1833267 (Refugee)

1833267 (Refugee) [2024] AATA 3455 (2 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1833267
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Carolyn Graydon
DATE:2 September 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 02 September 2024 at 4:47pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – physical assault – family violence and abuse – fear of detention – overstaying entry permit – forced conversion therapy – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 dependants.
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 12 November 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 1 June 2018.
The applicant appeared before the Tribunal on 6 June 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
Before the Department
Protection visa application
The applicant claims to be [an age]-year-old Malaysian citizen who was born in Selayang, Selangor in Malaysia. In his protection visa application form, he stated that he was homosexual and potentially faced prosecution and heavy sentences, including whipping, for his sexuality under Malaysian Islamic law. He also feared ‘banishment’ by other Muslims from social gatherings and harm from them, as well as a lack of protection from authorities due to his sexuality.
Supporting documents
In addition to his protection visa application, the applicant provided the Department with a copy of his Malaysian passport.
Protection visa application interview
The Department did not invite the applicant to attend an interview.
Delegate’s decision
The delegate refused the applicant’s visa on the basis that while the applicant may suffer discrimination and harassment from the authorities and society due to his homosexuality, the level of harm he faced did not reach the threshold to constitute persecution.
Before the Tribunal
On 13 November 2018 the applicant applied for review of the delegate’s decision, providing the Tribunal with the delegate’s notification letter, the decision record and a copy of his [named Partner B] completed on 29 July 2018.
Pre-hearing submissions and evidence
On 5 February 2024 the applicant responded in a form sent to him by the Tribunal reiterating his claim that if he was forced to return to Malaysia he would be at risk due to him being homosexual.
Homosexuality is a crime under Malaysian law, with a criminal ban on sodomy and oral sex with possible punishment including fines, prison sentences of up to twenty years, and even corporal punishment. I was born gay and I cannot help being gay. I want to live in a country where being gay is not a crime and I will not be punished for having a gay relationship which I deeply desire and being with the guy I love.
The applicant also attached a statement setting out the Federal civil and syariah offences he may face for being homosexual and stating his fears that:
The effect if I return to Malaysia, I will experience ridicule and humiliation from the community and even neighbours who have found out that I am a homosexual. I will also be prosecuted by civil and Shariah law practitioners. The police are also able to take action against me. The federal and state Islamic religious departments also have the right to take action against me. Local authority. Muslims and Muslim Malays will also have a severe impact on my mentality if I return to Malaysia.
The hearing
As noted above, the applicant appeared before the Tribunal on 6 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.
Post-hearing submissions and evidence
The applicants did not provide the Tribunal with any post-hearing submissions or evidence.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No. 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decisions under consideration.
The current DFAT report is the DFAT Country Information Report Malaysia dated 24 June 2024 (DFAT Report) and its relevant sections are referred to and discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant has a well-founded fear of being persecuted in Malaysia for one or more of the five reasons set out in s 5J and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The applicant has provided a copy of his Malaysian passport and has consistently claimed to be from Malaysia. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Malaysia.
There is nothing before the Tribunal to suggest that the applicant has citizenship of any other country, or any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Malaysia is the receiving country for the applicant and has assessed his claims against that country.
Evidence provided by the applicant at hearing
The applicant gave evidence that he [has specified siblings] born to a Muslim Malay family in Selayang, Selangor, Malaysia. His family members are strict Muslims, adhering to prayers five times per day, observing Umrah and fasting during Ramadan. His family is particularly conversative and religious. His grandfather is a leader at the mosque and his father is one of [number] siblings, all of whom have married [multiple] wives. His family is also involved with the Malaysian Islamic Party (PAS), especially his grandfather and his uncle who are part of the local group who identify people in the village who are not living in accordance with Islamic law and report them to the syariah authorities. His grandfather was also a village leader who would often liaise between local people and local government when they had problems. The applicant’s family is well known in the local areas. Where the applicant grew up is a PAS party stronghold.
As a child, he was required to strictly follow the religious practices of his family in accordance with his parents’ and other relatives’ wishes and would be caned if he did not read the Koran. The applicant first felt that he was different at the age of seven years old. He used to play with his 12-year-old female cousin and other female cousins. His mother told him that for the second child she had really wanted a girl and so treated the applicant as a girl and taught him to do tasks such as tidying up the house; however she did not expect him to ‘turn out’ to be gay. The applicant’s older brother saw him playing with girls and did not accept him how he was. He tried to teach the applicant how to fight and how to behave like a boy. His father and uncle, who lived next door, used to regularly beat him up for not being a ‘proper boy.’ They would also insult him and call him ‘sotong’, meaning squid, or something soft without any spine. Sometimes his mother would try to intervene to protect him from these beatings, but then his father started beating his mother. These incidents occurred frequently.
At the age of [age] years old his parents divorced, and he and his older brother went to live with his grandmother, still in Selangor, who became his main carer as his mother was busy working. His sister went to live with his father in another suburb. One of the reasons for the divorce of his parents were their arguments about how to parent the applicant, as his mother defended his effeminate behaviours but his father, brother and uncle were always pushing him to be a ‘true male’. While his parents were divorced, his mother continued to stay in contact with his father, as she still does. His situation did not greatly improve as his father and uncle continued to come to his grandmother’s house and beat him there. These beatings made him feel very depressed and he felt they were very unfair, causing him to question why his identity was seen as his fault when it was just how he was.
During his time at primary school and the early years of secondary school, he was constantly bullied as other children saw him as different. If he was eating his lunch, they would throw his food away or beat him up. During secondary school, when he was around [age] years old he was transferred to a religious boarding school, around two hours’ drive from his home, to ‘straighten him out,’ which he attended for two years. His father and uncle had told the school principal the reason they were sending him there was because he was gay and needed fixing. He was taught about jihad, the Koran and the importance of prayer to heal himself. He was regularly caned by the teachers at his school who were always finding fault with him. He was often verbally harassed by other boys who called him ‘sotong’ and regularly physically bullied him too. After prayers the teachers would ask him to go outside where they would treat him roughly and try to teach him to fight with the other boys. A number of other students at the school who were considered to be ‘gay’ were also put through this program. The applicant was very depressed and unhappy when he was there.
However, he also felt lucky to be at this school as it was there that he met his friend [Friend A], who he felt was the same as him. They became close friends and always shared their problems with each other. They began to fall in love. [Friend A] was always taking care of the applicant after fights or after he had been caned and was tender and kind to him. They were physically attracted to each other and would meet in secret so they could be together. They had to be careful and could never go to places publicly, but sometimes they would sneak out at night from the boarding house so that they could be together. This was the first time he had formed a relationship with a boy and it started soon after he commenced at the religious school and continued long after they finished school, lasting a total of eight or nine years.
After finishing school, the applicant’s mother (who was [an occupation 1]) helped him to get a job at [Employer 1] where he worked in the [section] with his mother. His work colleagues came to know he was gay, and while they did not beat him, they also used to call him ‘sotong’. However, the harassment and bullying worsened over time and so he felt very isolated that no one wanted to be around him. He was always eating alone and feeling depressed due to the name calling. This treatment caused him to look for another job. While it was not difficult for him to get another job (at [Employer 2]) due to his previous work experience, he felt his work colleagues could tell from just looking at him that he was gay, because ‘I could not help it but I would always feel much friendlier and comfortable with other men, until they started to bully me.’ The harassment and discrimination against him from work colleagues built up again, as it had at [Employer 1].
One day the applicant’s older brother and uncle became aware of his gay relationship when they found photographs on his phone of him holding hands with [Friend A] and kissing him. He was severely beaten by his father and uncle. They confiscated his phone from him and locked him up in his grandmother’s house. He was not allowed to go out or continue with his job. He could not walk to the shops or attend prayers at the mosque. He had to pray at home. His father and uncle found him to be a huge embarrassment to the family, especially to his grandfather who was one of the leaders at the mosque. His father also told him that the village people were all gossiping about him and wanted him to leave the village and so it would not be safe for him to walk around the village. As a result, he was forced to stay at home and also thought it was necessary for his safety.
This situation continued for nearly two years. During that time his uncle, father and brother increased the pressure on him to ‘be a real man’. They used to beat him and force him to pray all the time. They thought he was resisting and that his will to be different needed to be broken and that was why they would threaten him and beat him. They thought he was making a choice to be gay and they did not accept it when the applicant told them that he could not change himself. The applicant comes from a very large family and has [number] cousins who mostly lived in the same village. During the Eid celebration when the family gathered together at his house he was physically and verbally harassed by his cousins who would tell him that he was not allowed to go against the family and ‘you are the only one who is squid.’
The Tribunal asked the applicant if he had considered trying to escape or going to the police. He responded that he was too depressed and downtrodden to escape at that time. He was feeling very broken. He could not go to the police because they would consider it to be a family issue and also they do not agree to help people who are gay as it is against the law.
After two years, the applicant’s father considered that the applicant’s behaviour had improved and so gave him back his mobile phone. The applicant immediately contacted [Friend A] and they planned to escape together. He told his mother he was leaving and he fled with [Friend A] to Johor Bahru and then planned to escape over the border to Singapore. The applicant felt that in Singapore he could be protected. He was eligible for three-month visas to Singapore, but had to return each month to Johor Bahru to get his passport stamped so that he could maintain the three-month visa. He did this three times in total (i.e. held three-month visas for a total of nine months) but on his third time going back to Johor Bahru to get the stamp, he saw his father and brother some distance from [a named location] where he was headed on the bus. He panicked and decided he had to turn around and go straight back into Singapore. His father and brother did not see him get off and then re-board the bus to return to Singapore. He does not know exactly how they came to know he would be returning to Johor Bahru at that time but assumes they must have found out from his mother, who he had remained in touch with, or from his brother’s friends, many of whom were in Singapore and may have reported to his brother that he had boarded the bus to return to Malaysia.
He felt very afraid that his brother and father were looking for him and he did not feel safe to return again to Malaysia to get his passport stamped. He did not know what to do but decided the lesser risk was to overstay his visa in Singapore. Some weeks later, the applicant’s brother and father found the applicant in Singapore. The applicant was at [a named location] with [Friend A] when he suddenly saw his father, brother and four of his brother’s friends. The applicant believes his brother’s friends must have been watching him and coordinated with his brother and father to come and catch him in Singapore.
They chased the applicant while [Friend A] managed to escape. The applicant sprinted around five minutes to the police station. When his pursuers saw he had gone into the police station, they abandoned their chase. The applicant asked for help from the police, explaining that he was gay and that his family had been trying to take him back to Malaysia. After they checked the applicant’s passport, they saw that he had overstayed his visa, and so he was then detained at the police station for around two or three weeks. He then attended court facing a charge of overstaying his visa. He did not have a lawyer. The police at the court told him ‘If the judge asks you anything, just say yes,’ which he did and was then transferred to a prison for three or four months.

The applicant was very afraid while he was held in prison as it was for all prisoners, including serious criminals and people on drugs. He shared a room with three other men who were there for drug offences. They knew he was gay and physically beat him and verbally abused him (but did not sexually abuse him); he did not fight back but just submitted to them because they were on drugs and he was afraid. The applicant found this a very frightening period of his life.
[Friend A] was not able to visit him at the police station or the prison as he had also overstayed his visa. From that time the applicant lost contact with [Friend A] as his number changed, likely because he became afraid of being associated with the applicant given his problems with the authorities in Singapore and with his family. Losing his relationship with [Friend A] caused the applicant a lot of grief and he still feels lonely and misses him.
After three or four months he was sent back to Malaysia in early March 2018 and his father took him back to his grandmother’s house. His brother and uncle badly beat him up, [causing specified injuries], for which the applicant received no medical treatment at the time. After he had recovered somewhat, his mother took him to get [treatment] but to the present day he still has problems with his [these injuries]. He remained a captive at his grandmother’s house again. His mother tried to care for him and said that she would find a way for the applicant to leave Malaysia for good. The applicant’s mother told the applicant that Australia was safe for LGBTQI people and bought him his plane ticket and gave him $5,000 to start a new life. The applicant left his grandmother’s house without telling anyone of his travel plan and while his uncle and brother were at work.
Since coming to Australia, the applicant has only had direct contact with his mother and not with any other family members. After arriving in Melbourne, he took a taxi to [Town 1] as he had heard it was a quiet and peaceful place and he wanted somewhere to stay where he could recover. He stayed in a caravan for around one month and struck up conversations and friendship with others staying in vans and was very relieved to find that LGBTQI people were accepted there.
After three months recuperating, the applicant met another gay man from Malaysia who helped him to apply for his protection visa. He then moved to [two named suburbs] where he currently lives and in the six years he has been in Australia he has worked in [a list of businesses].
Since being in Australia he has had a relationship with two Malaysian men, [Partner A] and [Partner B]. The three of them were close friends but then it became something more. They did not mix or socialise very freely with others in the Malaysian Muslim community as they did not want to be judged like in Malaysia and did not want word of their gay relationship to get back to their family members. The applicant met [Partner A] through him being a housemate and then [Partner A] later introduced the applicant to [Partner B], his friend. They maintained their intimate three-way relationship for around one year (in 2021) but then [Partner B] returned to Malaysia and then sometime later [Partner A] also returned. Both men returned due to pressure from their families to marry women. The applicant emphasised that they were both very close to their mothers who kept pleading with them to return and both [Partner B] and [Partner A] could not bear to see their mothers so unhappy. The applicant has had no contact with either [Partner B] or [Partner A] since they left Australia; they requested no contact to prevent their previous relationship with the applicant becoming known to their families.
The applicant has also faced pressure from his family to return to Malaysia to marry. Since being in Australia the applicant has remained in contact with his mother, who also remains in contact with his father. She told the applicant early last year (2023) that his father wanted him to return to Malaysia to be ‘a real man’ and to marry a woman he had selected for him. The applicant told his mother that he had no plans to return to Malaysia as Australia allowed him to live openly as a gay man. The applicant’s mother told him that he should do as he liked, as long as he was happy. Since telling his mother that he had no intention of returning to Malaysia or marrying a woman, his mother has told him that his father and uncle planned to come to Australia to find him, however his mother had not told them where he is or how to contact him. The applicant is confident that the police in Australia would protect him if his family members tried to reach him here.
Since [Partner B] and [Partner A] returned to Malaysia in 2021 and 2022 the applicant has not been involved in any further relationships. The applicant remains a shy person and does not have a wide friendship circle and has a limited social life, mainly with Malaysians in his neighbourhood. He has made some efforts to find other gay men [via social media] and is aware there are many events happening, but he does not attend as he does not have friends to go with him and he is shy.
Credibility assessment
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well founded’ or that it is for the reason claimed. A fear of persecution is not ‘well founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicants themselves, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make out the applicants’ case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J, Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal notes that the applicant has consistently claimed to fear return to Malaysia on grounds of his homosexuality since the outset of the protection visa process. However, the Tribunal also notes that up until the time of his hearing, the applicant’s fears were framed as being primarily regarding prosecution and mistreatment under Malaysian laws and authorities of various kinds, as well as a fear of social discrimination due to his sexuality. However, at the hearing, the applicant’s narrative focused primarily on him fearing persecution by his family members and him lacking any effective state protection from their mistreatment of him. The Tribunal asked the applicant why he had not set out any of his claims or previous experiences of harm at the hands of his family members at any earlier point in the process. The applicant explained that he had not realised that he could claim protection from family members, but rather had thought that in a protection application his claims had to be made mainly against the laws and authorities in his country.
The Tribunal notes that while a friend assisted him in preparing his initial application, the applicant has never received legal assistance or guidance throughout the refugee determination process, as confirmed in the applicant’s statement on his form to the Tribunal in February 2024 that:
To be honest I don't have a lawyer to represent me because of the cost I can't afford. When I received this email from AAT was a little scared and nervous, so I immediately contacted my close LGBT friend. Advised me to be calm and fill out this pre-hearing form honestly and the supporting documents available.
The Tribunal further notes that the applicant was never invited to an interview by the Department, which would have provided him with an opportunity to more readily elicit all of his claims. Furthermore, the Tribunal is of the view that the essence of the applicant’s claims – that he fears persecution due to his homosexuality – has not changed throughout the process and that his failure to have put forward his claims relating to persecution by his family members related only to an integer or sub-set of his overall unchanged claim. For all of these reasons, the Tribunal is satisfied that the applicant’s explanation for why he did not put forward his family-related claims at an earlier point, are reasonable and understandable given his lack of legal assistance to guide him on this issue throughout the process. Therefore, the issue of s 423A of the Act – which requires the Tribunal to draw an adverse credibility inference if it is not satisfied there are reasonable grounds for why claims were not put forward by an applicant before a Department decision is made – does not arise in this case.
Moreover, the Tribunal is satisfied that the applicant is a generally credible witness. His evidence at hearing regarding his experiences and understanding of his identity as a homosexual person in Malaysia was detailed and consistent throughout. His accounts of experiences in his childhood, at school, in his family and in his homosexual relationships were compelling and credible.
While there were aspects of the applicant’s evidence regarding his Singapore visas and re-entry stamps, as well as his experiences with authorities in Singapore which at first seemed to the Tribunal to be confused and somewhat unusual, further clarifications from the applicant regarding the reasons for his multiple movements in and out of Singapore, combined with closer examination of the applicant’s passport stamps – which matched the applicant’s explanation and chronology of his movements – and review of relevant country information regarding overstayers in Singapore, resulted in a much clearer and corroborated account, which the Tribunal is now willing to accept.
Regarding his alleged detention, conviction and imprisonment for overstaying his Singapore entry permit, review of relevant country information indicates that Singaporean authorities take a strict approach to charging visa overstayers with offences punishable by up to six months’ imprisonment. This is consistent with the claims put forward by the applicant – that after he sought protection from police, his expired entry permit was detected and he was then detained, charged with overstaying, convicted and sentenced to several (three or four) months in prison[1]:
Penalties for overstaying and related offences
Should you be guilty of overstaying in Singapore for up to 90 days, you may be sentenced to a maximum fine of $4,000 and/or a jail term of up to 6 months. Overstaying beyond 90 days may result in a maximum of 6 months’ imprisonment and a minimum of 3 strokes of the cane (or up to a $6,000 fine if you cannot be caned).
… All in all, it is clear that Singapore takes a firm stance against immigration offenders and those who aid in the commission of their offence(s). Severe consequences await those who attempt to circumvent Singapore’s immigration requirements, with the repercussions being potentially even more severe for those who harbour such immigration offenders.[2]
[1] See Singapore Immigration Act (Chapter 133) s 11A(6) setting out penalties for overstaying an entry permit. See also "Law enforcement agencies must do better to deter overstaying" (The Straits Times, 9 February 2023); Advisory Excellence ‘Immigration Offences That Could Land You in Jail in Singapore’, 1 July 2024, available at: Immigration Offences That Could Land You in Jail in Singapore - Advisory Excellence.
[2] Singapore Legal Advice, ‘Penalties for Illegal Immigration and Overstaying in Singapore’ 6 May 2020, available at: Penalties for Illegal Immigration and Overstaying in Singapore - SingaporeLegalAdvice.com.
Thus, the Tribunal accepts that the applicant was detained, charged and convicted of an offence for overstaying his entry permit and then spent some three or four months in prison completing his sentence. The Tribunal also accepts the applicant was subject to mistreatment by other prisoners during his time in gaol.
The Tribunal further notes that while the applicant provided incorrect information on his protection visa application form, declaring that he had never been convicted of any offences nor had he been deported from any country, it is prepared to accept the applicant’s explanation for this – that the person completing his form on his behalf did not read out all of the relevant questions to him and so he did not tell them about this aspect of his history. In addition, the applicant was not able to read and understand all of the questions on the application form before he signed it, due to his very limited English language skills. The Tribunal accepts these explanations and therefore does not draw any adverse credibility inference for this reason. In addition, the Tribunal notes the absence of any character-related or exclusion concerns arising from the applicant’s overstaying in Singapore, noting the context in which his permit lapsed indicating that he fully intended to comply with Singapore’s entry-permit requirements but was unable to complete his exit and re-entry process as commenced as he was forced to abandon the process and flee back into Singapore when he saw his father and brother in pursuit of him. His overstaying was then detected by police when the applicant sought their protection from his father, brother and friends, who, again, were pursuing the applicant, this time within Singapore.
Furthermore, the applicant’s movements in and out of Singapore raise no issues of him potentially being excluded from Australia’s protection due to him having any form of prior protection in Singapore or any possibility of him seeking asylum in Singapore during his visits. The Tribunal notes that Singapore is not a signatory to the 1951 Convention relating to the Status of Refugees nor its 1967 Optional Protocol,[3] and that the Singapore Government has made it clear in recent statements, including to UNHCR, that it will not accept asylum seekers or refugees in any circumstances:
As a small country with limited land and a high population density, Singapore is not in a position to accept any person seeking refugee or asylum status, regardless of background.[4]
[3] Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report Universal Periodic Review: 3rd Cycle, 38th Session SINGAPORE, October 2020, UNHCR UPR Submission on Singapore_38th Session.doc (upr-info.org).
[4] ‘Explanation of position by Ms Dhivya Rajandran, First Secretary (Political Affairs), after the Adoption of the Resolution entitled ‘Office of the United Nations High Commissioner for Refugees, Third Committee, United Nations, New York, 14 November 2023. Ministry of Foreign Affairs Singapore - 20231114-3 (mfa.gov.sg).
While the Tribunal also initially found the applicant’s evidence regarding how his family members were able to track him down at a shopping mall in Singapore and while he was en route to Malaysia on a ‘visa run’, highly coincidental, the Tribunal accepts the applicant’s explanation that his brother had friends in Singapore who were watching him and accordingly, able to coordinate with his family members to locate him on both of these occasions.
Findings of fact
In summary, the Tribunal accepts the truth of the testimony of the applicant as set out above and makes the following particular findings:
·     The applicant is a Malay Muslim homosexual man.
·     Consistent with the applicant’s experiences since he was a young child in his neighbourhood, at his schools, in his workplaces or community, people in Malaysia perceive or ‘suspect’ the applicant to be homosexual based on combined characteristics associated with his appearance, his carriage, speech and social interactions. His homosexuality is therefore visible to others in Malaysia and cannot be readily concealed or hidden.
·     He comes from a well-known, religiously conservative Muslim family with strong local links to the PAS.
·     The applicant has a long history of domestic violence and abuse from his father, uncle and brother due to his homosexuality and their determination to ‘cure’ him of his ‘condition’. He has suffered physical beatings, verbal and psychological abuse over a long period, as well as more than two years of involuntary confinement in his grandmother’s house.
·     The applicant also suffered long term physical abuse and bullying at school, as well as being subjected to a two-year conversion program at a religious school where he was physically and psychologically abused.
·     The applicant also experienced a constant pattern of harassment, insults and discrimination at multiple workplaces, causing him to move jobs.
·     These experiences of prior persecution have caused him serious harm, including psychological and physical effects that continue to adversely impact on him, including causing him to be somewhat socially withdrawn and timid in forming friendships and relationships with others.
·     The applicant had a long term and genuine homosexual relationship lasting around eight years in Malaysia, which had to be kept secret, and when it was discovered, he was intensely harmed by his family (as per the findings above). The applicant has also had homosexual relationships with two men in Australia.
·     The applicant sought to escape this treatment by fleeing to Singapore, where he obtained multiple entry permits, moving between Singapore and Malaysia to comply with requirements so that he could maintain his lawful status in Singapore. This continued until his family interrupted his return ‘visa run’, and after they tracked him down in Singapore, he fled into a police station and was subsequently charged and sentenced for overstaying his visa. He suffered further physical and psychological abuse in prison from other prisoners, due to them identifying him as homosexual.
·     He was deported or returned to Malaysia and then further abused by his uncle and brother until his mother assisted him to flee to Australia.
·     The applicant’s family, except for his mother, all remain deeply opposed to the applicant’s sexual orientation and remain highly motivated to bring him back to the family to convert him to heterosexual orientation, including possibly through a forced marriage to a woman.
Real chance of serious harm throughout Malaysia
The applicant has expressed fears of harm due to his sexual orientation from a range of sources in Malaysia including: from his family; from the law and its authorities, both through prosecution under federal civil laws and federal and state syariah laws and through failing to protect him from others who seek to harm him; from members of the public, especially from other Muslims in his local neighbourhood; and from employers and work colleagues. He also fears a range of forms of treatment by state actors including being sentenced to a lengthy period of imprisonment or physical punishments such as caning or whipping and acts by non-state actors such as home imprisonment, involuntary conversion ‘therapy’, forced marriage, physical violence, verbal and psychological abuse and harassment, and discriminatory treatment in workplaces and in accessing public services. He fears that these acts would be permitted to occur due to the unwillingness and inability of the police and other authorities to protect him from such harms, due to his status as a homosexual Muslim man.

The Tribunal accepts that the applicant has a strong subjective fear of these things occurring. However, it is also incumbent on the Tribunal to assess whether these fears are objectively grounded also, and whether he faces a ‘real chance’ of treatment amounting to ‘serious harm’ and therefore has a well-founded fear of persecution. In applying the real chance test, an obvious starting point is assessment of his previous experiences, which may provide some indication of the kinds and level of risks he may continue to face in the future, absent any ‘substantial changes’ in either his circumstances or the context he would be returning to in Malaysia.
The Tribunal accepts that the applicant has previously faced persistent and systematic forms of physical and psychological mistreatment by his family members, teachers and co-prisoners, and harassment and discrimination by his co-workers. It finds that the various forms of mistreatment and violation of his rights he has previously endured clearly amount to serious harm. While the applicant never sought to invoke protection from these harms by the police or other authorities in Malaysia, the Tribunal accepts the reasons why he did not, especially due to the criminalisation of homosexuality in Malaysia and the strong cultural and social disapproval of homosexuality, which prevents impartial policing and protection of homosexual people from those who seek to harm them, as based on the country information below.
On the basis of his previous experiences alone, and in the absence of any substantial or significant positive change in relation to the context he would be returning to in Malaysia, the Tribunal is satisfied that this applicant does face a real chance of serious harm due to his homosexuality. This is due to a combination of factors, including his membership of a particularly religiously conservative Muslim family who continue to strongly oppose his homosexuality and would continue to be motivated to convert him and force him to at least appear to be heterosexual, including potentially through forced marriage, due to the perceived serious risk he continues to pose to the family’s reputation. In particular, he faces risks from his family of further home imprisonment, beatings and other physical abuse, psychological and verbal abuse misguidedly aimed at converting him from homosexuality, as well as potentially forced marriage.
The Tribunal must also consider the risk of the applicant’s additional fears of harm from the operation of laws and state authorities eventuating, as well as the impact of the social environment created by the criminalisation and strong social disapproval of homosexuality in Malaysia. The country information below indicates that the overall context the applicant would be returning to in Malaysia has further deteriorated since his departure for LGBTQI communities, including homosexual men, due to increased Islamisation and politicisation of LGBTQI people, further widening and deepening the scope of risks he may face:
As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent. The Malaysian Penal Code defines ‘carnal intercourse against the order of nature’ as involving the introduction of the penis into another person’s anus or mouth (to the point of penetration) …
Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression. In February 2021, a nine-judge panel of the Federal Court unanimously declared that a Selangor syariah law criminalising ‘unnatural sex’ was unconstitutional. This means that the federal law stands, but that State laws against same-sex sexual activity are invalid. In-country sources reported in 2022 that three states added new laws relating to LGBTQIA+ people based on syariah over the last five years.[5] [Emphasis added.]
[5] DFAT Malaysia Country Information Report, 24 June 2024, [3.127].
While the Tribunal accepts that prosecutions for homosexual acts under the federal Penal Code are rare and notwithstanding the Federal Court decision referred to above finding that s 28 of the Shariah Criminal Offences (Selangor) Enactment 1995 criminalising homosexual acts is unconstitutional, the Selangor syariah laws found to be in breach of the Constitution remain ‘on the books’:
Those laws have been successfully challenged in Malaysia’s Federal Court, as discussed below with regard to the 2019 caning in Selangor, but still remain on the books.[6]
[6] Human Rights Watch ‘I Don’t Want to Change Myself’: anti-LGBT Conversion Practices, Discrimination and Violence in Malaysia, December 2022, p 35.
There is also evidence that syariah authorities in Selangor are particularly active and do enforce a wide range of syariah laws and enjoy significant discretions in exercising their authority. For example, a journal article discussing khalwat (illicit proximity between unmarried men and women) in Malaysia published by the Journal of Islam, Law and Judiciary reported that, over the period from 2010 to October 2015, Selangor recorded the highest number of khalwat cases (5,696) of all the Malaysian states.[7] The same article highlighted that a Vice Prevention Unit responsible for moral policing is legally authorised to arrest those who violate Islamic rules and also noted that judges exercised wide discretionary power for deciding the appropriate penalties for khalwat and other syariah offences.[8]
[7] S.Z. Ismail, ‘The Legal Perspective of Khalwat (Close Proximity) as a Shariah Criminal Offence in Malaysia’, Pertanika J. Soc. Sci. & Hum. 24 (3): 923–935 (2016), p.929, available at: Ibid, pp.325 and 327.
There is also evidence of increasing State action being taken against Malaysian homosexuals in the forms of investigations, prosecutions, convictions and punitive punishment, including forms that meet the definition of cruel or degrading treatment or punishment:
In-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022. [3.138] [Emphasis added.]
Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare. [3.131] [emphasis added]
Consistent with the applicant’s fears arising from the illegality of same-sex relationships in Malaysia, available country information supports a view that the consequences may be particularly serious for homosexual Muslims due to the multilayered legal system including syariah offences and the fact that homosexuals who are Muslim are seen to be particularly immoral and going against Muslim teachings:
While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. [Emphasis added.]
The Tribunal accepts that the risks faced by the applicant are higher due to the applicant’s Muslim identity, including his family’s conservative Muslim background and beliefs, exposing him to an additional layer of legal risk due to the existence of syariah offences, as well as harsher moral judgement by his Muslim family members and by members of the Muslim public, future employers, co-workers and service providers, than that faced by homosexuals from other religious backgrounds in Malaysia.
Regarding the applicant’s fear of continuing forced conversion ‘therapy’, the applicant’s family may well continue their efforts to try forcibly ‘converting’ the applicant away from homosexuality, or may force him to undergo state-supported mukhayyam programs for purported conversion, which are well documented, including their harmful effects, in a Human Rights Watch report from 2022.[9] There is a real chance of him continuing to be subjected to this treatment by his family or by them coercing him to participate in state-supported programs. There is also a real chance of him being coerced by his family into a forced marriage. As per the applicant’s evidence, his father has already identified a bride for him and expects him to comply with his wishes to return to Malaysia to marry. The DFAT Report notes that forced heterosexual marriages for homosexual people are common in Malaysia. It also confirms that families confine homosexuals to the family home, as the applicant has already previously experienced. While DFAT notes these risks particularly in relation to lesbians, if the applicant was compelled to return to Malaysia, he would likely be returned to the control of his family, as he experienced in the past, similar to how lesbians may be treated:
Forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim. In rural areas, families sometimes confine lesbians to the family home due to cultural stigma. [3.138] [Emphasis added.]
[9] Human Rights Watch ‘I Don’t Want to Change Myself’: anti-LGBT Conversion Practices, Discrimination and Violence in Malaysia, December 2022.
The Tribunal considers it is not unforeseeable that that part of his family’s process of ‘breaking him down’ to force him to reject his homosexuality may well include coercion for him to marry a woman. Forced marriage is a well-recognised and grave violation of human rights and clearly constitutes serious harm as stated in s 5J(3)(c)(v) of the Act.
The applicant gave evidence that the police would not be willing to assist him as they would see his family’s pursuit of him to be a family issue: one where his family was legitimately trying to exercise control over him and to change his sexual orientation to bring him into alignment with Muslim values. The fact that the applicant comes from a large and locally well-known Muslim family, known to provide leadership in the local mosque and in the local Islamic party, would be further factors deterring local police from taking the risk of assisting the applicant.
There is also evidence that police may be directly involved in undertaking joint operations with religious authorities against homosexual people, as noted by Human Rights Watch:
Police and religious authorities occasionally undertake joint operations, such as the August 2018 raid on BlueBoy Discotheque Pub, a gay bar in Kuala Lumpur. JAWI [Federal Territories Islamic Religious Department] religious enforcement officials arrested 20 men and sentenced them to Islamic “counseling.”[10]
[10] Human Rights Watch ‘I Don’t Want to Change Myself’: anti-LGBT Conversion Practices, Discrimination and Violence in Malaysia, December 2022.
Beyond failing to protect homosexual people from acts of violence, there is evidence that police sometimes commit those acts themselves. The US State Department report 2023, repeating information from its 2022 report, noted:
Observers reported violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.[11]
[11] United States Department of State ‘2023 Country Report on Human Rights Practices: Malaysia’, 20 March 2023, section 6, available at
Given the criminalisation of homosexuality in Malaysia and police roles in supporting religious authorities, a fear of prosecution as well as fears of mistreatment or simply not being ‘taken seriously’ by police, make it very difficult for the applicant to access police protection when he faces harm from others, especially from his family. As noted above, the applicant’s particular family profile makes it even less likely that he will receive effective protection from local police. The Tribunal accepts that the applicant will not receive effective protection from his family by police in Selangor.
The Tribunal has also considered whether the applicant would likely receive effective protection from police elsewhere in Malaysia. The Tribunal notes the extensive efforts the applicant’s family have previously taken in order to capture the applicant and to bring him home. They have tracked him to Singapore when he fled there and to Johor Bahru when he re-entered Malaysia to secure his re-entry to Singapore. The Tribunal concludes that the applicant would not be safe from his family members wherever he lived in Malaysia and that the police would not effectively protect him from them anywhere in Malaysia.
Even if the applicant moved to an entirely different part of Malaysia and in the unlikely event his family did not pursue him there, the Tribunal remains unconvinced that he would receive effective police protection from other sources of threats he may face due to his homosexuality. This is also due to the overall political and social environment for homosexuals worsening in Malaysia, due to a ‘rising wave of Islamisation’ across Malaysia[12] and despite Prime Minister Anwar, himself a victim of prosecution for sodomy, remaining Prime Minister of the country:
Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen.’ In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government. [3.129] [Emphasis added.]
[12] DFAT Country Information Report Malaysia, 24 June 2024, [2.5].
Other country information also supports a finding that the applicant’s fears of persecution throughout Malaysia are well-founded. The US Department of State and a number of non-government organisations have all reported on the Malaysian government’s laws and programs and public vilification of LGBTQI people, providing a permissive environment for societal discrimination and harassment and violence against LGBTQI people more generally throughout Malaysia:
Observers reported violence against lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.[13]
[13] US Department of State, 2023 Country Reports on Human Rights Practices Malaysia, 2023, p. 40.
Malaysia’s national human rights institution, SUARAM, is one of the many organisations reporting a deteriorating situation for LGBTQI populations in Malaysia, noting a disturbing increase in hate speech towards LGBTQI communities in the previous year emanating from a wide range of social sources, including from parliamentarians:
·JFS has documented extreme, violent and degrading speech against protestors, and LGBTQ and gender-diverse people in various spaces, including social media and in Parliament. These include:
·Calls to kill themselves, or be killed, and the ‘extinction’ of LGBT people;
·Calls for physical and sexual violence against protestors and LGBT people;
·Calls for war or jihad against LGBT people and lust. e.g., An article published in Harakah Daily, ‘Perang, adakah hanya sekadar angkat senjata?’ (War, is it just a matter of taking up arms?);
·Comparison of LGBT people to animals by Members of Parliament.[14]
[14] SUARAM, Malaysia Human Rights Report 2023, p. 176.
SUARAM’s 2023 report documents how the criminalisation of same-sex relationships also has much more far-reaching consequences, marginalising LGBTQI communities and creating an environment: where violence against them is permitted and tolerated; where police can harass LGBTQI communities with impunity; and where they become vulnerable to extortion or blackmail:
In 2023, LGBTQ and gender-diverse people continued to face a series of state-sponsored human rights violations. Some key trends include the increased:
·Regulations of LGBT expression through introduction of new guidelines;
·Hate and discriminatory speech against these communities;
·Restrictions of freedom of assembly and expression, including disruption and investigation of LGBT-related public assemblies and organisers as well as participants of the assemblies, surveillance of LGBT events, among others; and
·LGBT rehabilitation efforts.[15] [emphasis added]
LGBTQ and gender-diverse people are criminalised on the basis of sexual orientation, gender identity, gender expression and consensual sexual acts between adults under various Federal and state levels. The overall context of criminalisation of LGBTQ and gender-diverse people has a systemic impact on all areas of their lives, including among others, being free from violence and unnecessary state intervention in their private and personal lives, and the ability to seek redress, opportunities, and information. [emphasis added]
LGBTQ and gender-diverse people have reported extortion, invasion of privacy, harassment and intimidation owing to the criminalisation and regulation of LGBTQ and gender-diverse people in Malaysia. Queer men and gender-diverse people, among others, have reported harassment and intimidation by the police at roadblocks and in public places, where the police checked their phones for LGBT-related apps and content.[16] [Emphasis added.]
[15] SUARAM, Malaysia Human Rights Report 2023, p. 166.
[16] SUARAM, Malaysia Human Rights Report 2023, p. 167.
In addition, LGBTQI communities face wide-ranging discrimination in employment, housing and health care:
LGBTQI+ persons reported discrimination in employment, housing, and access to some government services because of their sexuality. The government did not recognize same-sex marriage nor grant LGBTQI+ couples and their families the same rights accorded to other couples.[17]
[17] US Department of State, 2023 Country Reports on Human Rights Practices Malaysia, 2023, p. 41.
And, particularly relevant to the applicant’s presentation and persona:
In-country sources reported that gay men and men who have sex with men sometimes experienced employment discrimination. Visibly effeminate gay men are reportedly more likely to suffer harassment and discrimination. Many jobs, including all public service jobs, are subject to compulsory health screening. If an employer finds out a gay man has HIV, his employment will be terminated (the HIV prevalence rate for gay men in Malaysia is around 20 per cent).[18] [Emphasis added.]
[18] DFAT Country Information Report Malaysia, 24 June 2024, [3.135].
The Tribunal has considered the applicant’s claims in the context of the country information set out and summarised above, which indicates that Malaysia is becoming less tolerant of LGBTQI people and that the combination of increases in formal legal action being taken against LGBTQI individuals and groups, as well as increased Islamisation, creates a more permissive environment for State and non-State actors to act with impunity against LGBTQI people, including for hate crimes.
In addition, the Tribunal finds that the applicant, as a person who is commonly perceived by Malaysians to be homosexual, is likely to face significant discrimination in public life, which may include a risk of being subject to hate crimes or forms of blackmail or extortion. He may also face discrimination in relation to his ability to secure and maintain employment in the face of almost certain harassment from employers and co-workers, as he has experienced in the past. Should he form a further homosexual relationship in the future, he will be unable to live together openly with his partner and may face discrimination in relation to his access to housing and healthcare, due to his homosexual identity.

The Tribunal assesses that the combination of all of these factors pushes the risks of persecution faced by the applicant beyond the threshold of him facing a real chance of such treatment, especially when considered cumulatively alongside the serious forms of social discrimination the applicant will almost certainly face upon his return to Malaysia.
On the basis of the evidence and findings above, the Tribunal finds that the applicant’s fears of treatment amounting to serious harm are well founded. Especially in light of the applicant’s previous efforts to relocate to Singapore to escape discrimination and harassment, which was ultimately not successful, and the application of common laws and intolerance of LGBTQI people throughout Malaysia, the Tribunal finds that these threats will be present throughout the country. This is also because the Tribunal is not satisfied that the Malaysian State is willing to offer effective protection measures to the applicant in any part of Malaysia and therefore finds that the applicant faces a real chance of persecution throughout all areas of Malaysia as per s 5J(1)(c). This risk is current and likely to persist for the foreseeable future, given the deteriorating conditions and environment for Muslim homosexual men in Malaysia as per the country information assessments referred to above.
Membership of a particular social group
The Tribunal further finds that ‘Muslim homosexual men in Malaysia’ are a particular social group as defined by s 5L of the Act, and that the applicant is a member of this particular social group. This group is defined primarily by the characteristic of homosexuality, which distinguishes them from other Muslim men in Malaysia. In addition, the characteristic of homosexuality is an innate or immutable characteristic and is so fundamental to the members’ identity or conscience, that members of the group should not be forced to renounce it. Finally, the characteristic distinguishes the group from society and is not in itself a fear of persecution.
The Tribunal further finds that the applicant’s membership of the particular social group of Muslim homosexual men in Malaysia is ‘the essential and significant reason’ for the persecution faced by the applicant as required by s 5J(4)(a). It further finds, based on the country information above, that such persecution involves ‘serious harm’ as the treatment he risks facing amounts to significant physical harassment and significant physical ill-treatment as listed in s 5J(5), and also involves systematic and discriminatory conduct, as per s 5J(4).
Exemption from need for modification of behaviour applies
The Tribunal notes that s 5J(3) requires a person to take reasonable steps to modify their behaviour so as to avoid a real chance of persecution, but specifically excludes a modification that would conflict with a characteristic that is fundamental to the person’s identity, or conceal an innate or immutable characteristic, or alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation.
The Tribunal has earlier found that the history of the applicant’s life in Malaysia indicates that his overall presentation – likely a combination of his physical appearance, his carriage and disposition, his speech and ways of interacting with others – all send visual or other cues or signals to members of the Malaysian public that he is likely to be homosexual. The applicant’s evidence has consistently been that Malaysian people ‘just know’ or at least suspect, even from a casual encounter, that he is homosexual. This is consistent with his life experience to date in Malaysia.
The fact that Malaysian people, for whatever reason, readily perceive him to be homosexual, makes it impossible for him to conceal or hide his identity or to change this perception in order to mitigate risks he may face. The Tribunal finds that the applicant cannot modify his presentation and persona to prevent others forming a perception that he may be homosexual and therefore the question of any possible modification of his behaviour to avoid persecution, such as trying to live discreetly, does not feasibly arise. In any event, the Tribunal finds that requiring him to attempt to modify his appearance or behaviour to reduce his chance of being persecuted would violate the exception provided in s 5J(3)(c)(vi), as it would require the applicant to modify a fundamental characteristic of his identity and conceal an innate or immutable characteristic and his true sexual orientation and/or gender identity.
CONCLUSION
The Tribunal is satisfied that the applicant faces a real chance of persecution in Malaysia due to his membership of a particular social group, being Muslim homosexual Malaysian men and that the applicant is a refugee as defined by s 5H(1) of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Carolyn Graydon
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.
…

%202016/02%20JSSH-0653-2012.pdf.

[2024] AATA 3455

2 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies