called [Mr A] whom he had met through [social media]. A sexual encounter between the applicant and Mr A] was inadvertently witnessed at the college hostel by a college friend of the applicant who reported the applicant and his behaviour to college authorities. Immediately after being reported, the applicant felt that he needed to cease his studies at the [College], and to move cities, and to go into hiding. He ceased all communication with his family at that time in 2015, which he has continued until the present time apart from one brief call by the applicant to his mother since his arrival in Australia to let her know that he was safe and well.
·     [Mr A] was two years older than him, and his same-sex relationship with [Mr A] lasted approximately a month until the inadvertent witnessing of one of their sexual encounters as above, after which it ended. Theirs was a sexual relationship and they met up personally many times over the month. According to the applicant, his sex with [Mr A] was the first time the applicant had had sex.
·     upon being reported by his friend to college authorities, the applicant was immediately summoned to a meeting by the college warden who told the applicant to tell his parents that they were required to attend a meeting at the college because of his behaviour. The warden also told the applicant he was writing separately to the applicant’s parents about the matter.
·     the applicant never told his parents about the required college meeting, and managed to intercept the letter from the warden to his parents. He then abruptly left home and his college hostel, and ceased his studies and his relationship with Mr A]. He moved cities to Kuala Lumpur and into accommodation in Kuala Lumpur which he funded with some monies which had been reserved for his future studies.
·     while the applicant confirmed that the college letter to his parents which he intercepted did not specifically describe the nature of his act with [Mr A] or specifically state that it was of homosexual nature, the applicant fully believes that the college contacted his parents directly soon afterwards and provided them with full details. This is because soon afterwards he received a message from his father through [social media] demanding that he return home and telling him that there would be a price to pay if he did not. The applicant immediately changed his phone number to a new number, but somehow several weeks later he received a missed call from his father on his new number. The applicant was very shaken by his father having managed to find his new number.
·     after a few months living in Kuala Lumpur and working at the [restaurant], the applicant moved cities again, returning back to his college city, and finding new work in a restaurant in a shopping mall.
·     from that time onwards, until his arrival in Australia, the applicant lived in constant fear that he would be found by his father or wider family, who he believes have been looking for him ever since. He has wider family in a number of states in Malaysia including in Selangor, Johor, Pahang and Perak, and he feared that wherever he might move in Malaysia he would still be in constant risk of being seen or located by family, and that he would never be safe. He thought about ways of trying to be safe, including about going to Australia which he finally decided on.
·     in the approximately two-year period between the ending of his relationship with Mr A] and his arrival in Australia, the applicant said that he had short sexual encounters with about eight males. He met these people through [apps]. He was always highly anxious about those encounters, which always had to be in secret, with him being constantly worried about being found out and about entrapment by police authorities through fake gay profiles.
·     the applicant feels safe in Australia, and safe in Australia to be open about his sexuality. In Australia, he no longer hides his sexuality, he often visits gay bars and clubs, he follows gay celebrities and gay feeds on social media, and he feels that he can really be himself. Since coming to Australia, the applicant has been sexually active with a number of males, but he has not had any serious or lasting relationships.
·     the applicant confirmed to the Tribunal that some 13 pages of screenshots of a sexuality explicit nature, which were provided to the Tribunal along with his statutory declaration prior to the hearing, were from his [social media] account and that they related to gay sexual encounters he had in Australia with three different males.
·     if he returns to Malaysia, he is highly concerned and frightened about action that might be taken by police in Malaysia against him, if he was referred by his family to the police. While he did not think his family would actually end up referring him to police, he could not be sure and in that event he might be beaten up by the police trying to vent their anger on him. He also understood that there were even cases of murder of gays by police in Malaysia.
·     he is also very concerned and anxious that given that his father somehow discovered his new mobile number back in 2015, his father or other family members will again be able to find his number if he was to return to Malaysia.
·     he is also very concerned about the current anti-LGBT stance of authorities now in Malaysia, given recent high profile actions by the government. These included the recent banning of Swatch products with rainbow imagery (August 2023), cancelling a three-day music festival in Kuala Lumpur after a band member kissed his male bandmate on stage (July 2023), and including concert organisers feeling required to ban all LGBT imagery from a recent Coldplay concert in Malaysia (November 2023).
·     he feels that he is much more at risk of harm due to his sexuality than many other gay people in Malaysia. This is because he is already outed and known to be gay by his wider family.
Findings
Does the applicant fear serious harm on return?

The Tribunal generally accepts the above evidence from the applicant as credible, and finds that the applicant is a homosexual who genuinely fears harm for reasons of his sexuality if he was to return to Malaysia.
The Tribunal further finds that this harm feared by the applicant includes significant physical ill-treatment, significant physical harassment, and a threat to his life, amounting to serious harm as defined by s5J(5) of the Act.
Is the harm feared for one of the reasons set out in s 5J(1)(a)?
Australian courts have recognised that membership of the homosexual community in a country can constitute membership of a particular social group[1]. Having found that the applicant is homosexual, the Tribunal further finds that the applicant is a member of the particular social group comprising the homosexual community in Malaysia.
[1] Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Having also found that the applicant fears serious harm, the Tribunal finds that the applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and that s5J(1)(a) of the Act is met.
The Tribunal further finds that the applicant’s membership of a particular social group is the essential and significant reason for the harm which he fears, and that the harm feared by him involves systemic and discriminatory conduct by others. Accordingly, the Tribunal finds that s5J(4) of the Act is also met.
Is there a real chance of serious harm for one of the reasons set out in s 5J(1)(b)?
In assessing the risk of harm to the applicant if he is returned to Malaysia as a member of the homosexual community, the Tribunal gives weight to the Department of Foreign Affairs and Trade’s (DFAT’s) advice that Malaysia is a conservative Islamic nation in which there is widespread official and societal disapproval of LGBTQI identities and behaviours including homosexual identities and behaviours. Adult same-sex acts are illegal regardless of age and consent being prohibited by Malaysia’s Federal penal code[2], with prescribed penalties including mandatory whipping and up to 20 years’ imprisonment.
[2] DFAT Country Information Report: Malaysia 29 June 2021 at 3.134
While a Human Rights Watch report of February 2021 states that these Federal penal code laws are rarely enforced, with Federal police tending not to have zeal for invading the privacy of Malaysian bedrooms[3], the Tribunal understands these laws nonetheless have broader effects on LGBT persons in Malaysia, with Malaysia’s Queer Lapis website submitting that they have a significant impact on LGBTQ persons in terms of threats of arrest, invasion of privacy, and extortion[4].
[3] Malaysia’s Highest Court Strikes Down State Gay Sex Ban | Human Rights Watch (hrw.org)
[4] Queer Lapis, "LGBTQ Legal Guide: What laws are out to catch you?" December 2021, 20211202122935
Adult same sex acts are also illegal for Muslims in Malaysia under numerous state-level Syariah-based laws, though the Tribunal is aware that a relatively recent 2021 Malaysian Federal Court decision has ruled that these state-based laws against adult same-sex acts are unconstitutional. However, the Tribunal is also aware that these same offences can also be prosecuted by state-level Syariah authorities through other state-level laws unaffected by the 2021 decision, including laws against public indecency.
The Tribunal is further aware of laws currently proposed by the Malaysian Federal government which seek to increase the possible penalties able to be imposed by the state-level Syariah courts against Muslims, from the current maximums of three years of imprisonment and RM5,000 in fines and six strokes of the cane, to 30 years imprisonment and RM100,000 in fines and 100 strokes of the cane[5].
[5] Proposed amendments to article 355 of the Syariah Courts (Criminal Jurisdiction) Act.
DFAT’s 2021 Country Information Report further advises as follows[6]:
[6] DFAT Country Information Report: Malaysia 29 June 2021 at 3.134 – 3.143
·in September 2018, then-Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBT culture’
·Human Rights Watch reported in 2019 that the increased political competition in the Malay heartland, ‘presumed to be socially and religiously conservative, [had] caused politicians from across the political spectrum to emphatically adopt anti-LGBT positions.’
·since 1994, authorities have banned homosexual, bisexual, transsexual and transgender individuals appearing on state-controlled media, while media censorship rules ban movies or songs that promote the acceptance of same-sex relationships.
·The Malaysian Federal Department of Islamic Development (‘JAKIM’) and some other state religious authorities have occasionally conducted raids on LGBTI events. In August 2018, authorities raided a Kuala Lumpur nightclub known to be popular among the LGBTI community, detaining twenty men, and ordering the men to undergo counselling for ‘illicit behaviour,’ while a government minister released a statement hoping that the raid would ‘mitigate the LGBTI culture from spreading in our society’.
·state religious officials have also reportedly conducted raids on private premises on occasion, sometimes accompanied by members of the Royal Malaysia Police (RMP).
·in September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,045) after convicting them of attempting to have sexual intercourse.
·in November 2019, the Selangor Syariah High Court convicted five men under syariah based statutes for attempting to conduct sexual relations ‘against the order of nature’ in a private apartment 12 months earlier. The court sentenced four of the men to six months’ imprisonment, six strokes of the cane, and a fine of MYR4,800 (AUD1,520), while the fifth man received a sentence of seven months’ imprisonment, six strokes of the cane, and a fine of MYR4,900 (AUD1,550). It was also reported that the presiding judge made numerous prejudiced remarks during the case that were unrelated to the facts in issue.
·authorities at both Federal and state levels promote so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy.
·there is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common.
·many members of the LGBTI community reportedly hide their sexual 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.
DFAT’s 2021 Country Information Report further advises as follows[7]:
In-country sources report…that Malaysia is becoming less tolerant overall for LGBTI people, and worse than it was under the long-running BN government due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.
[7] DFAT, ‘Department of Foreign Affairs and Trade: Country Information Report Malaysia’ June 2021 at [3.137]
While elections in 2022 have replaced the then governing coalition with the Pakatan Harapan (PH) coalition led by current Prime Minister Anwar Ibrahim, more recent high profile actions by the Federal government suggest that this downward trend of tolerance for LGBTI people continues under the current government. These actions include:
·the cancellation in July 2023 by the government of a three-day long music festival in Kuala Lumpur, after one of the male performers kissed another male performer on stage[8]
·the August 2023 banning by the government of the Swatch group’s watches and accessories celebrating LGBTQ rights, after the government’s earlier seizure of rainbow-coloured watches from the Swatch group’s ‘Pride Collection’ (May 2023)[9]
·the November 2023 banning by concert organisers of all LGBTQ imagery for a concert in Kuala Lumpur performed by the band Coldplay[10], in an apparent effort to ensure that Federal authorities would allow the concert to proceed.
[8] The 1975: Malaysia festival cancelled after gay kiss demands $2.7m in damages from British band | The 1975 | The Guardian
[9] Malaysia bans Swatch watches celebrating LGBTQ rights | Reuters
[10] Malaysia’s conservatives urge boycott of Coldplay concert amid event organiser’s pride flag ban | South China Morning Post (scmp.com)
A Human Rights Watch report of August 2022 also reports that government officials have fostered a hostile climate in which LGBT and gender diverse people face discrimination and punishment because of their sexual orientation or gender identity. It further reports that
LGBT people interviewed said that the environment in Malaysia was becoming increasingly hostile. An activist in Kuala Lumpur said, “We are regressing, in many aspects, as conservative strand of Islam becomes dominant in shaping the politics and policies that dictate the lives of the country’s citizens including LGBT persons.” He said, “Scapegoating transgender persons has become a tactic applied by ultra conservative and nationalist politicians,” and that “The exploitation of societal homo/transphobia has proven a convenient way to divert public attention away from government failure to address pressing social issues and rising inequalities.”
DFAT overall assesses[11] 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. It notes that these risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas.
[11] DFAT Country Information Report: Malaysia 29 June 2021 at 3.147
In relation to this overall assessment by DFAT, the Tribunal notes that DFAT’s assessment of ‘moderate risk’ should not substitute for an evaluation by this Tribunal as to whether the applicant faces a real chance of persecution.
Taking into account all of the above, and notwithstanding the relatively recent 2021 Federal Court ruling that state-based Syariah laws against same-sex sexual relations for Muslims are unconstitutional, the Tribunal is of the view that official and societal attitudes continue to harden in Malaysia against homosexual and other LGBT individuals, and that this will likely continue for the foreseeable future in a Malaysian political climate which seeks to cultivate the popular religiously conservative vote.
Taking into account all the above, the Tribunal further finds that there is real chance that if returned to Malaysia, the applicant will face serious harm because of his membership of a particular social group being the homosexual community. This serious harm would be in the form of being sanctioned by Federal authorities for a crime against the Malaysian penal code relating to same-sex acts, or of being sanctioned by state-based religious authorities for offences under Syariah law which are not directly related to same-sex acts (and therefore which would not be affected by the above-mentioned 2021 Federal court ruling) such as those against public decency. It would also be in the form of serious harm from his family including his wider family, and from the community more generally, including significant physical ill treatment or harassment.
The Tribunal therefore finds that there is a real chance that, if the applicant was to return to Malaysia, he would be persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and that s5J(1)(b) of the Act is met.
Does the applicant have a well-founded fear of persecution?
Given the Tribunal’s finding that the risk of serious harm is one which would come from Federal and state-based authorities and from the community more generally, the Tribunal further finds that the applicant’s real chance of persecution relates to all areas of Malaysia, and that effective protection measures as defined in s5LA of the Act would not be available to the applicant. The Tribunal therefore finds that s5J(1)(c) and s5J(2) of the Act are both also met.
The Tribunal further finds that modifying his homosexual behaviour so as to avoid a real chance of serious harm would conflict against a characteristic which is fundamental to the applicant’s identity. Accordingly, and pursuant to s5J(3), he could not be required to take steps to modify his behaviour so as to avoid serious harm, such as by ceasing to practice his homosexuality on his return to Malaysia.
Given the Tribunal’s above findings that s5J(1)(a) and (b) and (c) are met, the Tribunal finds that the applicant has a well-founded fear of persecution as defined in s5J(1) of the Act.
Further to s5H(2) of the Act, the Tribunal is unaware of any evidence to suggest that the applicant has been guilty of acts contrary to the purposes and principles of the United Nations, or that the applicant has committed a crime against peace, a war crime, or a crime against humanity, or a serious non-political crime.
The Tribunal finds that the applicant is a refugee under s5H for the purposes of the Act, through further meeting s5H(1)(a) of the Act.
The Tribunal is further satisfied that the applicant does not have a legally enforceable right to enter and reside in any country other than his country of nationality, Malaysia. The Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.
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.
Rupert Timms
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.
…

[2024] AATA 1230

12 January 2024

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Immigration

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Judicial Review

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Natural Justice

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