1900909 (Refugee) - [2024] ARTA 579

1900909 (REFUGEE) [2024] ARTA 579 (28 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1900909
Tribunal:General Member G Deal
Date:28 October 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 28 October 2024 at 10:16am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – a Buddhist Chinese Malaysian – homosexuality – fears harm in Malaysia as a lesbian – significant variations in her claims – voluntary return to Malaysia – significant delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 424,359, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia last arrived in Australia on [date] February 2018. The applicant applied for a protection visa on 8 May 2018.
On 4 January 2019 the delegate refused to grant the protection visa. After noting that the applicant had not provided any supporting documentation and that the applicant had travelled to Australia on 2 prior occasions (in 2014 and 2017) it appears the delegate did not accept the applicant had fled to [Country 1] with her then girlfriend to escape discrimination and harassment from their families in Malaysia. It appeared the delegate accepted the applicant was a lesbian who may experience some discrimination and harassment in Malaysia. However, overall, the delegate found the applicant did not meet the relevant definition of refugee, did not face a real risk of significant harm, and was not a person in respect of whom Australia had protection obligations. The applicant provided a copy of the delegate’s decision to the Tribunal at the review stage.
BACKGROUND
As noted above, the applicant provided her application for a protection visa to the Department in May 2018, including a signed protection visa application form and a copy of the biodata page of her Malaysian passport.
The applicant appeared before the Tribunal on 10 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS
The applicant’s claims can be summarised as follows:
- She is a Chinese Malaysian Buddhist in her [age] from Melaka, Malaysia. Her parents are retired and still live in the family home in Melaka. Her adult brother and 2 adult sisters each live with their own families in Melaka. She has worked in various capacities in the past including [deleted].
- After completing primary and secondary schooling in Melaka she married and worked with her husband in his [business]. She separated and then divorced her husband in or around 2015.
- She realised she was a lesbian when in her [age] after watching a movie about lesbians. After she divorced her husband, she entered a relationship with a woman. She was discriminated against and/or mistreated by her family, colleagues, and some friends. Her family did not accept her homosexuality. She was mistreated by her girlfriend’s family who wanted the relationship to end. She was too embarrassed to seek protection in Malaysia so did not report these problems to the police, and believed that if she they did, that they would laugh at her. There are no laws that allow same gender relationships in Malaysia, and it is against the rules.
- Between 2015 and 2018 she lived with her girlfriend in [Country 1] in a house that they rented together. About 6 months after arriving in [Country 1] she secured a role with a company that provided [specified services]. They sponsored her so that she could work and live in [Country 1] until 2018. While in [Country 1] she also travelled with this company for work related functions and training to [other countries]. She and her girlfriend experienced mistreatment in [Country 1] on account of their relationship and so they fled to Australia in 2018 as they believed in Australia their homosexual relationship would be accepted.
- She cannot return to Malaysia as she could not live with her girlfriend there, she would bring her ex-husband and her family humiliation, her family would look for her and do the same thing as in the past because they have contact with her girlfriend’s family. Her family and her girlfriend’s family will harm her. Her husband thinks she separated from him because of her girlfriend, is angry, and has threatened to harm her.
- She has no income or resources in Malaysia and fears having no income in Malaysia.
REASONS AND FINDINGS
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant has consistently claimed to be a citizen of Malaysia, not to be a citizen of any other country, and to not have a right to reside elsewhere, and based on this and the applicant’s Malaysian passport I accept this. I consider Malaysia the receiving country. Based on the passport the applicant is in her [age].
At hearing I noted that the applicant’s protection visa application form, signed by her on 5 May 2018, said that she had not received any assistance in completing it. The applicant said that was correct and that the contents of the form was true and correct as far as she knew and believed. However when asked if there were any mistakes, she expressed some doubt stating she was worried that some of the wording might not be accurate because her English was not good. After some more probing questions she claimed she filled it in by hand with the help of a friend who spoke Mandarin and English, and that some parts of the form were filled out by her friend. When asked how her friend filled out parts of the form, she said that she told this friend her claims in Mandarin and that friend would translate this to English and write the claims in the form, which given the spontaneous detail provided at hearing I am willing to accept. On the evidence I consider the claims in the form largely reflect what the applicant communicated to her friend who then translated these claims into English and inputted them into the form.
The applicant has consistently claimed to be a Buddhist Chinese Malaysian from Melaka, Malaysia, and that her parents and 2 sisters live in Malaysia, which she confirmed at hearing. At hearing the applicant elaborated on some aspects, advising that her parents were retired, and living in the family home in Melaka, which was where she lived when she was in Malaysia (which she indicated in her protection visa application when she also provided a complete address for this property). She said that her sisters were married with children and living in Malaka, Malaysia. She said for the first time that she also had one older brother who was married with children and living in Melaka. She did not list her older brother in her protection visa application form which was noted at hearing. As noted above the applicant had some assistance with the form which may plausibly explain this minor background error. She said that she was not in contact with her siblings. She said that she remained in contact with her parents who sometimes asked for financial assistance because they were retired. She said she helped them financially every Chinese New Year. The applicant claims that in Melaka she completed primary and secondary schooling finishing up in about 1995, married a man, whose name and approximate age she provided at hearing. She said she worked assisting her former husband with his [business] for several years which is also reflected in her protection visa application. She divorced after about 20 years of marriage. At hearing the applicant said that she had not been in contact with her husband since divorce, indicating they were estranged, and that she had heard last year that he had passed away. The timelines for events do not always accord with the dates in the protection visa application although these disparities are more minor in nature. At hearing the applicant said that since being in Australia she had mostly lived in [City 1]. She recently moved to[a suburb]. She said that that she worked for about 6 years at a farm in [City 1] and for about the last 6 months as a [occupation]. Based on the broadly consistent claims and the applicant’s plausible and more detailed evidence at hearing, I am willing to accept the applicant’s background claims regarding her faith, ethnicity, family composition and location, that she married a man in about 1995 and divorced an odd 20 years later (making it in about 2015), losing contact with her ex-husband who has since passed away, and her address, education, and work history in Malaysia and Australia. As the applicant is from Melaka, Malaysia, where she always lived while in Malaysia and has family, I consider that if she were to return, she would very likely return to Melaka, Malaysia.
In the applicant’s protection visa application form where it asks “Have you ever departed and re-entered Australia since your first arrival?” it states yes. It states that the date of departure was [date] January 2018, the date of re-entry [date] February 2018, and that the country travelled to was [Country 1]. An address in [Country 1] is also detailed in the application form indicating the applicant lived in [Country 1] from May 2015 until February 2018 (she last travelled to Australia in February 2018). No other travel is detailed in the form which asks for details of travel over the last 30 years. At hearing I asked the applicant if she had travelled anywhere in the past (other than Australia in February 2018 and [Country 1] between 2015 and 2018). The applicant said she travelled to [other countries] in the past. When asked when she briefly replied she could not remember. When asked how old she was at the time she said “around [age] years”. After a series of probing questions, which was often required to elicit more than a brief response from the applicant at hearing, she claimed that when she first moved to [Country 1] in 2015 she initially had to return from [Country 1] to Malaysia every 30 days to renew her tourist visa, however after about 6 months, she secured a job in [Country 1] and was sponsored so was able to live and work there until 2018, which appears broadly consistent with country information about immigration to [Country 1].[1] The protection visa application described her work as general worker for a [company]. At hearing she explained that they [did specified work] and that her boss had opened a branch in China and so she travelled there for a short period to undertake training and work in [countries]. She said it was just for a few days, no more than a month in total, and all happened in the same year when she was “[age]” (meaning it had to have been sometime between 2015 and 2017) and then she returned to [Country 1]. When asked if she undertook any other travel in the past she said that when she was “[age]” she went on a 1 to 2 day work trip with the same employer to [a country] for the cuisine as a reward with other staff members. I asked the applicant why she had not mentioned this prior travel in her protection visa application, and she said she did not think it was required given it was only brief travel. I accept this explanation as plausible given the very brief nature of this travel and draw no adverse inference from its late mention. Of all of the applicant’s evidence her work in this role was some of the more detailed evidence she provided at hearing. She explained it did not only cater to Buddhists but also Christians [and] that the business was a commercial one. At hearing she provided the name of her boss who appears to have the same surname as a person linked online to the site of the business in [Country 1], which site name was provided in the protection visa application form.[2] On the evidence, including the online information, consistency and spontaneous detail provided at hearing, I accept the applicant lived in [Country 1] from 2015 until 2018, secured work as claimed shortly after arriving which was how she was able to live and work there for an extended period, and that while living and working there she undertook brief work related trips to [other countries] as claimed.
[1] [details deleted]
[2] [deleted]
At hearing after going through the applicant’s past travel to [countries] in detail, and noting that the protection visa application form had asked for her to detail her travel history over the last 30 years, I asked the applicant if there was any other past travel. The applicant said no. In the delegate’s decision, a copy of which the applicant provided to the Tribunal at the review stage, it states that the applicant travelled to Australia and spent nearly 6 months in Australia departing in 2014, entered Australia a second time in December 2017, and left in January 2018, before returning to Australia a third and last time in February 2018.[3] In the applicant’s protection visa application she appears to have attempted to detail the latter of these two trips, erroneously stating she left Australia in January 2018 (when she left in December 2017) although this is only a minor discrepancy, and I am willing to draw no adverse inference from this. However, the applicant omitted to mention her earlier travel to Australia in 2013/2014 which is significant as she spent some 6 months in Australia at that time. When this was noted at hearing the applicant said that was a long time ago and she only thought she had to mention recent travel and that she did not understand very well. While this may explain why it was not in the form, I do not accept this explanation for her not mentioning this travel at the hearing. As I explained at hearing, I asked the applicant at hearing to detail her travel history, I read the question from the protection visa application form to her which asks for her travel history over the last 30 years, and in response the applicant detailed historical and very brief travel, sometimes only 1 or 2 days’ travel, to [countries] a number of years ago, although made no mention of her odd 6 month stay in Australia ending in 2014. At hearing the applicant explained that she travelled to Australia at that time on a tourist visa for work. She worked in [a sector] and overstayed her visa. She left in 2014 and returned to the family home in Melaka, Malaysia, because she claims her father was unwell. When her father’s health recovered, she left to live in [Country 1] in May 2015. On the evidence, including the detail provided at hearing, I accept the applicant travelled to Australia and remained in Australia for some 6 months, overstaying her visa at the time, and returned to Melaka Malaysia in 2014, travelled to [Country 1] in 2015 where she lived until 2018, returned to Australia in December 2017 leaving early the next year and returned to Australia a third and final time in February 2018. On the evidence I consider the applicant omitted to mention her earlier travel and 6 months stay in Australia until this was brought to her attention at hearing. This may plausibly have been because she did not want to bring attention to her overstaying her Australian visa at that time.
[3] This information is also in Departmental movement records obtained and put to the applicant at hearing under s 424AA, the validity of which by operation of the Transitional Act is taken to continue to have effect, notwithstanding the subsequent repeal of s 424AA and its replacement by s 359A on 14 October 2024.

The applicant’s main claim is that she suffered harm in Malaysia in the past on account of being a lesbian and that she fears harm in Malaysia as a lesbian.
I acknowledge various circumstances specific to the applicant including that she does not speak English, had assistance with her protection visa application as noted above, and is unrepresented. At the commencement of the hearing I confirmed with the applicant that she understood the interpreter. I explained the criteria for the grant of a protection visa. I advised the applicant that if at any point she did not understand a question to let me know and I would restate or rephrase the question. I explained how the hearing would be conducted and the purpose of the hearing so that the applicant knew what to expect from the hearing. As was noted at hearing the applicant’s oral evidence was often brief and/or vague, sometimes she responded to questions with “I suppose so”, or “I don’t remember” or vague statements like “language plus fighting”. In an effort to elicit more detail and/or clarity around these brief and vague statements, that sometimes also seemed at odds with earlier statements, I often had to ask a series of more probing follow up questions. I assured the applicant that I had come to the hearing with an open mind and that while I was required to put any issues I may have with her claims and evidence to her for comment, that she should not presume from this that I had decided her matter. Toward the end of the hearing the applicant appeared a little emotional at times, or said she did not know what to say, and while I offered opportunities for a break, she did not want to break at those times. At another point roughly midway through the hearing an odd 10-minute break was taken. Before the applicant was given an opportunity to detail her claims at hearing, I also reminded her that it was her responsibility to specify all particulars of her claims and provide sufficient evidence to establish those claims. The applicant has not claimed to suffer from any mental health issues or memory issues, or to take medication. While I consider it plausible the applicant may have been anxious at the hearing, and that this and the passing of time and transliteration issues may give rise to minor variations, particularly in relation to more minor or background details, I do not accept this as an explanation in relation to significant variations in the applicant’s central claims. While the applicant’s responses were often brief, and sometimes unclear, necessitating a series of more probing questions, at some points such as in relation to her work in [Country 1] and travel to [other countries], the applicant was able to recall and provide more detail, about past events. The applicant appeared to understand the questions posed and provide meaningful responses to those questions at hearing, and I do not consider she was unable to meaningfully engage in or provide evidence at hearing. Even when taking the above into account, as was noted at hearing, the applicant’s evidence around her claimed sexuality, including past harm, has been brief, lacking in the sort of substantiating detail you could reasonably expect of someone who had truly lived these experiences, and has varied significantly, raising serious concerns for me regarding the veracity of these claims.
In the applicant’s protection visa application form she claims she had a relationship in Malaysia with a woman. After a few years of knowing one another, they became a couple. After mistreatment by both their families, they moved to [Country 1] together to escape their families and live together. In contrast, at hearing the applicant said that while in Malaysia she met her girlfriend [on] the internet. When asked if she met her girlfriend in Malaysia, she said that she did not. She said that she later travelled to [Country 1] for the purpose of meeting her then girlfriend in the flesh. When this variation was highlighted at hearing as an example of the many significant variations in her evidence the applicant appeared to adjust her evidence claiming that her girlfriend also travelled to Malaysia and that that was when her family found out about the relationship and drove her out of the home. I do not consider this explanation adequately addresses the significant variations in her claims especially concerning how and where they met. As another example, in the applicant’s protection visa application form she said that in Malaysia her family chased her away from the home, beat her up, and threw stones at her because of her sexuality. Her girlfriend’s family threatened to kill her and one day while walking to a bus stop, a member of her girlfriend’s family while passing on a bike pushed the applicant from behind, forcing her to the ground and hurting her. In contrast, at hearing the applicant made no mention of these claimed events in Malaysia which is surprising given their significance. Instead after a series of probing question were asked to draw out more clarity and detail, she claimed she was discriminated against by her family, work colleagues, and some friends. When pressed to expand on what it was she claimed had occurred in Malaysia in this regard she said her family told her she was not a normal person, drove her out of the family home, threw her breakfast in the rubbish bin, ignored her when she watched television, and that this had caused her stress. When I asked if there was anything else that had happened in Malaysia the applicant only said that the feeling was “really hard”. As another example, in the applicant’s protection visa application she claimed she and her girlfriend fled Malaysia and travelled to [Country 1] to get away from their families. It also vaguely claimed that in [Country 1] they had “ “so much problem”, “bigger problems”, and that they were “abused”. In contrast at hearing the applicant claimed she left [Country 1] because her luggage was thrown out of the home in [Country 1] by her then girlfriend’s family who did not support the relationship. This appears to vary significantly with claims in the protection visa application that they fled Malaysia to escape harm from both their families in Malaysia.
At hearing when I asked the applicant why she described herself as a lesbian the applicant said it was because she was not interested in men. When asked when she came to this realisation, she said it was when she was “[age]” (meaning it would have been sometime between 1997 and 2007) and that her marriage had been arranged and she had no choice in the matter. When asked how she realised she was a lesbian, she said she did not like her husband, was very against having sex with him, not only her husband, that she liked woman, that she had a feeling for woman, and was disgusted by men. When asked how she felt about herself when she came to this realisation, she briefly replied it was just a natural feeling. When asked if there was a particular event that made her realise this at the age of [age], she said she realised she liked women after watching a movie about lesbians and that it felt very good to be with a woman. When asked if she told anyone at the time when she came to this realisation, she said that she told her husband who thought she was joking. When asked when this was, she said about “[age]”. When asked how she felt when she told him, she said she was serious, but he thought it was a joke, and that she told him because she wanted a divorce. I noted they did not separate until many years after this. She said she applied for separation without his knowledge. When I endeavoured to obtain more clarity around this statement asking her what she meant by this she said she contacted a staff member who contacted him about it later. When I asked why despite the realisation at [age] years of age, she did not act on this until around 2015 (some 20 years later) she said it was because she applied for separation from her husband.
In response to a series of questions the applicant said that in her odd [age] years she had only ever had the one relationship with a woman which was the one with her former girlfriend and that this woman travelled with her to Australian 2018 and returned to [Country 1] from Australia in 2022 when her father fell ill and that they had not been in contact since. She said she had never had any involvement with the LGBT community in Malaysia or [Country 1] because she did not want to be discriminated against. The applicant last travelled to Australia in 2018. When asked if in that time she had had any involvement in the LGBT community in Australia, given the greater freedom in Australia, the applicant said that in 2023 she went to a street party with gay friends and descried it as a “strike”. I asked a series of probing questions in relation to this claimed event as her descriptions were very unclear. She did not know the name of the event or where it was located, other than that it was in Chinatown in the city. She said she went to the event looking for a partner and that there were gay people there. I note this claimed event was recent and in Australia and in those circumstances I consider it would be reasonable to expect the applicant to be able to provide something in support such as promotional material whether hardcopy or online or photos and I noted this at hearing. The applicant said she had nothing she could provide. When asked if she had attended any other events in Australia, she said she had not. When asked why, she said it was because she wanted to make money. After noting these concerns at hearing, reiterating that the applicant could not provide any supporting information about her claimed sexuality, that she had only gone to one event but did not know the name of it or where it was held other than in Chinatown, and the lack of detail in her claims, the applicant said that she could not provide any evidence because she had deleted a lot of photos and that all she had were her memories.
As was noted at hearing (and detailed in the delegate’s decision and as noted above Departmental movement records put to the applicant at that time under s 424AA) the applicant previously travelled to Australia in 2013 (remaining in Australia for some six months during which time she [worked] ) and 2017 (remaining in Australia for a couple of months). Despite claims she had already realised her sexuality well before those visits and had experienced harm prior to her second visit, she only applied for a protection visa on 8 May 2018, after her third and final travel to Australia in February 2018. I also note that the applicant voluntarily returned to Melaka, Malaysia, from Australia in 2014 to live in the family home and remained there until travelling to [Country 1] in May 2015. At hearing the applicant said that the second time she left Australia she returned to [Country 1] to tie up loose administrative ends in [Country 1] before returning to Australia the third and final time. As was noted at hearing this delay in the applicant’s protection visa application and her voluntary return to Malaysia from Australia in the past raises serious concerns for me regarding the veracity of her claims to fear harm as a lesbian. In response to these issues the applicant said she did not know what to say. She then said she just wanted the Tribunal to be lenient and allow her to remain in Australia.
While the applicant claimed in her protection visa application dated in 2018 that her husband was angry at her for leaving him because of her girlfriend and that he had told her he would damage her badly if he saw her again, the applicant made no mention of this at hearing when given an opportunity to detail her claims for protection. Moreover, at hearing, the applicant indicated that after they divorced (which was in about 2015), they had become estranged and that she had since heard he had passed away which as noted above, I accept. As with many of the applicant’s claims, claims she had been estranged from her husband since around 2015 is at odds with her claims in her protection visa application lodged in 2018 that he was angry and would hurt her if she returned. The applicant’s husband has also since passed away. On the evidence I do not accept the applicant faces a real chance of being harmed by her ex-husband as claimed. ‘Real chance’ and ‘real risk’ involve the same standard. For the same reasons, I am also not satisfied the applicant faces a ‘real risk’ of significant harm for the reasons claimed.
I acknowledge sexual orientation is a personal matter that some may wish to keep private, that not every LGBT individual wants involvement with the LGBT community or to have a partner, and that sexual orientation is not always easy to substantiate. However, the applicant has claimed to fear harm on account of her sexual orientation and as detailed above, on the evidence, including the significant variations, lack of substantiating detail, lack of any supporting material, significant delay in applying for a protection visa, and indications the applicant has not always been forthcoming about her past, I do not accept the applicant came to realise she was a lesbian in her [age] after watching a lesbian movie, divorced her husband some 20 years later because of this, commenced a lesbian relationship in or around 2015, that she and her then girlfriend were subsequently mistreated by family whether in Malaysia or [Country 1], as has been variously claimed, or that she was harmed by colleagues and friends, that in fear of her safety she fled Malaysia in 2015 for [Country 1] and fled [Country 1] in 2018 for Australia, or that she identifies as a lesbian as claimed. Despite the applicant not making any mention of it in her protection visa application, at various points at hearing, including after the applicant was asked to detail her claims regarding her sexuality, the applicant mentioned fears around financial issues in Malaysia. In this regard, when I asked why she did not leave the family home if she did not like the way her family were treating her in Malaysia, she said she did not have any income. When I noted she was an adult at the time (an odd [age] years of age and had been married for some 20 years prior) she said she did not have any resources in Malaysia. When asked at hearing what she feared on return she also said a huge fear was that she would have no income if she returned to Malaysia. Despite the greater freedom to attend LGBT events in Australia over the last 6 or so years, her having claimed she had not done so in [Country 1] or Malaysia because of a fear of discrimination, at hearing the applicant claimed to have only ever attended one LGBT event in Australia last year. When asked why, she said it was because she wanted to make money. The applicant previously travelled and remained in Australia for some 6 months in 2013/2014 to work , [she] lived in [Country 1] between 2015 and 2018 during which time she was gainfully employed by the same company and undertook work related travel and has worked since last arriving in Australia in 2018. When I asked the applicant if she travelled to Australia to work, she said no, however on the evidence I consider this a more plausible explanation for her travel to Australia.
At hearing the applicant claimed that in the past she had no income or resources in Malaysia and that she feared having no income if she returned to Malaysia. DFAT[4] reports that unemployment in Malaysia is at 3.4 percent, and other economic challenges in Malaysia include inflation, high cost of living increases and high levels of household debt in Malaysia. I acknowledge the applicant was married at a young age and for many years and that during this period she worked in her husband’s business [and] did not live or work independently. However as was noted at hearing she completed schooling at about [age] or [age] years of age in Malaysia, and has worked in various capacities in the past including in sales in Malaysia, is relatively young, and there is nothing to indicate she cannot work. As I noted at hearing she has also proven herself resourceful in finding work and accommodation in [Country 1] and Australia in the past. As noted above I also consider that if the applicant were to return to Malaysia she would very likely return to Melaka where she has always lived and has family. While based on the country information I am satisfied there is a real chance of the applicant facing delays in securing employment, as well as inflation, a high cost of living, and that she may have to work in lower paid low skilled roles, based on her profile I am not satisfied these circumstances would threaten her capacity to subsist or otherwise amount to serious harm. For the reasons noted above I am also not satisfied these circumstances amount to ‘significant harm’ as defined for the purposes of s 36(2A). There is not a real risk of the applicant being arbitrarily deprived of her life or being subjected to the death penalty or torture. Furthermore, the evidence does not support a conclusion that there is an intention to inflict severe pain or suffering, pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or to cause extreme humiliation.
[4] DFAT, 'DFAT Country Information Report Malaysia', 24 June 2024, 20240624113833.
The applicant made no claims to fear harm on account of her ethnicity or faith in her protection visa application. When asked at hearing about her ethnicity and faith and to detail her claims for protection she made no claims related to ethnicity or faith. When I noted this at hearing, she agreed indicating she had no claims in relation to her ethnicity or faith. I accept the applicant is a Chinese Malaysian Buddhist. The country information[5] reports that Malaysia is a conservative Islamic nation, there is increasing Islamisation of government, there are affirmative action policies in place benefiting groups other than Chinese Malaysians such as Bumiputera which can in part reportedly dissuade Chinese Malaysians from applying for government roles, and that Chinese Malaysians report discrimination in the business sector and government owned enterprises. It also reports that the Chinese Malaysian population is not growing as fast as Bumiputera, Ethnic Chinese politicians occasionally face public criticism for interfering in “Malay rights”, and there appear to be some ethnic and religious tensions in Malaysia. However as was noted at hearing the country information also reports there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians, Chinese Malaysians comprise a high proportion of the professional and educated class in Malaysia, and do not face a pattern of official discrimination when attempting to gain entry into the state tertiary system, civil service, or in operating a private business. I also noted at hearing that the country information reports religious freedom is enshrined in the Constitution, that religious leaders in Malaysia have more recently publicly urged Malaysians to exercise greater tolerance toward other faiths, that Buddhists are reported to generally not be at risk of societal discrimination, are able to worship freely, and that the risk of official discrimination is reported to increase where non-Muslims seek to proselytise to Muslims, which circumstance does not apply to the applicant. In response the applicant said “just the discrimination” without elaborating further, despite opportunities, and only made this vague claim after the country information was raised by me and has not particularised any incidents of past harm in this regard. Based on the evidence including the country information I am not satisfied the applicant faces a real chance of harm as a Chinese Malaysian Buddhist. ‘Real chance’ and ‘real risk’ involve the same standard. For the same reasons, I am also not satisfied the applicant faces a ‘real risk’ of significant harm.
[5] DFAT, 'DFAT Country Information Report Malaysia', 24 June 2024, 20240624113833; US Department of State '2023 Report on International Religious Freedom: Malaysia', 26 June 2024, 20240627095012; DFAT 'DFAT Country Information Report Malaysia', 29 June 2021, 20210629092134.

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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