1832381 (Refugee)

1832381 (Refugee) [2024] AATA 3984 (15 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1832381
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Ben Lumsdaine
DATE:15 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 August 2024 at 9:11am

CATCHWORDS
REFUGEE – Protection Visa – Malaysia – homosexual – membership of the particular social group – homosexual men in Malaysia – applicant’s evidence was not being recalled from his personal experience – lack of details – had not made his sexuality public – applicant would not face a risk of harm on the basis of his sexuality religion – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 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 22 October 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 13 June 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant sought review of this decision and applied to the Tribunal on 4 November 2018. The applicant appeared before the Tribunal on 23 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CLAIMS AND EVIDENCE
Background
The applicant is a [age]-year-old man from Selangor in Malaysia. He arrived in Australia on [date] August 2016 on an Electronic Travel Authority (Subclass 601) visa, travelling on a valid Malaysian passport issued on [date] 2015. In his protection visa application, he stated that he came from Selangor and completed his schooling there before completing a Diploma [in] Negeri Sembilan.
Evidence before the Department of Home Affairs
The applicant applied for a protection visa on 13 June 2017. In his application for a protection visa, the applicant made the following claims:
He left Malaysia because he is homosexual.
The law in Malaysia prohibits homosexual activity as it is an Islamic state and homosexuality is considered an offence in Malaysian law and society.
The applicant has been tortured mentally and physically by the anti-LGBTI community in Malaysia, which is a Muslim country where homosexuality is banned.
The applicant did not seek help in Malaysia as Malaysia is an Islamic state and homosexuality is despised and not accepted in the community.
The applicant has not tried to move because the law regarding homosexuality is applicable to the whole country.
The applicant fears being subject to criminal prosecution in Malaysia. The penalty can be more than 20 years’ imprisonment and being caned. Homosexuals are greatly despised and not accepted in the community.
The applicant fears he will be harassed and this will constitute psychological abuse from society. He fears allegations will be made against him and create a bad image of him and his family. He also fears the pressure will rise greatly when people around him criticize and judge him.
He believes there will be no protection available to him form the Malaysian authorities because there are punishments for being homosexual in the existing laws.
On 22 October 2018, a delegate of the Minister for Home Affairs refused the applicant’s protection visa application. The delegate found that country information indicated that there was discrimination against homosexuals in Malaysia but that this did not meet the threshold of persecution.
The applicant was notified by email sent to the email address provided in the applicant’s protection visa application.
Evidence before the Tribunal
On 4 November 2018, the applicant applied for review of the delegate’s decision to refuse his Protection Visa application. The application for review included a copy of the notification of the delegate’s decision to refuse his application and the reasons for the decision.
On 23 April 2024, the applicant attended a hearing before the Tribunal. A Malay-speaking interpreter was present to assist at the hearing. Where relevant, evidence given by the applicant at the hearing is provided in the section below entitled Assessment – analysis, reasons and findings.
No further information or evidence has been provided to the Tribunal in relation to the applicant’s claims.
Independent country information
Homosexuality in Malaysia
Estimates of the number of people who identify as LGBTI in Malaysia include a 2021 IPSOS company poll of 500 people, which returned a result of 2% of those asked identifying as lesbian, gay or homosexual, though participants in the poll tended to be relatively more urban, educated and affluent than the general population of Malaysia.[1] In considering these numbers, it is important to consider the cultural context for people identifying as LGBTI in Malaysia. The Department of Foreign Affairs and Trade (DFAT) reports, ‘Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours.’[2] Same-sex sexual activity is not widely accepted in Malaysia and is criminalised under a number of laws and ‘[a]dult same-sex acts are illegal regardless of age and consent.’[3] Malay Muslims are also subject to numerous state-level Syariah‑based laws that also prohibit same-sex acts[4] such as liwat (sex between men) or musahaqah (sex between women).[5] Further, DFAT reports, ‘Malaysia is a conservative Islamic nation and there is widespread official and societal disapproval of LGBTI identities and behaviours.’[6]
[1] IPSOS, “LGBT+ Pride 2021 Global Survey”, 2021.
