1901646 (REFUGEE)

[2024] ARTA 157

1901646 (REFUGEE) [2024] ARTA 157 (19 DECEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  1901646

Tribunal:General Member M Tubridy

Date:19 December 2024

Place:Sydney

Decision:The Tribunal affirms the decision under review.

Statement made on 19 December 2024 at 4:48pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – particular social group – bisexual – homosexual – advocating for LGBTQ+ rights – consuming alcohol – physical assault – fear of detention – credibility issues – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister on 3 January 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for protection visa

2. 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.

3. 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.

4. 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).

5. 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.

6. 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

7. 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 (the 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.

   REASONS AND FINDINGS

   Receiving country

8. The applicant claims to be a citizen of Malaysia. He has indicated that he was a citizen of Malaysia at birth, and that he was born in Malaysia (in Pahang) to parents who were both citizens of Malaysia. I note that Part 2, Article 14, of the Federal Constitution of Malaysia provides that a person is a citizen of the Federation of Malaysia by operation of law if they were born on or after 16 September 1963 within the Federation of Malaysia to parents of whom at least one was a citizen or a permanent resident at the time of birth.[1] He has presented a copy of his Malaysia issued passport and this presents him as a national of Malaysia who was born in Malaysia. I find the applicant to be a national of Malaysia, and I find Malaysia to be the applicant’s receiving country for the purpose of this review.

   [1] 'Federal Constitution of Malaysia', Government of Malaysia, 1 November 2010, 20191128113408; Canada IRB, ‘Malaysia: Citizenship laws, including methods by which a person may obtain citizenship; whether dual citizenship is recognized and if so, how it is acquired; process for renouncing citizenship and related documentation; grounds for revoking citizenship, 16 November 2007, MYS102621.E.

   Protection claims

9. The applicant claims to fear that if he returns to Malaysia he will suffer various forms of mistreatment from his family, and also the broader Malaysian community and its authorities, because he is bisexual and committed to advocating for LGBTQ+ rights and equality in Malaysia. He also claims that he likes to consume alcohol, and that he fears that if he did this in Malaysia he would be whipped and fined.

   5 June 2018 protection visa application

10. On 5 June 2018 a protection visa application was lodged in the applicant’s name. This presented the applicant as an ethnic Malay Muslim who was literate in English and Malay and who was born in Pahang in [specified year]. It presented the applicant as a gay man who had left Malaysia for Australia in March 2018 because of how his family and local community had reacted to learning that he was a gay man. The background to this was presented as follows: In Malaysia he had wanted to live with his boyfriend, but his parents would not give their blessing to this and could not accept the fact that the applicant was gay; and his parents threatened to report the him and his boyfriend to the police if they did not cease their relationship as it is against the law to be gay in Malaysia. The applicant feared that, if he returned to Malaysia, he would become depressed and commit suicide. He would not be able to seek protection from the authorities in Malaysia because they will not protect or support LGBT people.

11. The protection visa application form asked various questions about the applicant’s background. Relevantly, this included a request for the applicant to provide details about his family members (including the name, date of birth, and whereabouts) of parents and any siblings), and also his personal history in terms of residential addresses, education, employment and international travel. In response, the applicant’s June 2018 protection visa application listed a current address in Australia, but beyond this no information was provided in response to questions about the applicant’s person history, with the response to these questions being: ‘N/A’.

12. The June 2018 protection visa application attached no evidence in support of the applicant’s claims other than a copy of his April 2020 issued passport. The June 2018 protection visa application presented as having been completed by the applicant without assistance from any other party.

    3 January 2019 refusal

13. On 3 January 2019 the delegate refused to grant the visa. The delegate was not satisfied (on the basis of the country information) that homosexual persons in Malaysia faced a real chance of serious harm or a real risk of significant harm. A copy of this decision was emailed to the applicant by the Department that same day, 3 January 2019. The Department’s refusal notification advised the applicant that, if he wished to seek review of this decision, he had 28 days to lodge an application for this with the AAT.

    23 January 2019 application for review

14. On 23 January 2019 an application was lodged with the Tribunal for review of the delegate’s decision the refuse to grant the applicant a protection visa. On 24 January 2019 the Tribunal emailed the applicant that his application had been received. The Tribunal advised the applicant that if he wished to provide material or written arguments for the Tribunal to consider he should do so as soon as possible. This was repeated in an information sheet which also explained that (if he provided further information or evidence which was not given to the Department) the Tribunal would, in certain cases, need to consider the credibility of what he had provided and why this was not provided to the Department. Nothing was received from the applicant in response. On 21 February 2023 the applicant telephoned the Tribunal to update his residential and contact details. He also requested a letter from the Tribunal to enable his continued access to Australia’s Medicare universal health insurance scheme. But he did not indicate that he wished to provide any information which he considered was relevant to the review of the Department’s decision to refuse him a protection visa.

    January 2024 related cases become apparent to the Tribunal

15. Relevantly, the Tribunal was also undertaking the review of another case involving a Malaysian national who was residing at the same address in Australia as the applicant, and who shared the same surname as the applicant, and who like the applicant had provided no details in his protection visa application as to the names or whereabouts of his family members. This person, Mr N, appeared before the Tribunal at a January 2024 hearing during which he was asked about his family members and their whereabouts. Relevantly, he indicated that he had a brother, Mr Z who had a wife and two sons (with these being Ms N and Mr Y and Mr U). Mr N claimed that Mr Z and his wife and children were all in Malaysia. The details given by Mr N for Mr Z were a match for the applicant. Moreover, it was found that the Tribunal was also undertaking the review of another case involving a mother and her two children (this being a Ms N and a Mr Y and a Mr U) who were also Malaysian nationals and who were also residing at the same address as Mr N and Mr Z. All this being the case, the Tribunal put it to Mr N at the January 2024 hearing that there was information before the Tribunal to indicate that in fact Mr Z and his wife and children were all in Australia and residing at the same address as himself. Mr N initially had no response, but a week later he submitted that he had now discussed the matter with his brother, Mr Z (the applicant), who was in Australia.

