1813751 (Refugee)
[2024] ARTA 697
•19 November 2024
1813751 (REFUGEE) [2024] ARTA 697 (19 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Numbers: 1814226 and 1813751
Tribunal:General Member C Graydon
Date: 19 November 2024
Place:Melbourne
Decision:The Tribunal sets aside both decisions under review and remits the applications for protection visas for reconsideration, in accordance with the order that both applicants meet the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 19 November 2024 at 8:52am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual women – harassment, attacks and threats by family members and insults by neighbours – fear of harm from family members, members of the public and authorities, and forced rehabilitation or marriage – first applicant’s masculine presentation – combined decision of separate applications – misunderstanding of application process and three-month delay in applying not excessive – largely consistent claims and evidence – length of relationship – country information – increased Islamisation – national and state syariah laws enforced by police and religious authorities – combined decision of separate applications – applications part-heard by previous member then reconstituted to current member and decided without further hearings necessary – decisions under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any 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
These are applications for review of decisions made by delegates of the Minister for Home Affairs on 16 May 2018 to refuse to grant [the first applicant] a protection visa, and on 11 May 2018, to refuse to grant [the second applicant] a protection visa, both 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.
The applicants both claim to be citizens of Malaysia. They both applied for protection visas in separate applications on 19 January 2018.
Both applicants’ cases were originally constituted to Member H Glass. The first applicant attended a hearing before Member Glass on 2 April 2024 and the second applicant attended a hearing before Member Glass on 5 April 2024, both to give evidence and present arguments. Neither applicant gave evidence in each other’s hearings. Both hearings were conducted with the assistance of interpreters in the Malay and English languages.
In November 2024 both cases were reconstituted to Member C Graydon. Having listened to the audio recordings of both hearings, Member Graydon determined there was no need for further hearings to be conducted and proceeded to seek the permission of the applicants to proceed with a combined decision. The applicants separately provided consent to a combined decision on 13 November 2024.
BACKGROUND
Protection visa applications
The first applicant claims to be a [Age]-year-old Malaysian citizen who was born in Kuala Lumpur, Malaysia. In her protection visa application form she stated that she needed Australia’s protection as she was a lesbian and she wanted to marry her long-term partner with whom she had been in a relationship for five years, none of which was tolerated in Malaysia. While initially the relationship had gone well, when her partner’s family found out that they were in a lesbian relationship they tried to separate them and chased the first applicant away. On an occasion they also came to a place that the second applicant frequented and used physical violence against her and a friend. Her partner’s family reported their relationship to the police and to the Islamic Council. As homosexuality is illegal in Malaysia, they faced criminal penalties including up to 20 years’ imprisonment and potentially whipping.
The second applicant claims to be a [Age]-year-old Malaysian citizen who was also born in Kuala Lumpur, Malaysia. In her protection visa application form she stated that she had been in a lesbian relationship with the first applicant for almost six years. After her family had found out that she was in a lesbian relationship they had reacted very badly and had physically abused and threatened her that they would kill her if they found her with her girlfriend. The second applicant said she was afraid that her family will seek assistance from other family members to confine and punish her if she returns to Malaysia. They constantly insulted her and threatened to use therapy and inhumane treatment to ‘correct her’ from being lesbian. They always humiliated her in front of her friends. Her family reported her to police and Islamic authorities for being lesbian. Being lesbian is illegal in Malaysia and carries heavy penalties including heavy jail sentences and whipping punishments. She is very fearful of returning to Malaysia.
Supporting documents
In addition to their protection visa applications, both applicants provided the Department with copies of their Malaysian passports, Malaysian national identity cards (both indicating their religion to be ‘Islam’), and in the case of the second applicant, also a copy of her Malaysian driver’s licence.
The Department did not invite either of the applicants to attend an interview.
Delegates’ decisions
The delegates refused both visas on a similar basis, being that while accepting that both applicants may suffer discrimination and harassment from the authorities due to their homosexuality, the level of harm they may face did not reach the threshold to constitute persecution. In the case of the first applicant, the delegate also stated that she had not submitted any documentation to support her claims and the delegate was not satisfied that she had established her claims.
Before the Tribunal
On 16 May 2018 the first applicant applied for review of the delegate’s decision and on 11 May 2018 the second applicant applied for review of the delegate’s decision. Both applicants provided the Tribunal with the delegate’s notification letter and decision record.
Pre-hearing submissions and evidence
On 10 November 2023 the first applicant stated, in a form that had been sent to her by the Tribunal:
Yes, there's another reason I fear because they agree that these LGBT people have mental illness and need to be treated. For them these LGBT people are disgusting and discordant couples. If I go back, it is certain that I will receive all threats, criticism and intimidation after my status is known to the public and the most important thing is my family. And I'm sure my safety won't be guaranteed.
On the same date the second applicant provided her form to the Tribunal containing a similar statement.
The hearing
As noted above, the applicants appeared at separate hearings before the same constituted Tribunal on 2 and 5 April 2024 to give evidence and present arguments. Both hearings were conducted with the assistance of an interpreter in the Malay and English languages.
At her hearing on 5 April 2024, the second applicant provided the Tribunal with a photograph of her with the first applicant, which she claimed was provided to her by her father while she was in Australia, indicating he knew that she was continuing her relationship with the first applicant in Australia.
