1828051 (Refugee)

1828051 (Refugee) [2024] AATA 3010 (6 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1828051
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Denny Hughes
DATE:6 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 06 May 2024 at 12:55pm

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – homosexuality – in a committed same sex relationship with his partner – religion – a practising Muslim – membership of the particular social group – a young gay man – there is a more than remote chance that the applicant would be at risk of prosecution and punishment under Syariah law – State protection is not available to the applicant – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 21 September 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 6 April 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for grant of a protection visa.
The applicant appeared before the Tribunal on 12 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and oral evidence via telephone from [Ms B].
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
Visa application
In his protection visa application, the applicant claims to fear harm in Malaysia on the basis of his homosexuality. He states that homosexuality is socially unacceptable in Malaysia. If he returns to Malaysia, his parents and family will not accept him. He claims that he will not be able to get a job, and he is at risk of corporal punishment or imprisonment under Malaysian laws that prohibit same sex relationships.
The delegate did not interview the applicant.
Pre-hearing submissions
The applicant provided a pre-hearing information form on 21 January 2024. In that form the applicant states:
·He wants to live his life without having to hide what he is and just be by himself.
·He likes how he is able to walk around in public with his partner without having to be afraid of Islamic law and fear of being humiliated by others.
·He wants to be happy about who he is in public, workplace and the place that he lives with and the people that he loves.
The applicant also provided extensive handwritten submissions about the issues and risks of discrimination, penalties, and harm facing gays and LGBTIQ+ people in Malaysia.
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 issue in this case is whether the applicant meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant provided the Department with a copy of the biodata page from his Malaysian passport. He has consistently claimed to be from Malaysia. There are no apparent concerns with the applicant’s identity and the Tribunal is satisfied that the applicant is a citizen of Malaysia.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he 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 his receiving country and has assessed his claims against that country.
Claims related to sexuality and relationship
The applicant provided a coherent account of his family background in Malaysia. His parents are married and he has [sisters], that all live in Kuala Lumpur. He considers his family to be average and middle class.
The applicant gave evidence to the Tribunal that he identifies as a gay person. He first realised his sexuality in middle school. He claims his family are very religious and consider homosexuality to be unnatural and wrong. He did not tell anyone in Malaysia he was gay, nor did he have any relationships. His friends in Malaysia do not hold positive views towards gay people. He does not believe his family, friends or community would accept his homosexuality.
Shortly after finishing his schooling, the applicant and his father travelled to Australia in order to work. They travelled to [a city] to work on a farm for a month, after which they returned to Melbourne and found work at a [workplace]. His father returned to Malaysia after three months and the applicant found ongoing [work]. He did not come out to his father at this time or discuss his sexuality in any way, but he did tell his father of his intentions to settle in Australia permanently. The applicant explained that he had undertaken some research about protections for the LGBTIQ+ community in Australia and desired to stay here.
The applicant’s parents are aware of his sexuality, but do not accept it and believe he no longer is gay. His sisters do not know he is gay. The applicant indicated that he had initially come out to his mother around two years ago, however she was not accepting of this. The situation with his parents was compounded when the applicant first went on a date with his same sex partner [Mr A]. The applicant claims that his then flatmate provided that information to his father in Malaysia. The applicant explained that his flatmate was a friend of his father.
The applicant gave evidence that his parents were upset by the news. They told him to break off the relationship and come back to Malaysia. They told him that they would put him in conversion therapy, and not allow him to see his sisters and disown him. This had a serious impact on him and he realised there was nothing he could do to change their views. For the past two years, he has been keeping his sexuality and relationship from his parents, as well as his Malaysian friends.
The applicant gave evidence that his mother and sisters came to Australia in March of this year. They did not talk about his sexuality or his relationship, instead focussing on other aspects of his life. He confirmed his mother did not meet his partner during this time. He did not bring it up as he did not want to discuss it with her.
The applicant claimed his partner is an Australian citizen of [an ethnic] background. His partner’s parents are accepting of him and he currently lives with them. He claims he works with his partner at a [business]. Everyone at the workplace is aware of his sexuality and their relationship.
In terms of his relationship with his partner, the applicant showed the Tribunal an album of photos (from his phone) of the applicant and his partner. The photos indicate the couple in a range of contexts, including dating and travel, across a range of dates.
The Tribunal asked the applicant whether they are recognised as a couple socially. The applicant said they do not have mutual friends that know about the relationship. He said his Malaysian friends do not know about his relationship. He does not believe they will accept his relationship and sexuality, and he fears his family may again find out.
The applicant initially indicated that he could not think of anyone who could provide evidence of social recognition of their relationship. However, the applicant and his partner then identified a mutual friend who could speak to these matters.
At the hearing, the Tribunal spoke to Ms [B] via telephone. [Ms B] confirmed she knew the applicant and his partner, that she knew them outside the work context, socialised with them and that they were open as a same sex couple. The Tribunal wishes to acknowledge its appreciation for [Ms B] providing evidence via telephone at very short notice.
[Mr A] attended the hearing as a support person for the applicant. He did not give specific evidence, however he was able to confirm some details of the applicant’s claims and evidence. The Tribunal considered it was not necessary to take evidence from the applicant’s partner.
Fears on return to Malaysia.
The Tribunal asked the applicant about his return to Malaysia. The applicant said he does not think he could go back to his family home or live with his friends. He fears he would be stranded, unable to work and with no place to live. He indicated that employers would not give him work because they would be concerned about his sexuality and perceptions about it.
The Tribunal noted the applicant appeared to be a private person about his sexuality and asked why he would not be private on return to Malaysia. The applicant said he could not be private on return to Malaysia, as he would not be able to find anyone if he was there. If he married his partner their marriage would not be recognised. The applicant said he could not open up and connect with other men in Malaysia.
The applicant said that if people in Malaysia found out about his sexuality and relationship, he would be at risk from penalty under Malaysia law. The Tribunal noted there are strict laws in Malaysia, but also noted country information indicated that they may not be regularly enforced. The applicant said he did not know about this and acknowledged the information, but indicated he might be at risk from people who operate outside of the law. He said he does not know what groups specifically targeted gays, but he is aware of people in Malaysia being targeted and exposed for being gay. He said that some people have been jailed and caned because they are homosexual.
The applicant said his family would never accept him for who he is. They would not consider him their son anymore. He fears the response of his mother and father, and their own families. He fears his family would turn him in to the authorities instead of accepting him. He believed he would be forced into conversion therapy. He does not know whether he could be himself in Malaysia.
He believes his parents would force him into conversion therapy. He said the conversion therapy involves being forced to read the Quran, and admitting that same sex relationships are unnatural and wrong, not permitted, and bad in the eyes of God. He believes it would be harmful, forcing him away from his identity. He said the therapy involves accepting that what he is doing is wrong, that being a gay person is wrong, and would continue until he no longer identifies as a gay person. If he travelled to other parts of the country, he believes he would be targeted by others who would identify him as a gay man and who have their own motives to target him because of his sexuality.
The Tribunal asked the applicant if he would be easily identifiable as a gay person if he returned to Malaysia. The applicant said he is very feminine, and that people may realise his sexuality from the way he talks and dresses.
Assessment of claims
The applicant provided a persuasive and credible account of his sexuality. The evidence of his relationship was supported by photographic evidence, the support of [Mr A] and witness evidence.
One aspect of his evidence that was a concern for the Tribunal related to social recognition of his relationship with his partner. While the evidence of their relationship was strong, the applicant initially could not identify any person that would be able to confirm that he and [Mr A] are a couple and present openly as a couple in social circles. In terms of his Malaysian friends in Australia, he said he does not tell them he is gay or share his relationship with his partner.
The applicant and his partner then identified a friend to support his claims. In this regard, [Ms B] provided a persuasive account of the applicant’s relationship with his partner and her affection for both men. Her evidence confirmed to the Tribunal that the applicant identifies openly as a gay man and that he is in a genuine same-sex relationship with [Mr A].
The Tribunal accepts the applicant is a gay man and that he is in a committed same sex relationship with his partner.
The applicant provided a plausible account of his religion, indicating that he remains a practising Muslim. He indicated he fasted for Ramadhan and that he had last spoken to his family ahead of Eid. The Tribunal accepts the applicant is a practising Muslim.