    19 February 2024 hearing invitation

16. On 19 February 2024 the Tribunal emailed the applicant and advised him that it had considered the material before it but was unable to make a favourable decision on this information alone. This being the case, the Tribunal invited the applicant to appear before it on 14 March 2024 to give evidence and present arguments relating to the issues arising in his case. The applicant was asked to read and complete an enclosed ‘Response to hearing invitation’ form and return it to the AAT within 7 days (by 26 February 2024) with an indication of whether he was willing to attend the hearing. He was also advised that any documents he intended to rely on to support his case should be provided to the Tribunal by 7 March 2024.

    25 February 2024 request for additional time, and subsequent response

17. On 25 February 2024 the applicant emailed the Tribunal and made a request to be allowed until 29 February 2024 to complete the enclosed ‘Response to hearing invitation’ form (submitting that he had only just opened the email about this that day, 25 February 2024). The Tribunal agreed to the applicant’s request, and on 29 February 2024 he provided the completed form and in this he indicated he was willing to attend the hearing and that he intended to rely on a written statement at the hearing.

    March 2024 statement

18. On 12 March 2024 the applicant emailed the Tribunal a written statement (dated 8 March 2024; hereafter the March 2024 statement). In this he submitted as follows:

    ·     I am a proud Malaysian who embraced my identity as a bisexual person in Malaysia, despite the challenges and stigmas that my society has imposed. My sexual orientation is a fundamental part of who I am, and I refuse to hide or deny it. I believe in love, acceptance, and equality for all individuals, regardless of their sexual orientation. While there may be obstacles to overcome, I am determined to live authentically and advocate for LGBTQ+ rights in my community and beyond. Love knows no boundaries, and I am committed to being true to myself and fostering a more inclusive society for everyone.

    ·     As someone who identifies as bisexual in Malaysia, I recognise the complexities and nuances that come with navigating my identity in a society where LGBTQ+ rights are not fully recognised or protected. Being bisexual means that I am attracted to individuals of both genders, and this aspect of my identity is not a choice but an intrinsic part of who I am.

    ·     Living as a bisexual person in Malaysia can be challenging due to the prevailing societal attitudes and cultural norms that often stigmatize or marginalize LGBTQ+ individuals. Discrimination, prejudice, and even legal barriers can pose significant obstacles to fully expressing and embracing my identity.

    ·     Despite these challenges, I refuse to hide or deny my sexuality. I believe in the importance of authenticity and self-acceptance. By being true to myself, I hope to challenge stereotypes and misconceptions surrounding bisexuality and contribute to greater understanding and acceptance within my community.

    ·     Moreover, I am committed to advocating for LGBTQ+ rights and equality in Malaysia. Every individual deserves to love who they love and be accepted for who they are, regardless of their sexual orientation or gender identity. I am dedicated to being a voice for change, whether it's through raising awareness, participating in activism, or supporting organizations working towards LGBTQ+ rights.

    ·     Love knows no boundaries, and I firmly believe in the power of love to overcome prejudice and discrimination. By embracing my identity as a bisexual person and standing up for LGBTQ+ rights, I strive to create a more inclusive and compassionate society where everyone can live authentically and without fear of discrimination.

    ·     For me, being bisexual and married means navigating both heterosexual and LGBTQ+ spaces, sometimes feeling like I don't fully belong in either. In heterosexual spaces, there may be assumptions about my sexual orientation based on my relationship status, while in LGBTQ+ spaces, there can be misconceptions or even scepticism about my identity because I'm in a heterosexual relationship."

    ·     Moreover, being bisexual in a monogamous marriage doesn't invalidate my bisexuality. My attraction to people of different genders doesn't cease just because I've chosen to commit to one person. It's essential to recognize that bisexuality isn't synonymous with promiscuity or non-monogamy; like anyone else, bisexual individuals are capable of and often desire committed, monogamous relationships.

    ·     Communication and understanding are crucial in a bisexual marriage. It's essential for both partners to acknowledge and respect each other's sexual orientations and to create a safe and supportive space for open dialogue about desires, boundaries, and insecurities. Trust and honesty lay the foundation for a strong and fulfilling relationship, regardless of sexual orientation.

    ·     Navigating societal perceptions and stereotypes can also be a challenge. Bisexual individuals in opposite-sex relationships may face erasure or dismissal of their identity, while those in same-sex relationships may encounter discrimination or invalidation. It's essential for partners to stand together against prejudice and to affirm each other's identities and experiences.

    ·     I faced harm in Malaysia from my family and from my society. This has caused significant stress into my personal life. My parents came to know about my sexual orientation when I was about 16 years of age and had relationship with my neighbour Mr K. Mr K and I had many encounters in both of our residence and then I formed relationship with Mr R – my school friend. My relationships with both were good and I was very happy.

    ·     When I was about [age] years of age, my parents came to know about my relationship, and they identified me as gay. It is haram in Malaysia, and they beat me up. They locked me in my room for months and until they find me a partner, they will not allow me to go out and mix with boys. In 2015, I got married to Ms N. I had at the same time resumed my relationship with Mr R. It was about 2016, [Ms N] found me in a compromising position with Mr R and got very angry. She tried to stop me from having any relationship with Mr R. But I am in love with Mr R. This caused lot of tension in my personal life.

    ·     Eventually, my relationship with Mr R was known to my neighbours and my in laws. At this time, I faced regular bullying and harassment from Malaysian society. I was depressed and had thoughts to commit suicide. I remained saddened by the constant harassment and being called ‘gay’. I move to Australia and now have applied for asylum with the assistance of a friend. My friend did not write my statement correctly and did not identify myself as bisexual man. I apologise for this too.

