1925851 (Refugee) - [2025] ARTA 1373

1925851 (Refugee) [2025] ARTA 1373 (28 February 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1925851
Tribunal:General Member R Lee
Date:28 February 2025

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

Statement made on 28 February 2025 at 10:52am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Malay ethnic group – Iban ethnicity – religion – a bisexual woman – applicant has not engaged in the LGBTQIA+ community – applicant has never had a relationship with a woman – not satisfied that the applicant faces a real risk of serious or significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant did not provide a copy of the delegate’s decision to the Tribunal.
The applicant first arrived in Australia on [date] March 2019 and has not departed since.[1]
[1] Movement record – [date] February 2025. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision. No disrespect is intended.
The applicant who claims to be a national of Malaysia, applied for the visa on 9 May 2019. The delegate refused to grant the visa on the basis that their claimed fear of harm in Malaysia was not for one of the s 5J(1)(a) reasons and there was no real risk of significant harm.
The applicant appeared before the Tribunal on 10 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Evidence before the Department
According to information contained in their protection visa application, the applicant is a [age]-year-old Malaysian citizen who was born in Pahang, Malaysia and lived in Sibu, Sarawak, Malaysia. Further, the applicant:
·belongs to the Malay ethnic group; is Iban; was born to Malaysian citizens and has never married;
·does not have members of the same family unit (including partner and dependent children) in or outside Australia but is in contact with relatives outside Australia;
·completed high school in Sibu, Sarawak in December 1996;
·had never been employed;
·obtained their Malaysian passport on [date] 2019;
·can speak, read, and write in the Malay language;
·had not undertaken any overseas travel in the last 30 years; and
·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application.
In relation to their claims for protection, the applicant claimed they left Malaysia because they could not subsist, they did not see a future in Malaysia, they would be trouble for their family, and they wanted to migrate. The applicant claimed that the new country welfare policy ended a number of incentives, and the corruption level is high. Malaysia had a high cost of living and rate of unemployment.
The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application.
On 9 May 2019, the applicant was sent correspondence acknowledging receipt of the protection visa application and stating that the Department may make a decision on the application without requesting additional information and they should provide the Department with all the information that they felt was relevant.
On 24 May 2019, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising that the applicant could bring any additional information they would like to be considered to the appointment for the collection of personal identifiers or otherwise provide it to the Department.
The applicant’s appointment to provide biometrics/personal identifiers was 4 June 2019, which the applicant attended.
The Department did not receive any further information or documentary evidence from the applicant.
Protection visa application interview
The Department did not invite the applicant to attend an interview.
Evidence before the Tribunal
The review application
On 14 September 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 16 September 2019, the Tribunal wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could.
On 26 July 2024, the Tribunal sent a link to a pre-hearing information form to the applicant which contained various questions for the applicant to complete and which asked the applicant to provide any further evidence they wished to submit in writing as soon as they could.
The applicant did not provide a completed pre-hearing information form.
On 20 January 2025, the Tribunal sent the applicant an invitation to attend a hearing. The hearing invitation asked the applicant to provide all documents on which they intended to rely to support their case by 3 February 2025, noting that the decision made by the department should set out the reasons for the decision, and the applicant should have regard to these, and any changes in their circumstances, in providing documents and preparing for the hearing.
On 27 January 2025, the applicant returned a completed response to hearing notice to the Tribunal (Hearing Response) saying they intended to provide a written statement outlining the circumstances of their initial protection visa application and ‘how it was misrepresented’; supporting documents regarding the legal and social discrimination faced by LGBTQIA+ individuals in Malaysia; and personal testimony and declaration of their bisexuality and how this identity makes it unsafe for them in Malaysia. There was no request for the Tribunal to take oral evidence from another person.
On 30 January 2025, the Tribunal asked the applicant to provide it with a copy of the Department’s notification letter and delegate’s decision by 6 February 2025. The same day the applicant replied that they had misplaced the document and no longer have access to the original email address to which it was sent.
The Tribunal did not receive anything by 3 February 2025.
