1815535 (Refugee)

1815535 (Refugee) [2024] AATA 1520 (9 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1815535
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Carolyn Wilson
DATE:9 February 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 February 2024 at 2:05pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – ethnic Malay – religion – Muslim – being a Muslim lesbian – applicant and partner are in a same-sex de facto relationship – membership of a particular social group – Muslim LGBT persons in Malaysia – applicant has a well-founded fear of persecution – State protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 30 January 2018. The delegate refused to grant the visa on the basis that they were not satisfied the applicant faced a real chance or real risk of harm as a lesbian in Malaysia.
The applicant appeared before the Tribunal on 23 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her partner [Ms A].
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant says she is Muslim and an ethnic Malay from Selangor, Malaysia. She arrived in Australia in November 2017 with her partner [Ms A]. She provided copies of her passport, national identity card (MyKad), and driving licence to the Department as evidence of her nationality and religion. Based on the identity documents I am satisfied she is a Muslim and a Malaysian national, and I find Malaysia is her receiving country.
In her protection visa application the applicant claimed to have travelled to Australia with her same-sex partner [Ms A]. She said she started a relationships 6 years earlier with [Ms A], which was difficult for her because she was a Muslim and had previously believed being lesbian was a sin. In Malaysia they had to live in the shadows and hide their relationship. There is no protection and no rights for LGBT persons in Malaysia, and it is illegal. Discrimination is pervasive throughout Malaysia against the LGBT.
The applicant attended a hearing on 23 January 2024. Her partner [Ms A] came to give evidence. The applicant gave an account of how they met at work in 2012, and that for her it was a love a first sight feeling. This confused her as up to that time she had only dated men. She said they were only friends for about six months as she worked through these feelings, but on 20 December 2012 they decided to become partners. She said they celebrate this day as their anniversary every year, and described how they spent the day last year marking it. The applicant said although she had not been attracted to women prior to meeting [Ms A], she now considers herself a lesbian.
The applicant said that she and [Ms A] hid their relationship in Malaysia but it was noticed at their workplace. She was directly asked about it by the [manager], but she denied the relationship for fear of problems. The workplace became very uncomfortable and in 2015 both she and [Ms A] left their jobs and opened their own [shop] which they operated until they left Malaysia.
At the hearing the applicant and [Ms A] both gave credible accounts of how they live together as a couple in Australia. They live in a regional area and as a couple aged in their [age range] they prefer a quiet life rather than socialising in LGBT clubs. They enjoy travelling together. Prior to coming to Australia they had travelled to [various countries]. Some photographs had been provided in support of this. They have also travelled extensively within Australia, and provided evidence of their next trip planned for Sydney in May 2024. They lived with other housemates in Adelaide when they first came to Australia, but since 2020 have been living alone in a rental property in a regional area. They provided evidence of the lease agreement with both their names on it as well as a variety of correspondence addressed to each of them at that address. The applicant said she is the one in the relationship who manages their finances. They have bank accounts in their own names but they share the money. She said her bank account was the one they primarily used for paying rent, bills, and living expenses. They use [Ms A]’s account when they need extra money or to send money back to their families in Malaysia. Following the hearing she provided bank statements for the last 3 months which supported this. The statements showed they each had their own pay paid into their own accounts. The transaction history in the applicant’s account showed regular payments for rent, bills and groceries, whilst [Ms A]’s account showed regular transfers across to the applicant’s account, a few small transactions, and payments to a money transfer business which I infer is how they send money to their families. The applicant also provided evidence she had nominated her partner as her beneficiary in her superannuation when that account was opened in 2022. The applicant also provided copies of personal messages between herself and [Ms A], and a letter of support from a long time friend of [Ms A]’s who attested to the social recognition of the relationship. Based on all this evidence, I accept the applicant and [Ms A] are in a same-sex de facto relationship and have been in a long-term committed relationship since December 2012.
The applicant said she has hidden the true nature of her relationship with [Ms A] from her family. Her family met [Ms A] once in Malaysia as her friend, and they know they share a house in Australia, but they never discuss that she is actually her partner. She believes her conservative Muslim family would not accept the relationship and would pressure her to break it off. One of the reasons she left Malaysia was because family were often questioning when would she get married. She would be unable to openly live with [Ms A] in Malaysia as she does in Australia. Although they maintained a relationship in Malaysia from 2012 until they left in 2017, they had to do so by presenting themselves publicly, and even amongst family, as merely good friends and hide the true nature of the relationship. In Australia they have become habituated to living more openly and would struggle to return to hiding their relationship in Malaysia.
The Department of Foreign Affairs and Trade (DFAT) reports that Malaysia is a conservative Islamic nation where there is widespread official and societal disapproval of LGBT identities and behaviours. Adult same-sex relations are illegal, and state-level syariah laws also prohibit same-sex relations and non-normative gender expression. Many members of the LGBT community hide their identity to avoid harassment, familial ostracism, and violence. DFAT assesses that LGBT individuals face a moderate risk of official and societal discrimination, which may include prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and violence from family or society. The risks are higher for Muslim LGBT persons.[1]
[1] DFAT, Country Information Report Malaysia, 29 June 2021.
The United Kingdom Home Office (UKHO) similarly reports that Malaysia is a culturally and religiously conservative country and in general there is a negative view of same-sex relations. There is a strong social taboo against LGBT issues among Muslims. Members of the LGBT group are reported to have faced threats, stigma, violence, including sexual violence, and discrimination. Whilst the authorities rarely prosecute LGBT persons under the Penal Code, there are prosecutions under syariah law. All Muslim states in Malaysia have laws which prohibit persons posing as someone of a different sex, resulting in transgender persons being subject to arrest.[2]
[2] UKHO, Country policy and information note: sexual orientation and gender identity or expression Malaysia, June 2020 (updated 22 September 2022).
Human Rights Watch (HRW) reports that Malaysia is one of a handful of countries that explicitly makes gender nonconformity a criminal offense, and criminalises consensual same sex conduct at both the federal and state levels. Successive Malaysian governments have taken a position that LGBT people should change their sexual orientation or gender identity, or should be prepared to face the consequences of social ostracization, discrimination, humiliation, and violence. State-sponsored conversion treatment primarily targets Muslims. Between 1985 and 2019 every Malaysian state introduced syariah criminal enactments criminalising ‘a man posing as a woman’ or ‘a woman posing as a man’. From 2008 to 2010 seven states issued fatwas against pengkid (‘tomboy’ or masculine women) declaring women with a masculine appearance are forbidden in Islam.[3]
[3] HRW, ‘I don’t want to change myself’: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia, 10 August 2022.
Having regard to the country information regarding the treatment of lesbians and members of the LGBT community, and the laws which criminalise and prohibit same-sex relations, I find the chance of the applicant facing harm for openly expressing her sexual orientation by being in a long term relationship with a woman, particularly as a Muslim, is not remote and in fact amounts to a real chance.
I accept the applicant faces a real chance of persecution if she returns to Malaysia for reason of her being a Muslim lesbian. I accept the essential and significant reason for the persecution is her membership of the particular social group ‘Muslim LGBT persons in Malaysia’. I accept the persecution involves serious harm, that is, there is a real chance she may face significant physical or psychological harassment, societal violence, or charges, particularly under syariah law. I accept the persecution involves systematic and discriminatory conduct.
I have considered whether the applicant could take reasonable steps to modify her conduct to avoid a real chance of persecution. However such steps would involve her altering her sexual orientation or gender identity, and it is impermissible to require such steps under s.5J(3)(a), (b), or (c)(vi).
As the state is one of the agents of persecution, having regard to country information from DFAT, UKHO and HRW referred to above, I am satisfied that effective protection measures are not available and that the real chance of persecution relates to all areas of Malaysia.
There is nothing before me to indicate the applicant has a right to enter and reside in any other country such that Australia would be taken not to have protection obligations: s.36(3).
For these reasons I find the applicant’s fear of persecution if she is returned to Malaysia, now or in the reasonably foreseeable future, is well-founded.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Carolyn Wilson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1520

9 February 2024

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