    14 March 2024 hearing

19. On 14 March 2024 the applicant appeared before the Tribunal at a hearing to give evidence and present arguments relating to the issues arising in his case. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. The Tribunal asked the applicant about his health and sought confirmation he felt well enough to give evidence; and the applicant confirmed he was and that his health was good. It was explained to the applicant that the Tribunal would have regard not only to the evidence provided at the hearing, but also to that he had provided previously (including to the Department), and to any further information or evidence he provided after the hearing and before a decision was made. It was also explained that if he wished he could make a request for a specific amount of additional time in this regard. Relevantly, the following was discussed:

20. I first asked the applicant several questions about how his 2018 protection visa application visa form was completed, and by whom and the surrounding circumstances. The applicant responded to my various questions as follows: this was done by a friend of his, Ms M, who was a Malaysian national; he was introduced to her by his brother Mr N; this introduction occurred after the applicant arrived in Australia, but he could not recall exactly when; he was told Ms M knew how to apply for visas and paid a fee for her services, but she was not a registered migration agent or a solicitor. I asked the applicant whether he read the application before it was submitted. He said he did. I asked if there was any information in it which was inaccurate. The applicant said that Ms M had written down that he was a gay person and, after reading this, he had told Ms M she had to fix this because he was bisexual, but she had said: no. that is fine let’s go with this. I asked the applicant why he had signed and submitted the application if he knew it contained information which was incorrect. The applicant submitted that he told Ms M this needed to be amended, but she said no it is fine we can go with this, and he did not want to take the conversation any further, so he just stuck with it. Asked why he had indicated in the 2018 protection visa application that he had had no assistance, the applicant submitted that at the time he was newly arrived in Australia and did not understand about anything like filling in forms, so he had just let Ms M handle it.

1. I then asked the applicant about his new statement which his had provided to the Tribunal on 12 March 2024. I asked the applicant whether he had had any assistance with this document. The applicant said his English was not very good and so his wife had assisted him; and that he had spoken in Malay and she had written this down in English. Asked if anyone else had assisted him, he answered: no. Asked if there was anything in the statement that might be inaccurate and in need of correction, the applicant said that he had read the statement and had identified a few errors in names, in the spelling of the names of Mr K and that of his wife Ms N. Asked if there were any other errors, he said there were not. I confirmed with the applicant that he could read and write in English, he said that he could and that he assessed his English ability as average. At a later point in he hearing, I put it to the applicant that his March 2024 statement had been provided in a document in which the property details (that is, the metadata about the document which can be accessed when the document is viewed electronically by selecting ‘File’, and then ‘Info’) indicated that the original author and most recent editor of the document was a Sydney based law firm which provides assistance with migration cases (hereafter [Firm 1]).[2]

   [2] [Name deleted.]

2. In response, the applicant submitted that he had had no engagement with [Firm 1] and that the Tribunal would have to ask his wife about this because she was the one who had written out his statement for him. I accept that that the applicant’s wife played a role in assisting the applicant in formulating the claims that would form the core of the March 2024 statement’s content, but I am not persuaded that the applicant is unaware of the involvement of [Firm 1] in the composition of his March 2024 statement.

3. The Tribunal hearing proceeded with the applicant being asked several questions about his history. The applicant’s responses included the following relevant information: he was married in August 2015 and in [year] he and his wife had had their first child Mr Y; In January 2018 they all went to [Country 1] for holiday together (and the applicant submitted that this was done in an attempt to reconcile with his wife); he subsequently had a fight with his wife and in March 2018 he departed Malaysia for Australia while his wife went to reside with her mother for [a specified time]; in Australia the applicant resided at several different addresses with his brother, Mr N; the applicant and his wife reconciled and although he did not want her to come to Australia she insisted on this and arrived here in June 2019, and she and his children have resided with the applicant and his brother Mr N.

4. I then asked the applicant if he knew whether his wife, Ms N, had lodged a protection visa application, and if so whether he was aware what her claims were. The applicant said he knew his wife had done this. He said she had told him that after his departure from, Malaysia she had been teased and abused and ostracised by her family. Asked if his wife was aware that he was presenting before the Tribunal at hearing, and he said she was. Asked if he knew whether his wife had also been invited to a Tribunal hearing, he said she had and he was aware this was scheduled for the following day (15 March 2024). When I asked the applicant whether Ms N was aware of what his own protection claims were, he said he had not told her. Asked why not, the applicant said he did not want his wife to know he was bisexual. I put it to the applicant that in his March 2024 statement he had made claims to the effect that his wife knew him to be bisexual. The applicant said that his wife knew about his tendencies and was okay with this, but that she was unaware that he had made protection claim in this regard. I put it to the applicant that he had told me earlier that it was his wife who had helped to put his March 2024 statement in writing. The applicant submitted that he meant his initial claims (his 2018 protection visa claims). I pointed out to the applicant that in his 2018 protection visa claims he was presented as gay rather than bisexual. The applicant agreed that this was the case, but this had been Ms M’s mistake. When I put it to the applicant again that his wife must know what was in his March 2024 statement (given that he had indicated she had written it out for him) he said this was correct.

5. I now underlined to the application that it was important that he always answer my questions truthfully, because if there were too many inconsistencies in his responses, I might conclude that he was an unreliable witness. The applicant said he understood.

6. I hen asked the applicant whether his being at a Tribunal hearing that day was (and his protection visa application) was known to his brother, Mr N. The applicant said that Mr N was aware of this. Asked whether he (the applicant) knew if Mr N had had a Tribunal hearing, the applicant indicated that he knew this had occurred. Asked if he knew what Mr N’s protection claims were, the applicant said his brother was gay. I asked the applicant why he had made no mention in his own claims of his brother’s being gay. The applicant asked whether he needed to talk about his brother in his protection claim. I put it to the applicant that he had indicated in his 2018 claims was that his family did not accept him because he was attracted to men, and that this seemed an odd thing to say if one of these family members was himself attracted to men. The applicant asked me what my question was. I explained to the applicant that in his 2018 protection visa application he had claimed that his family did not accept him because he was gay and attracted to persons of the same sex. I asked the applicant why he would have said this if he had a member of his family who was also attracted to men. The applicant said that he and his brother had this problem, that their mother and father and siblings did not accept them. Having considered this, I find it difficult to believe that the applicant would have made no mention of his older brother being gay and having had similar problems with their parents, if all of this were true.

7. When I asked the applicant if there was a specific event which led him to depart Malaysia, he submitted that his wife had caught him with Mr R, and she had threatened to hand him (the applicant) over to his family, who would have handed him over to a court. I asked the applicant when this occurred. I then noticed that the applicant was having regard to written notes I noted this aloud, and I asked the applicant to put his notes away because I wanted to see whether he could answer my questions without reference to notes. The applicant said that, if he did this, he might not be able to remember the dates. He nevertheless complied with my request, and I again asked the applicant to tell me when this event (his wife catching him with Mr R) had occurred. He said he could not recall because it was a long time ago. I asked the applicant to provide me with and estimate of when this occurred in terms of how much time passed between this event and when he departed for Australia. The applicant said it was less than a year, may six to eight months (if so, this would have occurred in around mid-2017). Asked what happened during that time, the applicant said he had a fight with his wife, and she went back home to her mother, and he stayed on his own, and then he came to Australia. Asked when it was that she had threatened him and when this occurred, he said that at the time she caught him she told his parents: he is doing it again. I put it to the applicant that earlier he had told me that his wife threatened to tell his parents about what had happened, and that this was a threat because his parents (once informed of this) would tell the authorities. The applicant said that his wife did tell his parents, and that his parents had said they would not tell the authorities, but they would if he did it again.

8. Asked what happened after this (that is, after his wife found the applicant with Mr R in mid-2017, and they had fight and she told his parents, and moved back to her mother) the applicant said that he left Malaysia for Australia. I put it to the applicant that he had indicated that he went on a trip to [Country 1] with his wife. The applicant said that he did but this was before he was found with Mr R. I put it to the applicant that he had indicated that he went to his wife to [Country 1] in January 2018. The applicant said this was correct. I noted that the applicant had arrived in Australia in early March 2018. The applicant agreed. I put it to the applicant that this would mean that if the incident of his wife finding him with Mr R happened after the trip to [Country 1], then this would mean the incident happened just a few weeks before the applicant had arrived in Australia. The applicant asked me to repeat the question. I explained to the applicant that he had just told me that he went to [Country 1] with his wife before the incident with Mr R, but earlier when I had asked him how much time had passed between when this incident and when he came to Australia, he had said about six to eight months. I put it to the applicant that this was at odds with how he had gone to [Country 1] with his wife less than two months before coming to Australia. I put it to the applicant that the timeline he was outlining for these claimed events did not match up and, what was more, in his March 2024 statement he had said that his wife found him with Mr R in 2016. The applicant submitted that he did not remember.

9. Having considered all of this, I did not find the applicant’s evidence persuasive. The applicant was not being asked to provide exact dates, but rather a more general estimate of how much time passed between events and the order of these events. I consider that real concerns are raised about the credibility of the applicant’s claims by how he was unable to provide a reasonably consistent account of how these purported events unfolded. 

10. Asked if there was any other reason why he had left Malaysia, the applicant said it was just this, and when he got caught a second time, he had come to Australia. Asked what he meant by saying he was caught a second time, the applicant submitted that before the incident in which he was caught with Mr R by his wife, he had been caught with Mr R by his father who had told him to get married. Asked when this had occurred, the applicant said it was when he was [age] in around 2017. I put it to the applicant that he would have been [age] years of age in around 2014 (the applicant was born in [specified year]). The applicant agreed with this. He said that it was at this time that his father arranged for him to be married to Ms N. I asked the applicant if his father did anything else. The applicant said that his father had kept him in his room such that the applicant was unable to go anywhere for a month.

11. Asked where Mr R was now, the applicant said that he did not contact Mr R anymore because Ms N had broken his (the applicant’s) mobile telephone the second time he was discovered with Mr R. I put it to the applicant that I found it difficult to believe that this would have prevented from having further contact with Mr R in this way if he had been intent on having a relationship with this person (in his March 2024 written claims the applicant asserted that he was in love with Mr R). The applicant now submitted that he had not engaged in further contact with Mr R because if he and Mr R had been discovered a third time his father would have handed him over to the police. I asked the applicant why he had not left Malaysia for Australia with Mr R. The applicant said that Mr R was not contacting him anymore and he (the applicant) felt like he had hit a brick wall and so he came to Australia. Having considered all of this, I did find not find the applicant’s evidence about these matters to be persuasive.

12. I asked the applicant several times to explain what he thought would happen if he returned to Malaysia. He said that because he was bisexual he would be unable to find employment or, if he did find employment, he would be unable get training or a promotion. He also said he was concerned he would get caught with a man a further time and reported to the police, and the surrounding community would not accept him. Asked how the surrounding community would know about his sexuality, the applicant said that all his friends knew because after he was caught for the second time someone spread this news. Asked who had spread this news, he said he did not know but people began to look at him differently. Asked how this could have become known if it was only his wife who had discovered him, the applicant said that people might have overheard him and his wife fighting about this because the homes in the area were so close together.

13. I put to the applicant that I had concerns about how the information he had provided thus far at the March 2024 hearing had proven inconsistent in itself, and with the information he had provided in his March 2024 written claims, in certain respects. I put it to the applicant that in his March 2024 written statement he had said that in Malaysia he had faced regular bullying and harassment from Malaysian society. But during the hearing he had made no mention of harassment or bullying. He had said that some people had started to look at him differently, but that the real reason he had left Malaysia was because his wife had found his with Mr R. Asked if he could explain this, the applicant said that bullying could also take the form of emotional harm like mocking someone. I asked the applicant if he was saying he had been mocked in Malaysia. He said he had. Asked why he had not said so earlier, the applicant said that he had just been speaking in general terms.

14. I put to the applicant that another concern was that in his March 2024 statement and again at the hearing he had claimed that after his father/parents found him with Mr R they had locked him in his room and arranged him to marry Ms N, and then later he had been found by Ms N with Mr R again, and this had led him to leave Malaysia. I put it to the applicant that in his 2018 protection visa application he had made no mention of being married, or of having been locked up by his parents, and instead he claimed that he left Malaysia because his family did not accept him, and that his parents had blackmailed him to end his relationship, or they would report him to the police. Asked if he could explain this, the applicant submitted that there were some elements of information in the 2018 protection visa which were wrong, or inaccurate, and this was due to Ms M and she did not correct this.