On 3 February 2025, the Tribunal provided a copy of the delegate’s decision to the applicant and noted the Hearing Response but that the Tribunal had not received any supporting documents. The applicant was asked to provide the documents as soon as possible.
On 6 February 2025, the applicant provided a written statement (February Statement), saying the protection visa application was incorrect, that they had been married and had two children and that they did not leave Malaysia for economic reasons but because they are bisexual. They also provided a witness statement of [name].
The applicant also provided links to the following:
(a)Amnesty International Public Statement on 11 July 2018;[2]
(b)Human Rights Watch article on 10 August 2022;[3]
(c)UNHR Office of the High Commissioner on Malaysia,[4] without specifying an article or specific page;
(d)a BBC article,[5] which was said to no longer be there when the Tribunal attempted to access it and there were no results for a search on "Malaysia's Crackdown on LGBTQ+ People" on the website;
(e)an article of The Guardian,[6] which said “Sorry – we haven’t been able to serve the page you asked for” when the Tribunal attempted to access it with no obvious search function); and
(f)an article of Al Jazeera,[7] although the page was not found when the Tribunal attempted to access it and there were no search results on "Caning of LGBTQ+ Women in Malaysia".
[2] Malaysia: End discrimination and backlash against LGBTI people - Amnesty International.
[3] Malaysia: State-Backed Discrimination Harms LGBT People | Human Rights Watch.
[4] Malaysia | OHCHR.
[5] Given as URL: Given as "Malaysia's Persecution of LGBTQ+ Individuals" at URL: Given as URL: >
On 6 February 2025, the Tribunal wrote to the applicant asking a few questions.
Prior to the hearing, the applicant provided a written response (February Response).
The hearing: supporting documents and oral evidence
The applicant gave the following oral evidence.
Besides attending to provide their personal identifiers, the only information before the delegate was the protection visa application. The applicant said they only received the notification not the delegate’s decision. Before the Tribunal, there was the review application, Hearing Response, the February Statement and the February Response.
The same person who wrote the applicant’s protection visa application made the review application. The applicant confirmed that the email address in the review application was theirs but said they did not receive any emails from the Tribunal. When asked how they came to be at the hearing, the applicant said they had received an invitation to the hearing and the Tribunal had asked for the delegate’s decision. When the Tribunal noted all Tribunal emails went to the address in the review application, the applicant said the third person dealt with everything. The applicant said that they had never met the third person but provided whatever details she wanted. She had only asked for the passport and a signature. The third person never asked why the applicant was seeking protection.
When the applicant found out last year that the claims in the protection visa application were about the economy, they wanted to say that is not what their claims are, rather the applicant is bisexual. The applicant had trusted the third person and never read the protection visa application submitted and did not ask why it had been refused. The applicant read the protection visa application last year for the first time and noticed that it incorrectly said they were not married. The applicant thought that they had completed the pre-hearing information form.
The reason the applicant left Malaysia is because as a bisexual they were afraid they were unsafe. When they were very young, they wanted to be a boy, but they did not end up being a boy. Their parents are Christian, the father is military and asked the applicant to wear a dress. They found the applicant a husband, and the applicant married and had two children. It was not a long relationship. When asked why they left Malaysia, the applicant said they were depressed and came to Australia alone, where they can be who they are. Before their marriage, they had worked in Kuala Lumpur in 2009 for less than two years at a [workplace]. They met somebody there, but they have lost contact. They travelled to Kuala Lumpur alone and lived in a hostel. In 2012, they returned to Sibu, Sarawak because their parents thought as a [age]/[age]-year-old they were too old and needed to marry. In 2018, the husband became an ex. The last time the applicant spoke with the husband was about September 2019 when they talked about their children. The applicant calls their children every day, as they live with the applicant’s mother and father. The applicant said the husband was not a very responsible father, and the children had been living with the applicant’s parents for the last six years since the applicant came to Australia. The applicant had themselves been living with their parents since they were married. The husband came and went because he worked four hours away for [a] company.
