1806617 (REFUGEE) - [2024] ARTA 162

1806617 (REFUGEE) [2024] ARTA 162 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1806617
Tribunal:General Member M Tubridy
Date:19 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 19 December 2024 at 4:48pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – a gay man – race – an ethnic Malay Muslim – provided no documentary evidence – contrived to present himself as a gay man for the purpose of obtained a protection visa – not satisfied that the applicant would for the foreseeable future face a real chance of harm of any kind – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister on 27 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (the Department), 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.
REASONS AND FINDINGS
Receiving country
The applicant claims to be a citizen of Malaysia. He has indicated that he was a citizen of Malaysia at birth, and that he was born in Malaysia (in Pahang) to parents who were both citizens of Malaysia. I note that Part 2, Article 14, of the Federal Constitution of Malaysia provides that a person is a citizen of the Federation of Malaysia by operation of law if they were born on or after 16 September 1963 within the Federation of Malaysia to parents of whom at least one was a citizen or a permanent resident at the time of birth.[1] He has presented a copy of his Malaysia issued passport and this presents him as a national of Malaysia who was born in Malaysia. I find the applicant to be a national of Malaysia, and I find Malaysia to be the applicant’s receiving country for the purpose of this review.
[1] 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; Canada IRB, ‘Malaysia: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognized and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship, 16 November 2007, MYS102621.E.
Protection claims
The applicant claims to fear that if he returns to Malaysia he will suffer various forms of mistreatment from both members of his family, and also from the broader Malaysian community and its authorities, because he is a gay man and he practices LGBT (lesbian, gay, bisexual, and transgender) culture.
12 December 2017 protection visa application
On 12 December 2017 a protection visa application was lodged in the applicant’s name. This presented the applicant as an ethnic Malay Muslim who was literate in English and Malay and who was born in Pahang in [year]. It presented the applicant as a gay man who had left Malaysia for Australia in September 2017 because of how his family and local community had reacted to learning that he was gay. The background to this was presented as follows: When he reached puberty, he began to have strong feeling towards guys. He was uncertain about his feelings but decided to go on a date with a guy via a dating application called [social media]. They started dating but when the applicant’s parents found out they repelled him from the house, and he was disowned by his family. In Malaysia he was non-existent as visibility would have cost him jail time, ‘corrective’ re-education, forced marriage, banishment, beatings or even death.
The protection visa application form asked the applicant various questions about the applicant’s background. Relevantly, this included a request for the applicant to provide details about his family members (including the name, date of birth, and whereabouts) of parents and any siblings), and also his personal history in terms of residential addresses, education, employment and international travel. In response, the applicant’s December 2017 protection visa application listed a current address in Australia, and it also indicated that he had travelled to [Country 1] for a vacation on three occasions (in April 2015, April 2016, and April 2017) but beyond this no information was provided in response to questions about the applicant’s person history, with the response to these questions being: ‘N/A’.
The December 2017 protection visa application attached no evidence in support of the applicant’s claims other than a copy of his April 2020 issued passport. The December 2017 protection visa application presented as having been completed by the applicant without assistance from any other party.
27 February 2018 refusal
On 27 February 2018 the delegate refused to grant the visa. The delegate was not satisfied (on the basis of the country information) that homosexual persons in Malaysia faced a real chance of serious harm or a real risk of significant harm. A copy of this decision was emailed to the applicant by the Department that same day, 27 February 2018. The Department’s refusal notification advised the applicant that, if he wished to seek review of this decision, he had 28 days to lodge an application for this with the AAT.
12 March 2018 application for review
On 12 March 2018 an application was lodged with the Tribunal for review of the delegate’s decision the refuse to grant the applicant a protection visa. On 14 March 2018 the Tribunal emailed the applicant that his application had been received. The Tribunal advised the applicant that if he wished to provide material or written arguments for the Tribunal to consider he should do so as soon as possible. This was repeated in an information sheet which also explained that (if he provided further information or evidence which was not given to the Department) the Tribunal would, in certain cases, need to consider the credibility of what he had provided and why this was not provided to the Department. Nothing was received from the applicant in response. Over subsequent years the Tribunal did receive occasional yearly telephone calls from the applicant in which he requested a letter to enable his continued access to Australia’s Medicare universal health insurance scheme. He also telephoned the Tribunal to update his current residential and telephone number details. But he did not indicate that he wished to provide any information which he considered was relevant to the review of the Department’s decision to refuse him a protection visa.
19 October 2023 statement
On 5 October 2023 the Tribunal emailed the applicant and advised him that his file was being prepared to be given to a Tribunal Member. The Tribunal invited the applicant to complete a pre-hearing information form (about his availability to attend a hearing, and whether he had any further information he wished to provide about his claims, and also whether he had any family members in Australia who had a case with the Tribunal). On 19 October 2024 the applicant submitted the completed form with an indication that he was willing to attend the hearing. Relevantly, in response to the questions about whether he had any family members in Australia who had a case with the Tribunal (including brothers or sisters) no information was entered into the accompanying response table.
He did, however, attach a written statement (hereafter the October 2023 statement) in English. This presented as having been authored by the applicant, and in this he submitted that his December 2017 protection visa application had been completed by a ‘visa agent named [Agent A]’. The applicant submitted that he had told [Agent A] that he (the applicant) was a person who practices LGBT (gay) culture and ran away from his family because he was forced to marry the family's choice without his consent. His protection visa application had subsequently been refused and he had applied for review with the Tribunal, and he now wanted to tell what had happened to him in Malaysia and the threat he would face as part of a group that practices LGBT (gay) culture. The October 2023 statement submitted that the circumstances in the applicant’s life had been as follows:
During his final years at school, he came to have feelings for a senior student who was the head of their dormitory, Brother H. But he was afraid to express these feelings because he was studying at a religious school, and his family had a firm belief in religious education, and he was afraid the senior student might reject him and make a report about the matter. In 2007 he completed his schooling and began a [course] and tried to get rid of his feelings for men. During this time, he tried to begin a relationship with a woman. He developed a relationship with a Ms T and decided he had feelings for her. But when he shared these feelings, she rejected them and said she considered him a normal friend. He was upset by this and decided to no longer have feelings of love for any woman.
In 2012 he found employment as a [occupation]. In 2015 he was tasked with training a new employee, a Mr A, who the applicant developed feelings for. They became friends and went on holiday to [Country 1] together in April 2016. In May 2017 while at a restaurant the applicant told Mr A about his feelings for him. Mr A labelled the applicant as gay, and shouted abuse at him. The applicant left in a state of shame and confusion. He told his mother he was not feeling well, and he locked himself in his room for a week because he was too afraid to face society. He then worked up the courage to go to work, but when he got there everyone looked at him askance and came up to him and said he was gay, and a week later Mr H decided to fire the applicant with the excuse of maintaining harmony at work. The applicant was paid compensation by the company.
When the applicant returned home his mother and father were in front of the house waiting for him. His father slapped him and was yelling about what had happened at the restaurant. The applicant was shamed by his father, and this was witnessed by their neighbours. His father locked him in the house and threatened that if he tried to leave, he (the father) would report the applicant to the police to take him to a moral rehabilitation centre for people who practice LGBT culture. His father also made plans to marry the applicant to a cousin. The applicant suffered from depression and emotional stress during this time, and after two months of being kept in the house he reached a point where he could no longer bear the situation. On 10 August 2017 at 2am he took his car keys and headed to Kuala Lumpur to start a new life.
But, after a few weeks, he still felt unsafe because he felt his family could still find him. After doing research (about rights and protection for persons who practice LGBT culture) he chose Australia as his destination. He sold his car and emptied his Malaysian bank account to support his life in Australia, and applied for a visa, and then travelled to Australia. He fears that if he were to return to Malaysia: society would down on him for practicing LGBT culture; and: his mother and father would send him to a moral rehabilitation; and: at his current age, if still unmarried, he would be questioned by society as in Malaysia it is strange to still be unmarried at his age; and: he would be forced to marry without his consent; and he would not get basic rights and protection from the government because he practices LGBT culture.
19 December 2023 invitation to hearing
On 19 December 2023 the Tribunal emailed the applicant and advised him that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited the applicant to appear before it on 30 January 2024 to give evidence and present arguments relating to the issues arising in his case.
25 January 2024 submission
On 25 January 2024 the applicant responded that he would attend the hearing. He also submitted, as evidence of his claims, several photographs said to be of himself and Mr A. I have considered these, and I note that some of these show the applicant in the company of another man, while others appear to show the applicant and the other man engaged in a video call to each other. I accept that the applicant has kept company with this man as per the photographs. But the photographs do nothing to establish that the applicant had feelings for this man that went beyond friendship, or that he was sexually attracted to this man, or that the applicant disclosed any feelings of this kind to this person which were rebuffed.
January 2024 hearing
In January 2024 the applicant appeared before the Tribunal at a hearing to give evidence and present arguments relating to the issues arising in his case. The applicant indicated that he could speak English, but only a little, and his preferred spoken language was Malay; and the hearing was conducted with the assistance of an interpreter in the Malay and English languages. Relevantly, the following was discussed:
Asked what he meant when he claimed he practised LGBT culture. The applicant said that by this he meant being together and holding hands with, and loving and making love to, other men. Asked if he had ever had any such relationships with any men while in Malaysia, the applicant said that he had tried to have a relationship with Mr A had not accepted this. Asked if he had had any such relationships in Australia, the applicant said that he had with a Mr RE who the applicant had met at [a venue] in Sydney, and the relationship had lasted a year but had ended because they began to quarrel over small things and were both busy with work. Asked if he had any evidence of this relationship the applicant said he did not because he had deleted all of his photographs and other information about Mr RE because he had not wanted to recall his memories of Mr RE.
Asked if he had had any other relationships like this in Australia, the applicant said he had not and that he was mainly concentrating on work, but he had made many LGBT friends in Australia, and that this included a Mr RM with whom he worked and had been friends for two years; and also Malaysia’s most famous LGBT person, Nur Sajat,[2] who was now residing in Australia. The applicant said he first met Nur Sajat two years ago at a party held by his friend Mr J who was also LGBT and from [Country 1]. I asked the applicant if he was saying that he and Nur Sajat were friends. In response, the applicant said they were not close but they had met. Asked how many times they had met, the applicant said: five times. Asked about his friendship with Mr J the applicant said this was a friend he had met via social media.
[2] SBS News, ‘Malaysian transgender woman Nur Sajat feels 'happy and free' in Australia’, 21 October 2021, ; Barker, A. ‘Malaysian transgender entrepreneur Nur Sajat fled her home, family and business in fear for her life. Now she's safe in Australia’, ABC News, 23 October 2021,
I asked the applicant what social media platforms he made use of to meet LGBT people in the manner he claimed. the applicant said he used [an app], and [social media], and [Social media 1], and that he used [Social media 1] in particular for meeting people and that he had been using [Social media 1] since he first arrived in Australia. I invited the applicant to provide evidence to the Tribunal of his having used social media to meet men and others in the LGBT community in this way. I asked the applicant how long he considered he would need to provide this information to the Tribunal. The applicant indicated that he would require about a week. I informed the applicant that the Tribunal would undertake not make a decision until after 13 February 2024 to enable him to provide this evidence, and that if he wanted to the Tribunal to give an assurance that it would delay his decision longer to enable this, he could request this also. No such evidence was, however, ever received from the applicant nor did he submit any subsequent explanation for why he had provided no such evidence of his claims.

Toward the end of the January 2024 hearing, I put it to the applicant that it was a concern that the details of his personal history were so different in his 2017 protection visa application compared to what he was claiming now. I noted, in this regard, that the 2017 protection visa application had submitted that in Malaysia he had started dating a man he met on [social media] and when his parents found out they expelled him from the house and his family had disowned him; whereas now he claimed that he had never had any same sex relationships in Malaysia, and (after being publicly rejected in this regard) his father had sought to imprison him in their home. In response, the applicant submitted that he had signed his 2017 protection visa application, but that he was otherwise unaware of what information his then agent had included in terms of the story it presented.
Another concern which I discussed with the applicant at the January 2024 hearing related to his brother Mr Z (and to Mr Z’s wife Ms N, and their children Mr U and Mr Y). As has been noted above the applicant’s the 2017 protection visa application provided no details as to the names and whereabouts of the applicant’s parents and/or siblings, or any other family members. At the January 2024 hearing when I asked the applicant about his family composition, he indicated that he had several siblings and that this included a Mr Z who was married to a Ms N and who had two children: Mr U and Mr Y. This was potentially a concern as it was apparent from Tribunal records that persons of this name were residing at the same address as the applicant and had also applied for review after having protection visa applications refused. When I asked the applicant about Mr Z’s current circumstances the applicant said that Mr Z was working in [Malaysia], but he did not know where. Asked when he last spoken with Mr Z, the applicant said that this had been a long time ago at some point in 2023. Asked when he had had last seen Mr Z face-to-face, the applicant said this had been a year before he arrived in Australia. Asked whether he could return to Malaysia to reside with Mr Z, the applicant said Mr Z was okay but Mr Z’s wife did not like him (the applicant) and when he called Mr Z she would tell Mr Z not to talk to the applicant, and Mr Z himself remained very upset with him (the applicant) for being gay, though Mr Z still thought of him (the applicant) as his brother.
Later in the hearing I asked the applicant about who was residing with him in Australia. The applicant said there was a person residing there named Mr F who was also from Malaysia. Asked if this person belong to the LGBT community, the applicant said he was not, and that he was not living with anyone from the LGBT community as he had just found his current residence on the Internet and rented a room there and various people came-and-went from property renting a room. Asked if anyone else was currently residing at his address, the applicant said it was just Mr F.
I then explained to the applicant that I needed to put to him some information which, subject to his comment or response, would be the reason or part of the reason for affirming the decision not to grant him the visa. I explained to the applicant that I would give him the particulars of the information, and then I would explain its relevance, and once I had confirmed with him that he understood the information and its relevance he could comment or respond, and/or he could make a request for additional time to do this.
I then put it to the applicant that there was information before the Tribunal to indicate that a Mr Z, and also a Ms N and her children Mr U and Mr Y, were all residing at the same address in Australia as the applicant. I explained that I might conclude from this that he (the applicant) had been residing in Australia with his brother Mr Z and also Mr Z’s wife Ms N and their children Mr U and Mr Y. I explained that this could raise doubts about the credibility of the applicant’s claim that his family members had had a problem with his being gay, and it might also lead the Tribunal to conclude that he was not gay or LGBT. I explained to the applicant that, if the Tribunal reached these conclusions, it might not be satisfied that he would be at risk of any harm if he returned to Malaysia.
I asked the applicant whether he understood the relevance of the information. He said he did. Asked if he wanted to comment or respond, he said he had nothing to say. I asked the applicant if he could tell me whether it was the case that he was currently residing with his brother Mr Z and with Mr Z’s wife Ms N and their children Mr U and Mr Y. The applicant indicated that he did not know because he lived in a rented room and spent most of his time there when not at work. Asked if he would like more time to respond to the Tribunal’s concerns, the applicant said he would. Asked whether he would like to do this orally at a resumed hearing, or in writing, the applicant said that he would like to respond in writing and he asked if he could have a week to do this. I informed the applicant that the Tribunal would undertake not make a decision until after 13 February 2024 to enable him to provide this evidence, and that if he wanted to the Tribunal to give an assurance that it would delay his decision longer to enable this, he could request this also.
8 February 2024 submission
On 8 February 2024 the applicant submitted written statement in English to the Tribunal. Relevantly he submitted that he had not known about the whereabouts of his brother in Australia until he was informed of this at the January 2024 hearing, and that (as per his evidence at the January 2024 hearing) the last time he saw his brother was before his (the applicant’s) 2017 arrival in Australia, and the last time he spoke with his brother was a telephone call of 2023. The applicant submitted that until the January 2024 hearing he had not been aware he had any relatives in Australia because, as per his evidence at the January 2024 hearing, his brother’s wife Ms N did not like him (the applicant) and had not allowed his brother Mr Z to have contact with him (the applicant) since their telephone call of 2023. The applicant submitted that: after the January 2024 hearing he had contacted his brother to get confirmation about his whereabouts in Australia or not; and during this telephone call: Mr Z initially denied being in Australia he eventually confessed that he was. The applicant submitted that he had previously been unaware of this.
April 2024 invitation to comment or respond
On 10 April 2024 the Tribunal emailed the applicant and put its concerns about this matter to the applicant in expanded detail. In doing so, the Tribunal explained to the applicant that he was being invited to comment or respond to information which, subject to his comment or response, would be the reason of part of the reason for affirming the decision to refuse to grant him a protection visa. This information was put to the applicant and its relevance was explained as follows:
First there was the information that: the applicant’s brother Mr Z had indicated that (after he arrived in Australia in March 2018) he resided with the applicant at an address in [a suburb] NSW, and then at an address in [another suburb] NSW, and then at their current address in [suburb] NSW; and: the applicant’s sister-in-law Ms N had indicated that (after she arrived in Australia in June 2019 accompanied by her children) she and her husband, Mr Z, and their two children, had resided with the applicant at the address in [the second suburb] NSW, and then at their current in [suburb] NSW. It was explained that this information was relevant because it might lead the Tribunal to conclude that these persons had resided with the applicant since their respective arrivals in Australia March 2018 and June 2019, and this could raise doubts about the applicant’s claim that he was previously unaware (until alerted to this by the Tribunal at the January 2024 hearing) that his brother Mr Z was in Australia and residing the same address as him. It was further explained that the information might also raise doubts about the applicant’s claim that Mr Z and Ms N had a problem with him for being gay, and the Tribunal might not accept that the applicant had ever had any family problems of this kind, or that he was gay or an LGBT person, or that he would be at risk of harm on this basis if he were to return to Malaysia.
Second there was the information that: in June 2018 the applicant’s brother Mr Z had lodged a protection visa application which was completed in handwriting which matched the handwriting in which the applicant’s own protection visa application was completed; and: in 2024 Mr Z told the Tribunal that his protection visa application was completed with the assistance of a person named [name] (who was connected to [Agent A]) who Mr Z had been introduced to by the applicant. It was explained that this information was relevant because it might lead the Tribunal to conclude that the applicant was aware that Mr Z was in Australia from the time of Mr Z’s arrival, and that that the applicant provided him with assistance in lodging a Protection visa application. It was further explained that this might raise doubts about the applicant’s claim that he was previously unaware (until alerted to this by the Tribunal at the January 2024 hearing) that his brother Mr Z was in Australia and residing the same address as him. It was further explained that the information might also raise doubts about the applicant’s claim that Mr Z and Ms N had a problem with him for being gay, and the Tribunal might not accept that the applicant had ever had any family problems of this kind, or that he was gay or an LGBT person, or that he would be at risk of harm on this basis if he were to return to Malaysia.
Third there was the information that: in June 2018 the applicant’s brother Mr Z had lodged a protection visa application in which he claimed that his being gay and having a boyfriend (that is, Mr Z’s being gay and having had a boyfriend) was not accepted by his family. In this application Mr Z gave no indication that anyone else in his family was attracted to men or had been similarly treated, and Mr Z did not provide any information in response to the protection visa application form’s request for details about his family members (including their names and whereabouts). The application was completed in handwriting which matched the handwriting in the applicant’s own protection visa application was completed. It was explained that information was relevant because the fact that M Z had made no mention of having a brother who was attracted to men might lead the Tribunal to have doubts about the applicant’s claim that he (the applicant) was gay. Further, the fact that Mr Z and also the applicant had provided no information about the identities or whereabouts of their family members in their protection visa applications, and that their applications were completed in the same handwriting, and which put forward similar claims in which they both claimed to have been rejected by their family members after entering into a relationship with another man, might lead the Tribunal to conclude that the applicant and Mr Z had jointly planned: to obtain a protection visa by falsely presenting themselves as being attracted to men; and: to arrive in Australia separately, and to withhold information about their family composition, so that they would not be identified as brothers (as this would have undermined their claim to have been rejected by their family members, and would enable comparison of their claims which would raise concerns about collusion and that they had fabricated their claims). It was explained that the Tribunal might not accept that the applicant was gay or an LGBT person, or that he would be at risk of harm on this basis if he were to return to Malaysia.
Fourth there was the information that: In March 2024 the applicant’s brother Mr Z provided a written statement to the Tribunal (after being invited to attend a Tribunal hearing) in which he asserted that in Malaysia in 2014 his parents learned he was attracted to persons of the same sex, and that they locked him up and began making plans to find him a partner; and: Mr Z gave no indication that anything similar had ever happened to another member of his family. It was explained that this information was relevant because in 2023 the applicant had likewise provided a written statement to the Tribunal (after being invited to attend a Tribunal hearing) in which he made similar claims. Like Mr Z, he gave no indication that anything similar had ever happened to another member of his family. It was put to the applicant that the manner in which he and Mr Z had recently provided such similar claims might lead the Tribunal to conclude that they had jointly contrived to falsely present themselves as having had problems of this kind for reason of being attracted to men. It was explained that the Tribunal might not accept that the applicant had ever had any family problems of this kind, or that he was gay or an LGBT person, or that he would be at risk of harm on this basis if he were to return to Malaysia.
The applicant was invited to comment or respond to the above in writing by 24 April 2024. The applicant was advised that (if he could not provide his written comments or response by 24 April 2024) he could request an extension of time in which to provide the comments or response.
Nothing was received from the applicant in response to the above invitation. The applicant did subsequently telephone the Tribunal to request a letter to enable his continued access to Medicare, but he gave no indication that this was relevant to his protection claims or to the review more broadly, nor was this otherwise apparent.
Findings
Having considered all of this I consider the credibility of the applicant’s claims is seriously undermined by the concerns which I have outlined above. The applicant has provided no documentary evidence which establishes that he has ever had any same sex relationships or that he has established friendships with LGBT persons in Australia. His evidence about these matters at the January 2024 hearing was not compelling and does not overcome the very serious doubts that arise as a consequence of how the evidence suggests that he has contrived to present himself as a gay man for the purpose of obtained a protection visa. I do not accept that the applicant is gay (or ‘not straight’, or that he is LGBT), or that he has been practising LGBT culture or has ever had any problems in this regard, or that he has been befriending LGBT persons, or that he has any interest in any such activities.
Does the applicant satisfy the refugee criterion for protection?
The applicant has claimed that he fears harm in Malaysia for only one reason and this is that he is gay and practises LGBT culture. I do not accept that either claim is true.
This noted, the applicant has also submitted that: At my current age, if I am still unmarried, I will be questioned by society in Malaysia and become strange in the culture of Malaysian society if I am still unmarried at this age. This has been presented as a factor that will lead to the applicant being discovered to be gay under questioning about his being unmarried, or even of his being perceived to be gay on this basis alone. With respect to the question of whether the applicant is actually unmarried this is something I am not satisfied of given how unreliable the applicant has proven to be about such matters. But even if it is the case that the applicant has never married, or is otherwise unmarried, I would not be satisfied that this would in Malaysia result in the applicant facing a real chance of being questioned in a manner that would result in his experiencing harm. For it is no longer unusual for men (or women) to remain unmarried in Malaysia following a significant change which occurred in Malaysian society between 1980 and 2010 (during which time the proportion of men aged 30 to 34 in Malaysia who had remained single almost doubled from 15 to 29 percent).[3] This resulted in an enduring shift in the demography of Malaysia with a significant percentage of Malaysia’s male population being unmarried (whether as result of divorce or having never married at all).[4]
[3] Mahmud, A. et al, ‘Why do Men and Women Remain Single? Findings From the Fifth Malaysian Population and Family Survey MPFS-5’, Malaysia Population Research Hub, 2019,
[4] Department of Statistics Malaysia, ‘Population and Housing Census of Malaysia 2020’, pp.27, 33, 39, 52; Luqman, N. ‘Studies Reveal That Malaysia Ranks The 3rd Highest For The Most Single Population In Southeast Asia’, MYC, 16 February 2024, ‘ ; Choudhury, R. ‘Malaysia ranked third in Southeast Asia for having the most single people’, The Sun, 15 February 2024,
There is, moreover, little evidence in the available reporting to indicate that men who do not marry in Malaysia are perceived as gay or strange,[5] or that they are forced into marriages without consent, or that they suffer harm of any other kind; and while there is reporting to indicate that some women in Malaysia can face a level of stigma and social questioning for remaining unmarried, there is little evidence of this in Malaysia for men.[6] To the extent that there are reports of unmarried Muslim men facing problems in Malaysia this is limited to how (particularly in conservative states like Kedah or Terengganu) they can be fined if they are found by the authorities to be in the company of an unmarried woman in a manner that suggests immorality (for example: alone together in a hotel room),[7] but the applicant does not claim that he intends to pursue a heterosexual relationship in manner that would violate such rules (known as the khalwat prohibition). Given this, and having regard to the applicant’s circumstances more broadly, I am not satisfied that the applicant would for the foreseeable future face a real chance of harm of any kind were he to return to Malaysia. I am therefore not satisfied that the applicant has a well-founded fear of persecution with respect to Malaysia.
[5] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833; USDOS, ‘Malaysia 2023 Human Rights Report’, 22 April 2024, 20240502105551; UK Home Office, 'Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression', UK Home Office, 'Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression', 12 July 2024, 20240717113733,
[6] ‘The (not so) subtle stigma of singleness — Cherish How’, Malay Mail, 27 November 2024, ; Lai, S.L ‘The Changing Educational Gradient in Marriage: Evidence from Malaysia’, Institutions and Economic, October 2021, ; Akashah, A. ‘Malaysia's Single Population Ranks 3rd Highest in Southeast Asia at 44.68%!’, SYOK, 16 February 2024,
[7] Razif, N.H.M. ‘Intimacy Under Surveillance: Illicit Sexuality, Moral Policing, and the State in Contemporary Malaysia’, Brill, 28 October 2020, ; Ask Legal Malaysia, ‘Can a non-Muslim get in trouble for khalwat in Malaysia?’, 2018,

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the reasons already given above I am likewise not satisfied that the applicant would face a real risk of harm of any kind were he to return to Malaysia. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that the applicant will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For completeness, there is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date of hearing:   30 January 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
…