1835910 (Refugee)

1835910 (Refugee) [2024] AATA 3631 (31 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1835910
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Don Smyth
DATE:31 July 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 July 2024 at 1:25pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Shi’a Muslim in Sunni majority country – application prepared by acquaintance – new claim as member of particular social group made pre-hearing – bisexual man – relationship with another man, now a transgender woman – participation in protests – teased and cursed – credibility – vague claims and limited and inconsistent evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASE
Wang v MIMA (2000) 105 FCR 548
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
BACKGROUND

The applicant claims to be a Malaysian citizen and has provided a copy of the bio data page of his Malaysian passport. I accept that he is a national of Malaysia.
The applicant applied for a protection visa on 11 July 2018. On 6 December 2018 a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
The applicant was represented in relation to the review, although his representative did not attend the Tribunal hearings.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
According to information provided in the protection visa application, the applicant was born in Perak, Malaysia in [Year].
The applicant indicated that he had never married. He described his ethnic group as Malay and his religion as Muslim Shi’a. He gave his occupation as ‘freelance’.
The applicant indicated that he had arrived in Australia [in] February 2018.
The applicant set out written claims in the application. He stated that he left Malaysia because of his religion. He stated that he was a practising Shi’a Muslim and appeared to indicate that this was different to his family. He stated that there were limited religious freedoms in Malaysia. He stated that with the law in effect the Malaysian governments only allowed Malaysians to follow the Sunni school of thought, effectively forbidding and subjecting to punishment by law promoting any other religion by books or other forms of social media.
The applicant stated that he would be punished by law and forced to change his religion. He stated that conversion from Sunni to Shi’a was not acceptable in Malaysia. He stated that he lived in fear if the Malaysian authorities found out that he was a practising Shi’a Muslim. He stated that he did not have the freedom to believe what he loved and chose. He indicated that he had not sought help within Malaysia because he was afraid if anyone found out that he was practising Shi’a they might just report him to the authorities. He stated that every state in Malaysia applied the same rule and he did not wish to relocate.
He claimed that, if he returned to Malaysia, he would be locked up and forced to convert his religion. He stated that Malaysia recognised Shi’a Muslim as a diversion from Islam and therefore discrimination against Shi’a was given a legal face.
On 6 December 2018, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate found that country information indicated that Shi’a Muslims lived free from discrimination or violence on a day-to-day basis. While some Shi’a Muslims might face interference and difficulty practising their religion, there was no evidence to suggest that this would amount to persecution. The delegate was not satisfied that there was a real chance that the applicant would face serious harm in Malaysia for reason of his religion. Nor was the delegate satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there was a real risk that the applicant would suffer significant harm.
Review Application
The applicant attached a copy of the delegate’s decision to the review application.
The applicant’s representative made a written submission dated 11 March 2024. The submission referred to aspects of the delegate’s decision. It referred to aspects of the legislation. It was submitted that Malaysia, a predominantly Muslim country, practised Sunni Islam as its official religion. While the constitution guaranteed freedom of religion, there had been many instances in which religious minorities, including Shi’a, had faced discrimination and persecution. It was submitted that the Sunni-Shi’a divide, which dated back centuries, had often been a source of tension in Muslim-majority countries, including Malaysia.
It was submitted that the applicant had made a narrowly cast application based on his status as a Shi’a Muslim. He had not been adequately or professionally advised at the time he sought protection. He had been assisted by a friend only. It was submitted that the applicant had subsequently advised that ‘he is additionally LGBTIQA+’. The applicant’s representative expressed the belief that the applicant had not been prepared to disclose this earlier and that they had no doubt that it was factual. It was submitted that this made a profound difference when added to the ‘accepted and plain discrimination against Shia in Malaysia’. The submissions addressed aspects of the delegate’s decision. The submission addressed matters related to religion in Malaysia and the position for Shi’a Muslims. This included reference to a number of articles and reports, to a number of ‘manifestations of persecution’ and to underlying causes. It was submitted also that the applicant would provide evidence that he had been born in Perak state, and that he had lived in Perak for [Number] years before moving to Kuala Lumpur and Johor for study and work. It was submitted that all three states prohibited Shi’a teaching. The submissions also addressed the applicant’s position as ‘a gay, bisexual man’. For instance, submissions were made with respect to the legal context, social stigma, violence and harassment, lack of legal protections and healthcare access for LGBTQI individuals. Submissions were made to the effect that, as a gay/bisexual man and an adherent to Shi’a Islam, the applicant was likely to suffer persecution in Malaysia. Numerous documents were submitted in support of the submissions, relating to matters such as discrimination and harm towards Shiites and the position for LGBTQI+ persons in Malaysia. These included the following:
·     An August 2022 report from Human Rights Watch entitled ‘I Don’t Want to Change Myself’: Anti-LGBT Conversion Practices, Discrimination and Violence in Malaysia
·     The US Department of State’s 2022 Country Reports on Human Rights Practices: Malaysia. This includes information on violence and discrimination against LGBTQI+ persons in Malaysia.
·     A report headed ‘12 countries in Malaysia prohibit Shia’.
·     An article entitled Discrimination against Shiites in Malaysia.
·     An article from malaysiakini.com entitled Heinous vilification, persecution of homosexuals.
·     The Human Rights Watch World Report 2024: Malaysia (which includes information on freedom of religion and sexual orientation).
·     A Wikipedia page headed ‘Islam in Malaysia’.
·     The US State Department’s 2022 Report on International Religious Freedom: Malaysia.
·     A report on Malaysia from Human Dignity Trust which begins by referring to criminalisation of same-sex sexual activity between men and between women.
·     A January 2021 Human Rights Watch report entitled Malaysia: Government Steps Up Attacks on LGBT People.
·     A September 2019 article entitled Malaysia: Foreigners Arrested in Series of Raids on Private Shia Gatherings.
·     An article dated 27 August 2013 and entitled Malaysia: Kedah State Considering Anti-Shia Law.
·     A January 2024 Human Rights Watch report entitled Malaysia: Reform Agenda Stalled. This includes reference to state-sponsored discrimination against LGBT people.
·     An article entitled Malaysian Shi’ites Lonely Struggle.
·     An article entitled Shia Belief and National Security in Malaysia: The Securitisation.
·     An article entitled Shia Influence in the Axiology of Malay Culture.
·     An article entitled Shia trio fail to challenge Shariah charges in High Court.
·     A 2014 article from the Middle East Institute entitled Shi’a-Inspired Violence in Malaysia: A Possibility?
I have carefully considered the submission in its entirety as well as all of the documents provided in support of the submission.
The Tribunal was also provided with a written statement from the applicant dated 8 March 2024. The applicant stated that he had had everything he needed in Malaysia. He referred to having a permanent job and a car and being able to rent a house. He stated that his last job was as [an occupation 1] at [Employer 1]. He stated that he did not have any financial problems at that time. His main reason for coming to Australia was not to find a job and bring money back to Malaysia. He stated that Malaysia was an Islamic country and very strict about Sunni law. Because of that he often got scolded and insulted because he was one of ‘the LGBT supporters’ and followed ‘the syia law’ there.
The applicant stated that this happened because he was Muslim and had a transgender girlfriend. He referred to Malaysia often changing the leadership or government, and to people (including LGBT supporters) protesting. He appeared to refer to an LGBT demonstration in front of the Sogo shopping centre in July 2023. The applicant stated that Chinese or Indian people who fought for this right were not hit as hard as Muslims. He referred to trying to disturb his emotions. He referred to emotional stability and not wanting to live in a situation that could cause stress. The applicant stated that he had had a conversation with his father when he was still alive, telling him that he wanted to migrate and find peace of mind. He said he still did not know where he should go at that time. He referred to meeting customers from various countries at [Employer 1], to having a conversation with a tourist from Perth and to becoming interested to know more about Australia. He stated that he did not know how to get a visa or what visa he should get. He referred to finding out though Google and Facebook and finding a person who introduced himself as a visa agent and indicated he could help the applicant get here. The applicant described going back to his village to talk with his father who agreed for him to come to Australia. He indicated that his father sent him to the airport.
The applicant described events after his arrival in Australia. He indicated that the agent sent him the hotel booking address and explained the detail about his visa, but that they never met. He referred to struggling, to his savings becoming less, to knowing that the ETA visa only allowed him to stay in Australia for 3 months and to joining a [Social media] group. He described finding someone on the [Social media] group, named [Ms A], who said she could help him with visa matters and who suggested that he take a bridging visa. The applicant stated that she said she could meet him in Brisbane and could help him to get a job once in Brisbane. She asked him to make a bank payment to apply for a bridging visa. The applicant said that he followed what she wanted including giving detail to her. He claimed that he gave her the explanation that he was gay, bisexual and Shi’a, and she said she would help. He finally got an email from the Department confirming that he held a bridging visa. The applicant stated that the reasons on his visa was ‘only syia’. He referred to believing that person because he did not have any other guide, knowledge or friend.
The applicant referred to losing track of that person when he came to Brisbane, saying that she blocked him on [Social media]. He referred to finding out the truth from a friend, a Malaysian student, who really wanted to help him. He indicated that the friend recommended finding an immigration lawyer and he got in contact with his representative. He indicated that the friend called the representative for him because his English was broken at that time. The applicant indicated that the friend suggested he join a TAFE class but referred to losing everything since COVID-19. He referred to getting a job but being admitted to hospital after 2 weeks.
The applicant indicated that he was living in [Town 1]. He appeared to refer to an acquaintance ‘who helped me migrate / move to sydney after marrying a local here’. The applicant indicted that he had recently obtained a job in [Town 2]. He indicated that his knowledge of visas had increased after obtaining a representative and referred to feeling safe and free in comparison to in Malaysia. He referred to people’s attitudes and to having been mentally down. The applicant said that he was a ‘person who believes in LGBT’ but his religion was the opposite. The applicant referred to living in Australia for 5 years and to it being good for him mentally. He stated that he did not have anyone to give him a ‘good vibe’ and moral support after his father passed away. He stated that his father was the only one who gave him encouragement and moral support.
The applicant indicated that he was seeking permission to live in Australia legally. He referred to having gone through a lot of unpleasant things in Malaysia and contrasted this with the situation in Australia. He stated that he did not ‘feel oppressed, racist, not does my new workplace’. He said that he could feel that the treatment should be as a human being deserves to be treated. The applicant stated that he would like to live in Australia until the end of his life. He stated that the main reason was to find peace in life and that he was tired to run to another place. He referred to his age and being alone. He stated that he was too tired of being mocked, scammed and so on. He stated that he came for freedom and really wanted to stay in Australia.
The applicant attended three hearings before the Tribunal. These took place on 19 March 2024, 17 April 2024 and 23 April 2024. Each of the hearings was conducted with the assistance of an interpreter in the Malay and English languages. The applicant indicated at the initial hearing that he would prefer to speak in English and Malay and, if he could not say it in English, he would say it in Malay. I suggested to the applicant that it might be better to do everything through the interpreter to make sure we understood each other properly. Each of the proceedings proceeded in this manner, although the applicant also chose to answer some questions in English without waiting for the interpreter. The applicant’s representative indicated in an email of 18 March 2024 that they would not be representing the applicant at the review hearing and the representative was not present at the hearings. The applicant gave extensive evidence at hearing and I have carefully considered all of this evidence, although it is not necessary to set this out in full. Aspects of the evidence are summarised in my consideration, below. The substance of the evidence was largely given at the hearings on 19 March 2024 and 23 April 2024. For ease of reference, I will refer to the hearing of 19 March 2024 as ‘the March hearing’ and the hearing of 23 April 2024 as ‘the April hearing’.
As the hearing was not completed on 19 March 2024, I adjourned the hearing. The applicant attended the resumption of the hearing on 17 April 2024. However, the applicant stated at that time that he had a fever and referred to a discharge letter from [Town 1] Hospital which he produced to the Tribunal at the hearing. This was dated 16 April 2024, and recorded that the applicant had presented to the Emergency Department at [Town 1] Hospital on 16 April 2024 and that he had been diagnosed with an upper respiratory tract infection. The applicant referred to having to do some kind of follow up medical check because he had some issue with his heart. He referred to having been unable to mobilise for a week and to going to see the doctor to make sure he was well enough to attend the hearing because he really wanted to attend. He said that he had presented the letter for the member’s information as the member might need to take extra precautions. The applicant said he was fit to attend the hearing but he had not seen his general practitioner (GP). He indicated that he had an appointment with his GP booked for the following Monday. I indicated to the applicant that I intended to adjourn the hearing and come back on another day. The applicant confirmed that he would be available the following Tuesday. I indicated to the applicant that, if he was not fit to participate, he should send some medical evidence in advance of the hearing.
The hearing was adjourned to the following Tuesday, 23 April 2024. The applicant did in fact attend on 23 April 2024 and confirmed at that time that he was confident that he was fit to proceed. Prior to the hearing resuming on 23 April 2024, the applicant provided a certificate, dated 19 April 2024, from [Dr B] stating that the applicant should be fit to attend the hearing on 23 April 2024 unless there was an unexpected deterioration. I am satisfied that the applicant was fit to participate in the hearing of 23 April 2024.
I note that, in the Response to hearing invitation for the initial hearing, the applicant nominated a witness, identified in the response as ‘[Ms C] & HUSBAND’. The applicant provided a single mobile telephone number. The applicant referred to her having helped him and indicated that she was the first person who really helped with matters related to his visa and ‘let me know about lawyer etc’. At the hearing, the applicant confirmed that the witness was [Ms C] and indicated that she was the person who actually guided him in relation to the proper way to get the visa and provided the contact for [Migration agents]. I raised with the applicant that he had referred to her husband as well and asked the applicant whether he knew what her husband’s name was. He named the husband as [Mr D]. He said that [Ms C] was the one who had really been helping him a lot. [Mr D] was not much help; he was just listening. The applicant confirmed that it was [Ms C] who he wanted the Tribunal to talk to. I am satisfied that the applicant was requesting that the Tribunal take evidence from [Ms C]. I did in fact take evidence from [Ms C]. When the applicant attended the Tribunal on 17 April 2024, he confirmed that there were no other witnesses he wished me to take evidence from. Having regard to the applicant’s indication at the hearing that it was [Ms C] who he wanted the Tribunal to take evidence from and his confirmation on 17 April 2024 that there were no other witnesses he wished the Tribunal to take evidence from, I did not consider it necessary to take evidence from [Ms C]’s husband, [Mr D].
The applicant produced a number of additional documents at hearing and prior to the April 2024 hearing. These are discussed in my consideration, below.
By letter of 23 May 2024, I put information to the applicant for his comment or response pursuant to s 424A of the Act. The applicant provided a response dated 6 June 2024. I have had regard to his response.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant gave extensive evidence at the hearings which I have considered in full. Aspects of his oral evidence are summarised in my consideration, below.
By way of background, I note that the applicant gave evidence that he was born in [Town 3], Perak, that he lived there with his family until he finished secondary school, and that he moved to Kuala Lumpur and was studying [Subject 1] there from 2009 to 2013. With regard to employment, he referred to having done a number of different jobs. For instance, he referred to having been [an occupation 2] in [Employer 2] after he finished [Subject 1]. When asked whether he had been working before he came to Australia, the applicant referred to being [an occupation 1] and provided 2 pages of [occupation 1] competency assessments. He indicated that he had worked at [Employer 1] in Nusajaya, Johor, for around 2 years and that he had lived in Johor for 3 years from about 2015 to 2018. He indicated that the employer, [Employer 1], provided somewhere to live. The applicant confirmed that he had been studying in Kuala Lumpur up until 2013. When asked what he was doing in the 2014 to 2015 period, the applicant replied that he was helping his father do some work in the village and that he was in [Town 3]. He confirmed that he was living with his family from 2014 to 2015.
With regard to his family composition, he indicated that his father had passed away in November 2022 (and provided a death certificate for his father) and that his mother was still living in [Town 3]. When asked about contact with his mother, he said that it was rare but referred to his sister having borrowed money from a loan shark under his mother’s name and his mother having called him two or three weeks earlier indicating that she needed help. He gave evidence that there were [sisters] and [brothers], including him. He indicated that his older brother lived in Kelantan and that he had last had contact with him two years earlier. He indicated that he was not sure whether his brother worked. He gave evidence also about his sisters, indicating that there were [sisters] in [Town 3] who were married and did not live in his mother’s house. He said they were siblings but not too close. He said they were always fighting. He said his family had a family issue. He indicated that his first sister worked at the [workplace] in [Town 3], while his other sister in [Town 3] did not work. He indicated that his younger sister was in Selangor. He indicated that he was not sure whether she was working. He indicated that when he contacted her 2 years earlier she was still studying. The applicant indicated that he also had a sister in Kelantan who had followed her husband. When asked about whether he had any contact with his sisters, he said only for the loan issue.
I accept that the applicant was born in [Town 3] in Perak, that he lived there with his family until he finished secondary school, and that he studied [Subject 1] in Kuala Lumpur from 2009 to 2013. I accept that he did some work at [Employer 2] after finishing [Subject 1], that he also worked as [an occupation 1] in [Employer 1] in Johor for around 2 years (I have had regard to the [occupation 1] competency assessments) and that he lived in Johor for 3 years from about 2015 to 2018. While the applicant appeared to indicate that he was in [Town 3] in the period from 2014 to 2015, he later indicated that he went to his village just for a very short visit, not 2 years (something that is discussed further below). I accept that the applicant’s father passed away in December 2022 (and have had regard to the death certificate) and that his mother is still living in [Town 3]. I accept that he has a brother in Kelantan and that he last had contact with his brother about 2 years ago. I accept that he has [sisters] in [Town 3] who are married and one of whom works at the [workplace]. I accept that he has a [sister] in Selangor (whom he last contacted about 2 years ago) and that he also has a sister in Kelantan. The question of the loan issue is discussed below as is the suggestion that the siblings were always fighting.
Claims in relation to sexuality / relationship with a transgender person
As noted above, the applicant made claims in his statement to the Tribunal in relation to his sexuality. The applicant’s representative’s submissions also addressed the applicant’s sexuality.
I have had regard to all of the applicant’s evidence about this at hearing.
In summary, the applicant gave evidence at the March hearing that, while he was doing [Subject 1], he had a lover who was the same gender as him and that this person was now a transgender person. He gave evidence initially that somewhere around 2010 or 2011 when he was doing his studies in [Subject 1], he had a relationship with a transgender person. He said that this was the person who introduced Shi’a to him. He said since then they were staying together in one house. They tended to do a lot of activities together. People from the same race as him started to discriminate and speak badly about them. He named the transgender person as [Ms E]. He said they were a couple for around 4 years. When asked about how they met, the applicant gave evidence to the effect that they met at a night market in Kuala Lumpur. The applicant said he was alone at that time; he did not have any friend. They always met for 3 or 4 years and spent time together but people surrounding him always tended to curse and tease them.
When I asked whether he could explain how that relationship developed, the applicant said that now he was not together; he was alone. But at that time, it happened. That was when he got to know the world of bisexual. I explained to the applicant that I was trying to understand how the relationship developed. I asked whether he could tell me anything else about the relationship. The applicant said the person was an orphan who was working as a ‘guest relationship officer’ (he went on to confirm that the person was a sex worker). He said that, before this person met him, he tended to find customers in the same lane. He said that the first time he met him he was trying to impress the applicant. At that time the applicant said he would give him money, just to sit down and talk, nothing else. After the first interaction the applicant got to know that he liked people of the same gender. He said that a couple of times they had a relationship and he got addicted. The applicant referred to Malaysia being an Islamic country and people starting to look down on them. He referred to bringing up with his father that they wanted to stay together and said his father tried to be understanding of his situation. I raised with the applicant that this was the first time he had given any detail about this relationship and put to the applicant that I wanted to try to understand it better. I asked whether [Ms E] was a transgender man or a transgender woman. The applicant said male to female. He said that because of him he started to like people of the same gender. He gave evidence to the effect that originally she was a man but turned to be a woman. He said that one and half years after they were in a relationship, she went for an operation and turned to be a ‘she’.
The applicant initially indicated that he lived with [Ms E] for two years from 2012 until before he went back to his village. He then referred to leaving [Ms E] after other people started cursing and teasing them. He said [Ms E] gave him some time to understand and after that he made the decision. I raised with the applicant at the hearing that I was not sure I understood how the relationship developed. I noted that he had indicated that he met this person as a sex worker and ended up living with them for two years. I asked whether he could explain how that happened, how the relationship developed. The applicant said that while he was studying he met her as a sex worker. They used to meet up every night; he was an orphan. The applicant said that he promised to him that once the applicant started working he did not need to do the job he was doing. The applicant said he promised him that once he finished his studies he would take care of him and support him. But people around started to curse and speak badly about their relationship. I asked how other people knew about the relationship if he was seeing this person as a sex worker. The applicant said that Malaysia was a Muslim country. They did not know he was a sex worker. They were able to identify by his body and his looks that he was a man, not a lady.
When asked about when he broke up with [Ms E], the applicant initially replied before he got a job in Johor. When asked which year he broke up, the applicant said they had promised each other that if he found a safe place like Australia he would look for her and they would stay together. The applicant went on to say that they did not break up. She gave him space so he could find his own self. I put to the applicant that I thought he had said earlier that he had left [Ms E] and that he made that decision. The applicant said she did not let him go. She gave him the space that he could go and find a proper safe place. When asked which years they lived together, the applicant indicated that he thought the second year or third year he was in Kuala Lumpur they started to stay together. When asked which year he first met [Ms E], he said if he was not mistaken 2012. He gave evidence to the effect that they started living together 5 to 6 months after they met. He gave evidence to the effect that they lived together from 2012 up until the time that he went to Johor. He said that was the time that he learnt more about Shi’a. He confirmed that it was in 2015 that he went to Johor. I asked the applicant whether it was the case that he lived with [Ms E] continuously from 2012 up until he went to Johor. The applicant then said that he lived with [Ms E] and then before he went to Johor he went back to his village for a while and explained to his Dad about his relationship and his father gave some advice and tried to support him. He explained a lot to his Dad and said he wanted to migrate. He said before he came to Johor, before they got separated he went back to his village and stayed with his father. He spoke about his relationship to his father and he was very supportive at that time. He did bring up the question that he would like to move or shift. But at that time he did not know where to go until he got a job in [Employer 1].
I raised with the applicant that he seemed to say before that he was living with [Ms E] up until the time he went to Johor but now he seemed to be saying that he was living with his father in the village before he went to Johor. The applicant said it was a short period he stopped by in his village, around 2 to 3 months before he went to Johor. I raised with the applicant that I thought he had told me earlier that he was living with his father in the period from 2014 to 2015. The applicant said he thought that was wrongly given. This was the full story. Maybe that was a small story that he made a mistake.
When asked whether he was still in contact with [Ms E], the applicant stated that he lost her number because when he was in Australia his mobile phone was stolen after his house was broken into. He said he had made a police report regarding that. His evidence indicated that it was after he came to Australia that he had his last contact with [Ms E]. He confirmed that he had had contact with [Ms E] after he came to Australia. When asked about why he had contact with [Ms E], the applicant said he wanted to explain to her that he would be able to bring her to Australia. He gave evidence about getting to know about Australia when he spoke to a person from Perth who came visiting [Employer 1] and about this person sharing information regarding Australia where they were able to accept LGBT people. He said he got attracted to come to Australia when he was working in [Employer 1]. I raised with the applicant that I was trying to understand why he would have contact with [Ms E] from Australia if he had left her some time before that. The applicant said that he and [Ms E] did not break their relationship. She only gave time for him to go and find a safe place. He claimed that that was the time he went back and spoke with his father and he was supportive, but said at the time he did not know where to find a safe place. He again described becoming attracted to Perth when he met the person from Perth and telling his father about this. He described making a mistake and said that he did not know that he came using a Bridging visa and did not have any knowledge of how a visa worked. He described being very excited because he knew he was going to be in a safe place but referred to getting to know he had been cheated. He said that, when he got to know he was cheated, [Ms C] was able to help him out. His father was supportive but he had passed away. The applicant said he felt it was safer and better for him to be here.
At the April hearing, I discussed with the applicant what harm he feared for reason of his sexuality. He referred to hearing mocking and teasing words when he used to work at [Employer 1]. He said they like to tease and mock and touch you purposely from shoulder to shoulder, like kind of provoking you. At that time it was already starting, like physically touching. He referred to finding a country where he could escape before the situation got worse. The applicant also referred in his evidence to being unable to get married and said that was why he was looking for this sort of place.
I note also that, at the April hearing, the applicant gave evidence about having been involved in protest activity, including an anti-LGBT protest as well as a Shi’a protest in Kuala Lumpur. In summary, he referred to protests in around 2014 and 2016. He gave evidence about the LGBT protest and said that the LGBT one was after the Shi’a one. He said that he only went to protests twice, once for Shi’a, once for LGBT. After he joined that time, he felt it was useless to join. There were no changes in Malaysia. I raised with the applicant that, in his statement of 8 March 2024 and in his representative’s submission of 11 March 2024, I was not sure it mentioned that he had gone to an LGBT protest or a Shi’a protest. I questioned whether he had mentioned these things in his protection visa application and raised with him the effect of s 423A of the Act. I put to the applicant that I was not sure that I had heard before that he was saying that he went to an LGBT protest. The applicant referred to mentioning this in March but said initially in the beginning he told the agent of both Shi’a and LGBT. He indicated that later [Ms C] helped him find an agent and said he did not know why in the end only Shi’a was mentioned, not both of them. That was why in 2021 he found a lawyer and told the lawyer. He said that was why the first time the member found about that was in March.
At the April hearing, having previously explained the effect of s 423A of the Act, I raised with the applicant that it might not seem he had raised any claim about his sexuality, about being gay or bisexual or LGBT or anything of that nature, in his evidence or claims to the Department. It might not seem that he had raised a claim about being harmed because of his sexuality or that he had claimed that he was in a relationship with a transgender person or that he was involved in an LGBT protest or anything of that sort. I explained that that might cause me to draw an inference unfavourable to credibility. I asked why he had not raised with the Department those claims in relation to his sexuality and about being in a relationship with a transgender person and fearing harm because of that. The applicant referred to not knowing anything about this application and paying someone. He said the person claimed he could help him. He told the person about Shi’a and LGBT, but in the end he found out it was only Shi’a. He indicated that he could not find the person any more. He referred to this year being the first time he knew how to send an email and to having no knowledge before this about getting in contact. He referred to telling the person two reasons and to the person saying he could do it. When I raised with the applicant that he had told me (at hearing) that he had signed the form, the applicant said he did not know how to read English before he attended TAFE and the person claimed he was an expert so he relied on that person. I raised with the applicant that it might seem that he did not raise this claim at all until March 2024 and asked why he did not raise this claim earlier if it had not been included in the original application. The applicant referred to not knowing anything about the visa and to waiting for the appointment. He said what he knew before was just to pay people. I raised with the applicant that it appeared that there was a lengthy period between when he received the decision from the Department and when he raised this claim. The applicant said [Ms C] was the one who helped him because her husband is Australian. They said at that time once you get the refusal just wait and follow up what is the next thing. If you need to attend, attend. That was what she said to him. That was a mistake. He also asked people from different countries who applied for a visa what he should do. They advised him just follow step by step, just follow whatever they ask, don’t run away from them. He said he followed that.

I note that the applicant referred at multiple points in the hearings to having been scammed or cheated, to trusting people and to not knowing anything about the application. I note also that, when asked early in the March hearing about the protection visa application, he said it was a person who said he was an agent from Malaysia who did it. He indicated that he believed that the reason in his application was Shi’a, but indicated that he gave two reasons, the first related to bisexual LGBT and the second that he was Shi’a Muslim. He indicated also that he appointed [Migration agents] to act for him in August 2021.
I note also that the applicant confirmed at the March hearing that he had signed the protection visa application. He gave evidence about the preparation of the application. For instance, when asked about whether [Ms C] helped him with the protection visa application, the applicant claimed that he never met the person who did the protection visa application, although he indicated that he knew the person as [Ms A]. He gave evidence to the effect that he only told [Ms C] after that and had no choice but to communicate with her. In relation to the protection visa application, he indicated that [Ms A] was the person he communicated with. He referred to [Ms A] as a Malaysian from Sabah who resided in Sydney and said he got to know this person from [Social media]. He said this person was the one who said many Malaysians tended to get the ETA visa. The applicant said he believed the person and paid them $360 for the visa. The applicant confirmed that he had signed the protection visa application. He indicated that the person had sent him a copy, that he had downloaded it and that he had gone to Officeworks to print it out. He described signing it, scanning it and sending it back to the person. When asked why he would have signed the protection visa application if it did not contain all the claims he wanted to make, the applicant said his English was very bad at that time. He was only able to read and understand properly when he started to attend TAFE college for a course. I asked the applicant whether it was the case that he did not check with anyone what was in his protection visa application before he signed it. The applicant said the person told him most of the Malaysians who came on an ETA visa tended to apply for a protection visa. The applicant said he was stupid enough to listen to him and sign it off. He said that, if he knew that there was a Skilled visa, he would have applied for that and come into the country in a proper way. I raised with the applicant that he had wanted to speak to me in English at the hearing. The applicant said today he was confident enough to speak because he went to English class in TAFE. Before this he was not. I also discussed with the applicant the role of [Ms C] in relation to his protection visa application, something that is considered further below.
I discussed with the applicant at hearing that there were some other matters that might lead me to have some doubt about his claims about his sexuality, about being gay or bisexual or LGBT or having a relationship with a transgender woman. I referred, for instance, to his evidence that he did not know [Ms E]’s real name or ID name, and also raised that it might seem surprising if he had been in a long term relationship with [Ms E] that he would have lost contact with her. With regard to losing contact, the applicant said that was true. He referred to not being very good at gadgets and even missing an appointment because of the only phone number he lost. I also raised concerns over apparent inconsistencies in his evidence. I noted that initially he seemed to say that somewhere around 2010 or 2011 he had a relationship with a transgender person, [Ms E]. Later when I asked him when he first met [Ms E] he said if he was not mistaken it was 2012. I noted that he also seemed to tell me at one point that they were a couple for around 4 years and that he left [Ms E] after people started cursing and teasing him. I noted that he said [Ms E] gave him some time to understand and after that he made the decision. Later on he seemed to say in his evidence that they did not break up. The applicant stated that was what he told the Tribunal. She gave him space and time to find peace, to find legal status to stay here. Once he got legal status he could go back there and find her and they could live together again. He referred to Islam being the religion in Malaysia and to lack of acceptance of LGBT or transgender. He said even if someone had changed their gender or genitals they still would not accept it. They just knew that LGBT, lesbian, gay, all of this was haram. He referred to them saying that over there it did not matter if you had changed your gender. They only knew lesbian and gay. They used that language – gay and lesbian, not transgender that much.
I raised with the applicant also that his evidence about when he lived with [Ms E] might seem to have been a little bit unclear or perhaps to have shifted. I noted that initially, when I asked when he lived with [Ms E], he seemed to say for 2 years from 2012 until before he went back to his village. He had indicated that in the period from 2014 to 2015 he was living with his family in the village. Then later in his evidence at the March hearing he seemed to say that they lived together from 2012 up until when he went to Johor. After that again he seemed to say that he lived with [Ms E] and then, before he went to Johor, he went back to his village for a while. I put to the applicant that I might question whether there was a clear and consistent account of when he was living with [Ms E]. The applicant suggested that maybe because of the language it was not explained well. He said he did stay with [Ms E]. He claimed that he went to his village just for a very short visit, not 2 years. He said he quite often went to his village for a visit. When he was in Johor he went back to Kuala Lumpur a few times. He said [Ms C] did not know that much about [Ms E] but [Ms C] had seen her. I raised with the applicant also that perhaps his evidence about the development of the relationship might seem to have been a little bit vague.
I raised with the applicant at the third hearing that I might have some concerns with respect to the credibility of the claims and evidence. When asked whether there was anything else he wanted to say, the applicant referred to having to learn to communicate and to do things about the application correctly and asked whether there was any other way to enable him to stay here. He referred to his application being done through someone else and to paying people, and said he was not a person who liked to lie.
Sexuality / relationship with a transgender person - Consideration
There are numerous difficulties with the applicant’s evidence about his claimed sexuality and about his relationship with a transgender person.
I note firstly that, when asked the name of the transgender person he had had a relationship with, the applicant referred to [Ms E]. When asked whether [Ms E] had a family name, the applicant said that he did not know the real name, the ID name. As discussed further below, the applicant claims to have commenced a relationship with this person as long ago as 2010, 2011 or 2012 and claims to have lived with this person for around two years. I find the applicant’s inability to identify this person’s real name or ID name or family name to be very much at odds with the applicant’s claims about the nature of his relationship with this person.
Further, the applicant has failed to provide a convincing account of the relationship itself or of the development of the relationship. As I raised with the applicant at the hearing, he initially gave evidence that, somewhere around 2010 or 2011, he had a relationship with a transgender person, [Ms E]. Later, when asked about when he first met [Ms E], he said if he was not mistaken it was 2012. This is not consistent with his earlier evidence that somewhere around 2010 or 2011 he had a relationship with a transgender person named [Ms E]. I am conscious that these events are now some years in the past. Nevertheless, if the applicant had commenced a relationship with this person, this would have been an event of some significance in his life. I consider that the applicant has failed to provide a consistent and convincing account even as to when it was that he first met the transgender person named [Ms E].
I note also that the applicant gave evidence that they were a couple together for around four years. He went on to indicate that he left [Ms E] after some people started cursing and teasing them. He said [Ms E] gave him some time to understand and after that he made the decision. When asked about when he broke up with [Ms E], he initially said before he got a job in Johor. When asked about which year they broke up, he said they had promised each other that if he found a safe place like Australia he would look for her and they would stay together. When I raised with the applicant that I was not sure I understood this because I thought he had said that he had made the decision to leave [Ms E], the applicant then said that they did not break up. She gave him space so he could find his own self. I put to the applicant that I thought he had said earlier that he had left [Ms E] and that he made that decision. The applicant said she did not let him go. She gave him the space that he could go and find a proper safe place. At the hearing in April 2024, I raised with the applicant that he had seemed to tell me at one point that they were a couple for around 4 years and that he left [Ms E] after people started cursing and teasing him. I noted that he said [Ms E] gave him some time to understand and after that he made the decision. Later on he seemed to say in his evidence that they did not break up. When this was raised, the applicant said she gave him space and time to find peace, to find legal status to stay here. Once he got legal status he could go back there and find her and they could live together again. He referred to matters such as lack of acceptance of LGBT or transgender people, and to LGBT, lesbian and gay being haram. He referred to them using the language gay and lesbian, but not transgender that much.
I have had regard to the applicant’s evidence about this. Nevertheless, I have some difficulty reconciling the applicant’s evidence that he left [Ms E] (and that they broke up before he went to Johor) with his later evidence, for instance to the effect that they did not break up but she gave him space so he could find his own self or peace or a proper safe place or legal status. I did not find his evidence in this regard to be convincing. While certainly not decisive in itself, this is one of a number of aspects of the applicant’s evidence about the relationship that caused me some concern.
The applicant’s evidence about the development of the claimed relationship with [Ms E] was somewhat vague in nature, a concern that I also raised with the applicant at hearing. As discussed above, I raised with the applicant on a number of occasions the development of the relationship. I note, for instance, that he gave evidence about matters such as meeting at a night market, meeting for 3 or 4 years and spending time together, and people cursing and teasing them. When I asked whether he could explain how that relationship developed, the applicant said that now he was not together, he was alone. But at that time it happened. That was when he got to know the world of bisexual. I explained to the applicant that I was trying to understand how the relationship developed. I asked whether he could tell me anything else about the relationship. The applicant referred to the person being an orphan who was working as a ‘guest relationship officer’ and to the person tending to find customers in the same lane. He referred to an initial meeting, getting to know that he liked people of the same gender, having a relationship a couple of times and getting addicted. He referred also to matters such as the person transitioning and to liking people of the same gender because of this person. However, when I asked the applicant whether he could explain how the relationship developed, he provided limited detail. He referred to meeting the person as a sex worker while he was studying, to meeting up every night, to promising he would take care of and support the person once he finished his studies, and to people cursing and speaking badly about the relationship.
I note the applicant’s evidence about matters such as how he claims to have met this person and about what happened when he first met them. I note the applicant’s evidence about matters such as meeting up every night and becoming addicted and making promises to this person whom he had met as a sex worker. Nevertheless, the applicant’s evidence about how the relationship developed from the time he first met them as a sex worker to the point that they started living together some 5 or 6 months later was quite vague in nature. While I am conscious that relationships are individual in nature and can develop in a range of possible ways, I nevertheless found unconvincing his account of the development of the relationship from meeting his partner as a sex worker such that they started living together as a couple. Again, this is not decisive in itself but is one of a number of aspects of the evidence that caused me some concern.
I also found somewhat surprising the suggestion in the applicant’s evidence at the hearing that he had lost contact with [Ms E], noting that his evidence suggested that this was a person he had known for over a decade and with whom he claimed to have lived together in the past. As noted above, when asked at the March hearing about whether he was still in contact with [Ms E], the applicant claimed to have lost her number and referred to the theft of his mobile phone. He confirmed that he had had contact with [Ms E] after he came to Australia. When I raised with the applicant at the April hearing that it might seem surprising, if he had been in a long-term relationship with [Ms E], that he would have lost contact with her, the applicant said that was true. He referred to not being very good at gadgets and even missing an appointment because of the only phone number he lost. I am willing to accept that the applicant’s mobile phone was stolen and that he has a police report about this. I have had regard to the applicant’s evidence about not being good with gadgets and technology, although I note also that he referred in his written statement to using [Social media] prior to making his protection visa application. The applicant claims to have known [Ms E] for over a decade, to have been in a relationship with her and to have lived with her for a period of around two years. He claimed that he wishes to bring this person to Australia and that he had spoken to her about this. Even accepting that the applicant’s phone has been stolen, I find that the suggestion that he has lost all contact with her does not sit comfortably with his evidence about the nature of his claimed relationship with [Ms E]. This is a relatively minor matter in itself. However, there are numerous other difficulties with the applicant’s evidence.
I note that I also raised with the applicant at the hearing that his evidence about when he lived with [Ms E] might seem to have been unclear or to have shifted. I noted that initially, when I asked about when he lived with [Ms E], he seemed to say for 2 years from 2012 until before he went back to his village. He had also appeared to indicate that, in the period from 2014 to 2015, he was living with his family in the village (I note that, when asked initially about what he had been doing in the 2014 to 2015 period, the applicant indicated that he was helping his father doing some work in the village and confirmed that he was living with his family from 2014 to 2015). Then later in his evidence at the March hearing the applicant said that they lived together from 2012 up until when he went to Johor. After that again, he seemed to say that he lived with [Ms E] and then before he went to Johor he went back to his village for a while. As noted above, when this was raised with him, the applicant referred to using a different language, and made submissions to the effect that he did stay with [Ms E], that he went to his village for a short visit and that when he was in Johor he went back to Kuala Lumpur a few times. While I have noted the applicant’s submissions and explanations about this, his evidence about living together with [Ms E] up until he went to Johor was somewhat difficult to reconcile with evidence he had given about living with his family in the 2014 to 2015 period. At other times he seemed to say that he lived with [Ms E] from 2012 until before he went back to his village. However, I consider that any inconsistency in this regard is minor in nature and I have ultimately not attached any significance to this in making findings adverse to the applicant. Nevertheless, there are a number of difficulties with the claims and evidence in relation to the applicant’s sexuality and claimed relationship.
I have also had regard to the evidence of the witness, [Ms C]. In this regard, I put relevant information to the applicant for his comment or response, pursuant to s 424A of the Act, by letter of 23 May 2024. By way of background, I note that, prior to [Ms C] giving her evidence at the March 2024 hearing, the applicant referred to getting to know [Ms C] in 2020 or 2021. He indicated that he knew [Ms C] at the time he made his protection visa application in 2018 but referred to not being that close. He indicated that at that time he knew [Ms C]’s name but did not know any detail about her. He gave evidence to the effect that he was just using her email. He referred to [Ms C] being from Johor. He indicated that she was the girlfriend of his friend from [Employer 1] and her family had a [store] in Johor. He said at the time he only wanted help for an email. The applicant also said that after he was cheated twice regarding his visa he was able to communicate with her and she said she would be able to help him out.
As I put to the applicant in the letter of 23 May 2024, [Ms C] gave evidence about a number of matters at the hearing, including the applicant’s sexuality and his relationship, his religion and her role in relation to the protection visa application. With respect to the applicant’s sexuality and his relationship in Malaysia, [Ms C]’s evidence included the following:
· [Ms C] gave evidence to the effect that she had met the applicant in Malaysia as a friend. She gave evidence that she knew the applicant was in a relationship with a guy which was not allowed in Malaysia. She gave evidence to the effect that the applicant wanted to bring his partner or boyfriend. She indicated that it was not approved by Malaysian immigration because they suspected they were in a relationship. She also gave evidence that the applicant tried to get married in [Country] but could not get a marriage certificate over there because it was not really approved. When asked the name of the partner, she said she just knew him as [Mr F]. She said she met him once in Malaysia where he was working at [Employer 1] but she did not know his full name. She gave evidence that she knew they were in a relationship because of how they talked to each other in front of her. She said she knew they were more than just friends. She referred to meeting both of them a couple of times. She indicated that it was her understanding that the applicant wanted to bring [Mr F] to Australia to have a marriage. When asked whether [Mr F] was a man, [Ms C] gave evidence that [Mr F] was a male. When asked whether she knew how long the applicant had been in a relationship with [Mr F], she said since 2017, late 2017. She said they tried to get married in [Country] but unfortunately [Country] did not accept it. She said even if they got married over there it was not working. Because when they came back to Malaysia the Islamic government body would ask a bunch of questions. She said they would forcefully try to re-establish love towards a female instead of a male. When asked whether the applicant travelled to [Country] to marry [Mr F], she indicated that he tried to travel to [Country] but it was not approved. [Ms C] indicated that she was not aware of the applicant being in a relationship with anyone else apart from [Mr F]. She indicated that there was no one else the applicant wanted to bring to Australia. She indicated that she was not aware that the applicant was in a relationship with anyone else. She said it was only [Mr F] that she knew. She said she did not know much about the applicant’s personal life other than that.

When asked at the March 2024 hearing about whether he wanted to say anything about the witness’s evidence, the applicant said that was all true. He said he met her after he went to [Employer 1] in Johor. He then said she gave the true story but she only knew what she knew. He said his story was too long. The applicant went on to say that he never told her about [Ms E] because he did not want people to know about his love at that time. He said he needed to share at least she could help him about the visa and something. He claimed that [Mr F] was the same person as [Ms E]. He said he did not tell [Ms C] he called her [Ms E] and whatever. He said [Ms C] just helped him about the visa and his journey. He confirmed that [Mr F] and [Ms E] were the same person. He indicated that he had never had a relationship with anyone other than [Ms E]. At the April 2024 hearing, the applicant reiterated that it was the same person. At that hearing, the applicant again gave evidence to the effect that he just borrowed [Ms C]’s email address, saying that at that time he really did not have an email address and that he was a bit ‘old school’ and did not know much about digital. With regard to how he knew [Ms C], he said that [Ms C]’s boyfriend used to work with him as [an occupation 1] in [Employer 1]. He gave evidence to the effect that [Ms C]’s family had a [shop] in the same block where he lived and that she always asked him about her boyfriend. He said since then he became her middle man and they helped each other but they did not meet that often. Even now it had been 3 to 4 years he had not met her. He said that he used [Ms C] as a witness because he had borrowed her email. Any correspondence went there. He referred to buying things from their [shop] in Malaysia on debt. The applicant gave evidence to the effect that [Ms C] knew the person was a transgender male because the applicant always met her and him near the food court closer to her shop. He indicated that at that time they were just friends. He used her email because he wanted everything to be quickly arranged through the agent, paid and quickly arranged. The applicant also stated at hearing that [Ms C] did not know that much about [Ms E] but [Ms C] had seen her.
[Ms C]’s evidence about the applicant’s relationship is inconsistent with the evidence the applicant gave about his relationship in Malaysia. For instance, [Ms C] gave evidence to the effect that the applicant was in a relationship with a person named [Mr F] and that [Mr F] was a male (and that she had met them both in Malaysia). This is inconsistent with evidence that the applicant gave about his relationship in Malaysia which was to the effect that he had been in a relationship with a transgender woman named [Ms E] (he indicated that originally she was a man and that she had changed to be a woman; he indicated that she had undergone an operation to become a female after he commenced a relationship with her) and that he had never had a relationship with anyone other than [Ms E]. [Ms C]’s evidence to the effect that the applicant had been in a relationship with [Mr F] since 2017 and tried to travel to [Country] to get married is also, on the face of it, inconsistent with the applicant’s evidence about the relationship. For instance, in his evidence at the hearing, the applicant said that somewhere around 2010 or 2011 when he was doing his studies in [Subject 1] he had a relationship with a transgender person and that they were a couple for around 4 years, and referred to meeting for 3 or 4 years and spending time together. He also gave evidence that he lived with [Ms E] for two years from 2012 until before he went back to his village, and that he left after people started cursing and teasing him. When asked about when he broke up with [Ms E], the applicant initially indicated before he got a job in Johor (although he went on to give evidence to the effect that they did not break up and [Ms E] did not let him go but gave him space so he could find his own self and gave him the space so that he could go and find a proper safe place). He later gave evidence to the effect that he first met [Ms E] in 2012, that they started living together 5 or 6 months after they met and that they lived together up until the time he went to Johor in 2015 (he also said that he lived with [Ms E] and then before he went to Johor he went back to his village for a while).
I note that the applicant responded to the s 424A letter of 23 May 2024. I have carefully considered the response in its entirety. In summary, the applicant described how he made [Ms C]’s acquaintance while he was working at [Employer 1] and living at the workers’ hostel and referred to the nature of their relationship there. I note, for instance, that he said that he and [Ms C] were not close friends. He referred to [Ms C] as someone who could be asked for help and referred to being in debt at her shop and picking up and paying for groceries. He referred to only having a Nokia phone at that time, to going to a cybercafe if he wanted to do work related to letters or PDFs, and to asking [Ms C] to help him by allowing him to use her email address. He also referred to borrowing money from her. He said their relationship was limited to that at that time. He referred to meeting her again after he had an ‘ETA visa’ and progressed looking for another visa to continue living in Australia. He said he heard that she wanted to continue studies in [Town 4] as [an occupation 4] and talked about the visa with her at that time. He stated that he still lived alone in Australia and they still did their own thing. He said their friendship was like that and that he had met her 3 to 4 times since he came to Australia (when he was admitted to hospital, about the visa and once after [Ms C] got married). He said that she lived in Sydney and was only living in [Town 4] for a few months. The applicant also stated in his response that he was using [Ms C] as a witness because he had no other witnesses. He made submissions to the effect that, if a person in Malaysia changes gender, it is normal to refer to them according to the original gender. The applicant referred to making a mistake because he lacked preparation to enter Australia. He said he did not learn the right way to migrate, and collect and keep evidence from his country.
I have carefully considered all of the applicant’s evidence and submissions about this matter. While it caused me some concern that [Ms C] described the applicant’s partner as male, I am willing to accept as plausible that a person might refer to a transgender woman as male and attach no weight to the apparent inconsistency in this regard. Nevertheless, even putting this to one side, there was significant inconsistency between [Ms C]’s evidence about the applicant’s relationship and the applicant’s own evidence about his relationship in Malaysia. I have had regard to the applicant’s evidence about matters such as how he made [Ms C]’s acquaintance, the nature of his relationship and contact with her, and the reason why he nominated her as a witness. I note that he claimed at one point that he did not tell [Ms C] about [Ms E] and also made submissions to the effect that [Ms C] did not know much about [Ms E]. Nevertheless, the applicant’s evidence after hearing [Ms C]’s evidence and his response to the s 424A letter suggested that [Ms C] was aware of his relationship and that [Ms C] knew, for instance, that the person was a ‘transgender male’. I note that the applicant also claims that [Ms C] helped him in relation to his protection visa application after he had twice been cheated and that his claimed sexuality and relationship are now central to that application. I do not find at all convincing the suggestion that, if [Ms C] was aware of the relationship as the submissions suggest, the applicant would not tell her the name of the person. I have carefully considered all of the applicant’s explanations and submissions about this matter but do not consider that there is a satisfactory explanation for the inconsistencies between the applicant’s evidence and the witness evidence about this matter, as discussed above. I do not consider that there is a satisfactory explanation as to why, if the applicant had been in a relationship with a transgender person in Malaysia and his witness was aware of this as the applicant’s own evidence suggested, the witness would give evidence about the relationship that was so much at odds with the applicant’s own evidence about this. In my view, this greatly undermines the credibility of the claims and evidence with regard to the applicant’s sexuality and his relationship with a transgender person in Malaysia.
Having carefully considered all of the claims and evidence about this matter, I consider the claims and evidence about the applicant’s sexuality and his claimed relationship with a transgender person to be lacking in credibility. As outlined above, there are numerous difficulties with the applicant’s evidence about this matter. In particular, I have found the applicant’s inability to identify this person’s ID name or family name to be very much at odds with his claims about the nature of his relationship with this person. I have found that the applicant has failed to provide a convincing account of the relationship itself or the development of the relationship. I have found that the applicant has failed to provide a consistent and convincing account even as to when it was that he first met the transgender person named [Ms E]. Further, I have difficulty reconciling the applicant’s evidence that he left [Ms E] (and that they broke up before he went to Johor) with his later evidence to the effect that they did not break up but she gave him space so he could find his own self or peace or a proper safe place or legal status. I did not find his evidence in this regard to be convincing. I have also had regard to the evidence of the witness, [Ms C]. I do not consider that there is a satisfactory explanation as to why, if the applicant had been in a relationship with a transgender person in Malaysia and his witness was aware of this as the applicant’s own evidence suggested, the witness would give evidence about the relationship that was so much at odds with the applicant’s own evidence about this. This undermines the credibility of the claims and evidence with regard to the applicant’s sexuality and his relationship with a transgender person in Malaysia. Noting the inconsistencies discussed above, I find to be lacking in credibility [Ms C]’s evidence about this matter and do not accept as credible her evidence in relation to the applicant’s protection claims.
In all the circumstances, I find to be lacking in credibility the claims and evidence in relation to the applicant’s sexuality and his relationship with a transgender person in Malaysia. I do not accept as credible the applicant’s claims and evidence about being gay or bisexual or LGBT or LGBTQI or LGBTIQA+, and about having a relationship with a transgender woman. I do not accept as credible his claims about such a relationship, including his claims, for instance, about telling his father about such a relationship. I note that the applicant does not claim to have had a relationship with anyone other than [Ms E]. I do not accept that he has had a relationship with such a person as claimed, or that he has ever had a relationship with a man or a transgender woman. I do not accept that he would wish to do so if he returned to Malaysia.
I note also that the applicant’s claims in relation to his sexuality were first raised in submissions made to the Tribunal in March 2024, shortly prior to the initial hearing.
At the hearing on 23 April 2024, I raised with the applicant that it might not seem he had raised any claim about his sexuality, about being gay or bisexual or LGBT or anything of that nature, in his evidence or claims to the Department. As outlined above, the applicant responded when this was raised with him and I have considered his explanations and evidence in this regard. I note that the applicant referred at multiple points in the hearings to having been scammed or cheated, and to lacking knowledge and not knowing anything about the application. I note also that, when asked early in the March 2024 hearing about the protection visa application, he said it was a person who said he was an agent from Malaysia who did it. He indicated that he believed that the reason in his application was Shi’a, but indicated that he gave two reasons, the first related to bisexual LGBT and the second that he was Shi’a Muslim. I note also that the applicant confirmed at the initial hearing that he had signed the protection visa application. As discussed above, I raised with him the question of why he would have done so if it did not contain all of the claims he wished to make and I have considered his explanations in this regard. I have also considered his explanations, in his statement and at hearing, as to how the application was prepared. He referred, for instance, to making contact via [Social media] with a person named [Ms A], to making a payment to this person and to giving his details to this person.
The applicant has referred on numerous occasions to having been scammed and to the circumstances in which he made his protection visa application, in both his oral evidence and his written statement. The witness, [Ms C], also referred in her oral evidence to a person claiming that they did visas, to a scam in which the applicant had already paid thousands of dollars for his visa and to giving the applicant the number to a lawyer who could help him. I have carefully considered all of the evidence about this, including the evidence of the applicant and [Ms C] about the applicant being scammed. I note that the applicant has claimed that [Ms C] did not help with his visa application and just lent him her email address. [Ms C] herself also gave evidence to this effect, saying in her oral evidence that he asked to borrow her email so she just lent him her email. I am willing to accept that [Ms C] did not actively assist with the application (notwithstanding that the email address given in the protection visa application was the same as the email address the applicant gave for [Ms C] when nominating her as a witness for the hearing), although he used her email address. I am willing to accept that [Ms C] later gave the applicant a number to a lawyer. I have had regard also to the applicant’s evidence about the nature of his relationship with [Ms C]. However, even if [Ms C] did not directly assist with the protection visa application other than providing her email address, I do not accept the suggestion that the applicant was a person without any knowledge or guide. I have had regard to the applicant’s claims about lacking knowledge, about what the person who prepared the application told him and about believing or trusting that person. However, he also claimed that he gave the person who prepared the application two reasons, one related to his religion and one related to his sexuality. If that was the case, it would suggest that he would have had some knowledge and understanding of the nature of the application and the import of the claims to that application. The application itself did contain a claim relevant to a protection visa application, namely that he was Shi’a Muslim. The submissions to the effect that he lacked knowledge are somewhat difficult to reconcile with his claims to the effect that he gave the person 2 reasons, one related to being Shi’a and the other related to his sexuality, and I did not find convincing his evidence and submissions in this regard.
The applicant has acknowledged that he himself signed the application. The applicant claims that matters related to his sexuality motivated him to come to Australia. I am willing to accept that someone else may have prepared the application for him, that the applicant paid a sum of money (the applicant referred to $360) and that the applicant is now no longer able to contact that person. However, I do not accept that the applicant lacked any knowledge or understanding of that application and its import. I have had regard to the applicant’s submissions about matters such as his English not being good at that time, about the person claiming he could help the applicant and about listening to the person. However, I did not find the applicant’s submissions in this regard convincing. I consider that the application would have been of obvious importance and do not accept that the applicant lacked all understanding of the application. Even if his English was not good at the time and someone else prepared the application and sent it to the applicant to sign, I do not accept that he would simply sign the application and send it back without making an effort to check that there was some reference to a key claim that he asserts he wished to raise. I did not find convincing his evidence about this.
In all the circumstances, I find that there is no reasonable explanation for the failure by the applicant to raise with the Department any claim about his sexuality, about being gay or bisexual or LGBT, about having a relationship with a transgender person or about being involved in LGBT activity. In this regard, I note also that, although the applicant claims to have been aware that one of his two central claims had not been raised in the protection visa application, this was not raised in any way until the submissions of March 2024, shortly before the initial hearing. I did not find at all convincing the applicant’s submissions as to why, if a key claim had been omitted from the protection visa application made to the Department contrary to his wishes, this was then not raised until March 2024, over five years after the delegate’s decision. I do not find at all convincing the applicant’s evidence about not knowing how to get in contact and following the advice of other people. I note that his own evidence indicated that he appointed a representative in August 2021. The delay in raising this claim at all is significant. I note that the applicant’s representative submitted that the applicant had not been prepared to disclose earlier that he was ‘LGBTIQA+’. However, this is at odds with the applicant’s own evidence to the effect that he had sought to make this claim at the time of his protection visa application. In the circumstances, I do not accept that the failure to raise the claim with the Department can be explained by lack of willingness to make a disclosure.
For reasons outlined above, I am satisfied that there is no reasonable explanation for the failure to raise with the Department any claim about the applicant’s sexuality, about being gay or bisexual or LGBT, about having a relationship with a transgender person or about being involved in LGBT activity. In these circumstances I draw an inference unfavourable to the credibility of the claim. There has subsequently been a lengthy delay in raising this claim with the Tribunal. The applicant’s claims and evidence in relation to his sexuality are, in any event, lacking in credibility for other reasons outlined above. I find to be lacking in credibility the claims and evidence in relation to the applicant’s sexuality and his relationship with a transgender person in Malaysia. I do not accept as credible the applicant’s claims and evidence about being gay or bisexual or LGBT or LGBTQI or LGBTIQA+, and about having a relationship with a transgender woman. I note that the applicant does not claim to have had a relationship with anyone other than [Ms E]. I do not accept that he has had a relationship with such a person as claimed (or that he has lived with such a person or told his father or anyone else about such a relationship), or that he has ever had a relationship with a man or a transgender woman. I do not accept that he would wish to do so if he returned to Malaysia. In making these findings I have had regard also to the submissions made by the applicant’s representative.

117. On the basis of the document that has been submitted, I am willing to accept that there is a loan or credit as shown in that document. However, for reasons given above, I do not accept that there is a loan from a loan shark or that there have been threats as claimed. The account is not in the applicant’s name. Even if it is the case that it reflects a loan or credit relating to the applicant’s mother (or another family member), as discussed above, the document is in the form of a statement and reflects the operation of an account with a bank. Having carefully considered all of the evidence, I do not accept that this gives rise to a real chance that the applicant would be persecuted for any reason. Nor do I accept that it gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that he will suffer significant harm.
Applicant’s Health
118. At his Tribunal attendance on 17 April 2024, the applicant referred to having a medical issue and said he thought Australia could provide better treatment for him. He referred to some sort of issue with his heart and to holes in his heart that he needed treatment for. He said he thought Australia could provide good medication and he needed to get treatment here.
119. Prior to the April hearing, the applicant provided medical information under cover of an email dated 19 April 2024. He referred to having already provided a medical certificate for his hearing on 23 April 2024 and referred to the next appointment for his medical condition. He provided the following documents:
·     A certificate from [Dr B] stating that the applicant had recently been diagnosed with a medical condition for which he had been prescribed treatment in the emergency department. [Dr B] stated that the applicant should be fit to attend the hearing on 23 April 2024 unless there was an unexpected deterioration.
·     An imaging request dated 19 April 2024 and relating to the applicant. This referred to ‘CT Scan – aorta’ and to flow having been noted external to the descending aorta.
·     An email confirming an appointment at [Town 1] Medical Hub on 24 April 2024. This appears to relate to a CT Chest procedure.
·     What appears to be a calendar entry relating to i-MED Radiology. While I was unable to open this, the applicant indicated at the April 2024 hearing that it related to a booking for a radiology appointment on 24 April 2024.
120. On 22 April 2024, the applicant provided a further email in which he indicated that he was providing a medical certificate and information about his illness. He referred to the GP having checked his computer and found that there was an appointment he missed in August 2023. He said he had only now received the letter for the appointment and that he was doing a procedure because it was relevant to the duration of the disease. He submitted a number of additional documents, including the following:
·     A notification from [Hospital and Health Service] stating that they had been unsuccessful in contacting the applicant on several occasions for an appointment at the Cardiology General clinic on 27 October 2023.
·     A letter of 20 July 2023 advising the applicant that an appointment had been reserved at the Cardiology Clinic on 21 August 2023.
·     A letter of 22 June 2023 advising the applicant that an appointment had been made for him in the Department of Medical Imaging at [Hospital] on 22 June 2023.
121. At the April hearing, I discussed with the applicant matters related to his health. The applicant referred to having missed an appointment last year in relation to his disease and said he had just received the appointment details not long ago from his GP.
122. I raised with the applicant at the hearing that it was not clear how his health was relevant to his protection claims. The applicant claimed to have been hospitalised in 2022 at a place called [named Institute]. He said at [Hospital] the specialist did not say anything to him until he met the GP yesterday. The applicant claimed to have been hospitalised for 2 or 3 weeks in 2020, and said he requested to be sent back because he did not have money. He indicated that he was told at about that time he would be okay and able to get a job. He referred to having missed an appointment last year and to just having found out about that from the GP he met recently. He went on to say that when he checked they were still using his old phone numbers. He said he had lost his phone and got a different number. He confirmed that he did not go to the appointments at [Hospital] in 2023, saying that he did not receive any letters about the appointment and that he was starting again from tomorrow. He confirmed that he would be going for a CT scan the following day and indicated that he had been advised to do so by his GP. When asked whether he had been diagnosed with any particular condition or disease, the applicant referred to hole in the heart. When asked whether he had any medical evidence about that, the applicant referred to the one from [Hospital]. He said he had an operation in Malaysia. He said he found out about these health issues when he was in [Hospital]. He said he had a mark on his chest after the operation. I put to the applicant that I was not sure that any of the medical documents he had given me stated that he had a hole in the heart or gave any clear diagnosis of a heart condition. The applicant said that was what he said to the specialist in 2022. He remembered he was in the ward for lung or heart at that time.
123. I questioned whether there was any medical documentation that had a clear diagnosis but indicated that it was not clear in any event how this was relevant to his protection claims, I noted that, from what he had said he had a condition in Malaysia and he had an operation for it. Even if I were to accept that he had a medical condition, I needed to think about whether there was a real chance of serious harm for one of the 5 reasons (which I spelt out). I noted that persecution must also involve systematic and discriminatory conduct and referred also to the definition of significant harm. I put to the applicant the gist of information from DFAT’s Country Information Report issued on 29 June 2021. This included that Malaysia has a well-established universal health care system, accessed by around 78 per cent of the population. DFAT stated that primary healthcare treatment or a first line treatment via public healthcare would incur a fee ranging from MYR1 – MYR5, and a visit to a private GP would cost MYR30-MYR125 (AUD 9.50-AUD40). DFAT stated that health care was generally accessible to all residents in urban areas in peninsular Malaysia, with health facilities generally available within five kilometres of their residence.[3]
124. I raised with the applicant that he had said he had medical issues and he thought Australia could provide better medical treatment, but I might question whether that gave rise to a real chance of persecution or serious harm in Malaysia for one of the 5 reasons I had spelt out, or to a real risk of significant harm. When asked whether there was anything he wanted to say about that, the applicant referred to his claim being because of Shi’a. He referred to there being a mosque here for Shi’as so he could freely practise and he could receive treatment here. He said he was hospitalised in around 2022 after he received the vaccination. Because of that he also missed his appointment and his health was affected. He said he easily caught so many health issues. When asked about the scan scheduled for the following day, the applicant said he had been told it was an endoscopic scan; after that he would go to the [Hospital] to do an endoscopy. The applicant indicated that he wanted to know whether he could stay here to continue his treatment and referred to having missed his scan and to medical issues.
125. I have carefully considered all of the evidence about this. Although the applicant has not provided documentary evidence about this, I am willing to accept that the applicant was hospitalised in 2020 as claimed and that he was also hospitalised again in 2022 after receiving his vaccination as claimed. The applicant’s evidence was that he was told in 2020 that he would be okay and able to get a job. I note the letter from [Dr B] stating that the applicant had recently been diagnosed with a medical condition for which he had been prescribed treatment in the emergency department. I have considered all of the documentation in relation to the applicant’s health and related appointments. I accept that the documentation shows that he missed an appointment for a scan last year and that he was scheduled to have a scan on 24 April 2024. While it was not obvious that the documentation provided a clear diagnosis, it appears that the scan relates to the applicant’s heart.
126. I have carefully considered all of the evidence the applicant has provided about this, including the documentary evidence. However, even accepting that the applicant has a heart or health condition as claimed, his evidence is that he received treatment in Malaysia in the past. It may be that the applicant thinks he could get better treatment in Australia and that he thinks Australia could provide good medication. However, I consider that the evidence indicates that the applicant was in fact provided with treatment in Malaysia in the past. The available evidence indicates that Malaysia has a well-established universal health care system. The evidence does not suggest that the applicant has in any way been denied care or treatment under that system in the past. Even accepting that the applicant has a health condition for which he requires treatment, I am not satisfied looking to the reasonably foreseeable future that this gives rise to a real chance that he would be persecuted for any of the reasons mentioned in s 5J(1)(a).
127. With regard to the complementary protection criterion, ‘significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. The evidence does not support a conclusion that there are substantial grounds for believing that there is a real risk that the applicant will be subjected to the death penalty or be arbitrarily deprived of life. Even if the applicant considers that the treatment in Malaysia is not as good as that in Australia, I do not accept on the evidence before me that this in any way involves the intentional infliction of pain or suffering such as to constitute cruel or inhuman treatment or punishment, or torture. Nor do I accept that it involves an act or omission that is intended to cause extreme humiliation such as to constitute degrading treatment or punishment. Even accepting that the applicant has a health or medical condition and requires treatment, I am not satisfied that this gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that he will suffer significant harm as defined in s 36(2A).
Other Matters
128. At the March hearing, the applicant referred to having to pay the ATO and paying back the car he had bought. When he appeared on 17 April 2024, the applicant referred to some matters from Australia, saying that he had debts of about AUD 40,000, that he had bills or utility bills that are in arrears and that he had a car loan. He also referred to having debts to the ATO of about AUD 15,000. He said he thought it was his responsibility to pay off all these debts.
129. He subsequently provided a number of documents relevant to his financial situation in Australia under cover of an email dated 22 April 2024. These included:
·     A document labelled ‘Utilities’. This contained a March 2024 letter from Optus (addressed to the applicant in Australia) referring to the assignment of a debt and an electricity bill (apparently relating to an address in [Town 1]) showing a large negative balance.
·     A document labelled ‘Car debt’ that contains a contract of sale for a car and a rental agreement in relation to a car.
·     A document labelled ‘ATO’ which includes Notices of assessment for the year ended 30 June 2021 and 30 June 2022, a Statement of Account of October 2021, a tax receipt dated 14 July 2022 and a letter of 28 July 2022 confirming the applicant’s payment plan (and referring to an income tax balance of nearly AUD7,000.00).
130. At the April hearing, I raised with the applicant that he had provided things about his finances in Australia but I might question whether these things gave rise to a real chance of serious harm for one of the 5 reasons or a real risk of significant harm in Malaysia. When this was raised with him, the applicant referred to religion and LGBT, and to having been mocked and teased and said because of that he was looking for a country that would accept him. He referred to not having much knowledge about visas and to having been cheated many times.
131. I have had regard to these documents. I accept that they show that he has debts and liabilities in Australia. I am willing to accept that he has debts in Australia as claimed, including debts to the ATO, arrears on utilities and debts in relation to the purchase of a car or cars. However, on the evidence before me, I do not accept that these matters in any way give rise to a real chance that he would be persecuted in Malaysia for any of the reasons enumerated in s 5J(1)(a) or to substantial grounds for believing that there is a real risk that he will suffer significant harm.
132. At the March hearing, the applicant gave evidence to the effect that he had studied [Subject 1] in Kuala Lumpur from 2009 to 2013, and that he had received a Diploma of [Subject 1] (a copy of which he produced). I accept that the applicant studied [Subject 1] from 2009 to 2013 and that he has a [Subject 1] qualification as evidenced by the document he has produced. He also said that they discriminated against Muslim men like him learning to be a [occupation 3] and said it was looked down on. They said were you a girl learning that or a transgender learning that. I asked whether it was the case that people just said things to him verbally. The applicant said that was correct, verbally but it had affected him mentally. He said over here he did not get anything like that. He was not discriminated against or verbally abused.
133. At the April hearing, I raised with the applicant that he had spoken about people saying things to him for being [an occupation 3], and about people saying that he was a girl or transgender. I raised with the applicant that I might have some doubt that people saying things verbally was serious or significant harm. The applicant said for him it was very heavy in terms of mental health. He said it was not only physical harm. He referred to mental also being very important to survive.
134. I have had regard to the applicant’s evidence about this. I am willing to accept that people said things to him because he trained to be [an occupation 3] such as that he was a girl or transgender person. It may be that the applicant found this upsetting. I have had regard to the applicant’s reference to the mental effect of this. Nevertheless, I do not accept on the evidence before me that he suffered such harm in this regard as to amount to serious harm. In making this finding, I have had regard to the instances of harm enumerated in section 5J(5) of the Act, although I am conscious that this is not an exhaustive list. Nor am I satisfied that he suffered harm of such a nature as to constitute significant harm as defined in s 36(2A). I have considered the applicant’s claims with respect to being a Muslim man who has studied or trained to be [an occupation 3]. However, I do not accept, looking to the reasonably foreseeable future, that this gives rise to a real chance that he would suffer serious harm in Malaysia for any reason. Nor am I satisfied that it gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that he will suffer significant harm.
135. At the March hearing, the applicant referred to his siblings and said they were not close. He said they were always fighting. He described his family as having a family issue. At the April hearing, I asked him what he meant when he said his family had a family issue and were always fighting. He said they were not close to each other among their siblings. They were busy with their own things. So when they came together under one roof they always fought. Usually the problem started from money. I asked the applicant whether, when he said they always fought, he meant that they argued with each other. He said every time he went to the village they always had this fight, like an argument. I put to the applicant that I might have some doubt that this was something that would give rise to a real chance of serious harm or significant harm, having an argument or fight with your family. The applicant then said this one would not be. He referred to the issue being that they were not accepting of Shi’a and LGBT and went on to indicate that that was why he came here to look for peace. He said the family issue he could solve but here in Brisbane they had a mosque for Shi’a so he could go and pray like the way Shi’a people prayed but he could not do this in Malaysia. He referred again to paying people and following when people said this is right.
136. I have carefully considered the applicant’s evidence about this. I am willing to accept that the applicant’s family and siblings may not be close and that they have arguments when he goes to the village, including in relation to money. However, I do not accept on the evidence before me that this gives rise to a real chance that he would be persecuted for any of the reasons in s 5J(1)(a). Nor do I accept that it gives rise to substantial grounds for believing that there is a real risk that he will suffer significant harm. I have considered his claims with respect to religion and sexuality, as discussed above.
Cumulative Consideration – Refugee Criterion
137. I have carefully considered all of the applicant’s claims and circumstances, both individually and cumulatively.
138. For reasons set out above, I have not accepted as credible the claims and evidence about the applicant being gay or bisexual or LGBT or LGBTQI or LGBTIQA+, and about having a relationship with a transgender woman. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that the applicant would be persecuted for reason of being gay or bisexual (or a gay, bisexual man) or LGBT or LGBTQI or LGBTIQA+, or having a relationship with a transgender woman. I do not accept that the applicant has been involved in LGBT-related protest activity or has any interest in being involved in such activity. In these circumstances, I do not accept that there is a real chance looking to the reasonably foreseeable future that the applicant would be persecuted for being involved in LGBT protest activity.
139. For reasons set out above, I do not accept that the applicant is a person of Shi’a Muslim religious faith, that he has ever practised as a Shi’a or that he has any interest in practising as a Shi’a. I have found the applicant’s claims and evidence in this regard to be lacking in credibility. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that the applicant would be persecuted in Malaysia for reason of being Shi’a Muslim or for reason of religion. I do not accept that the applicant attended a Shi’a protest in 2014 or at any other time or that he has any interest in involving himself in such activity. I do not accept that there is a real chance, looking to the reasonably foreseeable future, that he would be persecuted due to involvement in Shi’a protest activity or for reason of religion or political opinion.

140. I have not accepted that there are any loans from loan sharks as claimed by the applicant. Looking to the reasonably foreseeable future, I do not accept that there is a real chance that the applicant would be persecuted by loan sharks or anyone connected with loan sharks. On the basis of the document that has been submitted, I am willing to accept that there is a loan as shown in that document (although, for reasons given above, I do not accept that there is a loan from a loan shark). However, I do not accept that this gives rise to a real chance that the applicant would be persecuted for any reason.
141. I have had regard to the claims and evidence in relation to the applicant’s health. However, even accepting that the applicant has a health condition for which he requires treatment, I do not accept, looking to the reasonably foreseeable future, that this gives rise to a real chance that he would be persecuted for any of the reasons mentioned in s 5J(1)(a). I have accepted that the applicant has trained as [an occupation 3] and that people said things to him in relation to this as discussed above. However, I do not accept that this gives rise to a real chance that he would suffer serious harm for any reason. I am willing to accept that the applicant’s family and siblings may not be close and that they have arguments when he goes to the village, including in relation to money. However, I do not accept on the evidence before me that this gives rise to a real chance that he would be persecuted for any of the reasons in s 5J(1)(a). I accept that the applicant has debts and liabilities in Australia. However, on the evidence before me, I do not accept that these matters in any way give rise to a real chance that he would be persecuted in Malaysia for any of the reasons enumerated in s 5J(1)(a).
142. I have considered all of the applicant’s circumstances, including matters such as his health, his age, the debts in Australia and his family circumstances (including that his father has passed away). However, even considering all of his circumstances cumulatively, I am not satisfied, looking to the reasonably foreseeable future, that there is a real chance that he would be persecuted for any of the reasons enumerated in s 5J(1)(a). I am not satisfied that he is a refugee as defined in s 5H(1).
143. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Cumulative Consideration – Complementary Protection Criterion
144. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I have carefully considered all of the applicant’s claims and circumstances, both individually and cumulatively.
145. For reasons set out above, I have not accepted as credible the claims and evidence about the applicant being gay or bisexual or LGBT or LGBTQI or LGBTIQA+, and about having a relationship with a transgender woman. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that the applicant will suffer significant harm in connection with being gay or bisexual (or a gay, bisexual man) or LGBT or LGBTQI or LGBTIQA+, or having a relationship with a transgender woman. I do not accept that the applicant has been involved in LGBT-related protest activity or has any interest in being involved in such activity. I do not accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm in connection with any such activity.
146. As set out above, I do not accept that the applicant is a person of Shi’a religious faith, that he has ever practised as a Shi’a or that he has any interest in practising as a Shi’a. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that he will suffer significant harm in connection with being a Shi’a Muslim or in connection with religion. I do not accept that the applicant attended a Shi’a protest in 2014 or at any other time or that he has any interest in involving himself in such activity. I do not accept that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm due to involvement in any such activity.
147. I have not accepted that there are any loans from loan sharks as claimed by the applicant. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that the applicant will suffer significant harm from loan sharks or people connected with loan sharks. On the basis of the document that has been submitted, I am willing to accept that there is a loan as shown in that document (although, for reasons given above, I do not accept that there is a loan from a loan shark). However, I do not accept that this gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that he will suffer significant harm.
148. I have had regard to the claims and evidence in relation to the applicant’s health. However, even accepting that the applicant has a health or medical condition and requires treatment, I am not satisfied that this gives rise to substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk that he will suffer significant harm as defined in s 36(2A). I have accepted that the applicant has trained as [an occupation 3] and that people said things to him in relation to this as discussed above. However, I do not accept that this gives rise to substantial grounds for believing that there is a real risk that he will suffer significant harm. I am willing to accept that the applicant’s family and siblings may not be close and that they have arguments when he goes to the village, including in relation to money. However, I do not accept on the evidence before me that this gives rise to substantial grounds for believing that there is a real risk that he will suffer significant harm. I accept that the applicant has debts and liabilities in Australia. However, on the evidence before me, I do not accept that these matters in any way give rise to substantial grounds for believing that there is a real risk that he will suffer significant harm.
149. I have carefully considered all of the applicant’s claims. I have considered all of his circumstances, including matters such as his health, his age, the debts in Australia and his family circumstances. However, even considering all of his circumstances cumulatively, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that he will suffer significant harm.
150. I am 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 the criterion in s 36(2).
DECISION

152. The Tribunal affirms the decision not to grant the applicant a protection visa.
Don Smyth
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.
…

[1] 'Ahmadi Religion of Peace and Light': Police submit investigation papers to AGC, New Straits Times, 5 August 2023

[2] Wang v MIMA (2000) 105 FCR 548 at [16]

[3] See DFAT, Country Information Report: Malaysia (29 June 2021) at para [2.22]; this information is consistent with information in DFAT’s Country Information Report of 24 June 2024 at para [2.11].

[2024] AATA 3631

31 July 2024

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