The applicant was a [occupation] for about one year at a [workplace], before they went to Kuala Lumpur. Besides their husband, the applicant said they had not had other relationships because they are introverted and had thought they were crazy. Their friend in Kuala Lumpur was a man, who was open with the applicant. The applicant was afraid of being judged, but in the end the applicant told him that they found men and women attractive. It had been this way since they were [age] or [age]. They were a tomboy and liked sport like men do but had restrictions on the way they dressed.
In Kuala Lumpur, the applicant did not mix with the LGBTQIA+ community, because they did not have any confidence. They did not know any other members of the LGBTQIA+ community in Malaysia. They did not disclose to anybody in authority in Malaysia. They have told their friend in Malaysia, the person who provided a witness statement and with whom they are still in contact, and a friend they met in Australia.
The applicant has not been involved in the LGBTQIA+ community in Australia, because they are still scared, and they are still hiding who they are. The applicant’s friend wrote the Hearing Response, the February Statement and the February Response, because the applicant did not feel confident about their written English. When asked if the applicant looked at the links provided, the applicant said ‘yes’. When asked if the applicant accessed the news articles, the applicant said the friend accessed them. The applicant at first did not trust him but he said the applicant had to tell him everything. The applicant met this person though a work colleague.
When the Tribunal advised that when it tried accessing the news article links, they did not work, and was concerned that this was part of a stock standard LGBTQIA+ claim, the applicant said they tried to prove that Malaysia does not support the LGBTQIA+ community. The applicant said they did not come to any harm in Malaysia, because they did not tell anyone about their sexuality and kept hiding themselves but when they came to Australia, they can be themselves. They have not had any relationships in Australia.
The applicant did not work in Malaysia between 2011 and 2019 because they were running a small business with their [parents].
When the applicant arrived in Australia, they worked part-time on a [farm]. In 2019 to 2022, the applicant worked [doing specified job] and in March 2022, they changed to [another job] for [companies]. From about September 2023, the applicant returned to the [factory].
In the protection visa application, it was claimed the applicant could not subsist and wanted to migrate. The applicant said that was not correct. The application said the applicant did not see any future in their home country. The applicant said that the application was not accurate because the third person wrote it. It is not correct to say if they returned the applicant would be a trouble to their family. The applicant said what was in their protection visa application was not their claim.
When the Tribunal said the economy applies to everybody in Malaysia, the applicant said yes.
In response to the DFAT report suggesting that members of the LGBTQIA+ community may subject to the absence of economic barriers move to large urban centres to avoid attention, the applicant said that Malaysia is an Islamic country. When the Tribunal suggested that the applicant could return to Kuala Lumpur, the applicant said that they were not safe there and they could not marry and could not show they are bisexual. They will be judged and ostracised. When the Tribunal suggested that with the applicant’s work history in Malaysia and Australia, they could find work in Kuala Lumpur, the applicant said they do not wish to return as they will have to hide themselves again.
The Tribunal raised two concerns. Firstly, the applicant’s credibility as the applicant had lodged an incorrect claim in 2019. No subsequent claim was made until the Hearing Response. The applicant acknowledged that was their fault. The applicant said they wanted to be given an opportunity to explain. When they realised the protection visa application was incorrect last year, the applicant went to a lawyer when they received the pre-hearing information form and the lawyer obtained the information. They thought they had submitted a completed pre-hearing information form. The Tribunal also noted that whilst they say in Australia they can be themselves, they have not engaged in the LGBTQIA+ community and not had any relationships. The applicant said they were still scared other people will judge them.
Secondly, the Tribunal suggested that applicant could return to their family in Sibu, Sarawak as they had said the claim in the protection visa application that they would be trouble to their family was incorrect, or they could move to Kuala Lumpur to avoid the attention of the authorities. The applicant said people in Kuala Lumpur would talk bad about members of the LGBTQIA+ community and ask why they are different. The Tribunal suggested this did not rise to the level of serious or significant harm. The applicant said they had considered committing suicide. The Tribunal expressed it was sorry to hear that but in such case there was no agent of harm. The applicant said in all of Malaysia LGBTQIA+ people are arrested and detained. The applicant confirmed they were of Iban ethnicity.
The Tribunal raised the country information that lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community. People in Kuala Lumpur are more accepting of LGBTQIA+ people. Whilst the word transgender does not apply to the applicant, if they can move to Kuala Lumpur so can the applicant. The applicant said how long can they keep running and for how long do they have to conceal their true self. The applicant is afraid. The Malaysian people are judgmental, and they could not marry, but the Tribunal suggested that is not serious or significant harm. The applicant said there is no protection.
Country information
LGBTQIA+ Claims
According to the Department of Foreign Affairs (DFAT) Country Information Report Malaysia (24 June 2024):
[5.25] DFAT assesses that…Malaysians can and do relocate internally, generally to larger urban areas in peninsular Malaysia, for economic reasons. DFAT assesses that individuals likely to attract official attention under state syariah-based law, including people who identify as LGBTQIA+,…may subject to the absence of economic and other barriers also move to large urban centres to avoid attention.
According to the DFAT Country Information Report Malaysia (24 June 2024):
Sexual Orientation and Gender Identity
[3.126] As a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent...
[3.127] Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour. Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison…This means that the federal law stands, but that State laws against same-sex sexual activity are invalid…
[3.128] While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. These laws prohibit males cross-dressing and/or presenting as women, and in some cases, females cross-dressing and/or presenting as men.
[3.129] Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Most recently, in January 2023, Prime Minister Anwar said recognising LGBTQIA+ identities and behaviours ‘will not happen, and God willing under my administration this is not going to happen.’ In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.
[3.130] JAKIM and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP and the Federal Territories Islamic Religious Department (JAWI) raided a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur and arrested at least 20 people. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. State officials have conducted raids on private premises, sometimes accompanied by members of the RMP. Some in-country sources reported that authorities conducted such raids as a means of creating income through extortion and blackmail.
[3.131] Members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law. In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,100) after convicting them of having lesbian sex. The caning, carried out in a courtroom in front of 100 witnesses, was the first such sentence to be ordered in relation to a LGBTQIA+ case since 2010. While the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare.
LGBTQIA+ ‘Conversion Therapy’
[3.132] Authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. Although these programs are primarily aimed at Muslims, Christians are also targeted... In-country sources reported that conversion programs were ‘voluntary’ in the sense that they were ‘not court-ordered,’ but in practice people were often coerced to attend by authorities and their communities. According to multiple sources, the Terengganu Government has run a ‘re-education boot camp’ or ‘behaviour corrective program’ in Besut for teenage males since 2010, where boys identified as ‘effeminate’ are sent for physical training and religious and motivational classes; while the Negeri Sembilan Religious Affairs Department held a two-day camp as part of the state’s Action Plan Against Social Ills of LGBTQIA+ 2017-2021.
[3.133] LGBTQIA+ issues are considered taboo in Malaysia, particularly among Muslims. Online abuse against people who raise LGBTQIA+ issues online is common. NGO Justice for Sisters reported in 2023 that doxxing of LGBTQIA+ people in the media and social media was also common.
[3.134] Authorities regularly ban or otherwise restrict LGBTQIA+ material…
[3.138] Lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community…Treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women. In-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022. While syariah offences only apply to Muslim women, they also have a large impact on non-Muslim lesbians by harming their relationship with authorities.

Whilst The Tribunal acknowledged that the applicant does not identify as transgender, according to the DFAT Country Information Report Malaysia (24 June 2024):
[3.147] The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in Sarawak... In-country sources also told DFAT that most transgender individuals from Sarawak…relocated to Kuala Lumpur for employment and to escape discrimination.
[3.148] DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Applicant’s responsibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a Malaysian passport and claims to be a Malaysian national. The delegate had no concerns about their claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a national of Malaysia, which is also their receiving country for the purposes of refugee and complementary protection assessments.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts that the reason stated in the protection visa application as to why the applicant left Malaysia is incorrect and that economic reasons like the cost of living, corruption and unemployment Malaysia were not the real reason why the applicant left Malaysia, based on the February Statement and the applicant’s evidence at the hearing. The Tribunal accepts the claims in the protection visa application were made by a third person without that person asking the applicant their reasons for seeking protection, based on the applicant’s evidence at the hearing. The Tribunal finds that the protection visa application claims are not genuine, because they are incorrect, do not reflect the real reason the applicant left Malaysia and were written by a third person without the input of the applicant.
The Tribunal finds that there is no real chance of harm if the applicant returns to Malaysia based on the claims in the protection visa application, because it has found the protection visa application claims to not be genuine.
The Hearing Response and the February Statement raised a new claim of harm. This new claim related to the applicant being a bisexual woman, and during the hearing the Tribunal had concerns as to the credibility of this claim because it accepts the applicant has not engaged in the LGBTQIA+ community nor had any relationships with women or men in Australia, based on their evidence during the hearing, despite also saying that they can be themselves in Australia and they do not wish to hide their bisexuality anymore. On balance, the Tribunal finds the applicant is credible as to their claims regarding their sexuality, because of the way they spoke about it at the hearing and their honesty about the incorrect claims in the protection visa application.
Due to the private nature of such claims the Tribunal is not satisfied that the applicant does not have a reasonable reason for why the claim was not made before the delegate. As such, the unfavourable inference otherwise required by section 367A of the Act does not arise.
The Tribunal accepts that the applicant is a bisexual woman and that this is the reason why they left Malaysia, based on the Hearing Response, the February statement and the applicant’s evidence during the hearing. Although the applicant said when they were younger they wanted to be a boy, the Tribunal acknowledges that the applicant did not describe themselves as being transgender and finds as they said during the hearing that they are not a boy.
Based on the written response, the Tribunal accepts that the applicant completed secondary school in Sibu Jaya, Malaysia aged [age].
Based on the February Response and their evidence at the hearing, the Tribunal accepts that the applicant’s full list of the dates and employment they had in Malaysia and Australia is as follows, and on this basis finds that the applicant has a solid work history in Malaysia and Australia such that they would find work if they returned to Malaysia:
● MALAYSIA:
○[work history deleted]
● AUSTRALIA:
○[work history deleted].
The Tribunal accepts that as a conservative Islamic nation, Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent, based on the DFAT report. The Tribunal prefers the DFAT report to the Amnesty International and Human Rights Watch links provided by the applicant because it is more recent. The Tribunal has not considered the links to the three news articles provided by the applicant because they were unavailable and it accepts that the applicant did not access those links either, based on what they said during the hearing.
Applying the filters of ‘sexual orientation and gender identity’ and ‘Malaysia’ on the UNHR Office of the High Commissioner on Malaysia link provided by the applicant did not produce any results. As such, the Tribunal has relied on the DFAT report in relation to considering the risk of harm to members of the LGBTQIA+ community in Malaysia.
The Tribunal accepts that the applicant voluntarily returned from Kuala Lumpur to Sarawak in their [age] to marry a man, based on the applicant’s evidence at the hearing. As the applicant is bisexual, on return to Malaysia they may in the reasonably foreseeable future have a relationship with a man. The Tribunal finds that there is no real chance of harm if they do so, as it accepts that they are Iban and Christian and consider their former husband to be an ex, based on their evidence at the hearing.
The applicant’s claim of harm is based on their attraction to women. The Tribunal finds that the applicant has never had a relationship with a woman, either in Malaysia or in Australia, based on their evidence at the hearing, but accepts that if they return to Malaysia they may engage in a relationship with a woman in the reasonably foreseeable future. The applicant is from Sibu, Sarawak but had previously lived for about two years in Kuala Lumpur, based on their evidence at the hearing. As such, the Tribunal finds that the applicant would return to either Sarawak or Kuala Lumpur and not other places such as Terranganu or Negeri Sembilan if they return to Malaysia.
Based on the DFAT report, the Tribunal accepts that individuals likely to attract official attention under state syariah-based law, including people who identify as LGBTQIA+ may subject to the absence of economic and other barriers move to large urban centres to avoid attention and that while government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. Further, the Tribunal accepts that lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community.
Based on the DFAT report, the Tribunal accepts that members of the LGBTQIA+ community are typically prosecuted under state-based syariah legislation rather than federal law and while the investigation of such offences is reasonably common, and prosecutions have occurred, successful prosecutions are rare. Further, whilst authorities at federal and state level have promoted so-called ‘rehabilitation’ or ‘re-education’ programs aimed at changing sexual orientation or gender identity, also known as conversion therapy, these programs are primarily aimed at Muslims although Christians are also targeted.
Based on the DFAT report, the Tribunal accepts that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in Sarawak and that most transgender individuals from Sarawak relocated to Kuala Lumpur for employment and to escape discrimination. The Tribunal finds that as the capital city of Malaysia, Kuala Lumpur is habitable and that safe access by the applicant is lawfully possible.
The Tribunal finds that there is no real chance of harm in all areas of Malaysia in the reasonably foreseeable future, because it finds that the applicant can relocate from Sarawak to Kuala Lumpur where they have lived and worked before and there is no chance of harm to the applicant in Kuala Lumpur because they are Iban, Christian and a queer woman. The Tribunal does not accept that the applicant faces a moderate risk of familial and societal violence in Kuala Lumpur, because the applicant does not have family in Kuala Lumpur and the Tribunal has accepted the country information that people in Kuala Lumpur are more accepting of the LGBTQIA+ community and prefers that finding over the general statement considering the whole of Malaysia in the DFAT report that LGBTQIA+ people face a moderate risk of familial and/or societal violence.
Whilst the Tribunal accepts as stated generally in the DFAT report, that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination in Malaysia, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities, again the Tribunal does not consider that there is a real chance of harm to the applicant in the reasonably foreseeable future if they return to Kuala Lumpur, again because the applicant is Iban, Christian, Kuala Lumpur is more accepting of the LGBTQIA+ community, members of the LGBTQIA+ community move to Kuala Lumpur to avoid attention and to escape discrimination, queer women are much less visible in Malaysia than other members of the LGBTQIA+ community and because Kuala Lumpur was not named in the DFAT Country Information Report as running a re-education camp (Terengganu and Negeri Sembilan were).
The Tribunal accepts that the applicant did not experience harm in Malaysia, based on what they said at the hearing. The applicant suggested that they would experience harm in Kuala Lumpur because they would not be allowed to marry a woman, they would be ostracised and people would judge them. The Tribunal finds that this does not rise to the level of serious harm, and neither does official discrimination or societal discrimination, because it is insufficient that the applicant would suffer discrimination.[8]
[8] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No. 6) 2001 (Cth), at [25].
The applicant raised that in the past they had considered killing themselves, and that if they returned to Malaysia this may occur again. As raised with the applicant during the hearing, the Tribunal finds in that instance there would be no agent of harm.
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?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. This is because the Tribunal found that the applicant does not face a real chance of serious harm, and so the Tribunal also finds the applicant does not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).
The Tribunal finds there would be no economic barrier to the applicant in living in Kuala Lumpur because of their solid history of working in Malaysia and Australia, such that the Tribunal considers they would be able to find work in Kuala Lumpur, and the fact that they have lived and worked there before. The Tribunal finds that it would be reasonable for the applicant to relocate to and reside in Kuala Lumpur because there is no economic barrier to the applicant working there; the accepted country information that people in Kuala Lumpur are generally more accepting of members of the LGBTQIA+ community and that queer women are in general much less visible than other members of the LGBTQIA+ community.
The Tribunal also finds that the harm suggested by the applicant in that they would be judged, ostracised and they could not marry a woman because they are a bisexual woman does not rise to the level of significant harm, as that term is exhaustively defined in s 36(2A) of the Act. In terms of the applicant suffering from suicidal thoughts again, the Tribunal again finds that there would be no agent of harm in that regard.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:   10 February 2025
Representative for the Applicant: N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
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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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