[2] DFAT Country Information Report, Malaysia, 24 June 2024 at [3.126].
[3] Ibid.
[4] ‘State-Sponsored Homophobia 2020: Global Legislation Overview Update’, Lucas Ramón Mendos, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.133; ‘Trans Legal Mapping Report: Recognition Before the Law’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 30 September 2020, pp.88–89; ‘Criminalisation of Homosexuality’, Human Dignity Trust, 25 October 2015..
[5] Queer Lapis, “LGBTQ Legal Guide: What laws are out to catch you?” December 2021.
[6] DFAT Country Information Report, Malaysia, 24 June 2024 at [3.126].
Despite the criminalisation of same-sex sexual acts, the enforcement of laws remains rare. For example, the penal code criminalising same-sex acts has only been used seven times since 1938[7] and four of those were directed against former prime minister Anwar Ibrahim and are believed to have been politically motivated.[8] Similarly in relation to Syariah law, in September 2018, a Syariah court in Terengganu state ordered two women to six strokes of the cane after convicting them of allegedly attempting to have sexual intercourse.[9] The caning took place in the court room in front of 100 people. This was reported to be the first such sentence ordered in an LGBTI-related case since 2010.[10] Further, the status of these laws is under some question following a 2021 Federal Court decision that declared a Selangor state law prohibiting ‘unnatural sex’ to be unconstitutional and that the power to make such laws was reserved to the Malaysian parliament.[11] In effect this means that state laws against same-sex activity are invalid.[12]
[7] ‘Country Reports on Human Rights Practices for 2022 – Malaysia’, US Department of State, 20 March 2023, p.31,
[8] ‘Anwar Ibrahim’s rebirth and Malaysia’s LBGT+ rights’, Pursuit (University of Melbourne), 27 May 2018; ‘Convictions for sodomy follow unfair trials’, Amnesty International, 8 October 1998; ‘DFAT Country Information Report Malaysia’, Department of Foreign Affairs and Trade, 29 June 2021, section 3.134, p.45, 20210629092134
[9] HRW & JFS, “I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia”, 10 August 2022, p.38.
[10] DFAT Country Information Report, Malaysia, 24 June 2024 at [3.131].
[11] “Federal Court unanimously declares Selangor Shariah law criminalising ‘unnatural sex’ void, unconstitutional”, Malay Mail, 25 February 2021; ‘Selangor syariah law against unnatural sex is invalid: Federal Court', Malaysiakini, 25 February 2021.
[12] DFAT Country Information Report, Malaysia, 24 June 2024 at [3.127].
Nonetheless, it has been submitted that the effect of criminalisation of same-sex sexual acts shapes and reinforces negative perceptions of LGBTI persons and their ability to express themselves without fear and discrimination.[13] Further, members of the LGBTI community may be targeted under other laws. For example, DFAT reports that the National Department of Islamic Development (JAKIM) and other state religious authorities have occasionally conducted raids on LGBTI events.[14] One example is a raid in August 2018, which led to twenty men being detained and ordered to undergo counselling for illicit behaviour.[15]
[13] Sisters in Islam, Justice for Sisters, & Legal Dignity, “Analysis of the Kelantan Syariah Criminal Offences Enactment”, 29 February 2022, 20220811102611, p.22.
[14] DFAT Country Information Report, Malaysia, 29 June 2021 at [3.139].
[15] Ibid.
Throughout Malaysia same-sex relationships are seen as religiously and culturally taboo.[16] Politicians also use anti-LGBTI rhetoric to gain support.[17] For example, in September 2018, the then Prime Minister Mahatir stated that Malaysia ‘cannot accept LGBT culture’.[18] The succeeding political coalition was even less well-disposed to LGBTI activities and individuals. More recently, Prime Minister Anwar said recognising LGBTQIA+ identities ‘will not happen, and God willing under my administration this is not going to happen.’[19] The state also runs re-education programs for LGBTI individuals.[20] Aside from the risk of prosecution and ‘re-education’, DFAT reports that other forms of official discrimination include ‘exclusion from public spaces and employment opportunities, and/or familial or societal violence.’[21] Human Rights Watch cites reports of lesbian, gay and bisexual people facing ‘hostility and exclusion’ in the workplace.[22] A report from the Malaysian Human Rights Commission (SUHAKAM) found that 57 out of 100 people had been denied employment at least once because of their gender identity and 10 of the 100 had been refused employment for this reason over 10 times.[23] The US State Department reports discrimination in areas ‘including employment, housing, and access to some government services’.[24]
[16] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, sections 3.133; ‘I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia’, Human Rights Watch & Justice for Sisters, 10 August 2022.
[17] ‘Malaysia Bans Swatch LGBTQ+ Watches Ahead of State Polls’, Bloomberg, 10 August 2023; ‘Govt bans Swatch LGBT watches, owning one can result in 3 years’ jail’, Malaysiakini, 10 August 2023; ‘Malaysia Threatens Prison for Possession of LGBTQ-Themed Swatch Watches’, The Diplomat, 11 August 2023.
[18] DFAT Country Information Report, Malaysia, 29 June 2021 at [3.140].
[19] DFAT Country Information Report, Malaysia, 24 June 2024 at [3.129].
[20] ‘United States Commission on International Religious Freedom Annual Report 2023’, United States Commission on International Religious Freedom (USCIRF), 1 May 2023, p.63; ‘Country Reports on Human Rights Practices for 2022 – Malaysia’, US Department of State, 20 March 2023, pp.32–33; DFAT Country Information Report, Malaysia, 29 June 2021 at [3.142].
[21] DFAT Country Information Report, Malaysia, 29 June 2021 at [3.147].
[22] HRW & JFS, “I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia”, 10 August 2022, “I Don’t Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia” | HRW citing Arrow, Justice for Sisters, and the Gender Equality Initiative, “Monitoring Report: LGBTIQ+ Rights in Malaysia.”
[23] Human Rights Commission of Malaysia (SUHAKAM), “Study on Discrimination Against Transgender Persons Based in Kuala Lumpur and Selangor (Right to Education, Employment, Healthcare, Housing and Dignity),” p. 51 cited in HRW & JFS, “I Don't Want to Change Myself: Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia”, 10 August 2022
[24] ‘Country Reports on Human Rights Practices for 2022 – Malaysia’, US Department of State, 20 March 2023, p.32.
Members of the LGBTI community face discrimination and abuse socially.[25] DFAT reports ‘[t]here is a strong social taboo against LGBTI issues, particularly among Muslims, and online abuse is common. As noted in Media, authorities have undertaken efforts to restrict LGBTI activities online.’[26] Numerous studies have ‘found that these LGBT individuals are at a high risk of medical, mental and psychological problems’[27].
[25] ‘Human Rights Watch World Report 2023’, Human Rights Watch (HRW), 12 January 2023, pp.396–398; ‘Country Reports on Human Rights Practices for 2022 – Malaysia’, US Department of State, 20 March 2023, p.32.
[26] DFAT Country Information Report, Malaysia, 29 June 2021 at [3.143].
[27] See Dzulkifi, M.A., Rokis, R., Abdul Rahim, A., “Gender Identity Crisis of the Millennial Generation in Malaysia: Special Focus on the Issue of Pengkid’, International Journal of Asian Social Sciences, Vol. 8, Issue 10, October 2018.
A likely consequence of social and cultural attitudes to LGBTI individuals and their expression of their sexuality and gender identity is that many members of the Malaysian LGBTI community conceal their sexual orientation and gender identity. In 2021 DFAT reported:
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.[28]
[28] DFAT Country Information Report, Malaysia, 29 June 2021 at [3.143].
Studies reveal a number of ways Malaysian members of the LGBTI community have concealed their identity, e.g. by only revealing their sexuality online and presenting their partners as a friend.[29] There are, however, a number of organisations that help members of the LGBTI community.[30] One example is PLUPenang, an LGBTI organisation that is dedicated to supporting and fostering friendships amongst LGBTI members, arranging recreational events and providing a safe space for LGBTI people to express themselves.[31]
[29] See e.g. Jerome, C. et al, “Public Receptivity Towards LGBT in Recent Times Malaysia: LGBT Perspectives”, International Journal of Academic Research in Business and Social Sciences, 11(14), 371-383, 25 March 2021, p.377; ICJ, Invisible, Isolated, and Ignored - Human Rights Abuses Based on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia, March 2021, p.2.
[30] ‘LGBT Organisations in Malaysia’, Angloinfo Malaysia, n.d., accessed 29 June 2018, CISEDB50AD3776.
[31] ‘PLUPenang website’, PLUPenang, n.d., accessed 23 November 2018.
While the is some support available for people with HIV, such as the Pekasih centre in Perak[32], gay men with an HIV diagnosis face additional challenges. There are reports of discrimination accessing employment and in the workplace.[33] Also, it has been reported that LGBTI persons are encouraged to attend ‘re-education’ centres particularly if they are seeking treatment for HIV.[34]
[32] ARROW & JFS, “Monitoring Report: LGBTIQ+ Rights in Malaysia", January 2021, p.15
[33] Ibid., p.8
[34] 'Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression', United Kingdom (UK): Home Office, 8 July 2020, at [2.4.9], p. 8
The level and frequency of discrimination against LGBTI perosnstypically correlates with their socio-economic status, religion, geographic location and degree of openness about their sexual orientation/identity. Ultimately, DFAT assesses:
members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. [35]
[35] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 24 June 2024, section 3.148.
In 2021, DFAT reported that discrimination and abuse was more prevalent in east coast peninsula Malaysia or Sarawak and Sabah, poorer communities and amongst Muslim Malays, whereas society in Kuala Lumpur is generally more permissive and wealthier and non-Muslim Malays tend to experience less discrimination.[36]
CONSIDERATION OF CLAIMS AND EVIDENCE
[36] DFAT Country Information Report Malaysia, Department of Foreign Affairs and Trade, 29 June 2021, section 3.146, p.49.
Relevant law
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.
Refugee criterion
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).
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.
Complementary protection criterion
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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis – assessment, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. The Tribunal has considered the applicant’s claims and the independent information described above and makes the following findings. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
It is the responsibility of an applicant for a Protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).
Nationality and receiving country
The applicant claims to be a citizen of Malaysia and no other country. The applicant provided the Department with a copy of his Malaysian passport. The delegate was satisfied with the applicant’s identity and the authenticity of his passport. The applicant also presented his passport at the hearing and gave evidence that he was a citizen of Malaysia and no other country. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Malaysia and considers Malaysia is the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Additional evidence at the hearing
At the hearing, the applicant claimed to have read his application for the protection visa and confirmed that the information in it was correct. He also provided additional evidence, which is summarised below.
The applicant confirmed the information about his family was correct and the details of his education in the application form were correct, including completing a [Diploma]. The applicant provided some additional work history not included in the application, including that he had worked at [a workplace] providing [support] from when he finished his diploma until coming to Australia. He also confirmed that he had worked in a [workplace] while he had finished his diploma. The applicant confirmed that he was working in Australia and in weekly telephone contact with his parents and regular contact with his siblings. He was also sending his parents approximately AUD1,000 per month.
The applicant claimed to have found out about protection visas by conducting a Google search and understood that they were to protect people who feared persecution. He claimed that he had been persecuted as a teenager and feared persecution in the future in Malaysia as he is homosexual.
The applicant claimed that he had not had a happy childhood and had been caught ‘red-handed’ in public and since then had to hide his identity. The applicant recalled he had been attracted to a friend called [Mr A] when he was around [age] or [age] years old. [Mr A] went to the same school as him but was in a different class. He claimed that they were friends for a couple of years. The applicant claimed that while they were at a sporting event, he told [Mr A] that he liked him but that [Mr A] became angry. After being scolded by him, he started to understand that people considered it wrong to be gay. The applicant claimed that he started to become afraid. He started to tell other people but they started to isolate him and he became lonely. When they found out he was gay, people made fun of him and bullied him. The applicant claimed he did not act on his attraction towards men any further while he was at school.
After he finished school, he claimed that he could no longer control his romantic feelings towards men. He got to know other men who were gay and was able to talk to them about his feelings. He claimed to have met these men when he went to [a] nightclub in Kuala Lumpur for his [ birthday]. He knew these men were gay from how they dressed and how they moved. They wore tight clothes and looked androgenous and were ‘soft’ and mingled with transgender people. He approached the men there and spoke to them and exchanged numbers.
The applicant claimed to meet the men he first met at the nightclub again and to meet other gay men through them. Their names were [names]. He started romantic relationships with other men. He did not have a partner but had ‘fun’ with them. He started going to other nightclubs and spending time at shopping malls with them. He also started to feel that people hated gay men. He claimed that if he was out late at night with another gay man, he would be embarrassed or beaten. The applicant gave one example of when he was with a friend sitting near a lake talking and leaning against his friend. While he was doing this, some people approached them and started verbally abusing them, including making comments about their sexuality, and then chased them. When these people caught the applicant and his friend, they kicked and beat them. The applicant claimed a similar incident occurred on another occasion when he was [age] years old. He claimed he had been physically harmed twice but had not been injured by these attacks.
The applicant claimed not to have suffered any other physical harm but that he had been made fun of, bullied and embarrassed and that he was depressed. The Tribunal asked the applicant if he was receiving treatment for his depression and the applicant responded that he was not.
The applicant claimed that he started hiding his sexuality from then and only his close friends knew. He claimed he did not change the way he dressed or behaved and claimed that if he was meeting his friends, he would say he was going out to play soccer.
The applicant’s evidence at the hearing was that in Australia he felt free not to hide his identity and to express his feelings as a gay man. The applicant gave evidence that he had met two gay men while in Australia. He met them while swimming [and] had gone to drinks with them three or four times before they moved to Europe. The applicant did not have a relationship with them or any other relationships in Australia. The applicant’s evidence was that he was trying to find a relationship through social media but had not found anyone.
The Tribunal asked if the applicant was involved with the broader gay community in Australia, whether he had been to events for the gay community or consumed any media produced for the gay community. The applicant responded that he had not. The applicant stated that he was happy to be a gay man in Australia and that he felt free and did not feel scared anymore, whereas in Malaysia he felt hatred, and was scared and depressed.
The Tribunal asked if he had made any public statements about his sexuality and the applicant replied he had not because ‘they’ are going to hate him. The applicant stated that he has no evidence that he is gay and has not had any relationships. The Tribunal asked the applicant why this was and the applicant replied that it was because his English was not good and it was hard for him. The Tribunal asked if the applicant had any evidence that showed he had been trying to find relationships with men, such as messages and he said he has not because most of his friends are in Malaysia.
The applicant claimed that if he returned to Malaysia, he would have to hide his identity, and would live in fear. He would be afraid of being beaten up, bullied and made fun of. He explained that by hiding his identity he meant not telling anyone about his sexuality and his inability to let anyone know about his feelings would affect him emotionally. He feared that homosexual relationships were not accepted and the general public did not like gay people and would harm him. He feared there was no protection available to him in Malaysia and there were laws that could subject him to imprisonment for being an LGBTI person.
When the Tribunal asked where the applicant would live if he returned to Malaysia, he said he did not know. The Tribunal asked if he would live with his family again and the applicant replied that he would and would have to think about what to do. When asked if there was anywhere he could live safely in Malaysia, he replied he could not because Malaysian people hate people like him.
Concerns with the applicant’s evidence
At the hearing, the Tribunal had a number of concerns which it put to the applicant. These concerns and the applicant’s responses are set out below.
The Tribunal put to the applicant country information that indicated laws criminalising sex between people of the same sex were very rarely enforced, suggesting that the likelihood of the applicant receiving a criminal punishment for his sexuality was very low.
The Tribunal also put to the applicant country information that indicated the risk of harm to people from LGBTI backgrounds differs from place to place and according to social status, education, religious and cultural background and geographical location. This suggests that there would be places in Malaysia where the applicant could live without facing a real chance of serious harm. The applicant responded that he lived in Selangor where Kuala Lumpur is located and had been harmed. He also commented that Malaysia is an Islamic country and as a Muslim he feared he would be placed in a bad light. The Tribunal asked if his sexuality had affected his faith and the applicant responded it had not but that Islam prohibited sex between men and that he could not ‘cheat’ himself and the thoughts inside him.
The Tribunal also put to the applicant that much of the evidence in his application and at the hearing had been vague. The Tribunal explained that the applicant had provided little detail about when things had happened to him, who was there, and even about what happened. The Tribunal explained that the vagueness of the applicant’s evidence may lead the Tribunal to find he was not answering questions from memory but making up answers to strengthen his claims for protection. The applicant responded that he was not sure what to say and thought he had explained his circumstances well. He also claimed that he could not remember details because he was [age] when the events occurred.
The Tribunal also put to the applicant that he had provided no supporting evidence to show that he has been in relationships with men or had tried to initiate relationships with men in Malaysia or in Australia and this might indicate that he is not gay as claimed. The applicant responded that he had no information.
The Tribunal also put to the applicant that he had been in Australia for almost seven years and had been able to find housing and work and said he felt free and able to be himself in Australia but had not entered into any relationships. The Tribunal explained that this might lead it to find that the applicant is not interested in pursuing relationships with men and was not homosexual. The applicant responded that he had tried to look for evidence but had difficulty because of the language barrier and also cannot enter into relationships because of the language barrier. The applicant explained that he was afraid people would not accept him because of his limited English. The Tribunal asked the applicant if he had tried to find a Malay-speaking gay community in Australia. The applicant responded that he spoke to transgender people but not gay people. The Tribunal asked the applicant if he asked the transgender people he met if they knew Malay speaking people in the gay community and the applicant responded that he tried but that transgender people just keep to themselves.
The Tribunal put to the applicant that the harm he described in Malaysia, including being verbally abused and beaten twice but not injured, may not amount to serious harm. The Tribunal explained that even if it finds the applicant is gay, it might not accept that the level of harm he would experience in Malaysia would amount to serious harm. The applicant responded that it was still harm to him and that when it happens again and again it can also become a mental health issue. The Tribunal asked the applicant if he was receiving any treatment for his mental health. The applicant responded that he did not know where to seek treatment or help and was embarrassed to tell people he was gay. The Tribunal explained that it needed to consider whether such harm to the applicant’s mental health would amount to serious harm. The applicant responded that he was reluctant to ask about it and did not want to disclose his identity and that this could affect his mental health.
Consideration of the applicant’s evidence
The applicant’s claim is that he is a homosexual man from Malaysia and fears harm for this reason; essentially for his membership of the particular social group of homosexual men in Malaysia.
The Tribunal found the applicant’s evidence at the hearing regarding his claimed past experiences in Malaysia to be plausible in the context of available country information and largely consistent with the claims he had made in his protection visa application. Country information indicates that negative attitudes to same sex relationships in Malaysia are widespread and particularly prevalent among Muslims and people of Malay ethnicity. The Tribunal, however, maintains its concerns about the lack of detail provided by the applicant in the protection visa application form and at the hearing, which gave the impression that the applicant’s evidence was not being recalled from his personal experience.
The harm the applicant claims to have suffered is primarily harm to his mental health. The applicant claims to have suffered psychological abuse from being taunted, humiliated and forced to conceal his sexuality from society. He claims that in Malaysia he felt scared and depressed. The Tribunal understand that this is not a formal diagnosis. The applicant has provided no evidence of this other than his assertion in his protection visa application form and gave evidence that he is not receiving treatment for his mental health because he was ashamed to talk about it. The Tribunal accepts that a person with depression may be reluctant to seek help because of embarrassment and that this may explain why he has not sought treatment in Australia.
The Tribunal’s primary concern is the lack of evidence the applicant has provided that he has pursued romantic or sexual relationships with men. The applicant’s evidence at the hearing was that he has been aware of his attraction to men since around the age of [age] or [age], that he had made some friends in Malaysia who were gay when he was [age] and spent time with them and pursued relationships with men. He was verbally abused while spending time with them and physically assaulted on two occasions when leaning against one of them at a lake. On his evidence, the applicant has not had a male partner and has not had sex with a man but has cuddled other men. The Tribunal accepts that negative societal attitudes in Malaysia towards gay men, the abuse and harassment the applicant has claimed to have suffered, the applicant’s poor mental health and the criminalisation of sex between men may explain why he would not act on his attraction to men in Malaysia. Nonetheless, the applicant has been living in Australia for seven years where he claims to feel free to be himself and not have to hide his sexuality. Despite this freedom, the applicant has not been in any relationships with men, could provide no evidence of seeking relationships with men beyond asserting he has tried to find gay men online, and had not made his sexuality public or had any substantial involvement with other gay men.
The Tribunal has considered the applicant’s explanations that his English is limited, his friends are in Malaysia and he suffers from depression. While these explanations may explain his limited activity in seeking relationships with men in Australia and account for some time after arriving in Australia, the Tribunal finds it implausible that, if the applicant were romantically or sexually attracted to men, he would have had no contact with the gay community or he would be unable to provide evidence of seeking relationships with men after being in Australia for almost seven years. When the Tribunal put this concern to him, it found the applicant’s explanation of his attempts to find a Malay-speaking gay community in Australia unconvincing. Ultimately, the Tribunal is not satisfied on the evidence before it that the applicant is romantically or sexually attracted to men such that it considers him to be a member of the particular social group of ‘gay men in Malaysia’ or that he has been harmed for his sexuality. Consequently, the Tribunal does not accept that the applicant would face harm for this reason on return to Malaysia.
Consideration of applicant’s claims to be a refugee
The Tribunal has found that the applicant is not a member of a particular social group of ‘gay men in Malaysia’ or any similar group differently described. The Tribunal finds also that he would not be harmed for reason of his sexuality in Malaysia. The applicant has not claimed that he would be harmed for any other reason in Malaysia.
Findings on refugee criterion
For the reasons above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to Malaysia for any reason in s 5J(1)(a), now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in Malaysia. Accordingly, the applicant does not satisfy s 5H(1).
Consideration of applicant’s claims for complementary protection
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).
As set out above, the Tribunal is not satisfied that the applicant would face a real chance of serious harm in Malaysia now or in the foreseeable future and has considered whether the applicant satisfies the complementary protection criterion. The Tribunal has found that the applicant would not face a risk of harm on the basis of his sexuality. It follows that there is not a real risk the applicant will face significant harm in Malaysia for this reason.
The applicant has provided no information or evidence to indicate that he would face a real risk of significant harm for any other reason.
Findings on complementary protection
The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk the applicant will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ben Lumsdaine
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 3984

15 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness