1802771 (Refugee)

1802771 (Refugee) [2024] AATA 4166 (29 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michaela Rhode
CASE NUMBER:  1802771
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Mary-Ann Cooper
DATE:29 August 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 29 August 2024 at 2:43pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – written claims on political and economic grounds – application prepared by partner without applicant’s knowledge of contents – membership of particular social group – transgender Muslim man – raised as female and identified as such on identity card and passport – increasing presentation as male and relationships with girls –harassment by family, neighbours and members of public – hormone therapy and proceeding to full transition – fear of harm by detention and conversion therapy – country information and corroborating evidence – criminalisation, discrimination, harassment and violence – no effective protection measures or reasonable steps to modify behaviour – partner’s separate application – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (5), 5L, 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 735
SZTEQ v MIBP (2015) 229 FCR 497
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 Home Affairs on 2 February 2018 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 28 November 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in s 36(2)(a) of the Act and was not person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).
The applicant appeared before the Tribunal on 16 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], his partner who has separately also applied for a protection visa and whose decision is separately issued.[1] A joint hearing was conducted at the request of the applicant’s representative. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
[1] AAT case number 1801031
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (DFAT) 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 to whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal has considered the written and oral evidence as well as independent resources concerning Malaysia. In addition to a prehearing statement the applicant also provided a letter of support from [a] Health Centre, a Victorian Recognised Details certificate reflecting the applicant’s name change and various photographs of him and [Ms A].
Country of nationality
Section 5H(1) of the Act refers to a person being a refugee if he or she is outside their country ‘of nationality’. The complementary protection provisions, at s 36(2)(aa), refer to a person being removed to a ‘receiving country’, which is defined at s 5(1) as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has provided his[2] Malaysian identity card and Malaysian passport, issued [in] 2017, in which he is identified as a female. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Malaysia and as such his protection claims will be assessed against Malaysia as the country of reference and ‘receiving country’ respectively.
[2] The applicant is transgender and his chosen identifiers are he/his.
Background
The applicant arrived in Australia [in] September 2017 on an Electronic Travel Authority (Class UD) (Subclass 601) visa, which was due to expire on 7 December 2017. On 28 November 2017 he applied for a Protection (Class XA) (Subclass 866) visa, which was refused by the Department for the reasons noted below.
APPLICANT’S CLAIMS AND EVIDENCE
Findings of the Department
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record.
The delegate’s decision concerned the applicant’s claims to be a political and economic refugee in his protection visa application. The delegate was not satisfied that the applicant’s claims of economic harm constituted serious or significant harm and, in relation to his political claims, determined that the Royal Malaysia Police (RMP) and the judiciary would provide effective protection and nothing indicated the State would be unwilling or unable to help. Accordingly, the protection application was refused.
At the Tribunal
According to documents provided, the applicant was born a female in Sabah, Malaysia on [Date]. He is a Muslim of Malay ethnicity. He has a mother and [sisters] still in Malaysia.
Pre-hearing statement
The applicant provided a statement to the Tribunal dated 6 September 2023. In it he explains that his partner ([Ms A]) had arranged the lodgement of his protection visa application and he ‘did not know anything about what was submitted’ on his behalf. He states the political activism claims made are not correct.
He further states that while he was born with female anatomy he identifies as a male and has been transitioning since January 2019. He did not consider transitioning beforehand because it would have been unsafe, costly and he would have been rejected by his family and the community. [Ms A] had agreed to his transitioning. He claims he received his prescription for hormones from a Melbourne medical clinic and is taking them fortnightly. He said he has not legally changed his name because he did not want to complicate the visa process.[3]
[3] The applicant later provided a Victorian Recognised Details certificate demonstrating his change of name since he has been in Australia.
He recounts that since he was young he has always been a ‘tomboy’ and he knew he was different from his sisters. He said his family was ‘not very religious’ but went to mosque for Eid each year and sometimes would go to religious talks in the village. He learned he would go to hell for having a same sex relationship. He claimed his neighbours constantly asked his parents why he was dressed like a boy and would question him and suggest he should be ashamed for doing so.
While at school he says he realised he was attracted to girls and played sports with a lot of girls like him. He claims he had a couple of relationships with girls and almost all his friends were gay. He recounts a five year relationship with a girl, however, after about three years (when he was about [age] years old) his girlfriend’s parents discovered and told his parents that he was a lesbian. He states his mother was extremely shocked, slapped him and said he was not allowed to see the girlfriend anymore. His aunt came and threatened to take him back with her and ‘force’ him to be a proper girl. Because of this he ran away, however, his mother reported him to the police and when he was returned home his mother beat him. His elder sister supported him. He left school and home and started work and had other relationships until meeting [Ms A] in 2015.
In his relationship with her he cut his hair and wore men’s clothes, claiming he started to feel ashamed dressing as a girl. He claims his aunt threatened to call the police and people on the street would make rude gestures. While he met with his LGBT friends ‘it was unsafe to go to openly gay or LGBT bars in a strict Muslim country [because] the risk for getting raided by police and JAIS and getting arrested for being gay was high’. He states he did not believe the police would protect him because being gay is illegal in Malaysia and he would be turned in to the religious police.
He records that in August 2017 [Ms A] told him she was going to Australia and asked him to join her. His parents gave him some money for the trip and he decided to stay in Australia because ‘I wanted to be with [Ms A] and also wanted to leave the community because I felt as if I could not express my identity there as a gay and transgender person without facing harm’. He claims that it is not safe to transition in Malaysia and it is even worse because he is a Muslim.
He further states he fears returning to Malaysia because the Malaysian authorities will likely take his passport at the border and arrest and put him in detention and he will be forced to undergo conversion therapy. He refers to Nur Sajat and states that being beaten up and jailed is a normal occurrence for transgender Malaysians. Under Islamic law gender cannot be changed, society physically and verbally abuses people like him and it causes strain on a family. He believes that JAIS[4] will put him in prison and torture him and he would not be able to express himself at all. He states that now he has transitioned people will be less likely to help him with things like housing, shelter and medical assistance and he will not be assisted by the authorities because he is transgender. Even if he attempted to move the authorities will not protect him from JAIS. While it might be legal for him to move freely around the country, his passport identifies him as a female and this would limit his ability to relocate or get a job. He states he has a lot of fear and anxiety that if he is returned to Malaysia he will be detained, interrogated, tortured or killed by the Malaysian authorities because he is a transgender man.
[4] Islamic police.
At the hearing the applicant appeared as a man, with short hair, facial hair and male attire. His claims were consistent with his written statement. He said he and [Ms A] had lived together on and off in Malaysia, however, her parents did not support the relationship. They had received many bad comments but the community in Australia has been supportive. He said he hopes to eventually undergo surgery to fully transition to a male.
When asked about his fears of return he said he doubted he could return to the country because his passport has expired. He said he had been to the Consulate once and they would not give him a passport. Furthermore he would be returning as a male on a female passport and, because it is illegal to be gay or transgender in Malaysia, he is afraid of what would happen to him and that he would be subject to jail and fines. When asked about relocation, he responded that Malaysia is a Muslim country and laws apply across Malaysia so he would not be safe anywhere. Even if he was allowed back into the country he claimed he would have to go into hiding.
The Tribunal asked the applicant about his claims in his protection visa application. He confirmed he wished to withdraw those claims. The Tribunal outlined and explained the provisions of s 423A of the Act and asked the applicant to explain why his current claims were not made before the primary decision was made. The applicant acknowledged that the claims made in his protection visa application were untrue but confirmed that he had signed the application. When asked why he had allowed a document containing false information to be filed with the Department he responded that he did not want to stay in Australia illegally and he only wanted to be with [Ms A] who had arranged their protection visa applications. Even accepting the applicant’s explanations, the Tribunal does not consider it reasonable to trust someone you do not know to complete a claim for a visa and then blindly sign that document, acknowledging its content is true and correct, without even checking it. While the Tribunal is satisfied that the applicant does not have a reasonable explanation for failing to make these claims before the primary decision was made, given its findings below, the adverse inferences required to be drawn as to these new claims are somewhat overcome by the Tribunal’s overall assessment of the applicant’s evidence and its findings below.
Credibility assessment
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[5] If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[6] The Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.[7]
[5] SZLVZ v MIAC [2008] FCA 735 [28].
[6] MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.
[7] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 (Heerey J); and Kopalapillai v MIMA (1998) 86 FCR 547.
Overall, the Tribunal found the applicant’s claims to be credible as they were supported by independent country information and objective and substantiating evidence.
Refugee assessment
Section 5H(1) of the Act provides that a person is a refugee if, in the case of a person who has a nationality, is outside the country of that nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themself of the protection of that country. As noted above, the applicant’s nationality is Malaysian and he is outside that country.
Section 5J of the Act provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a))?
The applicant claims to fear harm in Malaysia because he is a transgender man. On the basis of his detailed and consistent evidence, both written and oral, and the corroboration provided by photographs and medical information supplied, the Tribunal accepts that:
·     the applicant is an ethnic Malay of the Muslim faith;
·     he was born a female but became aware, when he was young, that he was attracted to females;
·     he later became aware that he is transgender;
·     he had to hide his sexuality because of disapproval from family and neighbours and society in general;
·     he experienced discrimination and harassment from police and neighbours in Malaysia when dressed as a man;
·     he has purchased and uses hormone therapy in Australia and is proceeding to fully transition to a male;
·     he is in a long-term and committed relationship with [Ms A];
·     if they are returned to Malaysia their relationship will continue.
The Tribunal also accepts that he does not believe he can live safely in Malaysia as a transgender man and fears persecution if he returns to Malaysia, specifically, because it is illegal to be transgender in Malaysia, that he will be arrested and/or charged unable to gain employment, will be ostracised by society and will be the subject of physical harassment and violence.
On the basis of the above findings, the Tribunal is satisfied that the applicant has a subjective fear of being harmed in Malaysia for reasons of his membership of the particular social group of ‘Malay transgender men of the Muslim faith’. The characteristic the applicant shares with this group is the combination of his faith and sexual orientation which, as the applicant’s evidence confirms and the Tribunal accepts, is so fundamental to his identity that he should not be forced to renounce it. This group is distinguished from Malaysian society by this characteristic, which is not a fear of persecution (s 5L).

Whether the harm he fears amounts to ‘persecution’ is assessed by reference to s 5J(4) which requires that the membership of a particular social group must be the essential and significant reason for the persecution, it must involve serious harm to the person and must involve systematic and discriminatory conduct. On the basis of the accepted evidence, the fact that the applicant is a Muslim transgender man is clearly the significant and essential reason for the persecution he fears. That harm is readily assessed as involving systematic and discriminatory conduct because it is, at least in part, the consequence of laws deliberately enacted and enforced by the State and the religious authorities. That is, it is, ‘deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental’.[8] Whether it involves serious harm is discussed further below.
Is there a real chance that, if the applicant is returned to Malaysia, he will be persecuted for reason of his membership of the particular social group? (s 5J(1)(b))
[8] SZTEQ v MIBP (2015) 229 FCR 497, 72. See also SZTIB v MIBP [2015] FCAFC 40 and BZAFM v MIBP [2015] FCAFC 41.
Section 5J(1)(b) requires that, for the fear of persecution to be well-founded, there be a real chance that, if the applicant is returned to his receiving country, he will be persecuted for this reason. That is, not only must the person fear persecution there must also be a prospect of that fear being realised. Mere speculation will not constitute a well-founded fear of persecution. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[9]
[9] MIEA v Guo (1997) 191 CLR 559, 572.
In this context the Tribunal has had regard to a variety of independent country information sources which discuss the treatment of LGBT people and, specifically, transgender people in Malaysia who are Muslim.
For example, DFAT reports[10] as follows:
[10] Australia. Department of Foreign Affairs and Trade. ‘DFAT Country Information Report Malaysia’ 29 June 2021 (DFAT Malaysia report).
Sexual Orientation and Gender Identity
As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration). Oral heterosexual sex performed upon a man is also an offence, although DFAT is not aware of any prosecutions for this act; oral sex performed upon a woman is not an offence.
Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional. This means that the federal law stands, but that State laws against same-sex sexual activity are invalid. In-country sources reported in 2022 that three states added new laws relating to LGBTQIA+ people based on syariah over the last five years.
While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men.
Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen.’ In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.
JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP and the Federal Territories Islamic Religious Department (JAWI) raided a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur and arrested at least 20 people. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. State officials have conducted raids on private premises, sometimes accompanied by members of the RMP. Some in-country sources reported that authorities conducted such raids as a means of creating income through extortion and blackmail.
Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. 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 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.[11]
…
Transgender People
While cross-dressing is not technically illegal under civil law, state-level police have arrested transgender women under the Minor Offenses Act (1955) for public indecency and immorality, and under syariah-based laws against impersonating women. A transgender individual was permitted to change their name, sex marker, and related last digit on their MyKad in 2005, but this has not been repeated. The National Registration Department does not generally allow transgender people to access such changes. In 1983, the National Fatwa Council banned Muslims from undergoing sexual reassignment surgery (SRS). However, SRS remains available in some private medical centres in Malaysia
…
In October 2020, officers from the Kedah Islamic Religious Department (JAIK) raided a private birthday event attended by 30 transgender Malaysians. A JAIK spokesperson said all 30 attendees would be investigated under Section 36 of the Kedah Syariah Criminal Enactment (2014) and could face fines up to MYR 1,000 (AUD 320) and/or jail for six months. In 2021, Nur Sajat, a high-profile cosmetics entrepreneur and transgender woman, was charged with ‘dressing up as a woman at a religious event’ and ‘bringing Islam into contempt’ in the Shah Alam Syariah High Court. She pleaded not guilty. According to local media, Nur Sajat was arrested by the Selangor Islamic Religious Department (JAIS) in a violent fashion; those who arrested her were called in to give statements following her complaint of being ‘roughed up’. In February 2021, Nur Sajat went into hiding after failing to appear in court.
Transgender men are much less visible than transgender women; they often ‘pass’ as ‘cis men’ and consequently face fewer barriers to access to employment. Access to health care for transgender men can be difficult; hormonal treatment is more expensive than for transgender women. The ability of many transgender men to pass as cis men means that the levels of discrimination and harassment that they face are generally lower than that experienced by transgender women, although most are cautious to avoid being outed to continue living as their preferred gender.
The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah. In-country sources also told DFAT that most transgender individuals from Sarawak and Sabah relocated to Kuala Lumpur for employment and to escape discrimination.
DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence.[12]
[11] DFAT Malaysia report, paragraph 3.127-3.131.
[12] DFAT Malaysia report, paragraphs 3.139, 3,145-3.148.
And in ‘Common claims’[13] the Department of Home Affairs relevantly assesses (footnotes omitted):
Muslim transgender individuals are liable for prosecution under syariah law. Authorities often charge transgender persons for cross-dressing with ‘indecent behaviour’ and also for ‘importuning for immoral purposes’ in public, and those convicted are liable for a fine of 25 ringgit and potentially a prison sentence of up to 14 days. Justice for Sisters, an advocacy group for the LGBTI community, said it has experienced difficulty obtaining legal representation for its clients who were charged under anti-crossdressing state Islamic laws. Due to their increased visibility, transgender persons are vulnerable to raids by religious authorities and subsequent placement in re-education centres.
Transgender individuals experience discrimination and occasional violence. Transgender people may face discrimination in many facets of society, including education, employment, healthcare, and housing. Transgender individuals can face discrimination in public healthcare facilities, including undergoing forcible HIV/AIDS testing or being housed in male wards where they can be exposed to violence and abuse. Justice for Sisters report that between 2014 and 2019 there have been 10 known cases of transgender murders, but note that some murders are unlikely reported. During 2023, there were reportedly five transgender deaths. A 2018 survey by a local transgender rights group reported more than two-thirds of transgender women experienced some form of physical or emotional abuse.[14]
[13] Australia. Department of Home Affairs. Country of Origin Information Services. Malaysia. Effective 14 August 2024.
[14] Op. cit., page 9.
And the US Commission on Religious Freedom 2023 Annual Report states:
Malaysia’s state-level Syariah systems also place undue burden on Muslim members of the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community. In several states, religiously based laws criminalize sexual relations for LGBTQI+ people and permit caning and imprisonment as punishment. In October, JAKIM officers joined the police in raiding a Halloween-themed party in Kuala Lumpur for the local LGBTQI+ community, detaining only those whose MyKad cards identified them as Muslims. LGBTQI+ community members in other parts of the country reported similar incidents in 2022, indicating that local authorities have repeatedly attempted to disrupt LGBTQI+ events under the pretext of preventing Muslims from attending. Furthermore, the JAKIM, in coordination with its state-level counterparts, continued to organize mukhayyams (conversion therapy camps) to target and compel Muslim members of the LGBTQI+ community to undergo “rehabilitation.” The government reported that it had subjected at least 1,733 LGBTQI+ people to these programs in 2021, but it has not released numbers for 2022.[15]
[15] United States. Commission on International Religious Freedom. 2023 Annual Report: ‘Malaysia’ at page 63, (https:// accessed 4/1/24).
The above country information confirms that transgender individuals, in particular those of Muslim faith, in Malaysia, suffer from widespread discrimination and harassment, including prosecution, forced conversion therapy and physical and societal violence. Considered cumulatively with the applicant’s accepted evidence, the Tribunal is satisfied that, because he is a transgender Muslim man, there is a real chance that now and in the reasonably foreseeable future, the applicant would be subject to such treatment if he is returned to Malaysia. Whether this treatment constitutes a real chance of ‘persecution’ however, also requires further consideration of whether that real chance he faces is of ‘serious harm’.
Serious harm
Section 5J(5) contains a non-exhaustive list of what constitutes ‘serious harm’ for the purposes of s 5J(4)(b).
The comments of Mason CJ in Chan v MIEA are relevant to this assessment:
…the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage ... Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason. The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm ...[16]
In the same case, McHugh J stated:
…to constitute “persecution” the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute “persecution” for the purposes of the Convention and Protocol. Measures “in disregard” of human dignity may, in appropriate cases, constitute persecution.[17]
…the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.[18]
[16] Chan v MIEA (1989) 169 CLR 379, 388 (Chan). See also SZTEQ v MIBP (2015) 229 FCR 497, 99–100; SZTIB v MIBP [2015] FCAFC 40 and BZAFM v MIBP [2015] FCAFC 41.
[17] Chan, 430.
[18] Chan, 431.
According to Human Rights Watch,[19] in Malaysia ‘parties can act against LGBT people with impunity, including physical assaults’:
Through successive governments, the Malaysian state’s position has been unambiguous: LGBT people should change their gender identity or sexual orientation or should be prepared to face the consequences of social ostracization, discrimination, humiliation and violence.. State-sponsored conversion efforts primarily target Muslims…[20]
…
In constantly pathologizing LGBT people and upholding discriminatory laws, Malaysia’s government contributes to a climate in which LGBT people are viewed as less than full citizens and, as evidenced by this report, are subjected to violence with impunity. [21]
…
Malaysian law provides for caning as a punishment for several offenses, including- under both federal law and State sharia enactments – consensual same-sex conduct. Caning as a punishment for a criminal offense is a form of torture. Conversion practices can amount to cruel, inhuman and degrading treatment.[22]
[19] ‘I don’t want to change myself: anti-LGBT Conversion practices, Discrimination, and Violence in Malaysia’ Human Rights Watch, 2022.
[20] Ibid, page 18.
[21] Ibid, page 59.
[22] Ibid.
More recently, the United States Department of State reported regarding Malaysia:[23]
[23] U. S. Department of State. Bureau of Democracy, Human Rights and Labor. 2023 Country Reports on Human Rights Practices. April 22 2024. ‘Malaysia’ (USDOS report Malaysia).
ACTS OF VIOLENCE, CRIMINALIZATION, AND OTHER ABUSES BASED ON SEXUAL ORIENTATION, GENDER IDENTITY OR EXPRESSION, OR SEX CHARACTERISTICS
Criminalization: All same-sex sexual conduct was illegal under both federal law and state sharia provisions. Under the law, sodomy and oral sex acts were classified as “carnal intercourse against the order of nature” for which the federal penal code imposed a sentence of 20 years in prison and mandatory caning, although it was not actively enforced. State sharia provisions, enforced by state Islamic religious departments and applicable only to Muslims, permitted caning for acts such as consensual same-sex sexual relations and for the offense of “a man posing as a woman.”
Violence and Harassment: Observers reported violence against lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody. According to local advocates, imprisoned transgender women usually served their sentences in prisons designated for men and both police and inmates abused them sexually and verbally.
In October police found a trans woman dead with injuries to the head and face in a pedestrian tunnel in Johor State. Observers noted at the time this was one of five known cases of transgender deaths of unnatural causes during the year.
Discrimination: The law did not prohibit discrimination based on sexual orientation, gender identity or expression, or sex characteristics and did not recognize LGBTQI+ individuals, couples, or their families. LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality. The government did not recognize same-sex marriage nor grant LGBTQI+ couples and their families the same rights accorded to other couples.
The Global Trans Rights Index noted trans persons in the country faced significant discrimination and were targeted by police. Authorities often charged transgender persons with “indecent behavior,” as “a man posing as a woman,” or for “importuning for immoral purposes” in public, even if they were not soliciting. A person convicted of a first offense faced a token fine and a maximum sentence of 14 days in jail; sentences for subsequent convictions were fines and up to three months in jail.
The NGO Justice for Sisters documented recurring anti-LGBTQI+ statements made by at least five members of parliament during June 12 debate on the 2023 SUHAKAM report.
In June opposition member of parliament Wan Ahmad Fayhsal Wan Ahmad Kamal proposed the country adopt Russia’s anti-LGBTQI+ propaganda law to “protect the nation’s children” from LGBTQI+-related content in social and mainstream media.
Availability of Legal Gender Recognition: There was no legal process to allow individuals to update their gender markers on identity documents. An August 2022 NGO report stated almost all transgender individuals known to have requested such changes were turned down.
Involuntary or Coercive Medical or Psychological Practices: The federal government funded retreats known as mukhayyam (rehabilitation) aimed at LGBTQI+ individuals.
In parliament on October 18, Minister in the Prime Minister’s Department (Religious Affairs) Mohd Na’im Mokhtar said the Islamic Development Department was working with other ministries to “curb perverse activities such as being a lesbian, gay, bisexual, or transgender person.” He added that during the year, 220 persons were involved in mukhayyam programs to provide religious guidance and health awareness. He said the government was “consistent” in its stance that the “practice of LGBTQI+ is unacceptable in the Islamic community.”
[24] USDOS Report Malaysia. Section 6: Discrimination and Societal Abuses.
There was no information on the extent to which persons attended these retreats voluntarily or were coerced into attending, though anecdotally, some members of the LGBTQI+ community attended these retreats voluntarily. State religious authorities reportedly forced LGBTQI+ persons to participate in “conversion therapy,” “treatment,” or “rehabilitation” programs to “cure” them of their sexuality. “Malaysia’s current rehabilitation and criminalization approaches to LGBT people,” commonly referred to as “returning someone to the right path,” “are based neither in rights nor evidence,” said Thilaga Sulathireh, cofounder of the NGO Justice for Sisters in June.[24]

The Tribunal is satisfied that the harm the applicant fears would involve serious harm because, as the country information confirms, the treatment of LGBT individuals, in particular, transgender persons, by the community, includes, among other things, significant physical harassment or ill-treatment and the denial of the capacity for them to earn a livelihood (s 5J(5)(b),(c) and (d)). The State and Sharia laws specifically target same sex activity and impose severe sanctions of imprisonment and whipping. Even acknowledging that the relevant State law appears to have been rarely enforced,[25] as observed by the High Court in not dissimilar circumstances to those presently under consideration, ‘[i]t is the threat of serious harm with its menacing implications that constitutes the persecutory conduct’[26] and amounts to an instance of ‘serious harm’ (s 5J(5)(a)).
[25] Above, n1.
[26] Appellant S395/2002 v MIMA (2003) 216 CLR 473 [43] (Kirby and McHugh JJ).
This serious harm risk is reinforced by the applicant’s convincing evidence of discrimination and degrading treatment he has received from his family and community members. The Tribunal accepts that the applicant had been forced to hide his sexuality when living in Malaysia because he feared being harmed by the State and/or religious authorities and/or his family due to the illegality of homosexuality/same sex relationships/transgender identification under the State laws and Sharia laws.
For the above reasons, the Tribunal is satisfied that the persecution feared by the applicant would involve serious harm within the meaning of s 5J(4)(b) and s 5J(5).
Considering the totality of the evidence, taking into account the credible and persuasive oral and written evidence of the applicant and [Ms A], the photographs confirming his relationship with her, the evidence of his ongoing hormone therapy treatment, and the above independent country information, the Tribunal is satisfied that if the applicant is returned to Malaysia, there is a real chance that now and in the reasonably foreseeable future, he would be persecuted for the essential and significant reason of his membership of the particular social group, ‘Malay transgender men of the Muslim faith’ (s 5J(1)(b)).
Does the real chance of persecution involve all areas of the receiving country?
Because the State and Sharia laws apply across the country, the Tribunal is satisfied that the real chance relates to all areas of the country (s 5J(1)(c)).
Country information confirms that the Malaysian authorities have been responsible for arrests, violence, detentions, harassment and discrimination towards LGBT persons with reports of the police physically and sexually assaulting them. The UK Home Office assesses that the state appears able but unwilling to offer protection to the LGBT community in Malaysia.[27] As the State and religious authorities are in part the perpetrators of the harm, the Tribunal is satisfied that there are no effective protection measures available to the applicant in Malaysia (ss 5J(2) and 5LA).
[27] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
There are no ‘reasonable steps’ he could take to modify his behaviour because to do so would require him to ‘alter his sexual orientation or gender identity or conceal his true sexual orientation’ (s 5J(3)(c)(vi)).
There is no information before the Tribunal that the applicant has a right to enter and reside in any other country. Consequently s 36(3) does not apply.
Conclusion
Accordingly the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Malaysia and that he is a person in respect of whom Australia has protection obligations under s 36(2)(a) 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.
Mary-Ann Cooper
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 4166

29 August 2024

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