The applicant contended that his parents reject his sexuality and would disown him, deny his sexuality and force him to return to Malaysia and participate in conversion therapy if they found out he continued to live as a gay man in a same sex relationship.
A further concern for the Tribunal related to his relationship with his mother and whether it was consistent with his claims that she rejected his sexuality. The Tribunal noted that he had told his mother previously of his sexuality, but it was evidence that he had also holidayed with her very recently in Perth.
The applicant explained that his mother is very conservative and her reaction to his sexuality broke his heart. He said his mother is a very conservative Muslim and they did not speak of his sexuality on her visit.
At the hearing, the applicant showed photographic evidence of his mother and sisters during their travels to Australia. His mother and sisters were pictured wearing Tudung. While limited, the Tribunal considers this to be at least some corroboration of her Islamic faith and potentially conservative practise of Islam.
While the Tribunal has some concerns about his evidence as it relates to his mother, it is not implausible that his mother believes he has abandoned his sexuality. It is also not implausible he would seek to conceal his sexuality and relationship from her and his sisters given his mother’s past rejection of his sexuality.
The applicant’s evidence about his relationship with his father was more direct. They had travelled together to Australia to work and spent a few months together in the country, however at this point the applicant had not spoken about his sexuality with his parents at all. It was only after his father left, and his father was informed of his son’s meeting with [Mr A], that his father indicated his disapproval of the applicant’s sexuality. The applicant gave evidence that he and his father do not regularly speak these days.
The Tribunal accepts his sisters do not know of his sexuality. The Tribunal accepts his parents reacted poorly to news about his sexuality, but they believe the applicant has abandoned his sexuality and relationship. The Tribunal accepts they are conservative Muslims, and if they discovered the applicant was gay and in a same sex relationship, they would reject him, force him to return to Malaysia, force him to participate in conversion therapy, and inform his broader family, community and Islamic authorities.
The Tribunal accepts the applicant’s evidence that he is identifiable as a young gay man through his appearance and mannerisms, and this potentially exacerbates the risk of harm to him, particularly within more conservative Muslim communities.
It is not clear to the Tribunal that his partner would seek to return to Malaysia with him, but the Tribunal accepts the applicant would desire to continue his same relationship with his partner, that he would live as a gay man in Malaysia, and also continue to practise his faith.
Country advice
Country advice from the Australian Department of Foreign Affairs states that Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent.[1] Same sex marriage or civil union is not permitted.[2]
[1] DFAT, Country Information report – Malaysia, 29 June 2021.
[2] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
According to DFAT, the situation in Malaysia is more acute for the country’s Islamic population. It states that while government stances on (LGBTIQ+) issues apply to all within Malaysia, including foreigners, they are especially pronounced for Malays/Muslims due to the fact that a variety of LGBTI[3] behaviours constitute syariah offences as well as offences against the penal code.[4] Penalties that may apply to lesbians in Malaysia include imprisonment (up to 3 years), caning (up to six strokes) and fines (up to 5000 Malaysian Ringgit).[5]
[3] The Tribunal notes that the country reports use LGB, LGBT, LGBTI and other terms interchangeably. Where referencing a particular report, the Tribunal has adopted the acronym used in the relevant analysis, but otherwise uses the more includes LGBTIQ+ in terms of its own assessment.
[4] DFAT, Country Information report – Malaysia, 29 June 2021.
[5] Ashgar Ali Muhammed and Yusuff Jelili Amuda, 'LGBT: An Evaluation of Shariah Provisions and The Laws of Malaysia and Nigeria', Global Journal Al-Thaqafah, June 2018.

The UK Home Office provides a number of examples of members of Malaysia’s LGBTIQ+ community being arrested and subjected to imprisonment, fines and mistreatment. In 2019, five men were sentenced to jail, fines and caning by the Selangor Syariah High Court for attempted sexual intercourse. In 2018, a Syariah court in Malaysia ordered a lesbian couple to be caned after they were caught having sex in a car. The sentence was carried out in a courtroom in front of witnesses.[6] DFAT states that this was reportedly the first such sentence to be ordered in relation to a LGBTI-related case since 2010. DFAT further observed that the Penal Code has only been invoked 7 times since 1938 with 4 of those instances thought to be politically motivated.[7] The Tribunal notes that the applicant’s submissions refer to a number of instances of men and women in Malaysia being punished for same sex activities.
[6] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020; NBC News (AP), 'Malaysian Muslim lesbian couple caned in
[7] DFAT, Country Information report – Malaysia, 29 June 2021.
The UK Home Office assesses that ‘in general’ ‘LGB’ persons are unlikely to be of particular interest to the authorities and unlikely to be prosecuted under the Penal Code, although it concedes that if the law were applied it would be disproportionate and discriminatory. Significantly, it states further that LGB people from Muslim backgrounds are likely to be liable to prosecution under Syariah law.[8]
[8] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
DFAT states that authorities at federal and state levels also have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs organised by JAKIM since 2011.[9]
[9] DFAT, Country Information report – Malaysia, 29 June 2021.
There is some indication in the country advice that the situation for the LGBTIQ+ community in Malaysia has become less tolerant, as political parties adopt stronger ‘anti-LGBT positions’ to appeal to more conservative voters in the country.[10]
[10] DFAT, Country Information report – Malaysia, 29 June 2021; Reuters, 'Malaysia seeks stricter sharia laws for "promoting LGBT lifestyle"', 24 June 2021.
As an example of this, the Tribunal notes the applicants’ submission refers to a ban on ‘rainbow-coloured Swatches’ in the country. In August 2023 the Malaysian government banned all Swatch products that contain ‘lesbian, gay, bisexual, transgender or queer elements – including watches, wrappers and boxes’ and warned that anyone found with one could be jailed for up to three years.[11]
[11] NBC News (AP), 'Malaysia makes owning an LGBTQ Swatch punishable by up to 3 years in jail', 10 August 2023.
On a societal level, DFAT states that there is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. The authorities have undertaken efforts to restrict LGBTI activities online. Many members of the LGBTI community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence. Reports of violence by family members towards LGBTI individuals are common, and society will generally place the blame for such violence on the individual for provoking it through identifying as LGBTI.[12]
[12] DFAT, Country Information report – Malaysia, 29 June 2021.
The Tribunal considers that anti-LGBTIQ+ sentiment is not static throughout Malaysia. According to DFAT, the level and frequency of discrimination faced by members of the LGBTI community differs according to a person’s socio-economic status, religion, geographic location and degree of openness. DFAT indicates that ‘well-educated urban LGBTI individuals of high socio-economic status’ are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas. DFAT also refers to sources that state that society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah.[13]
[13] DFAT, Country Information report – Malaysia, 29 June 2021.
The UK Home Office indicates that ‘LGB clubs’ have been able to operate and were, until recently, left alone by the authorities. In August 2018 Malaysia’s oldest gay bar in Kuala Lumpur, the Blue Boy nightclub, which had operated without incident for 30 years, was raided and 20 men were detained and ordered to have counselling for ‘illicit behaviour’ by the Federal Territory Islamic Religious Department of Malaysia. The report states that there have been no further reported raids on the club and it remains open to this date.[14]
[14] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020.
DFAT’s overall assessment is that, in general, LGBTI individuals face a moderate risk of official and societal discrimination, which may include being subjected to prosecution, ‘re-education,’ exclusion from public spaces and employment opportunities, and/or familial or societal violence. These risks are higher for Malay/Muslim LGBTI individuals, for transgender individuals, and for LGBTI individuals located in poorer and rural areas.[15]
[15] DFAT, Country Information report – Malaysia, 29 June 2021.
According to the UK Home Office, the Malaysian authorities have been responsible for arrests, violence, detentions, harassment and discrimination towards LGBTI persons with reports of the police physically and sexually assaulting them. While there is some evidence of the authorities prosecuting perpetrators of violence and murders against the LGBTI community, in many instances the police ruled out hate crime as a motive. The UK Home Office assesses that the state appears able but unwilling to offer protection to the LGBTI community in Malaysia.[16]
[16] UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 8 July 2020 (Tribunal’s emphasis).
Assessment of profile
The Tribunal accepts the applicant would return to Malaysia and live as a gay man. The Tribunal accepts that he is identifiable as a gay man, and that he continues to practise as a Muslim. The Tribunal considers the applicant would return to Kuala Lumpur.
The Tribunal accepts that his family would come to know about his sexuality and relationship in Australia, as would his friends and community. The Tribunal accepts his parents are conservative Muslims, and that they would again reject his sexuality as they have in the past, and seek to force him to end his same-sex relationship. The Tribunal considers there is a credible risk that they would force him to engage in conversion therapy, and that that they would inform his family, community and the Islamic authorities. The Tribunal considers this would expose the applicant to further risks of discrimination, harassment, violence and punishment.
Based on the country advice above, the Tribunal considers there is a more than remote chance that the applicant would be at risk of societal discrimination, harassment and violence, as well as forced conversion. The Tribunal considers the applicant would face a risk of punishment under laws prohibiting same sex activities, and while federal or penal code prosecutions do not appear to be particularly common, the Tribunal considers the frequency of punishments under Syariah law is a concern. Although not at a high level, the Tribunal considers that there is a more than remote chance that the applicant would be at risk of prosecution and punishment under Syariah law.
The Tribunal is satisfied that the applicant would face a real chance of serious harm if he returned to Malaysia, now or in the reasonably foreseeable future. The serious harm could include significant societal discrimination or harassment, rehabilitation or conversion therapy, fines, corporal punishment or imprisonment, threats to his liberty, and/or violence. The Tribunal is satisfied the persecution feared would involve systematic and discriminatory conduct. The Tribunal finds the applicant would be persecuted for the essential and significant reasons of his membership of the particular social group of gay men, and/or the LGBTIQ+ community in Malaysia more broadly, and his additional profile as a practising Muslim.
The Tribunal has considered the fact that there are LGBTIQ+ communities, clubs and groups within his ‘home area’ in Kuala Lumpur, which appear to some degree to be insulated from the harm that faces the LGBTIQ+ community elsewhere in Malaysia. This is evident from advice from DFAT and the UK Home Office discussed above, that well-educated urban LGBTIQ+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than are poorer individuals in rural areas, and that people in Kuala Lumpur are generally more permissive of the LGBTIQ+ community.
The Tribunal finds that the applicant does not share the profile of such people in Kuala Lumpur. Even accepting some communities within Kuala Lumpur are more permissive of LGBTIQ+ individuals, the Tribunal is not satisfied the applicant is or would be part of such a community or afforded protection by it. The Tribunal considers he is from a middle class and conservative Islamic family, and a family that has previously rejected his sexuality.
Given this, the Tribunal considers Kuala Lumpur is where the risks to him as a gay man are likely most acute, because of his family’s rejection of his sexuality, and the potential for further rejection from his broader family and community.
Outside of Kuala Lumpur, the Tribunal considers the risks are more indirect, but given the conservatism and attitudes towards homosexuality in other areas in the country, the Tribunal considers the risks to the applicant as an identifiably gay man and a practising Muslim, are no less real. It follows that the Tribunal is satisfied the real chance of persecution relates to all areas of Malaysia.
The Tribunal is not satisfied effective protection measures are available to the applicant. The Tribunal considers his status as a Muslim (and practising Muslim) is a relevant consideration in that the applicant is vulnerable to penalty under the Syariah legal system in Malaysia. The Tribunal considers the state, and in particular the religious and Islamic authorities, would either be the perpetrators (in terms of punishment under the law, or conversion therapy/rehabilitation), complicit in the persecution, or otherwise unwilling to protect the applicant from the persecution he fears from his family and broader community.
The Tribunal has found that the applicant is a gay man, in an ongoing same sex relationship, and is a practising Muslim. While the applicant has been discrete about his relationship and sexuality with other Malaysians, the Tribunal accepts this discretion is a result of fear and concern his family will find out that he is in a same sex relationship in Australia.
The Tribunal considers his profile is elevated as a gay Muslim, as indicated in the country advice. The Tribunal considers his sexuality and faith are not matters that can be concealed, altered or renounced. In all the circumstances, the Tribunal does not consider he could take reasonable steps to modify her behaviour to avoid persecution under s 5J(3).
In view of all the information before it, the Tribunal finds that the applicant has a well-founded fear of persecution in respect of Malaysia. 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.
Denny Hughes
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.
…

public punishment', 4 September 2018.

[2024] AATA 3010

6 May 2024

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