1901413 (Refugee) - [2024] ARTA 534

1901413 (REFUGEE) [2024] ARTA 534 (11 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1901413
Tribunal:General Member X Emery
Date:11 November 2024

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

Statement made on 11 November 2024 at 5:07pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – homosexual woman – previous travel without applying for protection – relationship ceased and former partner returned to home country – applicant’s continuing fear of harm from former partner’s sister – marriage with man – former relationship and current marriage accepted as genuine – vague and generalised claims – country information – husband’s and son’s separate applications – mental health and preference to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), r 2.08, Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 669
GLD18 v MHA [2020] FCAFC 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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a citizen of Malaysia, applied for the visa on 4 June 2018. On 4 January 2019 the delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant applied for review of the delegate’s decision with the former Administrative Appeals Tribunal (‘the Tribunal’ or ‘the AAT’) on 21 January 2019. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (‘the ART’ or ‘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 ART. The Transitional Act gives the ART the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal on 4 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s former partner, [Ms A] on 5 June 2024.
I am also constituted the review applications of the applicant’s husband [Mr B] (Tribunal case number 2200770) and the applicant’s son [Master C] (Tribunal case number 2209284). The applicant also gave evidence on behalf of her son who is [Age] years old.
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 (‘he Department), 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 was born in [Month Year] in Pahang, Malaysia but grew up in Seri Kembangan in Selangor. She is an ethnic Malay and a Muslim. Her father passed away when she was [age] years old. Her mother is remarried and recently moved to Terengganu state in Malaysia. The applicant has [siblings], all of whom reside in Seri Kembangan in Selangor, Malaysia.
The applicant was married to [Mr B] [in] August 2020 in NSW, Australia. They have one child of the relationship, [Master C] born on [Date].
She first travelled to Australia from [October] to [November] 2016. She visited Australia again between [Day] October and [Day] October 2017. She last arrived in Australia [in] March 2018 on an Electronic Travel Authority (Subclass 601). The applicant applied for a Protection (Subclass 866) visa on 4 June 2018.
The applicant’s husband, [Mr B] applied for a Protection (Subclass 866) visa on 21 May 2018. The applicant’s son, [Master C] was born on [Date], after the delegate refused the applicant’s visa, but prior to when the delegate refused his father’s protection visa application. Accordingly, by operation of reg 2.08 of the Migration Regulations 1994, [Master C] was taken to have applied for a protection visa at the time he was born.
Evidence before the Department of Home Affairs
Together with her protection visa application form, the applicant also provided a copy of her Malaysian passport, and a copy of the Electronic Travel Authority for Australia granted to her on 2 October 2017.
In her visa application she made the following claims to be owed protection:
a.She left Malaysia because of her personal interest. Her family and society cannot accept who she is. She is a homosexual and her Muslim country doesn’t allow all kinds of LGBT activity. This is an obstacle in her relationships in future.
b.If she returns to Malaysia she will be threatened, humiliated, depressed, and will break up with her partner.
c.She did not experience harm in the past in Malaysia. She did not seek help in Malaysia because there is not justice for people like her. She did not try to move to another part of Malaysia for safety.
d.She believes she will be harmed or mistreated in Malaysia because the society and the law will not change. The authorities can’t protect her in Malaysia because there is no justice for people like her. She cannot relocate to an area where she would be safe because the rules are the same in other places.
The applicant was not invited to an interview with the delegate, and no further written evidence was provided to the Department in support of her claims for protection. On 4 January 2019, the delegate refused to grant her a protection visa. The delegate was not satisfied the applicant had established her claims. They noted her previous travel to Australia and that she had not raised claims she was in need of protection. On the basis of country information, the delegate also found that any discrimination or harassment the applicant may suffer in Malaysia did not reach the threshold of persecution and therefore that the applicant was not a refugee. In relation to complementary protection, the delegate found the applicant could obtain protection from the authorities such that there would not be a real risk of significant harm in Malaysia.
Evidence before the Tribunal
As stated above, the applicant applied for review on 21 January 2019 and provided a copy of the delegate’s decision record with her review application.
On 26 March 2024 the AAT wrote to the applicant to advise her that her case was being prepared to be constituted to a member and requested that she complete a ‘pre-hearing information’ form. The applicant responded on 2 April 2024 with a completed form, in which she provided the following information:
Yes, I would like to explain more details in person on my current situation regarding my previous claims. Unfortunately, my partner that I came with has left me for good and that has caused a few changes that I did not expect for the last few years. The depression and anxiety that I have faced has make me more stress and I'm afraid that I couldn't hold myself straight if i need to return back to Malaysia, I had several times tried to harmed myself when we had a breakup back home and I do not wish to see or even go back to that situation again. I'm keen to meet one of the members to give proofs and to discuss further more on my current status which hopefully will allow me to reside in Australia peacefully without any longer wait. In fact, I wish nothing but to be a good Australian resident and serve the country till my last breath.
On 7 May 2024 the applicant provided a completed ‘Response to hearing invitation form’ and requested the Tribunal take evidence from two witnesses at her hearing scheduled for 4 June 2024. The first witness was [Ms A], described as the applicant’s ex-partner, who would give evidence of their former relationship and that they travelled to Australia together. The second witness was [Ms D], who was described as a ‘work/friend’. No information was provided about the evidence [Ms D] proposed to give.
In response, the Tribunal requested the applicant provide a written statement from each witness setting out the evidence they would give at the hearing, in accordance with the Tribunal’s Practice Direction (at that time), together with evidence of their identity.
On 29 May 2024 the applicant submitted a statement from [Ms A] together with a copy of the biodata page of her passport. In her statement, [Ms A] stated that she and the applicant had been in a relationship since 2011. She stated that they had met at college, had graduated from their course together, and had lived together in Kuala Lumpur. In 2018 they had decided to come to Australia to attend the Mardi Gras. They did not travel in time to attend but had decided that they would marry and migrate to Australia permanently where their relationship would be welcomed. In 2019, [Ms A] commenced a relationship with one of their roommates, a man named [Mr E], and the relationship between her and the applicant ended. About a month after this, [Ms A]’s family found out about her previous relationship with the applicant and were very angry. Not long after [Ms A] returned to Malaysia at the request of her family.
At the hearing on 4 June 2024, I discussed with the applicant her migration history, her education and employment history, her family, her relationship with [Ms A], and her claims for protection. Relevant aspects of the applicant’s evidence are discussed below. In summary, the applicant claimed to fear harm in Malaysia because of her previous same-sex relationship with her ex-partner, [Ms A]. In particular, the applicant fears that [Ms A’s] sister will cause her problems with the authorities in Malaysia and that she may get a fine or get into trouble. The applicant is also concerned about the difficulties of returning to Malaysia and expressed uncertainty about her life and future if she returns there.
At the hearing I also discussed with the applicant the evidence that her witness [Ms D] proposed to give. The applicant stated that [Ms D] was a friend from work, and that the applicant had told her about her relationship with [Ms A]. The applicant said that [Ms D] would also speak to her good character. As is apparent from my findings below, I did not consider it necessary to speak with [Ms D] in order to accept that the applicant was previously in a same-sex relationship with [Ms A]. As also discussed with the applicant, I did not consider that the quality of her character was in issue, nor relevant to my decision in this instance. As such, I determined that it was not necessary to take oral evidence from [Ms D].
On 5 June 2024 I spoke with the applicant’s witness, [Ms A], by telephone. Relevant aspects of her evidence are set out below. The applicant also provided evidence of [Ms A’s] protection visa application, made the same day as the applicant on 4 June 2018. She also provided copies of several photographs of her and [Ms A].
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because she is a refugee or owed complementary protection, or whether she is a member of the same family unit as such a person. For the following reasons, I have concluded that the decision under review should be affirmed.
Claims regarding former same-sex relationship
The applicant’s oral evidence
The applicant gave oral evidence about her previous same-sex relationship [Ms A]. They met at university in 2011. They lived together and became close. They lived together in student accommodation for their first two years of study, and then rented a room together during their third year. She didn’t know she would, and didn’t plan to, form a relationship with a person of the same gender. She had had boyfriends prior to meeting [Ms A]. But after they became close, neither of them had boyfriends. She had feelings towards [Ms A] as a person, not because of her sex or gender.
After they finished studying they were still very close. The applicant would feel jealous if [Ms A] was spending time with others. They knew they had feelings for each other but didn’t say anything about it. The applicant could not recall when exactly it had happened, but they were at an event at a nightclub and neither of them were sober. They confessed to each other that they wanted to be together. After university they moved around together a lot. Sometimes they would stay with the applicant’s mum, and sometimes they would stay with [Ms A’s] family in [District], Selangor. They worked together for a time at the same [workplace 1] in Selangor.
Her and [Ms A] were always together in Malaysia but were not open about the true nature of their relationship. They would not be affectionate in public. They were not part of a lesbian community in Malaysia, although they had some gay and lesbian friends. Some of their friends or work colleagues knew about their relationship but it wasn’t really discussed. The applicant said she was not proud to be a lesbian, and that there was shame associated with being in a same-sex relationship. She loved [Ms A] but did not choose her for her gender.
The applicant and [Ms A] planned to come to Australia to attend Mardi Gras, but didn’t make it in time for the parade. Their intention was to get married here and obtain Australian citizenship. They planned to settle here and be together. However, [Ms A] ‘clicked’ and fell in love with someone else. The applicant said their life in Australia was a bit worse than their lives had been in Malaysia. At the time their housemates were men, and [Ms A] was spending time with one of them, [Mr E], who was also a Malaysian national. [Ms A] didn’t speak to the applicant for a few days and then told her she wanted to break up because she was in a relationship with [Mr E]. It was around the end of December 2018. After this they were apart, and the applicant was very lonely, demotivated and broken.
In about May 2019 [Ms A] and [Mr E] returned to Malaysia because they wanted to get married, and the applicant believes [Ms A] was pressured to come home by her family. However, that relationship ended shortly after they returned to Malaysia.
The applicant is still in contact with [Ms A] from time to time. [Ms A] sometimes asks her to send her money although usually the applicant does not. [Ms A] knows the applicant is married and has a child. Sometimes she says she still misses the applicant, but then she just asks for money. [Ms A] is not married and doesn’t have any children. She is still partying. She recently lost her job and is not working.
The applicant was introduced to her now husband, [Mr B], by a mutual friend. They first started chatting online and then met in person around mid-April 2019. Their relationship developed and they became closer throughout 2019. They got engaged in the beginning of 2020 and married in August 2020. Their son, [Master C], was born in [Month Year]. Her husband knows about her previous relationship with [Ms A].
Only one of the applicant’s sisters knows about her relationship with [Ms A]. No one else in her family knows they were a couple, and just thought they were best friends, including the applicant’s mother. Her family knows she is now married with a child. At the time, she didn’t tell her family about her relationship with [Ms A] because she thought they would make them separate. Now she doesn’t want them to know about her past or to judge her. No one in her family is LGBTI and it would be hard for them if they knew about the applicant’s relationship with [Ms A], even though it is in the past. The applicant’s mother would understand, but the applicant doesn’t want to disappoint her.
Only [Ms A's] sister, [Ms F] knows about their relationship. The applicant thought [Ms A] may have told her sister when they were in Australia, at a time when [Ms A] was not sober. [Ms A’s] oral evidence to the Tribunal was that she was not sure how her sister had found out, but she thought through someone else who had possibly shown her sister a photo of her and the applicant.
I discussed with the applicant that she had identified herself as ‘homosexual’ in her visa application. The applicant said that at that time her English was terrible. She put homosexual, but she had had boyfriends in the past. I asked how she would describe her sexuality now, to which she responded that she had feelings for [Ms A] as a person but that she was so young then. When she met her husband, she hadn’t decided that she had to be with a man or a woman, and she wasn’t looking for another girl. She didn’t plan to have feelings for her husband, but their feelings towards each other grew. She is a loyal person and once she becomes close to a person, she loves that person for who they are. This was her experience with both [Ms A] and her husband. She doesn’t consider herself a really sexual person and loves a person for who they are. Other than her relationship with [Ms A] and her marriage to her husband, she has not had any other serious relationships.

The applicant spoke of the difficulties in her marriage which seem to reflect those of many married couples with young children. However, she also said that divorce was the last option, and that she did not want her son to grow up without a father. She loves her husband, but she does not know where the future will take her. I discussed with the applicant whether she would have a relationship with a woman in the future. The applicant’s evidence was that she didn’t know, that her focus was her son, and she would wait until her son grew up and then see. She doesn’t have a plan to leave her husband but also doesn’t have a plan to commit to him for life.
The applicant fears that [Ms A's] sister, [Ms F] will cause problems for her if she returns to Malaysia because she knows about the applicant’s previous relationship with [Ms A]. [Ms F] blames the applicant for [Ms A's] current lifestyle, which still involves partying, and her not being settled with work and her own family. [Ms F] is [an occupation] and previously called and threatened the applicant, saying she would make it a ‘big thing’ if she knows the applicant is back in Malaysia and will do something to her. The applicant is concerned she will get her a fine. [Ms F] has said she will report her and put her in gaol. [Ms F] has threatened to tell the applicant’s family, which would embarrass the applicant’s mother. [Ms F] sometimes visits the applicant’s sister’s [workplace 2] and asks about the applicant. The last time the applicant’s sister told her about this was in around December 2023. [Ms F] has not contacted the applicant in Australia, including on social media such as her [Social media] profiles, although the applicant could not recall if she had blocked [Ms F] or had a private profile.
The police in Malaysia are corrupt and won’t protect her as a lesbian. [Ms F] is very smart and as [an occupation] she knows what she can do to put the applicant in trouble. The applicant doesn’t want their families to get involved.
I raised with the applicant that if she returned to Malaysia she would be returning as a woman married to a man and with a young child, and asked why she would be at risk of harm in those circumstances. The applicant said that she sees [Ms A] as a broken person and that if the applicant goes back to that situation she doesn’t know what person she will become. However, her evidence was also that she had changed, was not that person anymore, and no longer parties, drinks, or takes drugs.
Findings
The written evidence before me indicates that the applicant and [Ms A] travelled to Australia together, applied for a protection visa on the same date, and were residing at the same address in [Suburb]. Following the hearing, the applicant provided several photographs of her and [Ms A], which corroborate her oral evidence about their relationship. I also found the applicant’s oral evidence about her relationship with [Ms A] to be credible and compelling. She was able to express her views or feelings with candour and spontaneity, and I am satisfied that she was speaking from her personal lived experience. She was emotional when speaking about her past and her concerns for the future. Further, the evidence I took from [Ms A] corroborated the applicant’s claims about their relationship, the plans they had had in coming to Australia, and the breakdown of their relationship.
For these reasons, I accept that the applicant was in a same-sex relationship with [Ms A] in both Malaysia and Australia for several years. I accept the applicant’s evidence that this relationship ended in about December 2018 when [Ms A] formed another relationship with one of their housemates and returned to Malaysia.
I also found the applicant’s evidence about her relationship with her husband to be persuasive. There is no doubt from the evidence before me that she and her husband are married and have a child together. I accept that she and her husband experience difficulties in their relationship from time to time and that she is unsure whether they will remain together for the rest of their lives. However, her evidence, which I also accept, was that she does not wish to divorce him, that her son is her priority, and that she did not want her son to grow up without a father. For those reasons, I find that the applicant and her husband will not divorce or separate in the reasonably foreseeable future and that if they are required to return to Malaysia, they will do so as a family.
I am therefore satisfied that if she were to return to Malaysia in the reasonably foreseeable future, she would do so as a woman married to a Malay man and with whom she has a child. I am not satisfied on the evidence before me that the applicant will enter into a romantic or sexual relationship with a woman in the reasonably foreseeable future. This is because the applicant is currently married to a man. She did not describe herself as exclusively attracted to women, and her evidence was that she would not consider another relationship with a woman (or anyone else) until after her son had grown up. Given her son is currently [Age] years old, I do not consider that any relationship with another woman she may or may not have once he has grown up, is within the reasonably foreseeable future. I do not accept the applicant is a homosexual, as stated in her visa application.
In light of these findings, I am not satisfied that the general community, society, or the authorities in Malaysia would identify her as a lesbian, or bisexual, or otherwise ‘LGBT’ (as the applicant described it), or as a person who was in a romantic relationship with a woman around six years ago. I do not accept the applicant would attract attention from the community generally or the authorities as an LGBT person, or that she would be imputed with an LGBT identity. I do not accept this would be as a result of her living discreetly or modifying her behaviour at all, but rather because she is in a heterosexual marriage to another Malay Muslim.
I acknowledge and have taken into account country information that indicates Malaysia is intolerant of LGBTIQ+ identities, that same-sex sexual acts are illegal under both federal and syariah laws, and that there have been prosecutions of women for engaging in lesbian sex.[1] While there are some reports of arrests and prosecutions of lesbian women,[2] these appear to be rare and in very low numbers. DFAT reports that, ‘while the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.’[3] In the applicant’s particular circumstances, I consider that the risk of any investigation and prosecution by the authorities because of her previous same-sex relationship which ended almost six years ago and for which there is limited evidence, and in circumstances where she is married to a Malay Muslim man and has a child, is remote or far-fetched.
[1] DFAT Country Information Report Malaysia, 24 June 2024 at 3.126 to 3.131, and 3.138.
[2] DFAT Country Information Report Malaysia, 24 June 2024 at 1.131 and 3.138.
[3] DFAT Country Information Report Malaysia, 24 June 2024 at 1.131.
Accordingly, I am not satisfied she faces a real chance of serious harm, or a real risk of significant harm from the authorities or the general community in Malaysia because she was previously in a same-sex relationship.
I accept that were the applicant to return to Malaysia, she would return to the Seri Kembangan area of Selangor where she previously lived and where she said all of her siblings live. I also accept that if she returns to Malaysia, that will likely become known amongst her network of family and friends, and that [Ms A’s] sister [Ms F] will at some point become aware that the applicant has returned.
I am prepared to accept the applicant’s oral evidence that [Ms A’s] sister [Ms F] found out about their past relationship and was angry about it, and that on one occasion she contacted the applicant and threatened to make it a ‘big thing’ if the applicant returned to Malaysia. That [Ms F] is aware of their past relationship and is angry about it was corroborated by [Ms A].
However, on the evidence and information before me, I do not accept that there is a real chance the applicant will be persecuted, or a real risk she will suffer significant harm, perpetrated by [Ms F] or at her instigation.
The applicant’s evidence about the actual harm she fears from [Ms F] was fairly vague and general. Because [Ms F] is [an occupation], the applicant was concerned she would cause her problems, including that she might get a fine or go to gaol. I have taken into account that [Ms A] corroborated the applicant’s claims in this regard. However, neither the applicant nor [Ms A] were able to explain with any specificity how [Ms F] would have the means, ability, or motivation to cause the applicant problems, or to get a fine or go to gaol, simply because she is [an occupation] and knows more about the laws in Malaysia. I have taken into account [Ms A's] evidence that [Ms F] has ‘proof’ they had a relationship. However, I note that almost six years have passed since the relationship between the applicant and [Ms A] ended. I note also that [Ms A] willingly returned to Malaysia and did not claim to have experienced any problems or harm as a result of her previous relationship with the applicant or because [Ms F] is very angry about this. Other than the evidence of her witness, the applicant has not provided any corroborative evidence about any threats from [Ms F]. There is no evidence before me that [Ms F] has made a complaint to police, or told the applicant’s family, or otherwise taken any action against the applicant or [Ms A]. Were she so motivated to cause problems for the applicant, it is unclear why she would not have already taken steps to do so, even though the applicant is in Australia.
As I have found above, I do not accept there is a real chance or real risk of the authorities in Malaysia investigating and prosecuting the applicant because she was in a same-sex relationship about six years ago, in circumstances where she is now in a heterosexual marriage. That [Ms F] is [an occupation] does not alter this finding. There is no evidence before me that [Ms F] would have any influence over the police or other authorities. I consider that the risk of [Ms F] making a report to the authorities that would implicate her own sister, and the authorities investigating, prosecuting, and convicting the applicant of any offences is speculative, remote and far-fetched.
The applicant did not claim to fear harm from her own family were they to find out that she had previously been in a romantic relationship with [Ms A]. She said she had not told them at the time because she was concerned they would force her to separate from [Ms A], and that she had not told them subsequently because of her pride and she did not want them to judge her. She claimed it would be hard for them and that her mother would be disappointed. I accept that were the applicant’s siblings and mother to find out she had been in a romantic relationship with [Ms A] in the past, both the applicant and her family members may experience a level of shame or embarrassment. Although I note that the applicant’s evidence was that one of her sister’s was aware of the relationship and she did not claim to have experienced any problems as a result. I am not satisfied on the evidence before me that any shame or embarrassment would rise to the level of serious harm amounting to persecution or significant harm as defined in ss 36(2A) and 5(1) of the Act.
I am not satisfied that the applicant is a refugee or owed complementary protection because she was previously in a same-sex relationship.
Remaining claims: mental health, preference to remain in Australia and for her son to grow up in Australia
The applicant claimed that returning to Malaysia would affect her mental health. I understood her claims to be that she was apprehensive about returning to Malaysia because of her past lifestyle and because she felt she had changed as a person in Australia. She feels uncertain about who she and her husband would be if they returned to Malaysia.
The applicant’s evidence about her mental health was vague and general. There is no evidence before me that the applicant has been diagnosed with any mental health conditions or that she is currently receiving any health care for mental health conditions. I am prepared to accept that the applicant may have felt depressed and anxious following the breakdown of her relationship with [Ms A]. I also accept that she would feel stress and apprehension if she were required to return to Malaysia with her husband and young son, given they have only been together in Australia, and have lived here for several years. I accept she does not wish to return to Malaysia and that it would be disheartening for her if she were required to. I have also considered the applicant’s written evidence to the Tribunal, that she is uncertain about how she would manage if she returned to Malaysia.
However, I am not satisfied on the evidence before me that the applicant would suffer from any mental health conditions should she be required to return to Malaysia. Even if I were satisfied the applicant would be depressed, anxious, or that her mental health would deteriorate if she was required to return to Malaysia, I am not satisfied this would involve persecution of the applicant by another person for one or more of the reasons in s 5J(1)(a), or that it would involve the intentional act or omission of another person as contemplated by the definitions of significant harm in s 36(2A) and s 5(1) for the purposes of complementary protection.[4]
[4] GLD18 v MHA [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; CSV15 v MIBP [2018] FCA 669.
The applicant also gave evidence about her preference to remain in Australia for her and her son’s future. She expressed apprehension and uncertainty about their future if they return to Malaysia. She feels safe, secure, and comfortable here in Australia. She doesn’t plan to go back to Malaysia.
I accept the applicant has a preference to remain in Australia where living standards are higher and where there may be more personal freedoms for her and her family than in Malaysia. I also accept that she may experience a degree of hardship and may be unsettled on return to Malaysia, as they readjust to living there and look for accommodation and work. I note the applicant has [siblings] and her mother in Malaysia, which may lessen any hardships she may experience. I have found above that she would return to Seri Kembangan, Selangor, where she has family and where she previously lived.
Despite these findings, I am not satisfied that any difficulties or hardships the applicant may face in leaving Australia and returning to Malaysia, or in resettling in Malaysia, would be for one or more of the reasons in s 5J(1)(a), or that it would involve serious harm to the applicant, or would involve systematic and discriminatory conduct. Accordingly, I am not satisfied that the applicant has a well-founded fear of persecution on return to Malaysia and is a refugee.
I am also not satisfied that any hardships the applicant would face in departing Australia and returning to Malaysia would involve arbitrary deprivation of life, the death penalty, or an intentional act or omission of another person amounting to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Accordingly, I am not satisfied the applicant is owed complementary protection.
Conclusion
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) or (aa).
I am also not satisfied that either the applicant’s husband or son are persons in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). Accordingly, the applicant does not meet the criteria in s 36(2)(b) or (c) as a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
It follows that the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date(s) of hearing:    4 June 2024
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.
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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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