15. I then explained to the applicant that I needed to put to him some information which, subject to his comment or response, would be the reason or part of the reason for affirming the decision not to grant him the visa. I explained to the applicant that I would give him the particulars of the information, and then I would explain its relevance, and once I had confirmed with him that he understood the information and its relevance as I had explained it, he could comment or respond, and/or he could make a request for additional time to do this. I then put it to the applicant that there was information before the Tribunal to indicate that in 2017 his brother Mr N had lodged a protection visa application which was completed in handwriting identical to that which his own 2018 protection visa application had been completed in. Further, both applications were similar in other ways: neither provided any information about the names or whereabouts of any family members; and both he and Mr N had claimed that they were rejected by their family because of their attraction to a person of the same sex. Further, neither he nor Mr N had given any indication that they had another family member who had been attracted to a person of the same sex or had not been accepted by the family on this basis. I explained to the applicant that this information was relevant to his case because the similarities in the applications, including that neither application referred to having had another same-sex attracted family member who was rejected by the family, raised the concern that both he an Mr N had falsely contrived their claims to be attracted to persons of the same sex; and if the Tribunal found this to be the case it might not be satisfied he would be at risk of harm on such a basis in Malaysia.

16. I asked the applicant if he understood the information I had explained and its relevance. He said he had. Asked if he wanted to comment or respond, the applicant said that his brother had come to Australia first and he (the applicant) did not know what Ms M had done in this regard. Asked if there was anything else he wanted to say about why his and Mr N’s applications had been so similar, the applicant said that it was because when he filled out the application with Ms M it was on the advice and referral from his brother, Mr N. Asked if he wanted to request any additional time to respond to this matter, the applicant said that he had submitted this application by way of Ms M on the advice and referral of his brother, and that was as much as he knew.

17. I then explained to the applicant that I again needed to put to him some information which, subject to his comment or response, would be the reason or part of the reason for affirming the decision not to grant him the visa. I explained to the applicant that I would give him the particulars of the information, and then I would explain its relevance, and once I had confirmed with him that he understood the information and its relevance as I had explained it, he could comment or respond, and/or he could make a request for additional time to do this. I then put it to the applicant that there was information before the Tribunal to indicate that his brother Mr N had indicated that his 2017 protection visa application was completed by a visa agent by the name of [Agent A]. I explained to the applicant that this information was relevant to his case because of the similarities between Mr N’s protection visa application and that of the applicant, with the matching handwriting suggesting they were completed by the same person. Given this, and with Mr N having said this was done by a [Agent A] whereas the applicant said this was done by a Ms M, it might be difficult for the Tribunal to accept that the applicant had been completely forthcoming about what had occurred in this regard, and that the 2018 claim that he was gay was something which as submitted against his wishes; and this in turn would raise doubts about his current claim to be bisexual; and if the Tribunal found this to be the case it might not be satisfied he would be at risk of harm on such a basis in Malaysia.

18. I asked the applicant if he understood the information I had explained and its relevance. He said he had. He said he wanted to explain that he knew about [Agent A] and that he did not know if he and Ms M were partners or a couple. I asked how this explained the situation where the applications had the same handwriting. The applicant said that he did not know if it as Ms M or [Agent A] who had actually written the application, but he knew they were connected. Asked if there was anything further he wanted to say about this, the applicant said he only met Ms M and [Agent A] once or twice at the very most. Asked if he wanted to request any additional time to respond to this, the applicant said he did not, and this was the conclusion of his answer.

19. I then explained to the applicant that I again needed to put to him some information which, subject to his comment or response, would be the reason or part of the reason for affirming the decision not to grant him the visa. I then put it to the applicant that in October 2023 his brother Mr N had provided a written statement to the Tribunal, and that he did this after being invited to attend a Tribunal hearing, and in this he asserted that in Malaysia in 2017 his parents learned that he was attracted to a person of the same sex, and they locked him up and began making plans to marry him to a cousin. But Mr N gave no indication that a similar situation had affected his brother (the applicant) in 2014 or at any other time. I explained to the applicant that this information was relevant to his case because (now that he too had been invited to attend a Tribunal hearing) he too had similarly claimed that in Malaysia his parents learned that he was attracted to a person of the same sex, and they locked him up and began making plans to marry him; and similarly he had given no indication that no one else in his family had had problems of this kind. I explained that this might lead the Tribunal to conclude that his claims about these matters had been contrived and were not true, and that he was not bisexual or attracted to persons of the same sex; and so, the Tribunal might not be satisfied he would be at risk of harm on such a basis in Malaysia.

1. I asked the applicant if he understood the information I had explained. He said he had. Asked if he wanted to comment or respond, the applicant said that he may need some time to comment on this. Asked why this was, the applicant said that he did not remember his brother’s matters or incidents. Asked how much time he thought he would need, the applicant asked if he could please have a week. I asked the applicant if he would like to present before the Tribunal to give his response in person, or whether he would be able to provide the response in writing by email. The application asked if he could respond by email. I informed the applicant that the Tribunal would undertake not to make a decision on his matter for at least a week, until after 21 March 2024, to enable him to respond to this matter. I also advised the that if he wanted an assurance that the decision would be delayed until a later date he could request this; and any information he provided before a decision was made would be considered.

2. I then explained to the applicant that I again needed to put to him some information which, subject to his comment or response, would be the reason or part of the reason for affirming the decision not to grant him the visa. I then put it to the applicant that some six weeks ago in January 2024 I had had a hearing with his brother Mr N, and at that hearing Mr N had indicated that he (Mr N) had a brother Mr Z (the applicant) with a wife Ms N and two children Mr Y and Mr U. Mr N had previously provided no information about the names or whereabouts of his family members, and when I asked Mr N where Mr Z and his wife and children were, Mr N had asserted that they were all in Malaysia. I then put it to Mr N that there was information before the Tribunal to indicate that they were all residing at the same address in Australia. A week later Mr N emailed the Tribunal and said that he had discussed this matter with the applicant. I explained to the applicant that this information was relevant to his case because it was only after this that he (the applicant) had disclosed to the Tribunal that he was married, and it was only after this that he had claimed that he was bisexual rather than gay. I explained that this might lead the Tribunal to conclude that the only reason he had done this was because the Tribunal already knew about these matters (the connections between these family members and their whereabouts). I put it to the applicant that this might lead the Tribunal to conclude that the only reason he was now claiming to be bisexual was because he knew that the Tribunal’s awareness of his marriage to Ms N would place his claim to be gay in doubt. I explained that this might lead the Tribunal to conclude that his claim to be attracted to men was part of an evolving fabrication and was not true; and so, the Tribunal might not be satisfied he would be at risk of harm on such a basis in Malaysia.

3. I asked the applicant if he understood the information I had explained. He said he had. Asked if he wanted to comment or respond, the applicant said that he may need some time to comment on this. The applicant responding by asking the Tribunal to explain what he was being asked to comment on. I explained he was being asked to comment on how he had disclosed to the Tribunal that he was married, and he had claimed to the Tribunal that he was bisexual rather than gay, only after the Tribunal had disclosed to his brother that it was aware that he (the applicant) was living with his wife in Australia. I explained that this raised the concern that he had only done this because he knew that the Tribunal now knew about who he was residing with in Australia. I explained to the applicant that he might want to begin by explaining why, if his claims were true, he did not tell the Tribunal earlier that there were mistakes inn his visa application about his being gay rather than bisexual. The applicant responded that, like he had said before, there were errors in how Ms M filled out the form and because he had just arrived in Australia and did not have too much knowledge about this matter, and so he had just gone along with it. I put it to the applicant that after he had lodged his application for review of the delegate’s decision, he had received a notification from the Tribunal which alerted him that, if he had any further information, he wanted to provide he should do so as soon as possible. I put it to the applicant that years then went by, and it was only after the Tribunal had put his brother on notice that it knew he (the applicant) was residing with his wife, and after the Tribunal invited him to a hearing, that he disclosed he had a wife here in Australia. The applicant submitted that when he first arrived it was just him and his brother and he just filled out the form. I asked the applicant if he required any additional time to respond. The applicant said he did not and that this was his only comment.

4. Earlier in the hearing I had asked the applicant if he had had any sexual or intimate relationships with any men while in Australia. The applicant said that he did not contact anyone, he just went to clubs and massages. I later asked the applicant what clubs he went to. He said that he liked to go to [Venue 1]. Asked how often he this, the applicant said he went there once a fortnight. At the March 2024 hearing I asked the applicant when it was that he had last attended the [Venue 1]. The applicant said he had been there on a week ago on Saturday. I note, in this regard, that Sydney’s [Venue 1] is among the most famous of the city’s gay venues, and that it is known for staging various events during the course of a given week, including: [deleted];[3] [deleted], and [specified regular events].[4] But the applicant evinced no knowledge of such events. Asked whether anything in particular was happening at [Venue 1] the night he was most recently there, the applicant said he was just enjoying himself. Asked again what happened at [Venue 1] that night, the applicant said he met some friends from the community, and they did some stuff, though they did not engage in intimate relations. I explained to the applicant that I was asking what had happened at the [Venue 1] that night because the [Venue 1] hosted different events on different nights. I asked the applicant again if he could tell me what was happening on that night. The applicant said he did not remember what the event was. I put it to the applicant that this raised doubts about whether he was actually there. The applicant did not respond. Asked if he went to any other clubs, he said he did not, he just went for massages.

   [3] [Source deleted.]

   [4] [Source deleted.]

5. Asked if there was anything else he was doing in Australia that he felt he would not be able to do in Malaysia, the applicant submitted that he could not go to gay parties because these would be raided, and also in Malaysia Muslims like him who consumed alcohol would be arrested because this was illegal for Muslims in Malaysia. Asked if he was claiming that drinking alcohol was something he liked to do, the applicant said it was something he liked to do when he went to parties, but if he did this in Malaysia he would imprisoned and whipped and fined. I note, in this regard, that under the Syariah laws of Malaysia’s various states Muslims are prohibited from consuming alcohol, and that there are occasional reports of religious enforcement officers detaining Muslims for such offences, and for which they may be required to pay a fine, but evidence of such enforcement is rare outside of conservative states like Terengganu, and instances of persons being whipped are even rarer, particularly in the recent decade (an instance of this did famously occur in the applicant’s home state of Pahang in 2009, but this apparently involved a prominent figure who declined to appeal her caning sentence, though this was later commuted following public outcry).[5]

   [5] DFAT, ‘DFAT Country Information Report: Malaysia’, 24 June 2024, 20240624113833; 3.56, 5.9; Walden, M. ‘Malaysian Islamic party demands Oktoberfest events be shut down’, ABC News, 18 October 2019, ; Sum, C.J.S. et al, ‘Beer and Lashes: Undermining Malaysia’s Moderate Islamic Country Image’, NIDA Case Research Journal’, January-June 2013, ; AFP, ‘Crackdown does not deter Malay Muslim partiers’, Taipei Times, 27 July 2010, ; Ghaziali, R. ‘But there are Muslims drinking and gambling...’, Malaysiakini, 7 April 2008,

6. I asked the applicant why, if this was true (that is, that he wanted to drink alcohol at parties in Malaysia and feared harm on this basis) he had not made this claim before his protection visa application was refused by the Department. The applicant said he apologized for not mentioning this. I explained to the applicant that this was not a claim he had made previously made, and that under the Migration act the Tribunal was required to draw an unfavourable inference as to the credibility of a such a claim if satisfied that an applicant did not have a reasonable explanation as to why the claim was not raised before the primary decision was made. I asked the applicant again to explain why he did not provide this information to the Department. The applicant submitted that he though he was just required to tell his story, rather than what he thought would happen to him if he returned to Malaysia.

7. I then noted that in his March 2024 statement he had submitted that: I committed to advocating for LGBTQ+ rights and equality in Malaysia; and: I am dedicated to being a voice for change, whether it's through raising awareness, participating in activism, or supporting organizations working towards LGBTQ+ rights. I asked the applicant if he had actually done anything of this kind. He said he made contributions to friends in Malaysia who organised this kind of thing. Asked if he could provide any documentary evidence of this, the applicant asked whether he could have a week to provide this. I advised the applicant that the Tribunal had undertaken not to make a decision for at least a week to enable him to provide any further information he wished. I then asked if he had done anything else in terms of advocating for LGBTQ+ rights. The applicant said he had just made contributions behind the scenes because he was afraid of repercussions. Asked if he wanted to say anything else before the hearing was concluded, the applicant said he did not.

   10 April 2024 invitation in writing

8. On 20 March 2024 the applicant emailed the Tribunal and requested clarification from the Tribunal as to the matters he should comment on that were discussed at the 14 March 2024 hearing. On 10 April 2024 the Tribunal emailed the applicant about these and related concerns. In doing so, the Tribunal explained that the applicant was being invited to comment or respond in writing to information which would, subject to the consideration of his comments or responses, be the reason of part of the reason for affirming the decision to refuse to grant him a protection visa. Information was put to the applicant and its relevance was explained as follows:

9. It was put to the applicant that: in December 2017 his brother Mr N had lodged a protection visa application in which he claimed that his parents found out he was dating a man and he was disowned by his family and repelled from the house. He gave no indication that anyone else in his family was attracted to men or had been similarly treated, and he did not provide any information in response to the protection visa application form’s request for details about his family members (including their names and whereabouts). The application was completed in handwriting which matched the handwriting which had completed the applicant’s own protection visa application. It was explained that this information was relevant because the fact that Mr N made no mention of having a brother who was attracted to men might lead the Tribunal to have doubts about his (the applicant’s) claim that he (the applicant) was sexually attracted to men.

10. It was also put to the applicant that the fact that neither he nor Mr N had provided any information about the identities or whereabouts of their family members in their protection visa applications, and that they then both claimed in their protection visa applications to have been rejected by their family members after entering into a relationship with another man, might lead the Tribunal to conclude that the applicant and his brother had jointly planned: to obtain a protection visa by falsely presenting themselves as being attracted to men; and: to arrive in Australia separately, and to withhold information about their family composition, so that they would not be identified as brothers (as this would undermine their claim to have been rejected by their family members, and would enable comparison of their claims which would raise concerns about collusion and that they had fabricated their claims).

11. It was put to the applicant that: in October 2023 Mr N had provided a written statement to the Tribunal (after being invited to attend a Tribunal hearing) in which he asserted that in Malaysia in 2017 his parents learned he was attracted to person of the same sex, and that they locked him up and began making plans to marry him to a cousin; but Mr N gave no indication that anything similar had ever happened to another member of his family. It was explained that this information was relevant because on 12 March 2024 he (the applicant) had likewise provided a written statement (dated 8 March 2024) to the Tribunal (after being invited to attend a Tribunal hearing) in which he had made similar claims, while also giving no indication that any family members had ever had a similar experience. It was further explained that the manner in which he and Mr N had recently provided such similar claims might lead the Tribunal to conclude that they jointly contrived to falsely present themselves as having had problems of this kind.

12. It was put to the applicant that: In January 2024 his brother Mr N had a hearing with the Tribunal where he indicated that he had a brother named Mr Z who was married to a woman named Ms N with two children named Mr Y and Mr U. Prior to this Mr N had previously provided no information about his family members names or whereabouts, and when Mr N was asked at the hearing about the whereabouts of these persons (the applicant and his wife and children) Mr N had asserted that they were all in Malaysia. The Tribunal then put it to Mr N that there was information before the Tribunal to indicate these persons were all residing with him (Mr N) in Australia; and a week later Mr N emailed the Tribunal to say he had discussed these matters with his brother (the applicant). It was explained to the applicant that this information was relevant to his case because it was only after January 2024 (when the Tribunal disclosed to Mr N its awareness of the information which indicated that Ms N and her children were in Australia and residing with him and the applicant) that he (the applicant) had indicated that he had been married, and it was only at this time that he (the applicant) claimed to be bisexual rather than gay. The Tribunal explained that it might conclude that his (the applicant’s) claim to bisexual (rather than gay) is part of an evolving fabrication, in which he had had to alter his claims once he became aware from Mr N that the Tribunal had information to indicate that he was married and had two children (which would raise doubts about his claim to be gay).

13. It was explained to the applicant that, subject to his comments or response, the above concerns might result in the Tribunal not being satisfied that he was sexually attracted to men, or that he had any interest in advocating for LGBTQ+ rights and equality; and the Tribunal might thus not be satisfied that he would face a real chance of persecution or a real risk of any harm on such a basis if he were to return to Malaysia.

14. It was put to the applicant that: on 12 March 2024 he provided a written statement (dated 8 March 2024) to the Tribunal in which he claimed that his parents compelled him to marry his wife, Ms N, in 2015, and that after this he resumed his relationship with Mr R, and this caused a lot of tension and Ms N tried to stop him from having any relationship with Mr R. It was put to the applicant that at his subsequent 14 March 2024 Tribunal hearing he was asked if he had had any assistance with composing his March 2024 statement, and he had said that his wife assisted him by translating his claims into English (from Malay). It was put to the applicant that the manner in which his wife was willing to assist him in presenting such claims, so that he might obtain a protection visa on the basis of his wanting to pursue sexual relationships with men, might lead the Tribunal to have doubts about his claim that there are tensions in his personal life on this basis. Further, it might lead the Tribunal to conclude that his claim to be sexually attracted to men was a fabrication, and that his wife had been assisting him with fabricating a claim to be attracted to men (and to have an interest in advocating for LGBTQ+ rights and equality) for the purpose of obtaining a protection visa.

15. It was put to the applicant that the Tribunal had concerns about how he had explained the timeline of events with respect to his claim to have been discovered with a Mr R by his wife. The Tribunal put it to the applicant that on 12 March 2024 he had provided a written statement (dated 8 March 2024) to the Tribunal in which he claimed that in 2016 his wife Ms N found him in a compromising position with Mr R and had gotten very angry. But at the 14 March 2024 Tribunal hearing he had said that his wife found him with Mr R about 6 to 8 months before he came to Australia (which would mean the incident with Mr R occurred at some point between July and September 2017). Further, he (the applicant) had said that after this his wife went to stay with her mother over the period prior to his departure for Australia, and that she told her parents about what happened, and that it was at some point after this that it became more broadly known to friends and neighbours and his community that he was attracted to men. But in his March 2024 written statement he had said that his wife found him with Mr R in 2016 (a year earlier than was his claim at the 14 March 2024 Tribunal hearing).