Where relevant, the applicants’ oral evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence
On 2 April 2024, the first applicant provided photographs claimed to be of her:
·Attending her brother’s wedding engagement in 2014 wearing jeans and a T-shirt and a short haircut, whereas all other women in the photograph are wearing traditional Islamic dress.
·Attending her brother’s wedding in 2015 wearing pants and a male-style tunic top, accompanied by the caption ‘And here you can see that I don't dress like a normal woman. Because I don't like character like a girl’.
·A screen shot in Malaysian said to be a message from her brother stating: ‘I won't forget until death what you did. You should do your own thing and not bother messing up my lie. LGBT people are funny. Shame on you.’
·Photograph of the exterior of the second applicant’s house where the first applicant claims to have lived with the second applicant and her family for a period of 18 months.
·Residential leases dated from January 2021 to January 2025 in the names of both applicants for rental of a property at [Address], Victoria, as evidence that the applicants have cohabited together for at least this period.
On 15 April 2024, the second applicant provided to the Tribunal a brief statement:
I am here to prove that I cannot return to Malaysia because I am a lesbian. And will marry my partner. And marriage with same sex in Malaysia was prohibited. The community in Malaysia cannot accept people like me. They think I insult Islam. My fear is to face my family, people around me and the laws that have been set in Malaysia. If I return to Malaysia, I fear living in a state of emotional abuse and stress because many LGBT people live in fear. If anything happens to me, the authorities will not protect me, but will arrest me. I am including some articles that I researched on the internet about the public's perception of LGBT in Malaysia.
The second applicant also provided:
·A Human Rights Watch Report, dated 10 August 2022 titled ‘“I Don’t Want to Change Myself”: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia’;
·A Reuters article dated 21 September 2018 titled ‘Malaysia cannot accept same-sex marriage, says Mahathir’; and
·A Human Rights Watch article dated 25 January 2021 titled ‘Malaysia: Government Steps Up Attacks on LGBT People: Lawmakers Should Repeal, Not Reinforce, Discriminatory Laws.’
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). 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–5LA, 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 decisions under consideration.
The current DFAT report is the DFAT Country Information Report Malaysia dated 24 June 2024 (DFAT Report) and its relevant sections are referred to and discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether either or both applicants have a well-founded fear of being persecuted in Malaysia for one or more of the five reasons set out in s 5J of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of either or both being removed from Australia to Malaysia, there is a real risk that either or both will suffer significant harm.
For the following reasons, the Tribunal has concluded that both decisions should be set aside and remitted for reconsideration.
Country of nationality
The applicants have both provided copies of their Malaysian passports and their Malaysian national identity cards. The second applicant has also provided her Malaysian driver’s licence. Both applicants have consistently claimed to be from Malaysia and there are no apparent concerns with either of the applicants’ identities. The Tribunal is satisfied that the applicants are citizens of Malaysia.
The second applicant shared that both of her parents were born in Indonesia but now have Malaysian identity cards. The second applicant also confirmed that she has no entitlements to enter or reside in Indonesia based on her parentage and the Tribunal accepts this. There is nothing before the Tribunal to suggest that either applicant has citizenship of any other country, or that either has any right to enter and/or reside in any third country.
Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Malaysia is the receiving country for both applicants and has assessed their claims against that country.
Evidence provided by the first applicant
The first applicant gave evidence that she is the older of two children, born to a Muslim Malay family in Kuala Lumpur. She has a [brother] and [a step-sister]. Her father died around 20 years ago and her mother died in 2018, around one month after the applicant arrived in Australia. She did not return to Malaysia for the funeral. She had a close relationship with her mother who did not use abusive words towards her and mainly accepted who she was. She also has a close relationship with her step-sister who she speaks with daily. However, she has a very poor relationship with her brother, with whom she has fought over many years. She has had no contact with her brother since her mother died.
From around the age of 14 she became aware that she was attracted to girls. During high school she had several ‘experimental’ relationships with girls but ‘nothing serious.’ In 2012 she met her now partner who was working in a [workplace 1]. They became friends and then she expressed her attraction to her partner and they began to see each other romantically. They fell in love and remain in love now and have now been together for around 12 years: five years in Malaysia and seven years in Australia.
The first applicant’s brother has never accepted the applicant’s identity as a lesbian, nor has he accepted the way that she dresses. Over the years they have frequently fought about this, as well as regarding care of their mother, who had cancer. Her brother accused her of causing stress to her mother by refusing to conform to social expectations as a Malaysian Muslim woman. After he married, his wife moved in with them and she took a similar view as her brother. She also made several disparaging and insulting public postings about the applicant and her sexual orientation and gender identity on social media. The applicant could no longer tolerate living at home and moved in with her partner, the second applicant, who continued to live with her family.
She lived with the second applicant’s family for around 18 months. During this time the second applicant’s family assumed that they were just ordinary friends and were not aware that they were in an intimate relationship. One day the applicants had a loud argument with each other while at the second applicant’s house. The second applicant’s mother heard the argument and found it strange that two friends would be arguing in this way. During the argument the first applicant told her partner’s mother that she ‘liked’ her daughter in a romantic way. The first applicant’s partner’s mother reacted very badly and physically abused and kicked the applicant and chased her out of the house yelling at her to ‘get out of my house’. This noisy incident became known in the neighbourhood. The second applicant’s father and step-brother, who were present at the house at that time, reacted very badly and were verbally aggressive and threatening to the second applicant, hurling insults, and degrading statements about the unacceptability of her being in a relationship with a woman. Neighbours also used derogatory terms and insults towards the second applicant.
The second applicant felt threatened by her family and her neighbours and did not feel safe to remain living at home. The first and second applicants decided that they would need to rent a place of their own as they were unable to live with either family. They rented an apartment for around three months prior to their departure to Australia. After the second applicant had moved out, she maintained some contact with her family. They asked her to undergo a religious ‘curing’ process overseen by a religious ‘black magic’ practitioner to remedy her attraction to women. The applicants felt they had no future in Malaysia as they would be unable to continue living together as people already knew that they were a lesbian couple. They were already rejected by their families and it was just a matter of time before they were reported to authorities and faced action by religious authorities and state police. They decided they needed to escape to Australia.
The Tribunal asked the first applicant why her family had not reported her to the authorities after they became aware she was a lesbian. The first applicant responded that they had continually advised her not to be a lesbian and to just be a ‘normal’ woman but that they did not report her as it would cause shame to her family and to the second applicant’s family and their friends. The Tribunal also asked the first applicant about the statement made in her application that the second applicant’s family had reported her lesbian activities to the police and to religious authorities. The first applicant responded that was to do with her partner’s problem.
The first applicant lost her mother soon after she arrived in Australia and does not maintain any contact with her brother or sister-in-law after her brother’s hurtful words that he does not consider the first applicant to be his family anymore. She considers her brother to be hostile towards her and if she returned to Malaysia he may try to take some action against her, such as publicly and privately saying degrading and insulting things about her, and reporting her to the authorities. Now that both parents have passed away, he may feel freer to pursue her as his parents’ reputation will not be impacted any longer by them being associated with the first applicant’s behaviour.
The Tribunal asked further questions regarding whether the first applicant had ever been physically harmed by anyone or discriminated against. The first applicant reiterated that she been subjected to derogatory verbal abuse by her brother over many years and that she regularly suffered from being subjected to disapproving treatment due to her appearance, whenever she was in public. These experiences of being considered unacceptable for who she is, had caused her ‘emotional harm and mental instability’. The Tribunal asked her if she had experienced discrimination in employment and the applicant responded that she had been a full-time carer for her mother who was receiving cancer treatment and after she moved into her partner’s house, she did not have a job. She had secured a job working in [job task] in the year prior to her departure to Australia.
Evidence provided by the second applicant
The second applicant gave evidence that she comes from a strict Muslim family and remains a strict Muslim, more so since coming to Australia, observing religious dress, fasting in Ramadan, and regularly praying during the day and at the mosque.
The second applicant has [a sister] and [a stepbrother], who was born to her mother from her first marriage. After her mother’s first husband died she married the second applicant’s father. She attended primary and secondary school but after she finished school her parents did not want her to work and so they insisted she remain at home doing household tasks. The second applicant had a boyfriend who was violent towards her and mistreated her.
Unknown to her parents, from the age of 17 the second applicant began working part time at a [workplace 1]. It was there that in 2012 she met her now partner, the first applicant. At first she did not know that the first applicant was a woman as she was always dressed as a man. They met and chatted and became friends. One day the first applicant declared that she had feelings for the second applicant. The first applicant explained to the second applicant that she was a lesbian woman. The second applicant was shocked to realise that the first applicant was a woman. She had never had feelings for a woman before, however she admitted to herself that she had already fallen in love with the first applicant and the fact that she was a woman made no difference to her feelings for her.
It was a difficult time for the second applicant. She had a boyfriend throughout this time, however he was possessive, controlling, and violent towards her. Her family did not like him because of his violence towards her. The second applicant decided to break up with her boyfriend so she could commit herself to being with the first applicant. Her boyfriend reacted badly and beat her and insulted her when she broke up with him.
The applicants continued their relationship. The second applicant kept their relationship a secret from her family. They visited each other’s houses. Then one day the first applicant had a big argument with her brother and sister-in-law and could no longer stay at her home. She moved in with the second applicant and her family and stayed with them for around 18 months. Her family thought the first applicant was just a friend of the second applicant and they were not aware that the applicants were in an intimate relationship. They did not even think it was a possibility for the second applicant to be in an intimate relationship with the first applicant.
However, things came to a head when the applicants had a noisy argument and the second applicant’s mother overheard that it was not an argument between friends but between lovers. The second applicant’s mother intervened, yelling at the second applicant that what she had done, in having a lesbian relationship, was completely unacceptable. She then physically attacked the first applicant and screamed at her to leave her house and never come back and to never see her daughter again. The second applicant was berated by her step-brother who was visiting at the time, as well as her father and her mother. They banned her from seeing the first applicant ever again. They told her that she was a disgrace and had shamed the family and used many insulting and derogatory terms. The second applicant’s father and step-brother threatened to beat her. Also, all the neighbours were now aware of the situation as the incident had been overheard and they would call her bad names and express their disapproval of her whenever she was walking around.
The second applicant became very afraid and did not feel safe to remain at home. The applicants moved into an apartment together. The second applicant maintained some level of contact with her family as she did not want to end her relationship with them and she wanted them to accept her. She agreed to their wishes that she attend an Islamic practitioner to help cure her of lesbianism. They took her to the practitioner’s house who read verses from the Koran and made her drink a cup of water to supposedly cure her of lesbianism. This continued for around two or three hours. On the way home her parents told her in the car that being with a woman is ‘against the law and you are Muslim you cannot love or like a girl or be with a girl. You need to love boys and not with her. You need to separate from her’. The second applicant emphasised that ‘my mother cannot accept that I am lesbian with my partner.’
The Tribunal asked the second applicant about her claim that ‘my family made a police report and the Islamic Council would report about me to the authorities.’ The second applicant clarified that her family had threatened to make a police report but did not actually follow through and take this step, as this would also have brought shame on themselves as it would result in a big and public case, which would affect their reputations too. She had used Google Translate to help her translate her Malaysian claims into English, which is how the error in the tense used in the word ‘made’ likely occurred.
The second applicant has experienced estrangement from her parents since they discovered she was in a lesbian relationship. At that time, they reacted with anger and outrage, physically abusing the first applicant and threatening the second applicant to the degree she felt she had to leave home. They even tried to ‘cure’ her, however, despite this she did not want to sever all contact with them, hoping that over time they would come to accept her. However, she no longer thinks that is possible especially after her father provided her with a photograph depicting her and the first applicant together. Her family had not been aware that she had travelled to Australia with the first applicant, nor did they know that she had continued her long-term relationship with the first applicant.
Her father providing her with this photograph indicates that her parents are now aware that she remains in a lesbian relationship with the first applicant and that they do not accept her continuing in the relationship. Her father refused to disclose to the second applicant where he obtained the photograph from but the second applicant assumes he obtained it somewhere online or someone shared it via social media. After receiving the photograph from her father, she then spoke to her mother who said that she was a ‘very, very ungrateful child’ and refused to listen when the second applicant tried to explain her situation. She said: ‘She kept threatening and insulting me and swearing at me and she did not think we were still together and she does not want to know me as her daughter because of same sex. She said do not try to show your face in front of me again. Just go to hell.’
Following this telephone conversation, she has not had any further contact with her parents and now knows that her parents will never accept that she is a lesbian. She now fears that they will always remain motivated to try to force her to change or force her to marry and that if she were to return to Malaysia they may also report her to the Malaysian authorities. While they did not take this step previously as they had hoped to change her, now that it is clear to them that she will not change being lesbian, she fears they may change their approach if she were back in Malaysia. They may decide the best way to protect themselves from the reputational risk of being seen to accept her lesbianism would be to report her to the authorities.
Evidence put forward by both applicants in their hearings
Finding themselves unable to live with either family, the applicants moved into their own rental accommodation around three months prior to coming to Australia. They decided to leave Malaysia, where they would never be able to be themselves or live openly in a lesbian relationship. They felt it was just a question of time before either their families or their neighbours or other authorities intervened in their lives and tried to prevent them from continuing in their long-term relationship or they came to the adverse attention of authorities. Both applicants want to marry each other and they know this would be impossible for them in Malaysia. As Muslims they fear worse consequences and higher risks than non-Muslim lesbians in Malaysia due to the additional legal actions that could be taken against them or the increased risk of them being subjected to conversion therapy or other treatments to ‘cure’ them of lesbianism. They heard from friends that Australia was a place where diversity was accepted and it was possible for lesbians to live in peace.
Since arriving in Australia, they have continuously lived together and they have also worked in the same places, mainly on [workplace 2s]. They remain a very close couple, always together. They appreciate the fact that in Australia they can live without the threats from their families, neighbours, or the authorities and this has been a big relief to them.
The Tribunal discussed with both applicants their views on whether they could live in another part of Malaysia, in Kuala Lumpur, without harassment by maintaining a discreet approach to their relationship. I note that both applicants are from Kuala Lumpur and that the difficulties they have experienced with their families have occurred in Kuala Lumpur. In the second applicant’s hearing the Member also put to her DFAT information from the delegate’s decision indicating that Kuala Lumpur has a widespread gay scene and a number of gay and lesbian venues and LGBTIQ organisations that are active in Malaysia. She added that DFAT assesses that LGBTIQ Muslims face a moderate risk of official discrimination on a day-to-day basis and that there was no country information available to indicate LGBTIQ people would be harmed by their families or that the state would refuse to protect them.
Both applicants responded that they could not live discreetly in Kuala Lumpur or anywhere else in Malaysia as the male dress style worn by the first applicant immediately causes people to think she is likely gender diverse or lesbian. This also draws attention to them when they are out together in public, as they cannot easily pass themselves off as ‘normal’ friends even when they are just behaving normally and walking together without showing any signs of closeness or affection. The applicants also said that even if they moved to Kuala Lumpur they would face the same laws, discrimination, mistreatment, and prejudice as they did in their home area of Kuala Lumpur they previously lived in and that they could never live freely anywhere in Malaysia.
Credibility
In assessing the applicants’ credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well founded’ or that it is for the reason claimed. A fear of persecution is not ‘well founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicants themselves, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make out the applicants’ case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J, Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
At the hearing, the Member conducting it had some concerns that the applicants had not shown sufficient urgency in applying for protection and that this raised questions around the genuineness of their fears of return to Malaysia. I note that the applicants arrived [in] October 2017 and applied for protection on 19 January 2018, a period of around three months. The applicants both explained that they had not known that they could apply prior to the period when their visitor visa was due to expire and that they were managing their situation without advice or assistance from anyone else. While there is information available on the Department’s website about applying for a protection visa, it is notably all in English, whereas the applicants continue to have limited English and therefore the information available may well not have been well understood by them. In addition, the information on the Department’s website does not advise or emphasise the importance of lodging a protection visa application as soon as possible.
Moreover it cannot be assumed that ‘urgency’ of application will automatically equate with the genuineness of the fear held by the person, especially when the person has a very incomplete understanding of the process and is fearful and worried about doing something wrong, as the applicants both said they were. In any event, I do not consider three months after arrival to be an excessive delay that raises questions as to the genuineness of the applicants’ fears. Based on the applicants’ reasonable explanations, I do not draw any adverse inference against the genuineness of the applicants’ need for protection based on the time it took them to lodge their applications for protection visas.
I note that both applicants have from the outset of the process made their claims on the consistent basis that they fear persecution as they are in a long-term lesbian relationship together, one which is not tolerated by their families, local communities, or authorities in Malaysia. At their hearings both applicants spoke in detail about their relationship, their lives in Malaysia and their fears if they returned. The Member conducting the hearing indicated towards the end of the second applicant’s hearing that she accepted that both applicants are lesbians and in a long-term relationship together. Having heard the audio recordings of both hearings and noting that while some limited discrepancies in their evidence were raised, these were clarified and explained by the applicants to my satisfaction and I am generally satisfied as to the truth of the testimony of both applicants as set out above. In forming this view, I also note that the accounts provided separately by both applicants were largely internally consistent throughout and consistent with each other’s evidence. I also note that neither applicant appeared to embellish or exaggerate their claims and to the contrary, the first applicant, in particular, almost seemed to downplay her claims, contributing to the overall credibility of her evidence.
Key findings
The Tribunal accepts and makes the following findings:
· The first and second applicants were both born into Muslim Malay families, as is annotated on their national identity cards.
· I accept that both applicants remain Muslims and that the second applicant has become more devout in her practice of her Muslim faith since living in Australia. She observes Islamic dress, fasting and prayer practices.
· The first and second applicants are both homosexual and identify as lesbians. They have been in a genuine longstanding relationship for a period of 12 years and have plans to marry.
· From a young age, the first applicant has consistently worn what is considered in Malaysia to be ‘male dress’ including a short haircut, giving her a masculine appearance compared to other Malaysian women. The first applicant has foregone various family and religious occasions rather than dressing as a Malaysian Muslim woman is ‘expected’ to dress. Thus, I accept that the first applicant’s gender identity is bound up in her masculine style of dress and appearance and that this is unlikely to change in the foreseeable future.
· The first applicant has had a conflict-ridden relationship with her brother from a young age, which has centred around his rejection of her gender identity and lesbianism. He continues to reject the second applicant’s gender identity and sexual orientation. He sent abusive messages to the first applicant after she arrived in Australia, as paraphrased by the second applicant: ‘he won’t forget until death what I did and told me to do my own thing and not bother messing up his life, LGBT people are funny, shame on you.’ The first applicant’s sister-in-law has also previously harmed the first applicant by sharing on social media derogatory remarks about the first applicant’s appearance and sexual orientation.
· The second applicant’s family, her mother, father, and stepbrother, continue to strongly oppose her being in a lesbian relationship. She has suffered family violence consequently, including in the forms of verbal and emotional abuse such as being subjected to treatment to ‘cure’ her of lesbianism as well as threats of physical violence.
· The first applicant’s physical appearance signals to members of the Malaysian public that she has a ‘different’ gender identity from mainstream Malay Muslim women. When the applicants appear together in public they receive disapproving treatment as people suspect from their appearance that they are an LGBTIQ couple. I accept that when the first applicant is seen in public alone or when both applicants are seen in public together, they are readily identifiable as likely to be gender diverse or seen as homosexual.
Reasons
It is my task to undertake a forward-looking assessment of whether the applicants may face a real chance of treatment amounting to serious harm should they return to Malaysia now and into the foreseeable future. While their previous experiences may provide some indication of what treatment they may expect on their return, the fact that an applicant has or has not previously suffered treatment amounting to serious harm is not a reliable predicator of what treatment they may face in the future, especially in country contexts in a state of flux. It has been seven years since the applicants left Malaysia and country information consistently points to a steadily deteriorating situation for LGBTIQ people in Malaysia. This is highly relevant in applying a forward-looking test.
I have considered the applicants’ claims in the context of recent country information set out and summarised below, which indicates that Malaysia is becoming less tolerant of LGBTIQ people and that the combination of increases in formal legal action being taken against LGBTIQ individuals and groups, as well as increased Islamisation creates a more permissive environment for State and non-State actors to act with impunity against LGBTIQ people, including for hate crimes, especially against Muslim LGBTIQ people.[1]
[1] Similar country information referred to and applied by the same Member in combined decision 1903381 & 1903377.
Consistent with the applicants’ fears arising from the illegality of same-sex relationships in Malaysia and their claim that the consequences may be particularly serious for lesbian Muslims due to the multilayered legal system including syariah offences is the following information from the DFAT Report:
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. [3.127]
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. [3.128]
Treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women. [3.138] [Emphasis added.]
I therefore consider that the risks faced by the applicants are higher due to the applicants’ Muslim backgrounds and beliefs, as they face an additional layer of legal risk due to the existence of syariah offences, as well as harsher moral judgement by their Muslim family members, and by members of the public, future employers, co-workers, and service providers, than that faced by homosexuals from other religious backgrounds in Malaysia.
There is also evidence of increasing State action being taken against Malaysian lesbians in the forms of investigations, prosecutions, convictions, and punitive punishment including forms that meet the definition of cruel or degrading treatment or punishment, as referenced in the DFAT Report:
In-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022. [3.138] [Emphasis added.]
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. [3.131] [Emphasis added.]
In addition, the DFAT Report states that the overall political and social environment for lesbians is worsening in Malaysia, due to a ‘rising wave of Islamisation’ across Malaysia[2] and despite Prime Minister Anwar, himself a victim of prosecution for sodomy, remaining Prime Minister of the country:
As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. [3.126]
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. [3.129] [Emphasis added.]
[2] DFAT Country Information Report Malaysia, 24 June 2024, [2.5].
Other country information also supports the well foundedness of the applicants’ fears of persecution in contemporary Malaysia. The US Department of State and several non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBTIQ people, providing an environment for societal discrimination and harassment and violence against LGBTIQ people in Malaysia.
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.[3]
[3] US Department of State, 2023 Country Reports on Human Rights Practices Malaysia, 2023, p. 40.
Malaysia’s national human rights institution, SUARAM, has also reported a deteriorating situation for LGBTIQ populations in Malaysia, noting a disturbing increase in hate speech towards LGBTIQ communities including over the previous year, emanating from a wide range of social sources, including from parliamentarians:
JFS has documented extreme, violent and degrading speech against protestors, and LGBTQ and gender-diverse people in various spaces, including social media and in Parliament. These include:
·Calls to kill themselves, or be killed, and the ‘extinction’ of LGBT people;
·Calls for physical and sexual violence against protestors and LGBT people;
·Calls for war or jihad against LGBT people and lust. e.g., An article published in Harakah Daily, ‘Perang, adakah hanya sekadar angkat senjata?’ (War, is it just a matter of taking up arms?);
·Comparison of LGBT people to animals by Members of Parliament.[4]
[4] SUARAM, Malaysia Human Rights Report 2023, p. 176.
SUARAM’s 2023 report documents how the criminalisation of same-sex relationships also has much wider far-reaching consequences, marginalising LGBTIQ communities and creating an environment where violence against them is tolerated, where police can harass LGBTIQ communities with impunity, and where they become vulnerable to extortion or blackmail:
In 2023, LGBTQ and gender-diverse people continued to face a series of state-sponsored human rights violations. Some key trends include the increased:
·Regulations of LGBT expression through introduction of new guidelines;
·Hate and discriminatory speech against these communities;
·Restrictions of freedom of assembly and expression, including disruption and investigation of LGBT-related public assemblies and organisers as well as participants of the assemblies, surveillance of LGBT events, among others; and
·LGBT rehabilitation efforts.[5] [Emphasis added]
LGBTQ and gender-diverse people are criminalised on the basis of sexual orientation, gender identity, gender expression and consensual sexual acts between adults under various Federal and state levels. The overall context of criminalisation of LGBTQ and gender-diverse people has a systemic impact on all areas of their lives, including among others, being free from violence and unnecessary state intervention in their private and personal lives, and the ability to seek redress, opportunities, and information. [Emphasis added]
LGBTQ and gender-diverse people have reported extortion, invasion of privacy, harassment and intimidation owing to the criminalisation and regulation of LGBTQ and gender-diverse people in Malaysia. Queer men and gender-diverse people, among others, have reported harassment and intimidation by the police at roadblocks and in public places, where the police checked their phones for LGBT-related apps and content.[6] [Emphasis added]
[5] SUARAM, Malaysia Human Rights Report 2023, p. 166.
[6] SUARAM, Malaysia Human Rights Report 2023, p. 167.
In addition, LGBTIQ communities face wide-ranging discrimination in employment, housing, and health care:
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.[7]
[7] US Department of State, 2023 Country Reports on Human Rights Practices Malaysia, 2023, p. 41.
Considering how these laws and the social context in Malaysia may interact with the applicants’ specific circumstances, I note that the applicants’ long standing lesbian relationship is already known to both of their families. Both of their families are strongly opposed to the relationship and to the applicants’ sexual orientation and in the case of the first applicant, also to her gender identity. Both applicants have been victims of family violence in the past due to their family members’ opposition to their homosexuality, their lesbian relationship, and in the case of the first applicant, also due to their non-conformist appearance.
The main threats to the first applicant, in terms of her coming to the attention of the authorities, arise in relation to her brother, who has a long history of emotional abuse and some physical abuse of the first applicant, and her sister-in-law, who has previously harmed her by posting derogatory and insulting material on social media. While a lengthy period of seven years has elapsed since the first applicant has had any contact with either of them, the frozen conflict between them is not resolved and should the first applicant return to Malaysia, the possibility of them renewing their threats and harmful behaviours against the first applicant cannot be excluded. This also raises wider implications and risks for the applicants caused by the first applicant’s brother and sister-in-law spreading derogatory material specific to the applicants on social media. Once a wider group of people are aware of the applicants’ relationship and gender identities then, based on the country information above, which highlights the heightened public intolerance of LGBTIQ people in Malaysia, this greatly increases the risk of someone reporting either or both applicants to the authorities, whether to local Islamic authorities or to police. Once authorities are alerted to their situation, then the available country information supports a view that the risks of serious harm cannot be said to be a remote or fanciful outcome.
Another route by which the authorities may become alerted to the applicants’ unlawful relationship is due to them living together. Even if they were to move to another location, away from their families, as time progresses, the risk of neighbours becoming aware of them living together in a lesbian relationship will steadily increase. In my assessment this is quite likely, especially due to the first applicant’s physical appearance, which immediately signals to Malaysians that she may be homosexual, suspicions which may be readily confirmed when people notice that she is living with an unrelated woman, the second applicant. It then cannot be excluded that neighbours will alert the authorities to the applicants’ unlawful relationship, and again, once authorities are involved, then the risk of serious harm cannot be excluded.
Further possible pathways to the applicants’ unlawful relationship being reported to authorities could also come via the applicants’ workmates or others who interact with the applicants on a daily basis and become aware of their relationship and living arrangements. All it would take would be for one ‘tip off’ or prejudiced person to report them to the authorities and the frailty of any protection presumed to be afforded to them by ‘keeping a low profile’ could be readily exposed.
I find the risk of the applicants’ lesbian relationship being discovered by their neighbours, co-workers, or other members of the public to be high, and given the levels of LGBTIQ intolerance in Malaysia, the risk of them being reported to authorities is also reasonably high. Based on the country information provided above, the risk of them then facing investigation and possible prosecution under syariah offences for their lesbian relationship, is not remote. Should this occur, they may then be subjected to penalties that constitute persecution, such as long periods of imprisonment or punishment that would constitute cruel and degrading treatment, such as being whipped or caned,[8] which remains a punishment that can be used against women regarding syariah offences.[9]
[8] See Amnesty International ‘A Blow to Humanity Torture by Judicial Caning in Malaysia’, 2010, available at Unlike civil offences, where women are excluded from caning or whipping penalties under s 289 of the Criminal Procedure Code,
Nor is it a remote risk that if the second applicant returns to Malaysia, her family members, her mother, father, and stepbrother may seek to further intervene and potentially force her to undergo further efforts to ‘cure’ her of lesbianism, as they have attempted in the past. The second applicant’s fear of this was underlined by her submitting to the Tribunal a report by Human Rights Watch Report, dated 10 August 2022 titled ‘“I Don’t Want to Change Myself”: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia’, which sets out in detail the risk of LGBTIQ people being subjected to conversion therapy by their families with state support. These concerns are further confirmed in the DFAT Report:
Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. Although these programs are primarily aimed at Muslims, Christians are also targeted.[10] [Emphasis added.]
[10] DFAT Country Information Report Malaysia, 24 June 2024, [3.132].
It is also not a remote or fanciful possibility that the second applicant’s family’s determination to end her lesbian relationship with the first applicant may take the form of forcing her to marry a man. I note that the DFAT Report observes that forced heterosexual marriages for lesbians are common. The report also confirms that families may confine their lesbian relatives to the family home, as the second applicant fears may occur if she is forced to return to Malaysia:
Forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim. In rural areas, families sometimes confine lesbians to the family home due to cultural stigma. [3.138] [Emphasis added.]
I am not satisfied that if the second applicant turned to the Malaysian police for protection and assistance against mistreatment or other actions taken by her family, she would receive effective protection. Rather, I find it more likely that the police would see her family’s pursuit of her to be a family issue, one where her family was legitimately trying to exercise control over her to change her sexual orientation to bring her into alignment with Muslim values and practices.
In making this finding I have considered information indicating that Malaysian police may at times be directly involved in undertaking joint operations with religious authorities against LGBTQI people, as noted by Human Rights Watch:
Police and religious authorities occasionally undertake joint operations, such as the August 2018 raid on BlueBoy Discotheque Pub, a gay bar in Kuala Lumpur. JAWI [Federal Territories Islamic Religious Department] religious enforcement officials arrested 20 men and sentenced them to Islamic “counseling.”[11]
Beyond failing to protect LGBTQI people from acts of violence, there is also evidence that police sometimes commit those acts themselves. The US State Department’s 2023 report, repeating information from its 2022 report, noted:
Observers reported violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.[12]
[11] Human Rights Watch ‘I Don’t Want to Change Myself’: anti-LGBT Conversion Practices, Discrimination and Violence in Malaysia, December 2022.
[12] United States Department of State ‘2023 Country Report on Human Rights Practices: Malaysia’, 20 March 2023, section 6, available at
Given the criminalisation of homosexuality in Malaysia and police roles in supporting religious authorities, I find that if either applicant found themselves in need of police protection from harm, especially from their families, they would likely not reliably receive this, whether they be in their home area in Kuala Lumpur, another part of Kuala Lumpur or another part of Malaysia.
In addition, I find that as lesbians who are physically identifiable as such, especially when living together in a long-term relationship, both applicants are likely to face significant discrimination in public life more generally, which may include a risk of being subject to hate crimes or forms of blackmail or extortion. The applicants also face discrimination in relation to their ability to secure and maintain employment in the face of likely harassment from employers and co-workers, especially with regards to the first applicant, whose appearance alone will likely be sufficient to arouse employers’ and co-workers’ suspicions that she is gender diverse or homosexual. It is clear from the country information that the applicants will be unable to live together openly without authorities being alerted to their unlawful relationship and that they may also face discrimination in relation to their access to housing and healthcare, due to their lesbian identities.
I assess that the combination of all these factors amounts to persecution and pushes the risks of such persecution beyond the threshold of them facing a ‘real chance’ of such treatment, especially when considered cumulatively alongside the serious forms of social discrimination the applicants will almost certainly face upon their return to Malaysia. Furthermore, I am not convinced that Kuala Lumpur or any other large city in Malaysia would provide them with a safe oasis from the risks that they face in the immediate or foreseeable future. I have considered the DFAT Report and other sources that refer to each other and highlight how certain well-off middle class LGBTIQ people may be shielded to a degree from the risks faced by other LGBTIQ people, due to the protective impact of other forms of social and economic power they enjoy:
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.[13]
[13] DFAT Country Information Report Malaysia, 24 June 2024, at [3.147].
However, the applicants do not fit within this profile of being well-educated individuals of high socio-economic status, plus they do not have the option of hiding their sexuality within their family and social circles as their families already know of, and take a hostile, oppositional approach to, their relationship. They are also unable to maintain the ‘low visibility’ approach that the DFAT report mentions may be more available to lesbians,[14] due to the first applicant’s physical appearance and the perception of them being a gay couple when they are seen together.
[14] ‘Lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community’ Ibid, at [3.148].
Based on the evidence and findings above, I find that the applicants’ fears of treatment in Malaysia amount to serious harm and are well founded. Especially considering the applicants’ previous residence in Kuala Lumpur, which did not protect them from the difficulties they faced with their families and others, and due to the application of common laws and increasing intolerance towards lesbian people throughout Malaysia, I find that these threats will be present throughout the country. This is also because I am not satisfied that the Malaysian authorities and state are willing to offer effective protection measures to the applicants in any part of Malaysia and I therefore find that the applicants face a real chance of persecution throughout all areas of Malaysia as per s 5J(1)(c). This risk is current and likely to persist for the foreseeable future, given the deteriorating conditions and environment for Muslim lesbians in Malaysia as per the country information assessments referred to above.
I further find that Muslim lesbians in Malaysia are a particular social group as defined by s 5L of the Act. The characteristics of Muslim lesbians in Malaysia are shared by each member of the group, and the applicants share these characteristics. In addition, these characteristics are innate or immutable and are so fundamental to the members’ identity or conscience that they should not be forced to renounce them. Moreover, the characteristics shared by Muslim lesbians in Malaysia distinguish them as a group within society and are not of themselves a fear of persecution. I also find that the applicants’ membership of the particular social group of Muslim lesbians in Malaysia is the essential and significant reason for the persecution the applicants may face. I further find that the persecution involves ‘serious harm’ as it may amount to significant physical harassment and significant physical ill-treatment as listed in s 5J(5), and does involve systematic and discriminatory conduct, as required by paragraph s 5J(4).
Given the applicants’ evidence that their longstanding relationship is already known to their families, has been further publicised by the first applicant’s sister-in-law on social media, that they are physically identifiable as likely to be lesbians from the first applicant’s appearance and confirmed by the presence of the second applicant and their living arrangements, I find that the applicants will not be able to live ‘discreetly’ in Malaysia so as not to draw adverse attention to their unlawful relationship.
I note that s 5J(3) requires a person to take reasonable steps to modify their behaviour to reduce risks of persecution, but that this provision specifically excludes a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation. Based on my earlier finding that the first applicant’s ‘male dress’ style is a longstanding and grounding aspect of her gender identity, and that this acts as a visual cue or signal to members of the public that she is likely homosexual, this makes it impossible for her to conceal or hide her identity to mitigate risks she may face, without changing this fundamental aspect of her gender identity. In addition, when the first applicant is seen in public with the second applicant, the second applicant’s gender identity will likely be imputed by association, also preventing her from mitigating risks she may face. Their mere presence together in public, even if modifying their behaviour, such as by not demonstrating any outward signs of affection or intimacy towards each other, is likely sufficient to alert people around them to their likely sexual orientation. I further find that requiring the first applicant to modify her dress or for either applicant to significantly change their behaviour to avoid a real chance of persecution, would violate the exception provided in s 5J(3)(c)(vi).
I am satisfied that both applicants face a real chance of persecution in Malaysia, that s 5J(6) relating to conduct in Australia does not apply in either of their cases and that both applicants are refugees as defined by s 5H(1) of the Act.
For the reasons given above, the Tribunal is satisfied that both the first and second applicants are people in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal sets aside both decisions under review and remits both applications for protection visas for reconsideration, in accordance with the order that both applicants satisfy s 36(2)(a) of the Migration Act.
Dates of hearings: 2 April 2024 and 5 April 2024
Representatives for the Applicants: None applicable
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.
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