16. It was also put to the applicant that there was a further problem with his claimed timeline of events in that at the 14 March 2024 Tribunal hearing he had said that in January 2018 he had gone on a holiday to [Country 1] with his wife and first child. It was pointed out that that this was at odds with his claim that his wife was living with her mother, and separately from him, for about 6 to 8 months before he came to Australia, owing to an incident in which she found him with Mr R. Moreover, that their second son Mr U was born on [date] ([after] the applicant’s [March] 2018 arrival in Australia; and even allowing for an unusually long pregnancy period of 42 weeks or more), also suggested that the applicant and his wife were residing together during the weeks prior to his departure from Malaysia for Australia. It was explained to the applicant that, subject to his comment or response, such inconsistencies might lead the Tribunal to conclude that he did not have a sexual relationship with a man called Mr R, and that the Tribunal might not be satisfied that he would face a real chance of persecution or a real risk of any harm on such a basis if he were to return to Malaysia

17. It was put to the applicant that in March 2024 his wife, Ms N, had a hearing with the Tribunal where she was asked about where she had resided while in Malaysia, and she had indicated that following her marriage to the applicant in August 2015 she had resided with him in Pahang, and that she had discovered him in a relationship with a man in 2016, but his (the applicant’s) parents and her mother had forced her to continue to be in a relationship with him (the applicant), and so she had resided with him at the same Pahang address until he left one day, and she did not know anything about his whereabouts until a month later when he telephoned and told her he was in Australia. She said she continued to reside at the same Pahang address until August 2018 when she went to live with her mother for the period of her confinement prior to giving birth to their son Mr U on [date]. It was explained to the applicant that this information was relevant to his case because it conflicted with his 14 March 2024 Tribunal hearing assertions that Ms N found him with Mr R about 6 to 8 months before he came to Australia (that is, at some point between July and September 2017), and after this Ms N went to stay with her mother during the period prior to his departure for Australia, and that she reported the incident to his parents to compel him to end his relationship with Mr R. It was explained that the conflicting evidence might lead the Tribunal to conclude that these claims about his having been discovered with Mr R were contrived; and the Tribunal might not be satisfied that he would face a real chance of persecution or a real risk of any harm on such a basis if he were to return to Malaysia.

1. The applicant was invited to comment or respond to the above in writing by 24 April 2024. The applicant was advised that (if he could not provide his written comments or response by 24 April 2024) he could request an extension of time in which to provide the comments or response.

2. Nothing was received from the applicant in response to the above invitation. The applicant did subsequently telephone the Tribunal to request a letter to enable his continued access to Medicare, but he gave no indication that this was relevant to his protection claims or to the review more broadly, nor was this otherwise apparent.

   Findings

3. Give how all of this has unfolded, I am not persuaded that it was the case that the applicant somehow felt compelled to go along against his wishes with how his situation was presented in his 2019 protection visa application. For he gave no indication over the years that followed to the Department (or subsequently to the Tribunal) that the claims he wished to make had been misrepresented. Further, too much of what has occurred since January 2024 suggests deliberate contrivance. The applicant has provided no other reason for why he did not present his current claims to the Department other than that he was misrepresented against his wishes by Ms M. I do not accept that it is true that the applicant was an unwilling actor in all of this. I am therefore satisfied that the applicant does not have a reasonable explanation for why his current claim to be bisexual was not raised before the primary decision was made by the delegate on 3 January 2019 to refuse the grant of the visa. I am required to draw an inference unfavourable to the credibility of the claim, and I have done so.

4. I note, moreover that the applicant has provided no documentary evidence to establish his claims about making donations to LGBTQ+ advocacy groups, and his evidence about his purported relationship with Mr R and his purportedly attending Sydney’s [Venue 1] was unconvincing. I reject these aspects of the applicant’s claims in their entirety. I do not accept that the applicant is sexually attracted to men (whether as a gay or a bisexual man) or that he has any interest in supporting LGBTQ+ advocacy.

5. The applicant was asked why he did not, before the primary decision was made, raise his claim to fear harm as a drinker of alcohol at parties. The applicant’s response that he thought he was just required to tell his story, rather than what he thought would happen to him if he returned to Malaysia. I note, however, that the protection visa application form expressly asked the applicant to explain whether he feared returning to his country would result in his being harmed and why this would occur. I am therefore satisfied that the applicant does not have a reasonable explanation for why his current claim to fear harm on as a drinker of alcohol was not raised before the primary decision was made by the delegate on 3 January 2019 to refuse the grant of the visa. I am required to draw an inference unfavourable to the credibility of the claim, and I have done so. I note, moreover, that the applicant was asked on several occasions during the course of the March 2024 hearing what he feared would happen to him if he returned to Malaysia, and he made no mention of his being a consumer of alcohol at parties until almost the very end of the hearing, and after the Tribunal had broached with him a number of concerns that might make it difficult for the Tribunal to accept his claim to be sexually attracted to men. Given this, I am not satisfied that that the applicant has a fear of this kind, or that he is a drinker of alcohol, or that this is something he would have an interest in doing upon return to Malaysia.

   Does the applicant satisfy the refugee criterion for protection?

6. Given the findings I have reached above and given that I consider that the applicant would be returning to Malaysia as member of the country’s predominant Malay Muslim population, and who is in a married heterosexual relationship with two children, I am not satisfied that the applicant would for the foreseeable future face a real chance of suffering harm of any kind in Malaysia. I am therefore not satisfied that the applicant has a well-founded fear of persecution with respect to Malaysia.

7. 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).

   Does the applicant satisfy the complementary protection criterion for protection?

8. 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).

9. For the reasons already given above I am likewise not satisfied that the applicant would face a real risk of harm of any kind were he to return to Malaysia. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that the applicant will suffer significant harm.

10. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

11. For completeness, 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

12. The Tribunal affirms the decision under review.

    Date of hearing:   14 March 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.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …